Perry v. Ala. Alcoholic Beverage Control Bd.
| Decision Date | 23 September 2013 |
| Docket Number | Civil Action No. 2:11–cv–464–WHA (WO). |
| Citation | 973 F.Supp.2d 1263 |
| Parties | Kesia J. PERRY, Valencia Aaron, and Stacy D. Taylor, Plaintiffs, v. ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD, Jeff Rogers, in his individual capacity, and Jean Turner, in her individual capacity, Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
OPINION TEXT STARTS HERE
Ann Carroll Robertson, Henry Wallace Blizzard, III, Russell Wayne Adams, Wiggins Childs Quinn & Pantanzis, PC, Birmingham, AL, for Plaintiffs.
Clinton A. Richardson, Robert F. Northcutt, Capell & Howard, P.C., Montgomery, AL, for Defendants.
This case is before the court on three Motions for Summary Judgment filed by Defendants Alabama Alcoholic Beverage Control Board (“ABC Board” or “Board”), Jeff Rogers, and Jean Turner on June 28, 2013. The Plaintiff, Kesia Perry (“Perry”), filed a Complaint in this case on June 14, 2011, bringing claims against the ABC Board and against Jeff Rogers (“Rogers”) and Stan Goolsby (“Goolsby”) in their individual capacities. Perry amended her Complaint to add Valencia Aaron (“Aaron”) as a plaintiff and Kenneth Davis (“Davis”), in his individual capacity, as a defendant. A Second Amended Complaint (Doc. # 6) was then filed on June 30, 2011, adding Stacy Taylor (“Taylor”) as a plaintiff and Jean Turner (“Turner”), in her individual capacity, as a defendant. In response to the Second Amended Complaint, the Defendants filed a Motion to Dismiss (Doc. # 18), which the court granted in part and denied in part, resulting in the dismissal of some of the plaintiffs' claims and Goolsby and Davis as defendants (Doc. # 26). The remaining claims are: Count I—Perry's race discrimination and hostile environment claims against the ABC Board for violation of 42 U.S.C. § 2000e–2(a)(1) (“Title VII”); Count II—Perry's retaliation claim against the ABC Board for violation of Title VII; Count V—Aaron's race discrimination and hostile environment claims against the ABC Board for violation of Title VII; Count VI—Aaron's retaliation claim against the ABC Board for violation of Title VII; Count IX—Taylor's race discrimination and hostile environment claims against the ABC Board for violation of Title VII; Count X—Taylor's retaliation claim against the ABC Board for violation of Title VII; Count XI—Taylor's race discrimination and harassment claim against Rogers and Turner for violation of the Fourteenth Amendment and 42 U.S.C. § 1981; and Count XII—Taylor's retaliation claim against Rogers and Turner for violation of 42 U.S.C. § 1981. The case is now before the court on three separate Motions for Summary Judgment filed by the Board and by the individual Defendants. They seek summary judgment on all remaining counts.
The court has federal question subject matter jurisdiction over these claims. See28 U.S.C. § 1331.
For the reasons to be discussed, the Defendants' Motions for Summary Judgment are due to be GRANTED.
Summary judgment is proper “if there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quotation omitted).
The party asking for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion,” relying on submissions “which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323, 106 S.Ct. 2548. Once the moving party has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a genuine issue for trial. Id. at 324, 106 S.Ct. 2548.
Both the party “asserting that a fact cannot be,” and a party asserting that a fact is genuinely disputed, must support their assertions by “citing to particular parts of materials in the record,” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A), (B). Acceptable materials under Rule 56(c)(1)(A) include “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.”
To avoid summary judgment, the nonmoving party “must do more than show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On the other hand, the evidence of the non-movant must be believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
After the nonmoving party has responded to the motion for summary judgment, the court shall grant summary judgment 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. Fed.R.Civ.P. 56(a).
Based on submissions of the parties, the following is an account of the relevant facts with all justifiable inferences drawn in favor of the Plaintiffs:
The ABC Board's Policies and Personnel Process
The Plaintiffs in this case were employees of the ABC Board. 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 policies that prohibit discrimination against any employee or applicant based on race. The ABC Board's policy states that any employee or applicant may file a discrimination complaint with the ABC Board. The ABC Board also has a policy that requires employees to testify as needed in conjunction with pre-discipline or grievance hearings. Any employee that refuses to testify or that harasses another employee may be subject to discipline, including dismissal.
The SPD manages the recruitment and testing procedures for all of the ABC Board's merit-system jobs. A candidate seeking a job or a promotion must first submit an application for examination with the SPD. If the candidate meets the job classification's minimum qualifications, the SPD either administers an examination or scores the candidate based on experience. The SPD then prioritizes the candidate's name on the job classification's hiring/promotion register according to the candidate's score.
When the ABC Board has a job vacancy, the SPD provides the ABC Board with a Certificate of Eligibles, made up of the top ten names, plus ties, from the hiring register. A candidate may remove himself or herself from the register for any reason. In addition, a candidate may be removed if he or she has noted a restriction, such as an unwillingness to move to a particular geographic location.
To be eligible to receive a promotion, a candidate must 1) rank in the top ten, plus ties, of the hiring register, 2) rank in the top half of the register and successfully perform the current job classification at a higher level for more than three months (the “Upper 50 Rule”), or, 3) having been unable to be in the top ten, plus ties, or the upper fifty percent of the register, perform the job at a particular level for five years or more (the “Five Year Rule”). For promotionthrough the Upper 50 Rule or the Five Year Rule, the employee's position is analyzed for reallocation. For reallocations, the ABC Board submits a position classification questionnaire to the SPD's Classification and Pay Division Manager. Using the questionnaire, the manager then decides whether reallocation is warranted for the particular position. If the questionnaire is insufficient, the SPD may require a desk audit to observe the job personally in making its decision. Ultimately, the SPD's Classification and Pay Division Manager makes the reallocation decision. If reallocation is warranted, the employee is promoted to a higher classification. If reallocation is unwarranted, the employee remains at his or her current classification.
When an employee is hired, his or her salary is usually set at the minimum for the specified job classification. In special cases when it is deemed impossible to hire a desired qualified person at the minimum rate, the ABC Board may recommend—and the SPD Classification and Pay Division Manager may approve—a higher rate that matches the person's salary from his or her previous employment.
Plaintiff Perry, an African–American, was hired by the ABC Board on August 1, 2007 as an Administrative Support Assistant II (“ASA II”), a position classified as responsible for filing and retrieving documents and answering the telephone. After completing her probationary period, she was assigned the duties of handling labels and sweepstakes authorization. Perry consistently received excellent performance reviews, but, due to a merit raise freeze, she did not receive a raise after her initial probationary period. After several months working as an ASA II, Perry requested the opportunity to be promoted to an ASA III. Perry took the examination to qualify for promotion and scored in Band 3. Based on this score, the SPD prioritized Perry in the top half of candidates on the ASA III promotional register, but her score did not warrant placing her in the top ten, plus ties.
In June 2008, the Chief of the Enforcement Division, Defendant Rogers, white, requested a reallocation of Perry's position. After reviewing the classification questionnaire and in order to get more information, SPD sent a job analyst to perform a desk audit of Perry's position. In a letter dated July 3, 2008, SPD notified the ABC Board of its decision not to reallocate Perry's position. Specifically, the SPD stated that Perry's job lacked the independent judgment and level of responsibility of an ASA III. Mark Hatfield (“Hatfie...
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