Bodiford v. State of Ala.

• Decision Date: 17 May 1994
• Docket Number: Civ. A. No. 93-D-993-N.
• Citation: 854 F. Supp. 886
• Parties: Johnny T. BODIFORD, Plaintiff, v. STATE OF ALABAMA, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

854 F. Supp. 886

Johnny T. BODIFORD, Plaintiff, v. STATE OF ALABAMA, et al., Defendants.

Civ. A. No. 93-D-993-N.

United States District Court, M.D. Alabama, Northern Division.

May 17, 1994.

COPYRIGHT MATERIAL OMITTED

Charles Michael Quinn, Ann C. Robertson, Jon C. Goldfarb, Deborah A. Mattison, Gordon, Silberman, Wiggins & Childs, Birmingham, AL, for plaintiff.

William A. Gunter, IV, David J. Dean, Otis J. Goodwyn, State of Alabama Dept. of Conservation & Natural Resources, James H. Evans, Office of the Atty. Gen., Montgomery, AL, for defendants. State of Ala., State Dept. of Conservation and Natural Resources, Charley Grimsley and Charles Kelley.

William A. Gunter, IV, David J. Dean, Otis J. Goodwyn, State of Ala., Dept. of Conservation & Natural Resources, James H. Evans, Office of the Atty. Gen., David B. Byrne, Jr., Robison & Belser, P.A., Montgomery, AL, for defendant Tim Cosby.

Dennis M. Wright, James H. Evans, Office of the Atty. Gen., Montgomery, AL, for defendant James D. Martin.

MEMORANDUM OPINION AND ORDER

DE MENT, District Judge.

This matter is now before the court on defendants' motion for summary judgment, filed December 3, 1993. The plaintiff filed his response on December 20, 1993. Also, pending before the court are defendants' motion to dismiss and amended motion to dismiss. Because the motions to dismiss involve the same issues and arguments addressed in defendants' motion for summary judgment, the court will consolidate the motions to dismiss with the motion for summary judgment and address the motions simultaneously as a motion for summary judgment.

Summary Judgment Standard

Summary judgment can be entered on a claim only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Supreme Court has stated:

The plain language of Rule 56(c) 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 bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In further elaboration on the summary judgment standard, the Court has said that "there is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citations omitted). Summary judgment is improper "if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. at 2510. See Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989). The court is to construe the evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).

Facts

Bodiford is employed by the Alabama Department of Conservation and Natural Resources (ADCNR). He has been employed by the ADCNR for approximately seventeen years. For thirteen of those years, the plaintiff has worked in the Game and Fish Division as a Conservation officer, but was transferred to the Marine Police Division in September 1989. As a Conservation officer for the Marine Police Division, he was required to ride long hours in a boat. After about a year, plaintiff developed congestive prostatitis. This condition causes severe pain in the lower abdomen area. He also developed high blood pressure. Both conditions apparently were the result of Bodiford's time riding in a boat.

In August 1991, on the advice of his physician, plaintiff requested a transfer back to the Game and Fish Division. This position required very little, if any, boat operation. The defendants denied his transfer request. Plaintiff made other requests for transfers in March, June, and August of 1992, all of which were denied.¹ Plaintiff alleges that he was told by the defendants that his requests for transfer were denied due to his disabilities, i.e. congestive prostatitis and high blood pressure, and because he attended church on Sunday.

On May 26, 1992, the plaintiff filed a charge with the EEOC alleging he had been discriminated against in the denial of his requests for transfer because of his religion. On June 30, 1992, the defendants placed the plaintiff on restricted duty apparently until an appropriate resolution to the problem could be found. On August 24, 1992, the plaintiff amended his EEOC charge to include a charge of discrimination based on his disabilities. In June 1993, plaintiff was transferred to a position of Boat Theft Investigator for the Marine Police Division. In July 1993, the EEOC determined that though there was not sufficient evidence to support plaintiff's allegations of discrimination based on religion, there was sufficient evidence to support a claim of discrimination based on disability and issued the plaintiff his right to sue letter.

Plaintiff filed this action on August 13, 1993. His complaint contains seven counts against six defendants. The defendants are the State of Alabama, ADCNR, Charles Grimsley, current Commissioner of ADCNR, Charles Kelley, Director of the Game and Fish Division, Tim Cosby, Chief Enforcement Officer for the Game and Fish Division, and James Martin, former Commissioner of ADCNR. Counts 1 and 2 are based on the Americans with Disabilities Act (ADA), 42 U.S.C. 12101, et seq. Count 3 is based on § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Count 4 is based on 42 U.S.C. § 1983, pursuant to a violation of § 504 of the Rehabilitation Act. Count 5 is a claim under 42 U.S.C. § 1983 for violations of the Fourteenth Amendment. Count 6 is a claim under Title VII. Finally, Count 7 is a claim under 42 U.S.C. § 1983 for violations of the First Amendment.²

Discussion

A. Title I and II of ADA and Title VII

The defendants, first, assert that summary judgment is due to be granted on Counts 1, 2, and 6 of the complaint because the plaintiff failed to file his charge with the EEOC within 180 days of the alleged wrongful conduct. The defendants argue that the first denial of a transfer was in August 1991. The plaintiff did not file his charge with the EEOC until May 26, 1992, some 269 days after the occurrence of the alleged discriminatory conduct, and clearly, after the 180 days had expired. The plaintiff counters by arguing that the repeated denials of plaintiff's requests for transfer constitute a "continuing violation" under Title VII and the ADA with the first denial occurring in August 1991 and the most recent denial occurring in August 1992. Plaintiff contends that it is a "continuing violation" because the denials represent an ongoing policy to discriminate against the plaintiff due to his disability and religion. The defendants assert that the August 1991 denial was a one time violation, that the subsequent denials by the defendants were just the continuing effects of the one time violation, and that the continuing effects of a one time violation do not constitute a continuing violation.

"In determining whether a discriminatory employment practice constitutes a continuing violation, this Circuit distinguishes between `the present consequence of a one time violation, which does not extend the limitations period, and the continuation of the violation into the present, which does.'" Calloway v. Partners Nat'l Health Plans, 986 F.2d 446, 448 (11th Cir.1993) (citing Beavers v. American Cast Iron Pipe Co., 975 F.2d 792, 796 (11th Cir.1992)). "The proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.... The emphasis is not upon the effects of earlier employment decisions; rather, it `is upon whether any present violation exists.'" Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980) (citations omitted).

Where an employee charges an employer with continuously maintaining an illegal employment practice, he may file a valid charge of discrimination based upon that illegal practice until 180 days after the last occurrence of an instance of that practice. However, where the employer engaged in a discrete act of discrimination more than 180 days prior to the filing of a charge with the EEOC by the employee, allegations that the discriminatory act continues to adversely affect the employee or that the employer presently refuses to rectify its past violation will not satisfy the requirement of 42 U.S.C. § 2000e-5(e) that the plaintiff file his charge of discrimination within 180 days of the discriminatory act.

Beavers, 975 F.2d at 796 (citing Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 249 (5th Cir.1980)). Courts have consistently recognized that discrimination in promotion and transfer are a continuing violation under Title VII. See Serpe v. Four-Phase Systems, Inc., 718 F.2d 935 (9th Cir.1983); Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir.1983); Fisher v. Procter & Gamble Mfg. Co., 613 F.2d 527 (5th Cir.1980), cert. denied, 449 U.S. 1115, 101 S.Ct. 929, 66 L.Ed.2d 845 (1981); Clark v. Olinkraft, Inc., 556 F.2d 1219 (5th Cir.1977), cert. denied, 434 U.S. 1069, 98 S.Ct. 1251, 55 L.Ed.2d 772 (1978).

The threshold issue in this matter is whether or not the defendants repeated denials of transfer to the plaintiff, allegedly because of his...