Johnson v. City of Mobile

• Decision Date: 30 September 2015
• Docket Number: 1140433.
• Citation: 195 So. 3d 903
• Parties: Barbara JOHNSON v. CITY OF MOBILE.
• Court: Alabama Supreme Court

195 So.3d 903

Barbara JOHNSON

v.CITY OF MOBILE.

1140433.

Supreme Court of Alabama.

Sept. 30, 2015.

Rehearing Denied Nov. 20, 2015.

Carroll J. Ogden, Mobile, for appellant.

Ricardo A. Woods, Kasee S. Heisterhagen, and Atoyia A. Scott of Burr & Forman LLP, Mobile, for appellee.

PARKER, Justice.

Barbara Johnson appeals the judgment of the Mobile Circuit Court in favor of the City of Mobile(“the City”), the circuit court's denial of Johnson's motions for a continuance and a new trial, and the award of attorney fees to the City.

I.Facts and Procedural History

This case involves Johnson's claim against the City alleging retaliation based on Johnson's several complaints and lawsuits filed against the City under Title VII of the Civil Rights Act,42 U.S.C. § 2000e et seq.(“Title VII”), and the Americans with Disabilities Act,42 U.S.C. § 12101 et seq.(“the ADA”).Johnson, an African–American woman over 40 years of age, began working for the City in its Urban Development and Public Services Department in 1996.Her duties included enforcing various ordinances pertaining to parking, abandoned vehicles, swimming pools, and overgrown weeds or grass, as well as handling abatement cases.In 2006, Johnson was transferred to the City's Department of Environmental Services and began working as an “Environmental Patrol Officer II.”As an employee of the City, Johnson was subject to the Mobile County Personnel Board(“the MCPB”) rules and policies.

Johnson has previously filed several complaints and lawsuits against the City pertaining to her employment with the City.In 2005, 2006, 2007, 2009, 2010, and 2012, Johnson filed with the Equal Employment Opportunity Commission(“the EEOC”) complaints against the City alleging various forms of discrimination.Johnson also unsuccessfully sued the City in 2007, 2008, and 2010.Johnson filed the underlying action on June 4, 2013, alleging that, in violation of Title VII and the ADA, the City retaliated against Johnson because she had filed discrimination charges against the City with the EEOC.

Workplace interactions constitute the factual basis for Johnson's present case.Johnson's deposition testimony indicates that in 2008 or 2009 Johnson had surgery to correct an unspecified problem with her toe.As a result of her toe surgery, Johnson was “taken off of work” for what “could have been a month.”Johnson's time off work to recover from her toe injury was preapproved by the City, and she was paid for her time off.Once Johnson returned to work, she had to wear a boot to protect her toe, and her doctor “wanted [her] on light duty.”Johnson's supervisor, Terrell Washington, informed Johnson that there was no light duty available at that time so Johnson remained at home on paid leave.Once Johnson returned to work, Johnson was ordered by her physician to wear a certain kind of shoe that did not comply with the City's dress code.The City required Johnson to wear black shoes, but her physician-prescribed shoes were white.Washington informed Johnson that her physician-prescribed shoes were not in compliance with the City's dress code but allowed Johnson to wear the white physician-prescribed shoes until her toe had completely healed.Johnson's trial testimony states, in pertinent part:

“Q.So you continued to wear the white shoes at work?

“[Johnson:] That's correct.

“Q.Until you healed?

“[Johnson:] That's correct, with a doctor's excuse.

“Q.And Terrell Washington let you do that, right?

“[Johnson:] With a doctor's excuse.But he, you know, gave me the letter.He gave me a letter indicating that I needed to change my shoes.And I gave him the doctor excuse, and I aksed (phonetic) him can I wear my shoes.I said, Terrell, just gave a doctor excuse.

“Can I still please wear my shoes with the doctor—I just gave you a doctor excuse indicating why I can't wear the black ones.But I went out myself and purchased some new shoes.

“Q.Which you didn't wear until you healed?

“[Johnson:] That's correct.Doctor's orders.

“Q.Which Mr. Washington followed?

“[Johnson:] Yes, sir.”

On May 14, 2010, Washington sent Johnson a “Letter of reprimand” for violating certain of the MCPB's rules and policies.Washington detailed the basis for his reprimand of Johnson as follows:

“It appears that you, (Barbara Johnson, employee # 7366) assigned to Environmental Services Division, are in violation of Rule 3.2: Reports of Absence, Rule 14.2(c) conduct unbecoming an employee in public service and (j) neglect of duty.

“On April 9, 2010, I (Terrell Washington) was called by cell phone from you (Barbara Johnson).I was informed that you would not be in for the day and you may not be in the next week.You were not sure, but you would let me know.

“From April 12, 2010, until April 16, 2010, I did not receive a call or paper work from you that you were going to be absent for the week.

“Further, investigation revealed that you had taken a doctor's clearance to the payroll department on April 8, 2010.

“On April 20, 2010, at 3:15pm, a meeting was held in my office, present at that meeting were you (Barbara Johnson), Kathleen Padgett and myself (Terrell Washington).When asked about the rules for being off work for sick leave and where the paper work is to go, you explained that it would go under my office door or in my box on the 3rd floor.Also, when asked why this was not done, you said that you had put it in the mail for me at the payroll department.When I checked with payroll there was no mail there with my name on it.As of May 13, 2010, I have not received a doctor's clearance from you (Barbara Johnson).

“After careful consideration of the information and the testimony offered, I conclude that you are in violation of the rules and polices of the Mobile Personnel Board as specified.Future infractions could result in more severe disciplinary action.”

Johnson subsequently received an unsatisfactory-annual-performance rating from Washington for the period ending June 8, 2010.Thereafter, Johnson employed the MCPB's appellate process for review of her unsatisfactory-performance rating.Ultimately, the MCPB affirmed Johnson's unsatisfactory-performance rating.In its order affirming Johnson's unsatisfactory-performance rating, the MCPB set forth the following reasons given by Washington as to why he gave her an unsatisfactory-performance rating:

“Terrell Washington ... testified that he had given Ms. Johnson an unsatisfactory rating ... due to her ‘constant’ problems with her job performance and attitude problems.Washington ... noted that Ms. Johnson's performance failed to meet minimum job standards.Within this annual service rating report, Ms. Johnson ‘failed to do routine work, even when instructed.’ ...

“....

“Washington testified that he had problems with Johnson's overall performance in carrying out assignments and getting along with other employees....Washington testified there had been citizen complaints about her attitude when giving violations....”

Johnson appealed the MCPB's decision to the circuit court, which, on August 13, 2012, ordered the City to change Johnson's unsatisfactory-performance rating to “no lower than ‘satisfactory’ ”“[b]ecause the [MCPB] did not enforce its own rules.”

An “employee-counseling record” concerning Johnson indicates that, on December 22, 2011, which was during the aforementioned appeal process, Johnson's supervisor counseled Johnson about her job performance.The employee-counseling record indicates that Johnson's “monthly total number” had been low and instructed her to “let the supervisor know” if she got behind in her work so that help could be given to her.

On August 14, 2010, Johnson filed a complaint with the EEOC alleging:

“I am an individual with a disability.I filed a previous charge against my employer back in 2005, because I was being paid less wages than a White, male, who was performing the same work that I was performing.That charge was based on my Race, Sex, and the Equal Pay Act.Since filing the charge with the EEOC, my supervisor, Terrell Washington, is subjecting me to retaliation which includes but is not limited too [sic], having my work scrutinized more closely than other employees; I am called into meetings very frequently and as of June 9, 2010, I have been given an unsatisfactory service rating.Since filing the first charge I have developed a disability[ ] and I am being harassed by having Terrell Washington, violate my privacy rights by calling my doctor's office to get medical information^[1] after I have presented doctor's excuses and being written up for having to take leave that is related to my disability, I am harassed over the dress code and have been denied a reasonable accommodation that I requested because of my disability.

“No reason has been given to me for the disparate treatment that I am receiving.

“I believe I am being retaliated against because I filed a previous charge which violates section 704(a) of Title VII of the Civil Rights Act, of 1964, as amended and in violation of The Americans With Disabilities Act of 1990, as amended.”²

On March 28, 2012, the EEOC issued the following “Letter of Determination” concerning the complaint Johnson filed against the City on August 14, 2010:

“Evidence reveals that [Johnson] filed several EEOC charges against the [City] and that the temporal proximity of filing the previous charges and [the City's] actions support that [Johnson] was retaliated against as alleged.Evidence reveals that [Johnson] was disciplined more severely than her similarly situated co-workers who had not filed EEOC charges.Based on this, there is reasonable cause to believe that [Johnson] was subjected to retaliation for participating in the EEOC process and for protesting practices made unlawful by Title VII of the Civil Rights Act of 1964, as amended.”

The EEOC recommended that the parties participate in “informal methods of conciliation.”The EEOC then monitored any attempts at conciliation made by Johnson and the City.

Johnson testified at trial...