Perry v. Rogers, 092915 FED11, 13-14897

Docket Nº:13-14897
Opinion Judge:PER CURIAM:
Party Name:KESIA J. PERRY, VALENCIA AARON, STACY D. TAYLOR, Plaintiffs-Appellants, v. JEFF ROGERS, Chief, in his individual capacity, STAN GOOLSBY, in his individual capacity, KENNETH DAVIS, Lt., in his individual capacity, JEAN TURNER, in her individual capacity, ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD, Defendants-Appellees.
Judge Panel:Before ED CARNES, Chief Judge, JORDAN and ROSENBAUM, Circuit Judges.
Case Date:September 29, 2015
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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KESIA J. PERRY, VALENCIA AARON, STACY D. TAYLOR, Plaintiffs-Appellants,

v.

JEFF ROGERS, Chief, in his individual capacity, STAN GOOLSBY, in his individual capacity, KENNETH DAVIS, Lt., in his individual capacity, JEAN TURNER, in her individual capacity, ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD, Defendants-Appellees.

No. 13-14897

United States Court of Appeals, Eleventh Circuit

September 29, 2015

DO NOT PUBLISH

Appeal from the United States District Court for the Middle District of Alabama D.C. Docket No. 2:11-cv-00464-WHA-WC

Before ED CARNES, Chief Judge, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:

Kesia Perry, Valencia Aaron, and Stacy Taylor brought various claims against their employer, the Alabama Alcoholic Beverage Control Board ("ABC Board"), including claims of race discrimination, race-based hostile work environment, and retaliation. After conducting a review of the record, the district court determined that the ABC Board was entitled to summary judgment on all claims advanced by Appellants. Perry, Aaron, and Taylor now appeal the district court's grant of summary judgment in favor of the ABC Board on their hostile work environment claims. Perry also appeals the district court's grant of summary judgment in favor of the ABC Board on her retaliation claim. Appellants have abandoned all other claims previously advanced.

Although Perry, Taylor, and Aaron presented instances during which supervisors allegedly made offensive racial remarks, we find that they have not presented a genuine issue of material fact as to whether the alleged harassment was objectively severe or pervasive enough to establish a racially hostile work environment. And, because no genuine issue of material fact exists, we affirm the district court's grant of summary judgment in favor of the ABC Board on these claims. But we conclude that Perry presented sufficient evidence to preclude the entry of summary judgment with respect to her retaliation claim. We therefore vacate the summary judgment against her on this claim.

I.

A. General Background

The ABC Board is an agency of the State of Alabama that controls the sale of alcoholic beverages through distribution, licensing, and law enforcement. It operates retail stores that sell liquor, and it also licenses businesses that sell alcoholic beverages. The ABC Board employs more than 120 sworn law-enforcement officers and administrative personnel. As an agency of the State of Alabama, the ABC Board is subject to the rules and regulations of the State Personnel Department ("SPD"). Both the SPD and the ABC Board have established policies that prohibit discrimination against any employee based upon race.

The Administrator, who is the final decision maker for all hiring, firing, disciplinary, and promotional decisions for ABC Board employees, runs the ABC Board. During the period relevant to the facts of this case, Emory Folmar, a Caucasian male, was the Administrator of the ABC Board.

The ABC Board's Law Enforcement Division's command center for statewide operations is located in Montgomery, Alabama. The Law Enforcement Division also maintains eleven enforcement district offices across the State of Alabama. In addition, at times, the Law Enforcement Division operated a Drug Unit. A "Chief" heads the Law Enforcement Division of the ABC Board, and a "Captain" reports to the Chief. During the period relevant to this case, Charles Jeffrey Rogers, a Caucasian male, served as a Chief, and John Richardson, an African-American male, was a Captain.

B. Kesia Perry

In August 2007, Perry began her employment with the ABC Board as an Administrative Support Assistant II ("ASA II") and remained in this position until January 2012. As an ASA II, Perry was responsible for filing and retrieving documents, as well as answering the telephone. Perry, who is African-American, asserts that she was subjected to racially charged remarks by her co-workers, supervisors, and administrators. Perry also points to incidents of alleged disparate treatment, which she argues contributed to a racially hostile work environment. With respect to her retaliation claim, Perry contends that she was retaliated against for opposing discrimination, filing an internal complaint with the SPD, and filing an EEOC charge.

In July 2009 one of Perry's supervisors, Mark Hatfield, addressed performance problems with Perry, including criticism that Perry took too many personal phone calls at work. During the counseling session, Perry became upset and complained that coworkers "had a racist attitude" towards her and other African-American employees, though Perry did not specify any particular events or indicate the individuals whom she believed to be racist. Work appraisals of Perry during that year indicate that Perry received high performance scores.

In early 2010, Perry's first-line supervisor, Diane Sullivan, retired, and Perry expressed interest in being cross-trained for Sullivan's position. The ABC Board, however, filled the vacancy with Chief Rogers's sister-in-law, Summer Childers, a Caucasian female. Upon hiring Childers, the ABC Board requested that the SPD match Childers's salary from her previous job with a bank. In late April 2010, Perry and another employee, Linda Flores (Caucasian), accessed their coworkers' salaries online and discovered that Childers's pay was higher than Perry's. As a result, Perry complained to Rogers, Hatfield, and Personnel Director Stan Goolsby about the pay discrepancy. Goolsby explained to Perry that the difference in pay was based on the ABC Board's salary-matching policy. Hatfield later counseled Perry for reviewing her coworkers' salaries online. Hatfield also issued a written warning (the first step of the progressive discipline policy) to Flores for her participation in the event.

A few weeks later, in late June 2010, Rogers informed Perry that the ABC Board had decided to transfer her from its Central Office to District 10. The transfer was Hatfield's idea, and he explained that he believed that the transfer would provide Perry with different work responsibilities, which would offer her a better opportunity for promotion. Perry objected initially but later indicated that she would accept the transfer and do her best. Although Rogers stated that Perry's transfer was not punitive, a later email indicates that the reason for Perry's transfer was due to a "disgruntled/disciplinary issue."

Sometime in 2010, Perry began dating another African-American ABC Board employee, Andy Lard. The ABC Board conducted an internal-affairs investigation of Lard, which resulted in his arrest and indictment for taking seized money from evidence. As part of the investigation, an ABC Board supervisor questioned Perry about her relationship with Lard-a process that Perry referred to as an "interrogation." During the ABC Board's investigation of Lard, Rogers sent an email to the entire Enforcement Division instructing employees not to speak to Lard. Perry was also asked to sign a document stating that she would not remove any documents from the ABC Board's offices. Perry became overwhelmed with stress due to the incident and took FMLA leave beginning on August 9, 2010.

On the same day that she went out on FMLA leave, Perry filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), complaining of race discrimination by the ABC Board. In support of her charge, Perry cited Childers's higher pay, Perry's transfer to District 10, and Perry's perceived harassment with respect to Lard. Approximately one week later, on August 18, 2010, Perry filed a complaint with SPD alleging that the ABC Board had discriminated against her based on her race when it transferred her to District 10.

When Perry returned from FMLA leave in November 2010, the ABC Board transferred her from District 10 back to the Personnel Division in ABC's Central Office. The ABC Board transferred Perry because her doctor indicated that she could not return to work in District 10 due to stress.

In the Central Office, Goolsby became Perry's direct supervisor. Soon after Perry returned to work, newly appointed ABC Administrator Mac Gipson met with Perry and encouraged her to drop her EEOC charge. According to Perry, Gipson told her that it would be best if she did not pursue the lawsuit because it was like suing family members and friends. Gipson told Perry that she "just needed to think twice about it."

On June 14, 2011, Perry filed the underlying lawsuit alleging race discrimination, hostile work environment, and retaliation. Perry named Goolsby as an individual plaintiff in the action. About one month after Perry filed suit, Goolsby assigned another ABC Board employee, Andy Knight, to supervise Perry, even though Knight had not supervised anyone for several years. Perry was Knight's sole subordinate at the time. Goolsby instructed Knight to keep a close watch over Perry and to use progressive discipline, if necessary.1 Knight later admitted that Goolsby told him that he expected that Perry, because of her personality, "would either hang herself or she would become so upset that she would quit." In fact, Goolsby told Knight on a number of occasions, "maybe she'll quit."

While under Knight's supervision, Perry was responsible for working the switchboard and ensuring that it was properly staffed during breaks. According to Knight, however, problems between Perry and other switchboard operators led to instances where the switchboard was left unattended. Knight therefore counseled Perry about punctuality, cooperation with coworkers, and compliance with the ABC Board's rules. In response, Perry complained that her coworker, Linda Caldwell, was difficult to work with and did not cover the switchboard...

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