Kent v. Birmingham, City of

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RAYMOND KENT, )

)

Plaintiff, )

)

v. ) Case No.: 2:18-cv-00734-JHE

)

CITY OF BIRMINGHAM, )

)

Defendant. )

MEMORANDUM OPINION1

Plaintiff Raymond Kent (“Kent”) brings this action against his employer, Defendant City

of Birmingham (“City”), alleging unlawful employment discrimination and retaliation pursuant to

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and 42 U.S.C. § 1981.

The City moves for summary judgment pursuant to Federal Rule of Civil Procedure 56, contending

there are no genuine issues of material fact and that the City is entitled to judgment as a matter of

law. (Doc. 30). The motion is fully briefed and ripe for review. (Docs. 30, 34, & 35). For the

reasons stated below, the City’s motion for summary judgment (doc. 30) is GRANTED.

I. Standard of Review

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “if

the movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Rule 56 “mandates the entry of summary judgment, after adequate

time for discovery and upon motion, against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which that party will

1 In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil

Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge

conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 9)

bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving

party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323.

The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to

establish there is a “genuine issue for trial.” Id. at 324. (citation and internal quotation marks

omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).

The Court must construe the evidence and all reasonable inferences arising from it in the

light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,

(1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the non-

moving party’s favor). Any factual disputes will be resolved in Plaintiff’s favor when sufficient

competent evidence supports Plaintiff’s version of the disputed facts. See Pace v. Capobianco,

283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the non-

moving party’s favor when that party’s version of the events is supported by insufficient evidence).

However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat

a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam)

(citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere

‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be

enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911

F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).

II. Summary Judgment Facts

The City of Birmingham (“City”) is a municipal corporation under the laws of the State of

Alabama. (Doc. 27 at ¶1). The City has an Equal Employment Opportunity policy that precludes

using race in decision-making and also precludes retaliation for complaints of discrimination.

(Doc. 30-2 at 2). Kent is a white male who is presently employed by the City as a security guard.

(Doc. 30-3 at 2; doc. 30-4 at 12 (37:8-19)).

Arlington Antebellum Home (“Arlington House”) is a historic structure, built in the 1850s,

located in Birmingham. (Doc. 30-5 at 29 (105:2-15)). Arlington House is operated by a small

staff consisting of two administrative personnel, a cook, a laborer, and four security guards. (Doc.

30-4 at 120). Toby H. Richards (“Richards”), female, is the current Director of Arlington House.

(Doc. 30-5 at 29 (103:1-11)). Stephen Moode (“Moode”) is a white male who served as Director

of Arlington House from 2010 to 2018. (Id. at 6 (13:14-23); see doc. 20 at ¶15).

Kent began his employment with the City at Arlington House as a security guard in April

2009. (Doc. 30-6 at 2). Kent primarily worked alone from 12:00 AM (midnight) to 8:00 AM.

(Doc. 30-4 at 10 (28:13-23)). One of Kent’s essential duties as a security guard was to patrol and

inspect the building and grounds for evidence of unauthorized entry, fire, vandalism, or theft and

report emergency situations to a supervisor or proper authorities. (Doc. 30-4 at 69).

A. Discipline Kent Received

Kent was disciplined or counseled on the following occasions while employed at Arlington

House,2 beginning as early as 2011:

a. On March 31, 2011, Kent received a written reprimand for opening another employee’s

mail. (Doc. 30-7 at 2).

b. On March 31, 2011, Kent received a second written reprimand for failing to report to work

or contact his supervisor if he was unable to work. (Doc. 30-7 at 3).

2 Although Kent states that these statements are “[d]isputed,” he cites only document 30-

4 at pp. 3-4. (Doc. 34 at 6). Those pages are the introductory pages to his deposition, which do

not create a disputed factual issue.

c. On October 4, 2013, Kent received a written reprimand for “unbecoming behavior.” (Doc.

30-7 at 4). Specifically, Moode noted that he received a complaint that Kent had used

“extremely crude language” and was “very rude.” (Id.).

d. On November 5, 2013, Kent received a written reprimand for failing to follow the

Director’s instructions. (Doc. 30-7 at 7).

e. On June 10, 2015, Kent received instructions regarding several work-related areas of

employee expectations. (Id.).

f. On September 18, 2015, Kent received counseling concerning thermostat operation. (Id.).

g. On October 6, 2015, Kent received an email from Moode concerning feeding stray cats.

(Doc. 30-7 at 5).

h. On January 20, 2017, Kent received a Decision Upon Determination Hearing, which stated

he was suspended without pay for ten days for multiple failures to notify a supervisor,

including failure to notify a supervisor that he was leaving the grounds, he was late for

work, and that he was leaving work. (Id. at 11).

i. On July 20, 2017, Kent received another Decision Upon Determination Hearing, which

stated he was suspended without pay for six days for failure to comply with his supervisor’s

instructions. (Id. at 9).

j. On September 28, 2018, Kent received a third Decision Upon Determination Hearing,

which stated he was suspended for sleeping while on duty. (Id. at 10). Kent asserted he

was not sleeping, but suffers from narcolepsy and seizures, although he admitted to having

not informed anyone at Arlington House of this condition. (Id.).

B. Kent’s Incidents with Other Employees

Gary Cooper (“Cooper”) is a white male that is employed as a security guard at Arlington

House. (Doc. 30-4 at 14 (42:7-8)). Eric Wright (“Wright”) is a black male that was employed as

a security guard at Arlington House. (Id. at 17 (57:1-2)). Eric Griffin (“Griffin”) is a black male

that is employed as a security guard at Arlington House. (Id. (57:2-3)). Lashaunda Brundidge

(“Brundidge”) is a black female that is employed with the City of Birmingham Department of

Public Works. (Doc. 30-2 at 4).

On May 20, 2015, Wright filed a complaint with HR against Kent, claiming Kent was

harassing him with “erratic and somewhat troubling” behavior when Kent is not on shift.3 (Doc.

30-4 at 115-116). Cooper filed a complaint against Kent with the Birmingham Police Department

claiming Kent physically assaulted him on September 9, 2015.4 (Doc. 30-4 at 110, 114). In

September 2015, Cooper and Kent got into a physical altercation where Cooper attempted to choke

Kent. (Doc. 30-4 at 13-14 (41:12-43:21)). Kent reported the incident to Moode, who told him to

stay away from Cooper and he would deal with it when he got there. (Id.). Once Moode arrived,

he instructed Cooper and Kent to stay away from each other. (Id. at 14 (45:11-20). On January

10, 2016, Cooper filed a complaint with HR against Kent, claiming Kent was harassing him.5

(Doc. 30-8 at 2).

Emantic Bradford, Sr. (“Bradford”), a black male, was employed as a Food Service

Supervisor at Arlington Home from September 1, 2016 until October 26, 2018. (Doc. 30-9 at 2).6

3 Kent states that this fact is “[d]isputed,” but gives no citation to create a factual dispute.

(Doc. 34 at 6). Instead, Kent states that there is no evidence the City investigated Wright’s

complaint or that findings were made. (Id.). Even if true, this does not adequately dispute the

fact that Wright made such a complaint.

4 Without citation, Kent “[d]isputed” this fact by stating Cooper failed to report the

incident to police until January 20, 2016, and again asserts there is no evidence the City

investigated Cooper’s complaint or that findings were made. (Doc. 34 at 6). This does not

create a disputed fact.

5 Again, Kent asserts this statement is “[d]isputed” but offers no citation and his

explanation does not actually dispute the substance of the statement. (Doc. 34 at 6).

6 Kent moves to strike Bradford’s affidavit arguing that everything Bradford attested to is

Bradford testified that around December 2016, Director Moode delegated authority to him to

supervise the Arlington House guards, which continued until about August 2017. (Id.). Moode

testified that, at the time Bradford issued disciplines, he did not realize Bradford could not have

authority over the guards or to convene determination hearings. (Doc. 30-5 at 13 (39:6-40:23)).

However, Jennifer Samuelson, a human resources employee, later informed Moode that Bradford

did not have authority over the guards. (Id.). For purposes of summary judgment, Bradford did

not have authority to discipline Kent; however, that does not mean that Bradford did not issue

disciplinary notices when everyone believed he had the authority to do so or that the underlying

conduct did not happen.

In December 2016, Kent reported that Brundidge allegedly threated him with a pair of

scissors. (Doc. 30-2 at 4; doc. 30-4 at 18-19 (58:11-63:14)). HR reported that the allegations

could not be substantiated. (Doc. 30-2 at 4). Kent testified that after the incident, he was instructed

to leave work early, losing an hour of pay. (Doc. 30-4 at 19 (64:1-3)). To Kent’s knowledge

Brundidge was not disciplined but counseled to stay away from Kent. (Id. (65:8-9)).

C. Discipline Kent Received in 2017 and Other Complaints

In January 2017, Bradford disciplined Kent for two instances where Kent failed to report

being away from the grounds to his supervisor, by suspending him for ten days. (Doc. 30-9 at 2-

3). Kent did not appeal. (Id. at 3). On March 20, 2017, Kent filed a police report with the

false because he did not have authority to discipline Kent or conduct determination hearings

resulting in any type of punishment. (Doc. 24 at 7). The motion to strike is DENIED. Federal

Rule of Civil Procedure 56(c)(4) provides that “[a]n affidavit or declaration used to support or

oppose a motion must be made on personal knowledge, set out facts that would be admissible in

evidence, and show that the affiant or declarant is competent to testify on the matters stated.”

Bradford’s affidavit meets this standard. To the extent Bradford’s testimony regarding his

authority creates a disputed issue of fact, that fact will be weigh in Kent’s favor, as the non-

moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, (1970); see also Anderson, 477

U.S. at 255.

Birmingham Police Department claiming that Bradford threatened him by calling him (Kent) a liar

and telling him that they would have “problems.” (Doc. 30-10 at 2-3). Bradford disciplined Kent

on April 4, 2017, by suspending him for two days when Kent failed to report an open gate and

broken glass and nails in the Arlington House parking lot. (Doc. 39-9 at 3 & doc. 30-11 at 2).

However, Kent appealed, and the discipline was rescinded through a settlement agreement, signed

by counsel for Kent and an attorney for the City. (Doc. 30-11 at 2-3). On June 13, 2017, Kent

filed a police report with the Birmingham Police Department claiming that Cooper struck him with

his (Cooper’s) vehicle. (Doc. 30-12 at 2-3).

On July 6, 2017, after Kent had arrived for his shift, Bradford yelled at Kent about a city

vehicle’s damaged tires, accusing Kent of tampering with the tires, and threatened to have Kent

arrested and fired after he looked into it. (Doc. 30-4 at 25-26 (89:16-91:20)). Kent was never

arrested, disciplined, or fired for this incident. (Id.).

On July 15, 2017, Cooper shoved Kent in front of Bradford and Germaine Norman, the

payroll coordinator. (Doc. 30-4 at 27 (96:5-23)). Neither of the parties point to anything that

occurred (or did not occur) as a result of this incident.

On July 21, 2017, Moode suspended Kent for six days for feeding stray cats. (Doc. 30-7

at 9). The Jefferson County Personnel Board upheld the disciplinary action, but reduced the

suspension to four days. (Doc. 30-13 at 2). Kent, along with others, was warned not to feed the

cats on October 6, 2015, November 29, 2016, and March 14, 2017. (Doc. 30-4 at 138, 141-42).

On October 18, 2015, Kent noted he observed “wild animals” on the grounds, but also noted he

“[o]rdered wild animals to vacate museum property.” (Id. at 139).

At a meeting in March 2017, Bradford provided security staff with a printed out copy of

the rules and security staff were required to sign that they received it. (Doc. 30-4 at 28-29 (101:7-

102:19)). Bradford threw the signature sheet back at Kent four times because Bradford did not

approve of how Kent signed only his last name (which is what he usually does). (Id.).

On August 12, 2017, Kent filed a complaint with HR claiming that Bradford called him a

“punk bitch.” (Doc. 30-14 at 2).

Kent also asserts that Bradford contacted Kent’s wife through social media. (Doc. 30-4 at

29-30 (105:17-107:22)). Specifically, Kent testified Bradford sent his wife a “friend request” on

Facebook and attempted to call her twice through Facebook. (Id.). Bradford also sent her a

message that said he would help her get child support from Kent. (Id.). Kent’s wife did not

respond and “blocked” Bradford. (Id.).

D. August 7, 2017 EEOC Charge of Discrimination and/or Retaliation

On August 7, 2017, Kent filed an EEOC Charge of Discrimination (Charge No. 420-2017-

02672) claiming race discrimination and retaliation, alleging Bradford subjected him to

harassment intimidation, racial slurs, assaults, threats, and retaliatory discipline. (Doc. 30-4 at

117). Kent’s August 7, 2017 EEOC Charge is based on the following:

a. On February 13, 2017, Bradford accused Kent of tampering with a fuse box;

b. On June 11, 2017, Cooper hit Kent with a city vehicle and Bradford took no action;

c. On July 15, 2017, Cooper shoved Kent from behind and Bradford took no action;

d. On July 21, 2017, Kent was suspended for six days for feeding stray cats and failing to

secure the Arlington House grounds when large nails damaged a city truck; Bradford

allegedly yelled at Kent “take a good look, this is vandalism, somebody is going to jail.”

(Id.).

E. Kent’s Complaints Between his EEOC Charges

On November 3, 2017, Kent filed a complaint with HR claiming that Bradford told him to

“get his punk ass out of the way, bitch.” (Id. at 3).

Kent also complained of an ongoing problem that involved other employees filling up the

toilets with feces and urine and leaving them for Kent to clean up. (Doc. 30-4 at 28 (98:20-

100:17)). Kent reported the issue to Bradford, but does not think anything was done about it.

(Id.). Kent testified Bradford called him a “nasty fucker” for taking pictures of the incidents. (Id.).

F. November 28, 2017 EEOC Charge of Discrimination and/or Retaliation

On November 28, 2017, Kent filed a second EEOC Charge of Discrimination (Charge No.

420-2018-00602) claiming race discrimination and retaliation. (Doc. 30-4 at 124). Kent based his

November 28, 2017 EEOC Charge on the following:

a. On August 12, 2017, Bradford allegedly shouted at Kent and called Kent a “punk bitch.”

Kent reported the incident to Director Moode and HR.

b. On August 22, 2017, Kent allegedly received an email from Payroll Director, Germaine

Norman, informing him that there was no time clock record for him working on August

10, 2017, when Kent had worked that day.

c. On August 18, 2017, Kent allegedly was unable to clock in for his scheduled shift.

d. On November 2, 2017, Bradford allegedly cursed at Kent, yelling “get [his] punk ass out

of the way, bitch.” Kent reported the incident to Director Moode and HR.

e. Kent alleged that he was not receiving his check stubs.

f. Kent alleged that Bradford and Cooper were parking their vehicles so close to Kent’s

vehicle that it was difficult for Kent to leave the grounds and he felt intimidated.

(Id.).

G. Additional Complaints after the Second EEOC Charge

On November 31, 2017, Kent filed a complaint with HR claiming that he had not received

check stubs. (Doc. 30-14 at 4-5). On December 14, 2017, Kent filed a complaint with Director

Moode alleging that Wright was asleep while on duty with a handgun in his lap and that the men’s

restroom was filed with feces and urine. (Doc. 30-14 at 6). Kent claims these were purposeful

and done to create a hostile work environment for him. (Id.). On July 12, 2018, Kent filed a

complaint with HR claiming that Wright purposefully locked the female restroom at Arlington

House, which forced a female contract guard to use the men’s restroom. (Id. at 9). On July 19,

2018, Kent filed a complaint with HR again claiming that the female restroom was locked, forcing

the female to use the men’s restroom. (Id. at 11). Kent claimed this was retaliatory for him filing

an EEOC Charge. (Id.). On July 30, 2018, Kent filed an HR complaint, claiming he was not

receiving his check stubs in a timely manner. (Id. at 13). He claimed this was a retaliatory action

for filing an EEOC Charge. (Id.).

On August 19, 2018, Kent filed a complaint with HR claiming that Director Toby Richards

was creating an unsafe environment for Kent by authorizing the dismantling of a deadbolt on the

security office door of Arlington House. (Doc. 30-14 at 20). Kent claimed this was done as

punishment or retaliation. (Id.). On August 26, 2018, Kent filed a complaint with HR claiming

that he observed cat food in the carriage house and that Arlington House management did not

discipline anyone for the cat food. (Id. at 23). Again, Kent claimed this was retaliation for him

filing an EEOC Charge. (Id.).

On August 25, 2018 and August 27, 2018, Kent was alleged to have been found sleeping

during his assigned shift. (Doc. 30-7 at 10). Director Richards suspended Kent for fifteen days.

(Id.). The Jefferson County Personnel Board upheld the disciplinary action, but reduced the

suspension to ten days. (Doc. 30-15 at 2).

Jennifer Samuelson (“Samuelson”), an Employee Relations Advisor for the City’s Human

Resources Department, testified that Kent’s complaints were thoroughly investigated.7 (Doc. 30-

2 at 4). Samuelson stated that most of Kent’s allegations were not substantiated. (Id.). Kent’s

December 14, 2017 complaint regarding Wright was partially substantiated by photos showing

Wright sleeping while on duty. (Id.). HR did not determine that Wright had a weapon at the time.

(Id.). Moode disciplined Wright for the infraction.8 (Id.).

III. Analysis

Kent brings this action against the City claiming unlawful employment discrimination and

retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e,

and 42 U.S.C. § 1981.9 (Doc. 20). Kent, a Caucasian male, alleges he was subjected to

discriminatory treatment based on his race. (Id. at 13).

A. Hostile Work Environment Claim

Federal employment laws do not operate as a “general civility code.” Lockett v. Choice

Hotels, Int'l, Inc., 315 Fed. Appx. 862, 865 (11th Cir. 2009). Instead, only mistreatment is

“sufficiently severe or pervasive” that it can be said to alter the terms, conditions, or privileges of

employment. See Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002)

(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). To establish such a hostile work

environment claim, a plaintiff must demonstrate:

(1) that he belongs to a protected group; (2) that he has been subject to unwelcome

harassment; (3) that the harassment must have been based on a protected

7 Kent responds that this statement is “[d]isputed,” but provides no citation to the record.

(Doc. 34 at 9). Without citation to the record showing a factual dispute, there is no dispute.

8 Again, Kent responds that this statement is “[d]isputed,” but provides no citation to the

record. (Doc. 34 at 10). Without citation to the record showing a factual dispute, there is no

dispute.

9 Because both Title VII and § 1981 have the same requirements of proof and use the

same analytical framework, see Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.

1998), the undersigned will expressly address the Title VII claims with the understanding the

analysis also applies to the § 1981 claims, unless expressly indicated otherwise.

characteristic of the employee ...; (4) that the harassment was sufficiently severe or

pervasive to alter the terms and conditions of employment and create a

discriminatorily abusive working environment; and (5) that the employer is

responsible for such environment under either a theory of vicarious or direct

liability.

McCann v. Tillman, 526 F.38, 1370, 1378 (11th Cir. 2008) (quoting Miller v. Kenworth of Dothan,

Inc., 277 F.3d 1269, 1275 (11th Cir. 2002)).

1. Scope of the Claim

The City argues that allegations outside of Kent’s August 7, 2017 EEOC Charge should

not be considered. (Doc. 30-1 at 16). Specifically, the City argues Kent failed to attach the Notice

of Right to Sue Letter for his November 28, 2017 Charge of Discrimination to the amended

complaint. (Id.). The City also complains that Kent never attached the November 28, 2017

Charge of Discrimination. (Id.).

Before filing a Title VII action, a plaintiff must exhaust his administrative remedies by

filing a charge of discrimination with the EEOC. Sanchez v. Standard Brands, Inc., 431 F.2d 455,

460 (5th Cir. 1970); see also Alexander v. Fulton Cnty., Ga., 207 F.3d 1303, 1332 (11th Cir.2000).

The purpose of this prerequisite “is that the [EEOC] should have the first opportunity to investigate

the alleged discriminatory practices to permit it to perform its role in obtaining voluntary

compliance and promoting conciliation efforts.” Gregory v. Ga. Dept. of Human Resources, 355

F.3d 1277, 1279 (11th Cir. 2004) (quoting Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 929

(11th Cir. 1983)). Judicial claims are allowed if they “amplify, clarify, or more clearly focus” the

allegations in the EEOC complaint[;]” however, “allegations of new acts of discrimination are

inappropriate.” Id. (citing Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989)). Courts are

“extremely reluctant to allow procedural technicalities to bar claims brought under [Title VII],”

Sanchez, 431 F.2d at 460, and have noted that “the scope of an EEOC complaint should not be

strictly interpreted.” Id. at 465. However, a “plaintiff's judicial complaint is limited by the scope

of the EEOC investigation which can reasonably be expected to grow out of the charge of

discrimination.” Alexander, 207 F.3d at 1332.

There is no dispute Kent filed two Charges of Discrimination with the EEOC during his

employment as a security guard at Arlington House. Kent has provided the court with his

November 28, 2017 Charge. (Doc. 30-4 at 124). This Charge, along with the August 7, 2017

Charge, provided the requisite notice to the City and allowed the EEOC to have the first

opportunity to investigate. Kent’s failure to attach his second charge to the amended complaint

is not a sufficient basis to limit his allegations.

As for how far to look back, Alabama is a non-deferral state, and a Charge of

Discrimination must be filed within 180 days “after the alleged unlawful employment practice

occurred.” 42 U.S.C. § 2000e-5(e)(1); Ledbetter v. Goodyear Tire & Rubber Co., Inc., 421 F.3d

1169 (11th Cir. 2005). Therefore, the general rule is that only those incidents that occurred within

180 days of an operative EEOC Charge can be the basis for Title VII liability. In this case, that

means events that occurred before February 2, 2017, would not be considered. Thus, no incident

that occurred before February 2, 2017 can be the basis of a disparate treatment claim. Nat’l R.R.

Pass. Corp. v. Morgan, 536 U.S. 101, 110 (2002). Hostile work environment claims are different.

Since a hostile work environment claim is composed of a series of separate acts that collectively

constitute one unlawful employment practice, the timely filing provision only requires that the

Title VII plaintiff file a charge within 180 days after the lawful practice happened. Id. at 116-17.

It does not matter that some of the component acts fall outside the statutory period. Id. at 117.

Therefore, in considering Kent’s hostile work environment claim, discriminatory acts that occurred

prior to February 2, 2017, may be considered.

2. Merits of Kent’s Claim

The City concedes that Kent belongs to a protected group but denies he has presented

evidence to establish any of the remaining elements of a hostile work environment claim. (Doc.

30-1 at 12). To survive summary judgment, Kent must present some evidence that he was

subjected to unwelcome harassment, that harassment was based on a protected characteristic, and

the harassment was so severe or pervasive that it altered the terms and conditions of employment

and created a discriminatorily abusive working environment. McCann, 526 F.3d at 1378 (quoting

Miller, 277 F.3d at 1275). Kent must also present evidence that the City is liable for such a hostile

environment. (Id.).

Viewing the evidence in Kent’s favor, it is apparent that Kent was subjected to some

unwelcomed harassment at work. There is, however, little or no evidence that the harassment was

based on Kent’s race or that it was so severe or pervasive that it altered the terms and conditions

of his employment. There is a lack of evidence to support holding the City liable here. Human

Resources investigated each of Kent’s complaints, finding most were not substantiated. (Doc. 30-

2 at 4). Notably, Kent’s complaints about not receiving his check stubs were determined to be the

result of a miscommunication between Kent and the payroll coordinator. (Id.).

a. No Evidence Harassment Was Based on a Protected Characteristic

It is a “bedrock principle that not all objectionable conduct or language amounts to

discrimination under Title VII.” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 809 (11th

Cir.2010) (en banc). Therefore, only conduct that is “based on” a protected category, such as race,

may be considered in a hostile work environment analysis. See Gupta v. Florida Bd. of Regents,

212 F.3d 571, 584 (11th Cir.2000), abrogated on other grounds by Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53 (2006). “Innocuous statements or conduct, or boorish ones that do not

relate to the [race] of the actor or of the offended party (the plaintiff), are not counted.” Id. at 583;

see also Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1301–02 (11th Cir.2007) (“Title

VII does not prohibit profanity alone, however profane. It does not prohibit harassment alone,

however severe and pervasive. Instead, Title VII prohibits discrimination, including harassment

that discriminates based on a protected category....”). This “inquiry requires careful consideration

of the social context in which particular behavior occurs and is experienced by its target.” Oncale

v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).

As an initial matter, there is no evidence that any of the altercations with Cooper were

because of Kent’s race.10 Cooper and Kent are both white. While it is not inconceivable for a

person to discrimination against another person of his race, there is absolutely no evidence to

support the inference that any of Cooper’s harassment was based on race.

Kent also asserts that in December 2016, Brundidge, a black female employed by the

Public Works Department, threated Kent with a pair of scissors. (Doc. 30-2 at 4; doc. 30-4 at 18-

19 (58:11-63:14)). HR investigated Kent’s complaint and reported that the allegations could not

be substantiated. (Doc. 30-2 at 4). Kent testified that after the incident, he was instructed to leave

work early, losing an hour of pay. (Doc. 30-4 at 19 (64:1-3)). To Kent’s knowledge Brundidge

was not disciplined, but counseled to stay away from Kent. (Id. (65:8-9)). Kent fails to present

evidence to explain how this event was racially motivated.

Most of the incidents of harassment in the record were perpetrated by Bradford, a black

man. The fact that Bradford is black and that Cooper is white is the only support for the inference

that any of this harassment was based on race. While Kent generally asserts that Bradford’s

10 Kent’s August 7, 2017 Charge contains two alleged incidents involving Cooper. (Doc.

20 at 34). Specifically, Kent complains Cooper assaulted him on June 11, 2017, by striking him

with a vehicle and physically assaulting him on July 15, 2017. (Id.).

conduct was because of his race, there is simply no connection in the evidence. Kent had problems

with co-workers and received discipline before working with Bradford. Additionally, all of the

discipline Kent received from Bradford was upheld after a hearing by an independent personnel

board, even if two of the suspensions were reduced in time.

In his brief, Kent argues that Bradford, who “acted without authority as [Kent’s]

supervisor, subjected him to verbal abuse, intimidation, and threats of termination.” (Doc. 34 at

15). In support, Kent cites a portion of Director Moode’s deposition. (Id.). Moode testified that

he never told Bradford that he (Bradford) was director of Arlington House. (Doc. 30-5 at 11

(33:20-23)). The cited testimony further addresses a March 31, 2017 Notice of Determination

Bradford issued wherein Kent was written up for failing to inform Bradford of the gate being left

open or that there was glass and nails in the parking lot. (Id. at 12-13 (34:1-40:23)). Moode’s

testimony does not address any racial motivation, only that Moode eventually learned Bradford

did not have disciplinary authority. (Id. at 13 (38:13-40:23)). Kent, citing his amended complaint,

then asserts that he specified several incidents that he reported to supervisors or to Human

Resources that were not remedied or otherwise addressed. (Doc. 34 at 15 (citing doc. 20 at ¶¶17-

43)). However, the City has presented evidence that its Human Resources department investigated

all of the complaints it received from Kent. (Doc. 30-2 at 4). And, Kent points to no evidence

otherwise.

At summary judgment, the moving party bears the burden of pointing to the part of the

record that shows the absence of a genuine issue of material fact. See Adickes v. S.H. Kress & Co.,

398 U.S. 144, 157 (1970); Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). The City

has done this by pointing to the lack of evidence that the alleged harassment was based on Kent’s

race and that the alleged harassment was sufficiently severe and pervasive to alter the terms and

conditions of Kent’s employment. (Doc. 30-1 at 12-16). Once the moving party establishes the

absence of a genuine issue of material fact, the burden shifts to the nonmoving party to go beyond

the pleadings and designate “specific facts showing that there is a genuine issue for trial.” Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986). Specifically, the nonmoving party, here Kent, must

“come forward with significant, probative evidence demonstrating the existence of a triable issue

of fact.” Chanel, Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 1477 (11th Cir.1991).

The only other part of Kent’s brief that addresses his hostile work environment claim

exclusively focuses on the allegations in Kent’s complaint. (Doc. 34 at 16). Kent asserts his

amended complaint contains “plausible allegations” that his supervisor, a black man, “contributed

and condoned” a “hostile work environment because [Kent] is white.” (Id.). Kent also cites his

amended complaint stating that black employees were treated differently. (Id.). Kent asserts,

without citation, that the City can be held liable because he made reports to his supervisor and

Human Resources, that the Human Resources affidavit shows that some of his complaints were

substantiated, and that it shows Human Resources failed to investigate his hostile work

environment claim. (Id.). Kent also asserts, without citation, that Moode testified he did not

investigate all of Kent’s hostile work environment claims. (Id.).

Viewing all of the evidence in Kent’s favor, he has simply failed to point to any evidence

that any of the harassment he received was because of his race. At this stage in the litigation, the

court is no longer accepting the allegations in the complaint as true. While the amended complaint

contains allegations that Bradford and other co-workers called Kent a white devil, cracker,

wonderbread, mayo, Adolf Hitler, and Casper (doc. 20 at ¶¶ 34, 66, 98), Kent never points to any

evidence of this in opposition to summary judgment. (See doc. 34).

Having scoured the evidence, Kent’s first EEOC Charge does mention having been

subjected “harassment and intimidation by . . . Bradford (black male), co-workers, and members

of the grounds crew.” (Doc. 30-4 at 117. It also complains Kent was “subjected to racial slurs.”

(Doc. 30-4 at 117). However, there are no specifics provided. There is no account of who said

what, when they said it, or how often such slurs were made. There is simply not the type of

evidence from which the undersigned can conclude that there is a triable issue of fact as to whether

the alleged harassment was based on race or whether the alleged race-based harassment was

sufficiently severe or pervasive to alter the terms or conditions of employment. See generally

Glasscox v. City of Argo, 903 F.3d 1207, 1213 (11th Cir. 2018) (“Conclusory allegations and

speculation are insufficient to create a genuine issues of material fact.”). For either of these reasons,

summary judgment is due to be granted on Kent’s hostile work environment claim.

B. Disparate Treatment Race Discrimination Claim

Kent alleges he was subjected to discriminatory discipline on four occasions: (1) the April

4, 2017 two-day suspension for failing to keep grounds secure; (2) the January 20, 2017 ten-day

suspension for leaving the premises without permission; (3) the July 20, 2017 six-day suspension

for feeding stray cats and damage to a city vehicle; and (4) the September 20, 2018 fifteen-day

suspension for sleeping on duty. (Doc. 20).

When, as here, there is no direct or statistical evidence of discrimination, a plaintiff may

identify circumstantial evidence to overcome summary judgment. A plaintiff may use the burden

shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and

Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) to establish a disparate treatment

claim. Under McDonnell Douglas, a plaintiff first must establish a prima facie case by presenting

evidence that (1) he is a member of a protected class; (2) he was subjected to an adverse

employment action; (3) his employer treated similarly situated employees outside of his class more

favorably; (4) he was qualified to do the job. Maynard v. Bd. of Regents of Div. of Fla. Dept. of

Educ., 342 F.3d 1281, 1289 (11th Cir. 2003) (citing McDonnell Douglas, 411 U.S. at 802). “The

successful assertion of a prima facie case then creates a rebuttable presumption that the employer

unlawfully discriminated against the plaintiff.” Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1275

(11th Cir. 2008) (internal quotation marks and citations omitted).

If the plaintiff establishes a prima facie case, then the burden shifts to the employer to

produce evidence of a legitimate, non-discriminatory reason for the challenged action. Rioux, 520

F.3d at 1275. The employer’s burden is very light. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d

763, 769 (11th Cir. 2005). If the employer satisfies its burden, then the burden shifts back to the

plaintiff to prove that the employer’s “proffered reason really is a pretext for unlawful

discrimination.” Rioux, 520 F.3d at 1275 (internal quotation marks and citations omitted).

The City concedes that Kent has presented sufficient evidence that he belongs to a

protected class and that he was qualified to do the job. (Doc. 30-1 at 20). The City asserts that

there is insufficient evidence to establish Kent was subjected to an adverse employment action and

that the City treated similarly situated employees outside of his class more favorably.11 (Id.) The

11 Kent cites Hand v. University of Ala. Board of Trustees, 304 F. Supp. 3d 1173, 1179

(N.D. Ala. 2018), for the proposition that the lack of a comparator who was treated more

favorably is not necessary to establish a Title VII claim. (Doc. 34 at 16-17). As a general rule,

Kent is correct, that, in some circumstances, a plaintiff can establish a prima facie Title VII case

without showing the existence of a comparator. Hand, 304 F. Supp. 3d at 1179 (citing Walker v.

Love's Travel Ctr., No. 17-0298-WS-M, 2017 WL 4931693, at *2 (S.D. Ala. Oct. 31, 2017)

(explaining that allegations about a comparator are unnecessary at the motion to dismiss stage

because a plaintiff can establish a prima facie Title VII claim at the summary judgment stage

without reference to a comparator). Hand and Walker are distinguishable from this case. Both

Hand and Walker declined to dismiss a complaint based on the absence of allegations of a

comparator. As the court explained in Walker, “[t]his is because McDonnell Douglas’s burden-

shifting framework is an evidentiary standard, not a pleading requirement.” Walker, 2017 WL

4931693, *2. Instead, to state a claim at the motion to dismiss stage, a plaintiff need only to

provide enough factual matter, taken as true, to suggest intentional discrimination. Id. This can

be done without a comparator. The present case is at the summary judgment phrase, where a

City also asserts that it is undisputed that it had a legitimate, non-discriminatory reason for any

adverse employment action taken against Kent. (Id.).

1. Kent’s April 4, 2017 Two-Day Suspension for Failing to Keep the Grounds

Secure

Bradford disciplined Kent on April 4, 2017, by suspending him for two days when Kent

failed to report an open gate and broken glass and nails in the Arlington House parking lot. (Doc.

39-9 at 3 & doc. 30-11 at 2). However, Kent appealed, and the discipline was rescinded through

a settlement agreement, signed by counsel for Kent and an attorney for the City. (Doc. 30-11 at

2-3). To state a Title VII discrimination claim, an “adverse employment action” must be “a serious

and material; change in the terms, conditions, or privileges of employment.” Crawford v. Carroll,

529 F.3d 961, 970-71 (11th Cir. 2008) (quoting Davis v. Town of Lake Park, Fla., 245 F.3d 1232,

1239 (11th Cir. 2001)). Ultimate employment decisions, such as termination, demotion, and

failure to hire, are adverse employment actions. Id. at 970. If a plaintiff relies on employment

actions less severe than an ultimate employment decision to support a discrimination claim, he or

she must show that the action substantially altered his or her “compensation, terms, conditions, or

privileges of employment, deprive[d] him or her of employment opportunities, or adversely

affect[ed] his or her status as an employee.” Id. (quoting Gupta v. Fla. Bd. of Regents, 212 F.3d

571, 587 (11th Cir. 2000)).

Kent offers no evidence to show that the rescinded April 4, 2017 two-day suspension meets

the requirements of an adverse employment action. Furthermore, even if it did, the evidence shows

the City had a legitimate, non-discriminatory reason to discipline Kent in this situation, as part of

plaintiff is required to point to evidence of discrimination and/or retaliation. As explained

throughout this opinion, Kent has not pointed to sufficient evidence to support his claims,

whether comparator evidence or other evidence.

his job duties included patrolling and inspecting the grounds, and reporting evidence of

unauthorized entry, vandalism, or theft. This rescinded suspension does not support his disparate

treatment race discrimination claim.

2. Kent’s January 20, 2017 Ten-Day Suspension for Leaving the Grounds

Without Permission

In January 2017, Bradford disciplined Kent for two instances where Kent failed to report

being away from the grounds to his supervisor, by suspending him for ten days. (Doc. 30-9 at 2-

3). A determination was held, and Kent did not appeal. (Id.). Kent points to no evidence of

people outside of his protected class not being disciplined for similar conduct. Furthermore, the

evidence shows the suspension was warranted and there is no evidence of pretext.

3. Kent’s July 20, 2017 Six-Day Suspension for Feeding Stray Cats and Damage

to a City Vehicle

On July 20, 2017, Kent received a Decision Upon Determination Hearing, which stated he

was suspended without pay for six days for failure to comply with his supervisor’s instructions.

(Doc. 30-7 at 9). Specifically, on Friday July 6, 2017, Bradford arrived at Arlington and found

Kent feeding stray cats – a direct violation of Arlington House rules. (Id.). That same day, another

employee went to use a city vehicle, and there were nails in the front and back passenger tires.

(Id.). Kent reported that he did not see the damage, even though it was his job to make sure the

grounds and equipment were secure. (Id.). During the hearing, Kent admitted to feeding the cats

after being told on several occasions not to feed them. (Id.). For this reason, Kent was suspended

for six days. (Id.). Kent appealed, and the Jefferson County Personnel Board upheld the

disciplinary action, but reduced the suspension to four days and issued two days back pay. (Doc.

30-13 at 2). Again, the evidence shows that the City had a legitimate reason for disciplining Kent,

and there is no evidence that such discipline was racially-motivated.

4. Kent’s September 20, 2018 Fifteen-Day Suspension for Sleeping on Duty

On August 25, 2018 and August 27, 2018, Kent was alleged to have been found sleeping

during his assigned shift. (Doc. 30-7 at 10). Kent denied he was sleeping, but claimed he suffers

from narcolepsy and seizures, and that on August 25, 2018 and August 27, 2018, he had seizures.

(Id.). Kent had never informed Arlington House of these conditions. (Id.). Director Richards

suspended Kent for fifteen days. (Id.). Kent appealed. Although there was evidence to support

the allegation that Kent was sleeping on August 27, 2018, there was no evidence presented to

support the August 25, 2018 allegation. (Id.). Therefore, the hearing officer recommended the

fifteen-day suspension be reduced to ten days. (Doc. 30-15 at 2). The Jefferson County Personnel

Board upheld the disciplinary action, including reducing the suspension to ten days. (Doc. 30-15

at 2).

Attempting to show that a member outside his protected class was treated differently, Kent

points to his December 14, 2017 complaint to Director Moode alleging that, among other things,

Wright was asleep while on duty with a handgun in his lap. (Doc. 30-14 at 6). After investigation,

Kent’s complaint was partially substantiated. (Doc. 30-2 at 4). Specifically, photographs showed

Wright asleep while on duty, but no weapon could be seen. (Id.). Director Moode disciplined

Wright for this infraction. (Id.). Because, like Kent, Wright was disciplined for being found

sleeping on duty, this does not show that a member outside Kent’s protected class was treated

differently. Like the instances above, the evidence shows that the City had a legitimate reason for

disciplining Kent, and there is no evidence of any racial motivation. This suspension does not

support a disparate treatment race discrimination claim.

C. Retaliation

“Title VII prohibits . . . retaliation against an employee who has opposed any unlawful

employment practices or who has made a charge, testified, assisted, or participated in any manner

in a Title VII proceeding.” Sapp v. U.S. Attorney General, 676 Fed. Appx. 878, 881 (11th Cir.

2017) (citing 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a)). Title VII retaliation claims generally

“require proof that the desire to retaliate was the but-for cause of the challenged employment

action.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352, 133 S. Ct. 2517, 2528 (2013).

Where, as here, a plaintiff relies on circumstantial evidence, the burden-shifting McDonnell

Douglas framework is the guide. See Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th

Cir. 2001). Under this framework, the plaintiff must first make a prima facie case of retaliation by

presenting evidence (1) he engaged in a statutorily protected activity; (2) he suffered an adverse

action; and (3) there is a causal connection between the protected activity and the adverse action.

See Brown v. Ala. Dept. of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010). The retaliation is

material if it “well might have dissuade[d] a reasonable worker from making or supporting a charge

of discrimination.” Crawford v. Carroll, 529 F.3d 961, 974 (11th Cir. 2008) (citing Burlington

Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006)). If the plaintiff establishes a

prima facie case, this triggers the defendant's burden of articulating a legitimate, non-retaliatory

reason for the adverse employment action. Pennington, 261 F.3d at 1266. If the defendant satisfies

its burden, then the plaintiff must provide sufficient evidence the defendant's proffered reason is

merely a pretext for retaliation. Id.

In his August 7, 2017 EEOC Charge, Kent alleges his July 2017 suspension for feeding

stray cats was retaliatory “for objecting to the continued harassment and hostile work environment

inflicted . . . by [Kent’s] supervisor and co-workers.” (Doc. 20 at 34). In his November 28, 2017

EEOC Charge, Kent marks the boxes for both race discrimination and retaliation. (Doc. 30-4 at

124). In this second charge, Kent complains that on August 12, 2017, Bradford shouted at him

and called him a “punk bitch.” (Id.). Kent also complains that on August 18, 2017, he was unable

to clock-in for his scheduled shift and had a similar issue on the next shift. (Id.). On August 22,

2017, Kent received an email from the payroll director, informing him that there was no time clock

record for his August 10, 2017 shift. (Id.). Kent also complained that on November 2, 2017,

Bradford cursed at him as he was leaving, saying to “get my punk ass out of the way, bitch.” (Id.).

Finally, Kent complained about not receiving his check stubs. (Id.).

As discussed above, Kent’s suspension for feeding stray cats was upheld, (doc. 30-13 at

2). The evidence shows that the City had a legitimate reason for disciplining Kent, and there is no

evidence that such discipline (or any other discipline Kent received) was retaliatory in nature. As

to the complaints in Kent’s second EEOC Charge, taken singularly or in the aggregate, none of

these constitute a materially adverse action. To satisfy the adverse employment action requirement

for a retaliation claim, a plaintiff must show that “a reasonable employee would have found the

challenged action materially adverse.” Burlington Northern, 548 U.S. at 68. An action is said to

be “materially adverse” if it “well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.” Id. Kent’s minor inconveniences regarding delayed pay

stubs, having to verify the hours he worked, and rough language from Bradford are the type of

“petty slights or minor annoyances that often take place at work and that all employees

experience.” Id. Kent has not stated a prima facie case for retaliation related to the complaints in

his second EEOC Charge.12 Summary judgment is due on this claim.

12 Kent’s briefing on his retaliation claim is insufficient. (See doc. 34 at 17-18). Kent

includes one paragraph on the general rule that Title VII prohibits retaliation for opposing an

unlawful employment practice or participating in any investigation, proceeding, or hearing. (Id.

at 17). Kent then asserts that he complained to his supervisor and Human Resources about

alleged discrimination. (Id.). He says his first report was in December 2019, which appears to

be a typo, because he also asserts he reported other incidents around July 2017. (Id.). He then

concludes that, with regard to the incidents that occurred in 2017, he made numerous complaints

IV. Conclusion

For the reasons stated above, there are no genuine issues of material fact and the City is

entitled to judgment as a matter of law. The City’s motion for summary judgment (doc. 30) is

GRANTED. A separate order will be entered.

DONE this 27th day of August, 2020.

vo

JOHN H. ENGLAND, III

UNITED STATES MAGISTRATE JUDGE

about Bradford and other’s behavior to Human Resources. (/d. at 17-18). Kent makes no

arguments about adverse actions, causation, or pretext to overcome the City’s assertion of

legitimate non-retaliatory reasons for its actions.

25