# McDill v. State of Alabama Board of Pardons and Paroles

> District Court, M.D. Alabama · February 28, 2022

URL: https://www.frixlaw.com/law-library/cases/9987698

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** February 28, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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;

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• 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.
33
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
36
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
37
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
38
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9987698. Public record. Not legal advice.