McDill v. State of Alabama Board of Pardons and Paroles

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

AMY McDILL, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:18cv597-MHT

) (WO)

STATE OF ALABAMA BOARD OF )

PARDONS AND PAROLES, et )

al., )

)

)

Defendants. )

OPINON

Plaintiff Amy McDill, who is white, charges seven

defendants with workplace racial discrimination,

creating a racially hostile work environment, and

workplace retaliation based on her allegedly protected

conduct. She names as defendants her employer, the

Alabama Board of Pardons and Paroles, and six current and

former board members and employees. McDill brings her

claims against the board under Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. §§ 1981a, 2000e

to 2000e-17, and her claims against the board members and

employees, in their individual capacities, under the

Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981,

enforced through 42 U.S.C. § 1983.1 She seeks punitive

and compensatory damages, but no injunctive relief.2 The

court’s jurisdiction is proper under 28 U.S.C. § 1331

(federal question), 42 U.S.C. § 2000e-5(f) (Title VII),

and 28 U.S.C. § 1343 (civil rights).

1. Section 1981 does not provide a cause of action

against state actors; rather, plaintiffs must use the

remedial provisions of § 1983 to enforce against state

actors the rights created by § 1981. See Butts v. County

of Volusia, 222 F.3d 891 (11th Cir. 2000). McDill’s

complaint does not make entirely clear whether she

intends to assert her § 1981 rights through § 1983, as

she must, or to assert her § 1981 rights through that

section alone, which she cannot. In an on-the-record

conference call, however, McDill clarified that she

intends to assert her § 1981 rights through § 1983.

2. McDill also brings claims under § 1983 against

certain board members and employees in their official

capacities. Those claims, however, do not lie, because

§ 1983 does not provide a cause of action for damages

against state officials acting in their official

capacities. See Will v. Michigan Dep’t of State Police,

491 U.S. 58, 71 (1989).

2

This case is now before the court on the defendants’

motion for summary judgment. For the reasons that

follow, the motion will be granted.

I. Summary-Judgment Standard

Summary judgment is proper where “there is no genuine

issue as to any material fact” and “the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c). Where, as here, the non-moving party bears the

burden of proof at trial, “the moving party, in order to

prevail, must do one of two things: show that the

non-moving party has no evidence to support ... its case,

or present ‘affirmative evidence demonstrating that the

non-moving party will be unable to prove ... its case at

trial.’” Hammer v. Slater, 20 F.3d 1137, 1141 (11th Cir.

1994) (quoting U.S. v. Four Parcels of Real Property, 941

F.2d 1428, 1437–38 (11th Cir. 1991) (en banc)). Once the

party seeking summary judgment has informed the court of

the basis for the motion, the burden shifts to the

non-moving party to show that a genuine issue of material

3

fact exists. See id. In making its determination, the

court must view all evidence and any factual inferences

in the light most favorable to the non-moving party. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986).

II. Factual Background

The facts, viewed in the light most favorable to

McDill, are as follows:

McDill began working for the Pardons and Paroles

Board as a probation and parole officer and rose through

its ranks to become a district manager. Throughout her

tenure, she received positive performance reviews.

After the board promoted McDill to district manager,

it promoted Erin Benford-Dick to serve as the officer in

charge under McDill’s supervision. Benford-Dick’s duties

included approving timecards. In her first weeks on the

job, Benford-Dick noticed that McDill was altering a

certain employee’s timecards to make it appear that the

employee was at work when, in fact, she was not. McDill

4

instructed Benford-Dick to approve the timecards she had

altered. Initially, Benford-Dick complied because she

was new to her job and assumed that she was “missing

something.” Declaration of Erin Benford-Dick (Doc.

90-11) at ¶ 15. Eventually, however, Benford-Dick

reported McDill’s conduct to Jerald Jackson, who had

previously served as the officer in charge under McDill.

Jackson agreed that McDill’s conduct was concerning, and

reported it to his supervisor, who, in turn reported it

to McDill’s supervisor, Stacey Brown. Brown investigated

the manner, determined that McDill had intentionally

falsified timecards, and filed a charge letter with board

management recommending her termination.

Upon receiving notice of the charge against her,

McDill requested a hearing. She also filed a complaint

against Brown, alleging that, on six occasions, Brown had

failed to make edits to McDill’s timecards that McDill

had requested. Brown was counseled, but not disciplined,

by her supervisor, Darrell Morgan.

5

The board’s executive director, Phil Bryant,

arranged for a hearing on Brown’s charge against McDill.

Shortly before the hearing, Jackson reported to Brown

that McDill had threatened to sue him unless he testified

at the hearing that “she never instructed [him] to change

employees’ times.” Memo from Jackson to Brown (Doc. 96-

1) at 2.

Brown testified at the hearing. During a break, she

notified the officer in charge of the hearing, Chris

Norman, of Jackson’s report, and discussed with Norman

whether it would be possible to address McDill’s alleged

threat towards Jackson at the hearing, or whether it was

necessary to file a second charge letter. Norman decided

not to address the alleged threat at the hearing, because

“McDill did not have proper notice to support adequate

due process.” Norman Declaration (Doc. 95-1) at ¶ 7.

Norman found McDill guilty of falsifying timecards,

and submitted a report to Bryant recommending her

termination. Bryant, in turn, recommended McDill’s

6

termination to board members Cliff Walker, Lynn Head, and

Terry Davis.

While Bryant’s recommendation was pending, McDill

filed a second complaint against Brown, alleging that she

and another witness had given conflicting testimony

during the hearing. McDill also filed a complaint with

the Equal Employment Opportunity Commission (EEOC)

against Brown, Norman, and Bryant, alleging that they had

discriminated against her on the bases of race, color,

and sex.

The day after McDill filed her EEOC complaint, Brown

filed a second charge letter against McDill, alleging

that she had threatened Jackson in order to influence his

testimony. Byrant arranged for another hearing, at which

Norman served, again, as the officer in charge. Norman

found McDill not guilty of threatening Jackson.

Board members Walker, Head, and Davis terminated

McDill, pursuant to Bryant’s recommendation.

On the day of McDill’s termination, Bryant stated in

a district managers’ meeting that he considered

7

employees’ races and genders when assigning new state

vehicles so as to ensure that vehicles were distributed

fairly. Later, a board employee filed two disciplinary

charges against Bryant. The first charge alleged that

Bryant “illegally considered race and gender in assigning

new state vehicles.” Disciplinary Charge Letter (Doc.

102-4) at 3. The second alleged that his management

record established a practice of discrimination on the

basis of race in the context of disciplinary actions.

Id. at 4.

The Alabama Attorney General held a hearing on the

disciplinary charges against Bryant, and found him guilty

of the first charge, but not guilty of the second.

Although it found him guilty of the first charge, the

Attorney General determined that Bryant “did not consider

race or sex [in assigning] vehicles for any bad faith

reason,” but only “to ensure ‘fairness’ when allocating

Board resources.” Hearing Officer’s Report in the Matter

of Phil Bryant (Doc. 95-17) at 10. Bryant received a

demotion.

8

McDill, meanwhile, appealed her termination to the

Alabama State Personnel Board. An administrative law

judge held a hearing, during which McDill testified,

presented evidence, and called witnesses. After

considering McDill’s evidence and evidence submitted of

34 occasions on which McDill had falsified time cards,

the judge found that McDill’s termination was warranted,

and recommended to the Personnel Board that it be upheld.

The Personnel Board, however, reinstated McDill, albeit

without backpay, finding that she had not been properly

trained on how to use the Pardons and Paroles Board’s

timecard system. The evidentiary record is silent as to

why the Personnel Board reinstated McDill but did not

award her backpay.

Upon receiving notice of the Personnel Board’s

decision, Darrell Morgan recommended to the Pardons and

Paroles Board’s new executive director, Eddie Cook, that

McDill be transferred to the Special Populations and

Programs Division. Cook agreed, and recommended the same

to Walker, Head, and Davis, who proceeded to create a new

9

district manager position for McDill in the Special

Populations and Programs Division, rather than return her

to her previous district manager position, although it

remained open. The Pardons and Paroles Board eventually

promoted a white employee to fill McDill’s previous

district manager position. McDill has not been promoted

since being reinstated.

McDill has named the following as defendants to this

lawsuit: the Pardons and Paroles Board; board employees

Brown, Bryant, and Norman; and board members Walker,

Head, and Davis. Brown, Bryant, Norman, Walker, and

Davis are African-American, and Head is white.

III. Discussion

A. Discharge-Discrimination

McDill claims that the defendants terminated her

because she is white--the Pardons and Paroles Board in

violation of Title VII, and Brown, Bryant, Norman,

Walker, Head, and Davis in violation of § 1981. Both

Title VII and § 1981 make it generally illegal for an

10

employer to discriminate against an employee because of

the employee’s race. See 42 U.S.C. § 2000e-2(a)(1); 42

U.S.C. § 1981.

For purposes of summary judgment in employment

discrimination cases, the relative burdens of production

and proof shift according to the kind of evidence

proffered by the plaintiff to show discriminatory intent.

If the plaintiff offers direct evidence, then the

defendant must prove by a preponderance of the evidence

that the same employment decision would have been made

regardless of discriminatory intent. See Standard v.

A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.

1998). If, instead, the plaintiff offers circumstantial

evidence, the plaintiff must generally proceed under the

burden-shifting framework established in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See

Standard, 161 F.3d at 1331. The first step of that

framework requires the plaintiff to establish a

prima-facie case of discrimination. See id. If she

succeeds in doing so, the defendant must respond with a

11

legitimate, nondiscriminatory reason for the adverse

employment decision, which the plaintiff must finally

discredit as pretextual.3 See id.

i. Direct Evidence

Direct evidence of discrimination is “evidence that

establishes the existence of discriminatory intent behind

the employment decision without any inference or

presumption.” Id. at 1330. “Only the most blatant

remarks, whose intent could mean nothing other than to

discriminate on the basis of some impermissible factor[,]

constitute direct evidence of discrimination.” Fernandez

v. Trees, Inc., 961 F.3d 1148, 1156 (11th Cir. 2020)

(quoting Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,

1086 (11th Cir. 2004)) (internal alteration omitted).

3. This court has previously questioned whether it

is rational, and indeed possible, to distinguish between

direct and circumstantial evidence in the context of

employment discrimination claims. See Hearn v. General

Elec. Co., 927 F. Supp. 1486, 1497-99 (M.D. Ala. 1996)

(Thompson, J.).

12

McDill offers the following as “direct evidence” of

discrimination:

• Several non-white employees who, according to

McDill, engaged in misconduct, were not terminated;

• Bryant stated that he took race into consideration

when issuing vehicles; and

• McDill did not receive a new work vehicle.

None of these pieces of evidence, however,

establishes the existence of discriminatory intent behind

the defendants’ decision to terminate McDill’s employment

absent inference or presumption. Evidence of employment

decisions regarding employees other than the plaintiff

is quintessential circumstantial evidence, see Maynard

v. Bd. of Regents of Div. of Universities of Fla. Dep't

of Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, 1289

(11th Cir. 2003); it may establish discriminatory intent

behind the employment decision affecting the plaintiff,

but only by inference. Evidence of remarks unrelated

to the decision-making process is also, by definition,

circumstantial. See Standard, 161 F.3d at 1330

13

(“[R]emarks unrelated to the decisionmaking process

itself are not direct evidence of discrimination.”).

Here, for instance, to find discriminatory intent on the

basis of Bryant’s statement that he took race into

consideration when issuing vehicles, the factfinder would

have to infer that Bryant also took race into

consideration when deciding whether to recommend McDill’s

termination. Likewise, to find discriminatory intent on

the basis that Bryant did not issue McDill a new vehicle,

the factfinder would have to make not one, but two

inferences: that Bryant did not issue McDill a new

vehicle because she is white, and that he took race into

account in a similar manner when deciding whether to

recommend her termination.

ii. Circumstantial Evidence

To establish a prima-facie case, and thereby satisfy

the first step of the McDonnell Douglas burden-shifting

framework, a plaintiff bringing a

discharge-discrimination claim based on circumstantial

14

evidence may show the following elements : (1) that she

is a member of a protected class; (2) that she was

qualified for the position she held; (3) that she was

discharged from that position; and (4) that she was

replaced by a person outside her protected class or was

treated less favorably than a similarly-situated

individual outside her protected class. See Maynard, 342

F.3d at 1289 (citing McDonnell Douglas, 411 U.S. at 802).

The parties do not dispute that McDill has

demonstrated the first three of these elements. They

disagree, however, as to whether she has demonstrated the

fourth.

Because McDill was replaced by a white person, and

therefore cannot claim to have been replaced by someone

outside her protected class, the parties’ disagreement

focuses on the question of whether McDill has identified

a similarly situated individual outside of her protected

class whom the defendants treated more favorably than

they did her. A similarly situated individual, for the

purposes of establishing a prima-facie case of

15

discharge-discrimination, is one who is “similarly

situated [to the plaintiff] in all material respects.”

Lewis v. City of Union City, 918 F.3d 1213, 1218 (11th

Cir. 2019) (en banc). Ordinarily, such an individual (1)

will have engaged in the same alleged misconduct for

which the plaintiff was terminated, (2) will have been

subject to the same employment policies, guidelines, or

rules as the plaintiff, (3) will have been under the

jurisdiction of the same supervisor as the plaintiff, and

(4) will share the plaintiff’s employment or disciplinary

history. See id. at 1227-28.

McDill contends that the following individuals, all

of whom are African-American, were similarly situated to

her, and yet received more favorable treatment:

• Brown, who, according to McDill, failed to make

six edits to McDill’s timecard after McDill

requested that she make them, for which she was

counseled but not disciplined;

• Reydonya Richardson, a district manager, who,

according to McDill, (1) occasionally worked from

the wrong office, and was directed not to do so,

but not disciplined; (2) supervised a secretary

who was caught stealing; and (3) missed punches on

16

her timecards and made many edits to her timecards,

for which she was not disciplined;

• Roderick Chambers, a manager in the training

division who was found guilty, twice, of using a

state vehicle for personal business, for which he

was suspended;

• Jackson, a parole officer who occasionally made

edits to his subordinates’ timecards, which McDill

suggests may have been improper, but for which he

was not disciplined;

• Benford-Dick, who approved certain timecards that

she suspected McDill of falsifying, later reported

McDill, and was not disciplined.

The court notes, first, that there is no evidence

that any of the employee or board-member defendants was

involved in the decisions regarding discipline for Brown,

Richardson, Jackson, or Benford-Dick, none of whom, with

the exception of Richardson, shared an immediate

supervisor with McDill.4 Brown’s immediate supervisor

was Darrell Morgan, who is not a defendant in this

4. There is no direct evidence that any of the

employee or board-member defendants was involved in the

decision regarding discipline for Chambers, either.

Nevertheless, the court is willing to infer, at the

summary-judgment stage, that Bryant and the board members

were required to review the decision to suspend Chambers.

17

lawsuit. It was he who declined to recommend that she

be disciplined for failing to make alterations to

McDill’s timecards, and there is no evidence that any of

the individual employee defendants reviewed that

decision. Richardson’s immediate supervisors were Brown

and Morgan. Morgan made the decision not to punish

Richardson for working from the wrong office and missing

punches on her timecards, and there is no evidence that

any of the employee or board-member defendants reviewed

that decision. Jackson’s immediate supervisor was a

manager named Kristi McCay, who is not a defendant in

this lawsuit. There is no evidence that any of the

employee or board-member defendants reviewed her decision

not to punish Jackson for editing timecards. Finally

Benford-Dick’s immediate supervisor was McDill herself,

and there is no evidence that any of the employee or

board-member defendants reviewed McDill’s decision not

to punish Benford-Dick for making the edits to timecards

that she had requested. Absent evidence that the

employee or board-member defendants were involved in

18

decisions regarding discipline for these individuals, no

fact-finder could infer discrimination on the part of the

employee or board-member defendants from the fact that

these individuals were not terminated.

Moreover, none of the individuals whom McDill

contends were similarly situated to her engaged in

misconduct comparable to that for which the Pardons and

Paroles Board terminated her. The board terminated

McDill because it found that she had purposefully

falsified timecards on at least 34 occasions. Brown, by

contrast, did not purposefully falsify any timecards;

rather, she neglected to make, at most, six changes to

McDill’s timecards. Although Benford-Dick approved

certain timecards that she suspected McDill of

falsifying, she later testified, under oath, that she did

so only “[b]ecause [McDill] was my supervisor and I was

new to the position and I thought I was missing

something.” Declaration of Erin Benford-Dick (Doc.

90-11) at ¶ 15. Furthermore, Benford-Dick later reported

McDill’s misconduct. While Jackson and Richardson made

19

edits to timecards, the record is devoid of any evidence

that those edits were improper. And to the extent that

McDill alleges that Richardson worked from the wrong

office and supervised a secretary who was caught

stealing, that misconduct is not even remotely comparable

to McDill’s. Nor is Chambers’s misuse of a state vehicle.

That McDill is unable to establish a prima-facie case

by producing evidence of similar comparators is not,

however, dispositive, because “establishing the elements

of the McDonnell Douglas framework is not, and never was

intended to be, the sine qua non for a plaintiff to

survive a summary judgment motion in an employment

discrimination case.” Lewis v. City of Union City, 934

F.3d 1169, 1185 (11th Cir. 2019) (on remand from the en

banc court) (quoting Smith v. Lockheed-Martin Corp., 644

F.3d 1321, 1328 (11th Cir. 2011)). Rather, the plaintiff

may still “survive summary judgment if he or she presents

circumstantial evidence that creates a triable issue

concerning the employer’s discriminatory intent.” Id.

(internal alterations and quotation marks omitted). In

20

other words, a plaintiff may still survive summary

judgment if she “presents ... ‘a convincing mosaic of

circumstantial evidence that would allow a jury to infer

intentional discrimination.’” Id. (quoting Silverman v.

Bd. of Educ. of City of Chi., 637 F.3d 729, 734 (7th Cir.

2011), overruled by Ortiz v. Werner Enters., Inc., 834

F.3d 760 (7th Cir. 2016) (footnote omitted)), and a

“convincing mosaic” may be shown by evidence that

demonstrates, among other things, “that the employer's

justification is pretextual.” Lewis, 934 F.3d at 1185.

The court will therefore proceed to consider the

second and third steps of the McDonnell Douglas

burden-shifting framework--namely, whether the

defendants have offered a legitimate, nondiscriminatory

reason for terminating McDill, and whether McDill has

offered evidence from which a reasonable fact-finder

might find that the proffered reason is pretextual.

The defendants have offered McDill’s alleged

falsification of timecards as a legitimate,

21

nondiscriminatory reason for terminating her. McDill

offers the following as evidence of pretext:

• During Bryant’s tenure as executive director, the

number of Pardons and Paroles Board employees

increased by 78, with 71.79 % of that increase

attributed to an increase in African-American

employees, and the racial makeup of the board’s

division directors went from 80 % white and 20 %

African-American to 40 % white and 60 %

African-American;

• During Bryant’s tenure as executive director, at

least ten white employees received disciplinary

sanctions of some sort, while no African-American

employees were terminated, including Brown,

Richardson, Chambers, Jackson, and Benford-Dick;

• During Bryant’s tenure as executive director, four

board employees, three white and one Native

American, filed EEOC complaints alleging that they

had been denied promotions because of their race;

• During the hearing on McDill’s alleged

falsification of timecards, Brown and Norman

discussed the necessity of filing an additional

charge letter against McDill;

• Bryant stated that he took race into consideration

when issuing vehicles, and McDill did not receive

a new work vehicle;

• Brown did not promote two white employees whom

McDill recommended for promotion;

• McDill successfully appealed her termination.

22

None of this evidence, however, considered

individually or as a whole, is sufficient to allow a

reasonable fact-finder to determine that McDill was the

victim of discrimination. To begin with, there is no

evidence suggesting that Norman, Walker, Head, or Davis

ever considered McDill’s race, or any employee’s race,

in making employment decisions. Walker, Head, and Davis

are implicated in the events giving rise to McDill’s

claims only by their act of approving her termination

upon Bryant’s recommendation, and Norman is implicated

in the events giving rise to McDill’s claims only by his

acts of serving as the officer of the disciplinary

hearings regarding McDill, discussing with Brown the

filing of additional charges against McDill, and finding

McDill guilty of falsifying timecards and recommending

her termination. The court will therefore grant summary

judgment in favor of Norman, Walker, Head, and Davis on

McDill’s discharge-discrimination claim.

Nor is there evidence suggesting that Brown, Bryant,

or the Pardons and Paroles Board discriminated against

23

McDill. That the board hired and promoted more

African-American employees than white employees during

Bryant’s tenure is not probative of discrimination in

hiring (let alone firing) because there is no evidence

concerning the number of African-American and white

employees who applied and were eligible for hiring and

promotion, and therefore no basis on which to conclude

that the board was more likely to hire or promote eligible

African-American employees than eligible white

employees. Cf. Brown v. American Hondo Motor Co., 939

F.2d 946, 952 (11th Cir. 1991) (“To say that very few

blacks have been selected by Honda does not say a great

deal about Honda’s practices unless we know how many

blacks have applied and failed and compare that to the

success rate of equally qualified white applicants.”).

Likewise, that at least ten white employees received

disciplinary sanctions of some sort during Bryant’s

tenure, while no African-American employees were

terminated (including Brown, Richardson, Chambers,

Jackson, and Benford-Dick), is not probative of

24

discrimination because there is no evidence to establish

that white employees and African-American employees

received different disciplinary sanctions for similar

conduct by the same supervisor. The fact that four board

employees previously filed EEOC complaints is also

immaterial, because there is no evidence that those

complaints were successful, or that the decisionmakers

who declined to promote the four complainants were

involved in the decision to terminate McDill’s

employment.

That Bryant stated that he considered race in

assigning vehicles and that McDill did not receive a new

work vehicle is not probative of discrimination against

McDill because, even were the court to find that Bryant

considered race in assigning vehicles and did not

assigned McDill a new work vehicle because she is white,

that fact would not rebut the perfectly acceptable,

race-neutral justification for her termination: that

Bryant believed she had purposely falsified her

25

subordinate’s timecards. That the timecards were

inaccurate is undisputed.

That Brown did not promote the two white employees

whom McDill recommended for promotion is also not

probative of discrimination because she had good reason

for doing so: the two employees had disciplinary records

that Bryant found concerning. And there is no evidence

that race was factor in Brown’s decision.

Moreover, McDill cannot establish that she was the

victim of discrimination by relying on the fact that she

successfully appealed her termination. An employer is

free to fire an employee “for a good reason, a bad reason,

a reason based on erroneous facts, or for no reason at

all, as long as its action is not for a discriminatory

reason.” Nix v. WLCY Radio/Rahall Communications, 738

F.2d 1181, 1187 (11th Cir. 1984); see also Damon v.

Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1363

n.3 (11th Cir. 1999) (“An employer who fires an employee

under the mistaken but honest impression that the

employee violated a work rule is not liable for

26

discriminatory conduct.”). The crucial question is

therefore whether McDill has produced evidence that the

defendants terminated her because of her race.

For several reasons, the decision of the Personnel

Board to reinstate McDill does not constitute evidence

that the defendants terminated her because of her race.

First, the decision was not a total win for McDill. The

Personnel Board declined to give her back pay, thereby

not totally exonerating her for her conduct. Second, as

explained above, the evidence indicates that the Pardons

and Paroles Board terminated her because it believed that

she had intentionally falsified timecards. Nothing in

the record calls the sincerity of that belief into

question, let alone suggests that the board fabricated a

reason for firing McDill in order to disguise a racially

discriminatory motive. The court will therefore grant

summary judgment in favor of all of the defendants on

McDill’s discharge-discrimination claim.

Finally, other important factors stand out regarding

McDill’s discrimination claim. First, the decision to

27

terminate her went through a number of different

administrative levels, with evidentiary hearings, and

involved many different people. Second, in her

complaint, she seeks only damages: backpay and other

compensatory damages as well as punitive damages. And,

third, she has sued not only the Pardons and Paroles

Board but six individuals, and, to recover damages from

each of these individual she must show not only that each

of them racially discriminated against her but that each

individual’s conduct led to her damages; the

determination decision was diffuse. However, the record

reflects that no one defendant employee alone could have

achieved her termination and thus brought about her

damages. And there are the intervening events that both

the Pardons and Paroles Board and the Personnel Board

reviewed the evidence and assessed the actions of the

employee defendants, with the Pardons and Paroles Board

finding that termination was warranted, and the Personnel

Board finding that she was not entitled to backpay. And

28

the record does not support the conclusion that race

played any role in the decisions of these two boards.

B. Hostile Work Environment

McDill claims that the defendants subjected her to a

racially hostile work environment--again, the Pardons and

Paroles Board in violation of Title VII, and Brown,

Bryant, Norman, Walker, Head, and Davis in violation of

§ 1981.

A hostile work environment claim is predicated on

workplace harassment; it requires proof that “the

workplace is permeated with discriminatory intimidation,

ridicule, and insult, that is sufficiently severe or

pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.”

Fernandez, 961 F.3d at 1152 (quoting Harris v. Forklift

Sys., Inc., 510 U.S. 17, 21 (1993)). To survive summary

judgment, a plaintiff bringing such a claim must present

sufficient evidence for a reasonable fact-finder to find:

(1) that the plaintiff belongs to a protected group; (2)

29

that she suffered unwelcome harassment; (3) the

harassment was based on a protected characteristic of the

plaintiff; (4) the harassment was sufficiently severe or

pervasive to alter the terms and conditions of employment

and create a discriminatorily abusive working

environment; and (5) the defendant is responsible for

that environment under a theory of either direct

liability or vicarious liability. See id. at 1153.

McDill alleges that the defendants subjected her to

a hostile work environment in the following manner:

• Brown did not promote two white employees whom

McDill recommended for promotion;

• Brown, with Bryant’s approval, twice recommended

McDill’s termination;

• Brown and Norman discussed bringing additional

charges against McDill during a break in the

hearing on McDill’s alleged falsification of

timecards;

• Bryant stated that he took race into consideration

when issuing vehicles;

• Brown was not punished for failing to make changes

to McDill’s timecard;

30

• McDill was not returned to the position of district

manager upon her reinstatement;

• McDill was not promoted after her reinstatement.5

There is no evidence that any of these actions were

motivated by McDill’s race. As explained above, Brown

chose not to promote the two employees whom McDill

recommended because she found their disciplinary

histories concerning, and she recommended McDill’s

termination because she suspected McDill of falsifying

timecards and threatening Jackson. There is no evidence

that Brown and Norman ever discussed McDill’s race during

the hearing regarding her alleged falsification of

5. McDill also makes the following unsupported

allegations in her complaint: (1) Brown provided false

testimony at her hearing; (2) Bryant considered race in

decisions regarding hiring and promotion; and (3) white

employees under Brown’s and Bryant’ s supervision were

consistently assigned higher caseloads than Black

employees. McDill cannot rely on these unsupported

allegations, however, to defeat summary judgment. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)

(“[A] party opposing a properly supported motion for

summary judgment may not rest upon mere allegation or

denials in [her] pleading, but must set forth specific

facts showing that there is a genuine issue for trial.”).

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timecards. Bryant’s statement about considering race

when assigning vehicles had nothing to do with McDill.

None of the defendants were involved in the decision not

to punish Brown for failing to make edits to McDill’s

timecard, and in any case Brown’s alleged misconduct is

not similar to McDill’s. There is no evidence that

Walker, Head, or Davis, who were the only defendants

involved in the decision to create a new district manager

position for McDill in the Special Populations and

Programs Division, rather than return her to her previous

district manager position, considered her race in doing

so. And there is no evidence as to who made the decision

not to promote McDill, or whether that decision was based

on race.

Moreover, none of the conduct that McDill alleges

constitutes harassment, let alone pervasive harassment.

See McCann v. Tillman, 526 F.3d 1370, 1378-79 (11th Cir.

2008) (allegations that “harsher discipline was received

by black employees, and complaints of discrimination were

subject to retaliation and not investigated,” concerned

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“patterns of discrimination practiced against black

employees, which constitute discrete acts that must be

challenged as separate statutory discrimination and

retaliation claims [and not as a] hostile work

environment claim that centers on discriminatory

intimidation, ridicule, and insult”) (internal citations

and quotation marks omitted). The court will therefore

grant summary judgment to the defendants on McDill’s

claims of creating a racially hostile work environment.

C. Retaliation

McDill claims that the defendants retaliated against

her because she engaged in protected conduct--as stated,

the board in violation of Title VII, and Brown, Bryant,

Norman, Walker, Head, and Davis in violation of § 1981.

Claims of retaliation under Title VII and § 1981 are

governed by the familiar McDonnell Douglas

burden-shifting framework. See Tolar v. Bradley Arant

Boult Commings, LLP, 997 F.3d 1280, 1289 (11th Cir.

2021); Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir.

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2009). To survive summary judgment, the plaintiff must

establish a prima-facie case of illegal retaliation by

showing (1) that she engaged in statutorily protected

activity, (2) that she suffered a materially adverse

action, and (3) that there was some causal relation

between the two events. See Goldsmith v. Bagby Elevator

Co., 513 F.3d 1261, 1277 (11th Cir. 2008) (citing

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53

(2006)). The burden then shifts to the defendant to

articulate a legitimate, nonretaliatory reason for the

challenged employment action. See Tolar, 997 F.3d at

1289. If that burden is met, the plaintiff bears the

ultimate burden of proving that the reason offered by the

defendant is pretextual. See id.

McDill claims that the defendants retaliated against

her on two occasions. First, she claims that Brown

retaliated against her by filing a discharge letter

alleging that she had threatened Jackson in order to

influence his testimony, in response to McDill’s act of

filing a complaint against Brown, alleging that Brown and

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another witness gave conflicting testimony during the

hearing regarding McDill’s alleged falsification of

timecards. Second, McDill claims that Bryant retaliated

against her by appointing Norman as the hearing officer

at the hearing regarding her alleged threat to Jackson,

in response to McDill’s act of filing an EEOC complaint

against Brown, Norman, and Bryant, alleging that they had

discriminated against her on the basis of her race and

sex.

The court notes, at the outset, that McDill’s claims

of retaliation do not implicate the Pardons and Paroles

Board, Norman, Walker, Head, or Davis. It will therefore

grant summary judgment in favor of these defendants on

McDill’s claims of retaliation.

With regard to McDill’s claims of retaliation against

Brown and Bryant, McDill has failed to establish a

prima-facie case. As to her first claim of retaliation,

McDill has failed to establish that she engaged in

statutorily protected activity. Statutorily protected

activity, in context of a retaliation claim brought under

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§ 1981, consists only of activity protected by § 1981.

See Jimenez v. Wellstar Health System, 596 F.3d 1304,

1311 (11th Cir. 2010). An employee’s complaint to an

employer can constitute such activity, but only if it

alleges unlawful employment discrimination. See Bailey

v. DAS North America, Inc., 473 F. Supp. 3d 1310, 1332

(M.D. Ala. 2020) (Huffaker, J.); Murphy v. City of

Aventura, 383 F. App’x 915, 918 (11th Cir. 2010); Demers

v. Adams Homes, Inc., 321 F. App’x 847, 852) (11th Cir.

2009); Jeronimus v. Polk Cty. Opportunity Council, Inc.,

145 F. App’x 319, 326 (11th Cir. 2005). McDill has

presented no evidence that her complaint against Brown

alleged, or indeed made any mention of, unlawful

employment discrimination. Rather, the evidence is that

the complaint concerned the accuracy of Brown’s testimony

at the hearing regarding McDill’s alleged falsification

of timecards.

As to her second claim, McDill has failed to

establish that she suffered a materially adverse action.

A materially adverse action, in the context of a

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retaliation claim, is one that “well might have dissuaded

a reasonable worker from making or supporting a charge

of discrimination.” Burlington, 548 U.S. at 67 (internal

quotation marks omitted). Here, McDill alleges that she

suffered a material adverse action when the defendants

appointed Norman as the hearing officer at the hearing

regarding her alleged threat to Jackson. She has failed

to present any evidence, however, to show that the act

of appointing Norman as her hearing officer would have

dissuaded a reasonable worker in her position from making

or supporting a charge of discrimination. There is no

evidence, for instance, that Norman harbored any animus

towards McDill, or that he was otherwise inclined to

treat her unfairly, or, indeed, that McDill suffered any

negative consequences from his appointment.

Moreover, with regard to both claims, McDill has

failed to establish a causal connection between her

allegedly protected activity and her termination. To

establish a causal connection, the plaintiff must show

“that the protected activity and the adverse action were

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not wholly unrelated.” Clover v. Total Sys. Servs.,

Inc., 176 F.3d 1346, 1354 (11th Cir. 1999). “The general

rule is that close temporal proximity between the

employee’s protected conduct and the adverse employment

action is sufficient circumstantial evidence to create a

genuine issue of material fact of a causal connection.”

Brungart v. BellSouth Telecommunications, Inc., 231 F.3d

791, 799 (11th Cir. 2000). There are, however, two

exceptions to this rule: temporal proximity alone will

not suffice to create a genuine issue of fact as to causal

connection where (1) “there is unrebutted evidence that

the decision maker did not have knowledge that the

employee engaged in protected conduct,” id., and (2)

where “an employer contemplates an adverse employment

action before an employee engages in protected activity,”

Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006).

As to her first claim, McDill attempts to establish

a causal connection solely on the basis of temporal

proximity; she argues that because Brown filed her

discharge letter one day after McDill filed her

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complaint, the two events were causally connected. Here,

however, both exceptions to the rule that temporal

proximity alone may establish causal connection are met:

Brown asserts in a signed declaration that she had no

knowledge of McDill’s complaint at the time she filed the

second charge letter against McDill, see Brown

Declaration (Doc. 90-9) at ¶ 26, and that she

contemplated filing the second discharge letter before

McDill made her complaint, see id. at ¶¶ 18, 25. McDill

does not contest Brown’s declaration, and has therefore

failed to present sufficient evidence to establish a

causal connection. See Brungart, 231 F.3d at 799.

As to her second claim, McDill has presented no

evidence whatsoever to suggest that Bryant’s act of

appointing Norman as hearing officer was related to

McDill’s act of filing an EEOC complaint. The court will

therefore grant summary judgment to all of the defendants

on McDill’s claims of retaliation.

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***

An appropriate judgment will be entered.

DONE, this the 28th day of February, 2022.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE

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