Lamar v. Ala. Dep't of Conservation
| Decision Date | 08 February 2017 |
| Docket Number | Case No: 1:14-cv-571-JDW-PWG |
| Parties | LAVONNE "PENNY" LAMAR and WILLIAM K. KEY, Plaintiffs, v. STATE OF ALABAMA DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES, et al., Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
BEFORE THE COURT is the Report and Recommendation ("R&R") of the Magistrate Judge recommending that William Key's Motion for Partial Summary Judgment (Dkts. 79, 80) be denied, Defendants' Motions for Summary Judgment with Respect to Claims of Lavonne "Penny" Lamar (Dkt. 86) be granted in part and denied in part, and Defendants' Motion for Summary Judgment with Respect to Claims of William K. Key (Dkt. 88) be granted in part and denied in part (Dkt. 137). After consideration of the R&R, Defendants' objections,1 and a de novo review, the recommendations in the R&R are adopted, as supplemented herein.2
Key does not object to the dismissal of his official capacity Title VII and race discrimination claims against Greg Lein and Lisa Laraway in Counts I, II, IV, V, VI, and VII, his retaliatory hostile work environment claim against the Alabama Department of Conservation and Natural Resources ("DCNR") in Count II, his ADA claims in Counts V and VI, or his Rehabilitation Act claim in Count VI. Nor does Key object to the denial of his Motion for Partial Summary Judgment (Dkts. 79, 80).3
Lamar likewise does not object to the dismissal of her official capacity Title VII and race discrimination claims against Lein and Laraway in Counts I, II, III, and IV, her disparate treatment claim against DCNR in Count III, or her claim for constructive demotion against DCNR in Count IV. Accordingly, the R&R is adopted as to these recommendations.
Defendants filed an eighty-four page statement of objections to the R&R (Dkt. 138) concerning Lamar's claims for Retaliation in Violation of Title VII and Retaliatory Hostile Work Environment, and Key's claims for Retaliation in Violation of Title VII and Retaliation in Violation of the Rehabilitation Act.
Preliminary observation
Lamar's and Key's respective claims of discrimination, retaliation and hostile work environment are fairly typical of employment discrimination cases. Notwithstanding, this case has become a quintessential example of out of control litigation.4 The attorneys apparently do notappreciate that concise and thoughtful argument will more often than not result in sound and decisive rulings, free from error and oversight.5 The Magistrate judge, burdened by a voluminous evidentiary record, multiple claims by two plaintiffs, three summary judgment motions, three responses and three replies, did a herculean job of sifting through all of that. In their 84 pages of "objections," Defendants complain loudly, but unconvincingly, about his thoughtful and well reasoned recommendations.6 While there may be some factual misstatements in his recitation, hislegal conclusions are spot on.
Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A genuine factual dispute exists only if a reasonable fact-finder 'could find by a preponderance of the evidence that the [non-movant] is entitled to a verdict.'" Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir.2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). "An issue of fact is 'material' if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (citations omitted). Facts are viewed and reasonable inferences are drawn in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).
"A nonmoving party, opposing a motion for summary judgment supported by affidavits cannot meet the burden of coming forth with relevant competent evidence by simply relying on legal conclusions or evidence which would be inadmissible at trial." Avrigan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). As such, the non-moving party's evidence "cannot consist of conclusory allegations or legal conclusions." Id. (citations omitted).
Penny Lamar began her employment with DCNR in 1985 and was assigned to Gulf State Park. (Lamar Dep. 9:10-20, Dkt. 90-18). In February 2007, she was appointed as Parks Facilities Operator. (Lamar Dep. 17:17-18:23, Dkt. 90-18). In April 2012, Lisa Laraway was hired as the Superintendent at Gulf State Park. (Laraway Aff. ¶ 3, Dkt. 90-4).
In June 2012, Lamar complained of race discrimination to William Key. (Lamar Dep. 78:11-79:8, 82:6-19, Dkt.90-18; Key Dep. 189:14-18, 240:7-241:7, Dkt. 90-55). At the end of October or early November 2012, Lamar complained to Harry Dwyer, the golf professional at the park, that she had been discriminated against. (Dwyer Personnel Board Test. 552:1-9, Dkt. 117-2).
In a December 17, 2012 email titled "Racial Discrimination at workplace," which recappedher conversation with Dwyer on December 11, 2012 in which she complained about discrimination, retaliation, and hostile work environment, Lamar formally complained. (Lamar Email, Dec. 17, 2012, Dkt. 113-3). She sent the email to Dwyer, Greg Lein, Alabama State Parks Director, and Jeff Greene, Personnel Manager. (Lamar Email, Dec. 17, 2012, Dkt. 113-3). On December 18, 2012, the same email was sent and/or forwarded to Dwyer, Laraway, Randy Stults, park ranger and pier manager, Michael Guinn, assistant superintendent at Gulf State Park, and Lamar's counsel. (Dkt. 91-8).
On or about December 19th and 20th, Major Scott Bannon began investigating Lamar's complaints. He interviewed Stults and Laraway as part of his investigation. (Bannon Report, Dkt. 113-14). Bannon finalized his report on January 30, 2013, concluding that Lamar did not experience "apparent or overt racial discrimination or hostile work environment." (Bannon Report, Dkt. 113-14). During the course of the investigation, on January 10, 2013, Lamar emailed Stults requesting a meeting with him, Nicole Cabarrubia, Laraway's assistant, and Guinn "to discuss work related issues." (Lamar Email, Jan. 10, 2013, Dkt. 116-2). Stults forwarded Lamar's email to Laraway and in an email later that day told Laraway that "[t]his jazz is getting old with [Lamar]. lol [.]" (Stults Email, Jan. 10, 2013, Dkt. 116-2).
Trinese Lamar Wiley, Lamar's daughter and a Gulf State Park employee assigned to the pier, was sent home on February 19, 2013 by Stults. (Wiley Email, Mar. 13, 2013, Dkt. 83-16; Wiley Time Card, Dkt. 83-8). She was told not to come back until she was contacted. (Larway Email, Mar. 18, 2013, Dkt. 116-4). Stults testified that Wiley was terminated because of "[j]ob abandonment, 24 plus hours, no contact, no calling in." (Stults Dep. 65:9-12, Dkt. 90-25). He testified that "we had tried to call and couldn't make contact." (Stults Dep. 68:6-8, Dkt. 90-25).
Stults' testimony is expressly contradicted, however, by the testimony of Teresa Carlisle, the assistant manager of the pier. She testified that Stults changed the schedule, that Wiley was unaware of the schedule change, that Stults told her that if she called Wiley she would be fired, and that Wiley did not miss scheduled shifts.7 (Carlisle Dep. 50:23-51:2, 53:4-9, Dkt. 118-7). And Wiley's formal termination was delayed because:
I know this is not an excuse but a reason. With all that is going on with Penny and Bill this was a touchy situation that we needed to tip toe on. She didn't show up for work and when she did we told her to go home and we would contact her if we needed her. Then Penny starting snooping around and we just didn't want to do a formal termination until we let things rest a little. Once she emailed Randy and asked what we were doing is when he said she was terminated . . . .
To establish a prima facie case of Title VII retaliation, a plaintiff must show that "(1) she engaged in an activity protected under Title VII; (2) she suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action."8 Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). If a plaintiff establishes a primafacie case, the burden shifts to the defendant to proffer a legitimate, non-retaliatory reason for the adverse employment action. Coutu v. Martin County Bd. of County Com'rs, 47 F.3d 1068, 1075 n. 54 (11th Cir. 1995). If defendant does so, the burden shifts to the plaintiff to establish that the proffered reasons were a pretext for retaliation. Chapman v. AI Transp., 229 F.3d 1012, 1024-25 (11th Cir. 2000). In this respect, it must be evaluated "whether the plaintiff has demonstrated such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence." Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253, 1258 (11th Cir. 2001) (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)) (internal quotation marks omitted). If the plaintiff proffers sufficient evidence to create a genuine issue of material fact regarding whether the reasons were pretextual, the employer is not entitled to summary judgment. Id. at 1025.
Lamar presents evidence sufficient to state a prima facie case for retaliation. She engaged in protected activity as early as June 2012 and as late as December 17, 2012 when she complained of discrimination. Laraway and Stults learned of her protected activity on December 17th and 18th, respectively. Stults effectively terminated Lamar's daughter on February 19, 2013, just two months later. That was temporally sufficiently to...
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