Smith v. Birmingham, City of

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DARSHAE SMITH, )

)

Plaintiff, )

v. )

Case No.: 2:22-cv-1349-AMM

)

CITY OF BIRMINGHAM, )

)

Defendant. )

MEMORANDUM OPINION ON DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT

This case is before the court on a partial motion to strike, Doc. 33, and a

motion for summary judgment, Doc. 27, by defendant City of Birmingham (“the

City”). For the reasons stated below, the partial motion to strike, Doc. 33, is

DENIED, and the motion for summary judgment, Doc. 27, is GRANTED.

I. BACKGROUND

Darshae Smith began working for the City as a laborer in 2015. Doc. 26-1 at

32. In 2016, Ms. Smith filed an EEOC charge against the City in which she alleged

that her supervisor, Gjamal Rodriguez, sexually harassed her and retaliated against

her. Id. at 36–37, 144. The City terminated Ms. Smith’s employment around March

2017. Id. at 33, 42. Ms. Smith testified that she was terminated because she did not

wear the appropriate safety shoes. Id. at 34.

In June 2017, Ms. Smith filed a lawsuit based on the claims included in her

EEOC complaint. Id. at 37–38, 148. The parties executed a settlement agreement in

2020, and her lawsuit was dismissed on that basis. See id. at 39–40, 157; Doc. 26-2.

As part of the settlement, Ms. Smith waived current and future claims arising out of

the claims alleged in her lawsuit:

As part of this settlement . . . I agree that I am waiving and

releasing the City from any and all claims that I have or

may have against it based on or as a result of any acts or

omissions first occurring on or before the day on which I

sign this Settlement Agreement. I understand that this

means I am giving up and will not be able to sue the City

for any of the claims I am releasing.

[]I further understand and agree as follows:

. . .

c. That my waiver and release applies not only to all acts

or omissions that have occurred as of the day of my

signing of this Settlement Agreement, but also to the

continuing effects or future results of any such acts or

omissions[.]

Doc. 26-2 at 1.

In November of 2020, Ms. Smith applied for another laborer position with the

City, and as part of her application, she attended a physical fitness test on December

3, 2020. Doc. 26-1 at 42–45, 159–70. Ms. Smith testified that her former supervisor,

Mr. Rodriguez, was present at her test, talking with the test administrator and

“looking at [her],” Id. at 48, 64–65. Ms. Smith did not overhear the conversation and

was not informed of the subject of the conversation by anyone. Id. at 65, 100. It is

undisputed that Ms. Smith passed the fitness test. See id. at 47, 170; Doc. 26-5 ¶ 7.

Je’Nea Jones, the Deputy Director of the City’s Human Resources

Department at the time of these events, testified about the City’s process for hiring

candidates for the laborer position after the December 2020 fitness test. See Doc. 26-

5 ¶¶ 1, 6. She explained that the names of candidates who “passed the physical agility

test were placed in an online randomizer,” and that “[c]andidates were called and

offered the job, pending drug testing and pre-employment screening, based on the

order they appeared on the randomly generated list.” Id. ¶ 6. She testified that Ms.

Smith’s name was placed into the randomizer after she passed the December 2020

fitness test but that Ms. Smith did not receive a job offer “due to her random place

on the list.” Id. ¶¶ 7–8.

The City later changed the process for determining how candidates for the

laborer position were hired. See id. ¶ 9. Ms. Jones testified that the new process

offered available positions to those with the best scores on the fitness tests. See id.

Because of the change in the selection process, Ms. Jones explained that “all

candidates that remained on the December 2020 list that had not been extended a job

offer[, including Ms. Smith,] were invited to re-apply so they could compete to be

on the next Laborer eligible candidate list.” Id. ¶¶ 10–11.

Andromeda Rhodes, who became a recruiter for the City in February of 2021,

Doc. 26-3 at 14–15, emailed Ms. Smith and directed her to complete an online

application for a laborer position, id. at 66; Doc. 26-1 at 53–55, 172. Ms. Rhodes

testified that she emailed Ms. Smith and others because she “was unable to locate”

their applications and therefore invited them to reapply. Doc. 26-3 at 66. Ms. Smith

completed the application. Doc. 26-1 at 56; Doc. 26-5 ¶ 12.

Ms. Smith testified that she then called Ms. Rhodes to tell her that she

completed the application, Doc. 26-1 at 56, and that “somewhere in between

[twenty-four] to [seventy-two] hours, [she] got a call back from [Ms. Rhodes]

discussing the pay rate and [a] start date” of March 15, 2021. Id. at 55–56. Ms. Smith

also testified that Ms. Rhodes “basically” told her that she was hired and that she

accepted the job on the phone. Id. at 55–56. Ms. Smith did not receive an offer letter

or email about the job offer, instead stating that the offer “was verbal.” Id. at 56.

Ms. Rhodes testified that she did not remember, but did not dispute, giving

Ms. Smith a March 15, 2021, start date. Doc. 26-3 at 50. But she testified that the

standard procedure for offering a candidate a laborer position is (1) to “call the

candidate and make a verbal offer,” (2) “the candidate [then] scheduled to take their

pre-employment screening, which would be a physical, as well as a drug screening,”

(3) the candidate would “come to HR to complete new hire documents,” and (4)

while at HR, he or she would receive an official offer letter. Id. at 68–70. The offer

letter would contain details of the job and would inform the individual that the offer

is contingent upon the candidate passing the fitness test and drug screening. Id. at

70–71. Ms. Rhodes never sent Ms. Smith an offer letter. Id. at 71.

Ms. Smith testified that she attempted to call Ms. Rhodes approximately one

week before her start date, but Ms. Rhodes did not answer until two days after that

date—March 17, 2024. See Doc. 26-1 at 57–59. Ms. Smith testified that “[b]efore

[she] could even get [her] last name out,” Ms. Rhodes told her that she had to

“reconsider hiring” Ms. Smith “because [she] found out [she] was a rehire.” Id. at

57–58.

Ms. Rhodes explained why she reconsidered hiring Ms. Smith. After she sent

the email directing Ms. Smith to complete a job application, Ms. Rhodes saw that

Ms. Smith “has a Rehire Code of Four” in the City’s system, which means she is

“ineligible to be rehired.” See Doc. 26-3 at 50–51, 53, 76. Ms. Rhodes testified that

the rehire code is the only reason that she did not hire Ms. Smith for the laborer

position at that time. Id. at 58.

A rehire code is assigned by the Personnel Board of Jefferson County and

indicates an individual’s eligibility for rehire. See id. at 53–54. A person may have

a rehire code of four due to the reason the individual was previously terminated. See

id. at 50–51; Doc. 26-5 ¶ 13. Ms. Rhodes testified that no reason is listed explaining

why Ms. Smith has a rehire code of four. Doc. 26-3 at 52.

Ms. Smith then called the City’s Human Resources Department and talked to

Cedrick Sparks about her reconsideration. Doc. 26-1 at 58. Ms. Smith testified that

Mr. Sparks said he would look into the matter, but that she never heard back from

anyone about the job. Id. at 58–59.

Ms. Jones testified that the Human Resources Department was “look[ing] into

Ms. Smith’s issue with the Laborer position based on Ms. Smith’s conversation with

[Mr.] Sparks.” Doc. 26-5 ¶ 14. Although Ms. Smith had a rehire code of four, the

Director of Human Resources determined that “Ms. Smith should be given another

opportunity to participate in the Laborer selection process, and if she passed the

physical agility test and, based on her time, she was the next Laborer that was due

to be offered the job, [Human Resources] would re-evaluate her rehire code at that

time.” Id. ¶ 15.

Therefore, at Ms. Jones’s instruction, Ms. Rhodes emailed Ms. Smith inviting

her to participate in the next fitness test, which was scheduled to take place on April

9, 2021. See id. ¶ 16; Doc. 26-1 at 60–61, 173. Ms. Smith “ignored” the email

because she “had already accepted” the job, had already completed a fitness test in

December of 2020, and believed “it was irrelevant to [her].” Doc. 26-1 at 61–62. It

is undisputed that Ms. Smith did not reach out to anyone about the fitness test and

did not take the fitness test. See id. at 61–62; Doc. 26-5 ¶ 17. Ms. Jones testified that

Ms. Smith did not receive an offer for a laborer position because she did not appear

for the fitness test and her name was therefore not on the list of eligible candidates.

See Doc. 26-5 ¶ 19.

Ms. Rhodes testified that the results of a fitness test are valid for one year, so

Ms. Smith’s results from the December 2020 test could be used until December

2021. Doc. 26-3 at 27, 34. She also testified that the fitness test that was administered

in December 2020 was the same test as the one administered in April 2021. See id.

at 39. She testified that she invited Ms. Smith to take the April 2021 test based on

Ms. Jones’s instruction. Id. at 47–48.

Ms. Rhodes and Ms. Jones testified that they had no knowledge about Ms.

Smith’s EEOC complaint or lawsuit. Id. at 71; Doc. 26-5 ¶ 20. Ms. Rhodes testified

that she had never had a conversation with Mr. Rodriguez or the test administrators

about Ms. Smith. Doc. 26-3 at 71–72. And Ms. Jones testified that “[t]he

departments with the vacant positions had no oversight or involvement in the

selection decision for unclassified positions.” Doc. 26-5 ¶ 5.

Mr. Rodriguez does not have authority to make hiring or firing decisions for

the City, and although he sometimes offers an opinion about a decision, he has never

discussed a hiring decision with Ms. Rhodes. Doc. 26-4 at 15–16, 28, 35. He testified

that he did not discuss Ms. Smith with the test administrators or anyone in the City’s

Human Resources Department and that he did not “attempt to influence anyone not

to rehire [Ms.] Smith.” Id. at 35. Mr. Rodriguez also testified that he was unaware

of Ms. Smith’s sexual harassment allegations against him until the present litigation,

id. at 26–28, although he had heard about the lawsuit generally through “[p]eople

just talking,” id. at 29.

Ms. Smith filed a third EEOC charge and this lawsuit in which she asserts a

claim of retaliation in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 1981a, 2000e et seq. (“Title VII”). See generally Doc. 1. Based on her

observation of Mr. Rodriguez speaking with a test administrator at her December

2020 fitness test, Ms. Smith testified that her “assumption” is that Mr. Rodriguez

spoke with Ms. Rhodes about her prior sexual harassment claim and convinced the

City to reconsider her job offer. See Doc. 26-1 at 68–69, 99–100.

The City moved for summary judgment in its favor. Doc. 27. The motion is

fully briefed. Docs. 28, 32, 34. The City also moved to strike a spreadsheet attached

to Ms. Smith’s opposition to summary judgment because it is unauthenticated and is

inadmissible hearsay. Doc. 33. That motion is also fully briefed. Docs. 38–39.

II. LEGAL STANDARD

A party moving for summary judgment must establish “that there is no

genuine dispute as to any material fact and [that] the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it could “affect the

outcome” of the case. Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1303 (11th

Cir. 2016) (cleaned up). A material fact is in “genuine” dispute “if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.” Id.

(cleaned up). In deciding a motion for summary judgment, the court’s function is not

“to weigh the evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986). “[T]he evidence of the nonmovant is to be believed, and all

justifiable inferences are to be drawn in his favor.” Tolan v. Cotton, 572 U.S. 650,

651 (2014) (cleaned up).

III. ANALYSIS

A. The City’s Motion To Strike

The City moved to strike a spreadsheet attached to Ms. Smith’s opposition to

summary judgment, arguing that it was not authenticated and that Ms. Smith failed

to depose a representative for the City under Federal Rule of Civil Procedure

30(b)(6) who could have authenticated it. See Doc. 33 at 1–3. It also argues that the

spreadsheet is inadmissible hearsay. Id. at 2.

Ms. Smith argues that the spreadsheet “was produced by the City during

discovery and filed as part of [its] evidentiary submission in support of summary

judgment” and that she is entitled to rely upon it. Doc. 38 at 1–2. She also argues

that a City employee could testify at trial to authenticate it and that the document

qualifies as an exception to the hearsay rule because it is a public record and a

business record. Id. at 3–4.

In her opposition to the City’s motion for summary judgment, Ms. Smith

argues in part that the City’s justification for not rehiring Ms. Smith (because she

did not attend the April 2021 fitness test) is invalid. See Doc. 32 at 14. Ms. Smith

attached a copy of a spreadsheet that she says shows the City hired individuals in

April 2021 who did not take a fitness test. See Doc. 31-2 at 2; Doc. 32 at 14.

“On motions for summary judgment, [the court] may consider only that

evidence which can be reduced to an admissible form.” Rowell v. BellSouth Corp.,

433 F.3d 794, 800 (11th Cir. 2005); see also Jones v. UPS Ground Freight, 683 F.3d

1283, 1293–94 (11th Cir. 2012) (stating that a district court may consider evidence

on summary judgment that can be reduced to an admissible form at trial).

“Authentication is a condition precedent to admissibility.” Snover v. City of Starke,

398 F. App’x 445, 449 (11th Cir. 2010) (cleaned up). The authentication of a

document “can be accomplished through judicial admissions such as . . . production

of items in response to . . .[a] discovery request.” 31 Wright & Miller’s Federal

Practice & Procedure § 7105 (2d ed. 1982); Cooper v. S. Co., 260 F. Supp. 2d 1258,

1272 n.7 (N.D. Ga. 2003).

The evidence at issue here would likely be admissible at trial. The City has

not disputed Ms. Smith’s assertion that it produced the spreadsheet in discovery. See

generally Doc. 39. And the City included the spreadsheet as an exhibit to its motion

for summary judgment. Doc. 26-3 at 208. Accordingly, the City cannot now

challenge its authenticity. In addition, Ms. Smith could assert a basis to admit the

spreadsheet into evidence a trial. For instance, Ms. Smith could “put[] on testimony

of [employees] who have personal knowledge” of it, Jones, 683 F.3d at 1294, or call

the employees listed in the spreadsheet to testify at trial and asking them if they took

the fitness test before being hired in April 2021.

Accordingly, the City’s partial motion to strike, Doc. 33, is DENIED.

B. The City’s Motion for Summary Judgment

The City argues that it is entitled to summary judgment for three reasons: (1)

Ms. Smith’s claims against it are barred by the settlement agreement executed in her

previous lawsuit, Doc. 28 at 13–14, (2) Ms. Smith failed to establish causation

because “[t]here is nothing linking the decision not to extend an offer to Ms. Smith

in 2021 to her filing an EEOC Charge or lawsuit,” Doc. 34 at 5, and (3) Ms. Smith

failed to prove that the City’s reason for not hiring her for the laborer position was

pretextual, Doc. 28 at 20.

Ms. Smith responds that (1) she did not release her future “rehire” claims by

executing the settlement agreement, (2) the City waived the affirmative defense of

release by failing to plead it in its answer, and (3) she has established her retaliation

claim. Doc. 32 at 10–15.

1. The City waived a release defense.

Ms. Smith argues that the City failed to plead release as an affirmative defense

in its answer to Ms. Smith’s complaint and thereby waived that argument. See Doc.

32 at 11–12; see generally Doc. 12. The City apparently concedes as much as it does

not argue otherwise in its reply. See generally Doc. 34 at 4. Release is an affirmative

defense, and the failure to plead it in a defendant’s answer results in waiver of that

defense. See Fed. R. Civ. P. 8(c)(1); Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 435

n.9 (2017) (“In civil litigation, a release is an affirmative defense to a plaintiff’s

claim for relief. . . .”); Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1239 (11th Cir.

2010).

By failing to plead release as an affirmative defense in its answer, the City has

waived that defense. Therefore, the court need not determine whether the release in

the settlement agreement encompasses Ms. Smith’s current retaliation claim.

2. Ms. Smith failed to establish the causation element of her

retaliation claim.

The retaliation provision of Title VII prohibits an employer from

“discriminat[ing] against” an employee because she “opposed any practice” made

unlawful by Title VII or “made a charge, testified, assisted, or participated in” a Title

VII proceeding or investigation. 42 U.S.C. § 2000e-3(a). “To survive summary

judgment, the employee must present a story, supported by evidence, that would

allow a reasonable jury to find that the employer engaged in unlawful retaliation

against the employee.” Berry v. Crestwood Healthcare LP, 84 F.4th 1300, 1311

(11th Cir. 2023).

“To establish a claim of retaliation, [a plaintiff] must prove that she engaged

in statutorily protected activity, that she suffered an adverse action, and that the

adverse action was causally related to the protected activity.” Jefferson v. Sewon

Am., Inc., 891 F.3d 911, 924 (11th Cir. 2018). To establish causation, a plaintiff must

prove “that the protected activity was a but-for cause of the alleged adverse action

by the employer.” Id. (cleaned up). In other words, “a plaintiff must prove that had

she not complained, she would not have been” subjected to the alleged

discriminatory action. Id. “Without any knowledge amongst the [employer] that [the

plaintiff] engaged in protected activity, [the plaintiff] cannot show that the activity

caused the adverse [action].” Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1245

(11th Cir. 2016); see, e.g., Brown v. City of Opelika, 211 F. App’x 862, 863–64 (11th

Cir. 2006).

“Once the prima facie case is established . . . [t]he burden of production then

shifts to the employer to rebut the presumption by articulating a legitimate, non-

discriminatory reason for the employment action.” Gogel v. Kia Motors Mfg. of Ga.,

Inc., 967 F.3d 1121, 1135 (11th Cir. 2020). “If the employer produces such a reason

. . . the plaintiff must then demonstrate that the proffered reason was merely a pretext

to mask retaliatory actions.” Id. (cleaned up).

The City concedes that Ms. Smith’s EEOC complaints and lawsuit in 2016

and 2017 constitute protected activities and that failing to be rehired constitutes an

adverse action. See Doc. 28 at 16. But it argues that Ms. Smith “has not presented

sufficient evidence to satisfy the remaining causation element of her prima facie

case[] for retaliation.” Id. Ms. Smith argues that there is a genuine dispute of fact on

her retaliation claim because of “weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions” in the City’s justification for not hiring her. Doc.

32 at 12 (cleaned up).

First, Ms. Smith argues that the City’s proffered reason for not hiring her after

she passed her December 2020 fitness test—because her name was not included in

the list generated by the online randomizer—is implausible. See Doc. 32 at 13. In

support of that argument, Ms. Smith cites Ms. Rhodes’s testimony that she had never

heard of the online randomizer. Id. (citing Doc. 26-3 at 57–58). But Ms. Jones

testified that the City stopped using the online randomizer after Ms. Smith was not

hired following her December 2020 fitness test, see Doc. 26-5 ¶¶ 8–9, and Ms.

Rhodes was not in her recruiting position until February 2021, Doc. 26-3 at 14–15.

Ms. Rhodes also testified that she had no personal knowledge of Ms. Smith’s

December 2020 fitness test. Id. at 63. Therefore, Ms. Rhodes’s lack of knowledge

about the online randomizer does not render the City’s justification implausible.

Ms. Smith also argues that Ms. Rhodes “rescinded” Ms. Smith’s March 15,

2021, hiring date because of her rehire code of four, and “[t]hat rehire code reason

conflicts with the verified interrogatory response . . . which stated [Ms.] Smith was

not re-employed due to her failure to retake . . . the April 9, 2021[,] physical agility

[test] that she previously passed.” Doc. 32 at 13.

But undisputed evidence resolves this purported conflict in the evidence. The

undisputed testimony of Ms. Jones and Ms. Rhodes demonstrates that although Ms.

Smith’s March 15, 2021, start date was rescinded because of her rehire code, and

Ms. Smith complained about the rescission with the Human Resources Department,

the Director of Human Resources instructed Ms. Jones to invite Ms. Smith to

participate in the April 2021 fitness test so that the City could reconsider her rehire

code if she qualified for a position. Doc. 26-5 ¶¶ 13–16; Doc. 26-3 at 57–58. Ms.

Smith does not dispute that she did not attend, nor call anyone about, that fitness

test. See Doc. 26-1 at 61–62; Doc. 26-5 ¶ 17.

Ms. Smith also argues that “the hiring records reflect[] at least [five]

applicants being hired on April 26, 2021 with no recorded test scores,” which

contradicts the City’s justification for not rehiring Ms. Smith. Doc. 32 at 13–14. In

support of that argument, Ms. Smith attached the previously-discussed spreadsheet

produced by the City that lists individuals who were hired that do not have test times

listed by their names and suggests that these individuals were hired without a fitness

test. See id. at 14; Doc. 31-2 at 2.

But this evidence is insufficient to create a genuine dispute of fact on Ms.

Smith’s retaliation claim. Even viewing the evidence in the light most favorable to

Ms. Smith, the City’s decision not to rehire her while hiring others who allegedly

did not take a fitness test does not provide the necessary causal link between her

prior claims and the City’s decision, particularly when undisputed evidence

establishes that the City’s decisionmakers were unaware of her prior claims. See

Doc. 26-3 at 71; Doc. 26-5 ¶ 20.

Finally, Ms. Smith asserts several arguments related to Mr. Rodriguez. She

argues that Mr. Rodriguez was present at her December 2020 fitness test and that he

sometimes offers opinions about hiring decisions. Doc. 32 at 14. But Mr.

Rodriguez’s presence at the December 2020 test did not adversely impact the results

of that test—it is undisputed that Ms. Smith passed it. See Doc. 26-1 at 47, 170; Doc.

26-5 ¶ 7. And the undisputed testimony of both Mr. Rodriguez and Ms. Rhodes

indicates that they never discussed Ms. Smith’s application. Doc. 26-3 at 71–72;

Doc. 26-4 at 35. Although Ms. Smith disputes Mr. Rodriguez’s testimony that he

was unaware of Ms. Smith’s previous sexual harassment allegations against him,

Doc. 32 at 8 (asserting that the City could not have denied Ms. Smith’s sexual

harassment allegations in the 2017 lawsuit without speaking with Mr. Rodriguez

about them), there is no evidence indicating that Mr. Rodriguez spoke with or

influenced Ms. Jones or Ms. Rhodes in their decisions related to Ms. Smith.

For all these reasons, the court GRANTS the City’s motion for summary

judgment.

IV. CONCLUSION

For the foregoing reasons, the City’s partial motion to strike, Doc. 33, is

DENIED. The City’s motion for summary judgment, Doc. 27, is GRANTED.

DONE and ORDERED this 7th day of July, 2025.

UNITED STATES DISTRICT JUDGE

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