Johnson-Price v. Alabama Department of Human Resources, et al (CRUM SPIN), No. 2:2007cv00568 - Document 114 (M.D. Ala. 2010)

Court Description: OPINION. Signed by Honorable Myron H. Thompson on 3/30/2010. (wcl, )
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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION LAURA JOHNSON-PRICE, ) ) ) ) ) ) ) ) ) ) Plaintiff, v. ALABAMA DEPARTMENT OF HUMAN RESOURCES, et al., Defendants. CIVIL ACTION NO. 2:07cv568-MHT (WO) OPINION Plaintiff Laura (Clemons) Johnson-Price, an AfricanAmerican, brings federal employment discrimination claims against the following defendants: the Alabama Department of Human Resources (DHR), DHR Commissioner Nancy Buckner, the Alabama State Personnel Department (SPD), and SPD Director Jackie Graham. Johnson-Price charges that DHR and in race to hiring Buckner retaliation conditions engaged in of respect her employment, discrimination and and and while the SPD terms and Graham perpetuated race discrimination in the allocation of promotions. She asserts each of these claims pursuant to 42 U.S.C. § 1981 (by and through 42 U.S.C. § 1983) and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 1981a, 2000e to 2000e-17. This court has original jurisdiction over the Title VII claims under 42 U.S.C. § 2000e-5(f)(3) and the § 1981 claims pursuant to 28 U.S.C. § 1343. The defendants now move for summary judgment on all claims. For the reasons that follow, the defendants motions will be granted in part and denied in part. I. SUMMARY-JUDGMENT STANDARD Summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)(2). Under Rule 56, the court must view the admissible evidence in the light most favorable to the non-moving party and draw all reasonable inferences in 2 favor of that party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). II. BACKGROUND Johnson-Price was employed by DHR for over 25 years. After graduating from the University of Alabama in 1978 with a Masters of Social Work degree, she was hired by the DHR office in Calhoun County as a Social Worker III. In 1983, she was promoted to Welfare Supervisor II, and in 1993, after the state DHR reclassified the agency s job categories, she was named Service Supervisor II, followed by a promotion to Senior Social Worker that same year. In August 1993, she was named Human Resources Program Specialist, a position with the state DHR. A. Johnson-Price Pickens County Pickens County Director submitted Director an application position 3 in for 1993. the The applications were reviewed by the Pickens County Board.1 Among the list of applicants, Johnson and Tony Black, a white man, were similarly ranked. However, the Board ultimately chose Black for the position. B. Calhoun County Assistant Director Also in 1993, the position of Assistant Director in Calhoun County became vacant, and, between September 1993 and January 1994, Johnson-Price wrote letters expressing her interest in the job to several members of the DHR leadership, including the DHR Commissioner, Calhoun County Director Erin Snowden, and the Director of DHR s Civil Rights/Equal Employment (CR/EE) Office, Sylvester Smith. A state-wide budget freeze was in effect at that time, which purportedly delayed the hiring process. 1. DHR county boards are comprised of non-DHR employees who are citizens of the relevant county, each of whom is appointed by the county commission, and who serve as autonomous entities from the state DHR. The county boards are the hiring authorities for the county directors. 4 In January 1994, in the midst of the budget freeze, Director Snowden was offered the opportunity to hire either a Financial Support Supervisor or an Assistant Director; Snowden chose to hire a Financial Support Supervisor. In April 1994, Johnson-Price again informed Snowden and Smith, as well as Waldo Spencer, Director of DHR s Personnel Division, that she wished to considered for the Assistant Director position. be Soon after, the DHR Staffing Committee exempted the position from the hiring freeze. In August 1994, Mike Galloway, a DHR Regional Manager, instructed Snowden to post and distribute an announcement for the Assistant Director opening. Johnson-Price was one of two applicants for the job, along with Mike Norton, a white male. withdrew his Johnson-Price application, was and, provisionally on Norton eventually January appointed Assistant Director for Calhoun County. became permanent in May 1995. 5 7, as 1995, the Her position After her promotion to Assistant Director, JohnsonPrice had severe disagreements with Snowden, who served as her immediate supervisor. Snowden harassed Johnson- Price and engaged in repeated efforts to authority. undermine her Several of these instances, summarized in Johnson-Price s brief opposing summary judgment, are outlined below. Stress Management Training: In May 1995, Johnson- Price sent a memo to Snowden and the Calhoun County DHR supervisors about a county-wide Workshop, planned for August 1995. Stress Management Bobby Malone, who was both the DHR County Board Chairman and the Director of Family and Children Services at the Calhoun County Mental Health Center, agreed to conduct the workshop. In June 1995, Malone informed Snowden and Johnson-Price that he would not charge a personal fee to conduct the workshop, but would only collect $ 250 from Calhoun County for materials. Johnson-Price sent 6 a letter to Snowden, confirming that Malone would not receive DHR funds for his personal benefit. On July 21, 1995, Snowden sent a memo to the county supervisors informing them that it was against DHR policy to use local funds to support staff training. Johnson- Price she contends attempting that to the illicitly memo implied spend the that money.2 office s Snowden consequently refused to pay for the training. August Snowden 25, 1995, that he Regional Manager supported the Galloway training was On informed and after addressing Snowden s various funding concerns, the event went forward as planned. Tile Removal: On September 7, 1995, Snowden berated Johnson-Price in front of other Calhoun County employees for authorizing the removal of tiles in the staff 2. DHR and Buckner assert that Snowden opposed the training because it presented an ethical issue to hold a DHR event in which a Calhoun County DHR Board member stood to make a profit. DHR Defs. Br. at 8 (doc. no. 46). Johnson-Price states that Snowden s ethical claim is bogus as [n]one of the money [from the training] would go to Malone personally. Pl. s Br. at 5 and n. 5 (doc. no. 61). 7 breakroom without Snowden s approval. Snowden claimed that the tiles contained asbestos and thus constituted a health hazard to the employees in the building. Johnson- Price presented evidence that the tile was not asbestos and therefore presented no problem for disposal. Pl. s Ex. 23 (doc. no. 66-6). Snowden s actions, Calhoun County removal and As a result of Supervisor June Ledbetter wrote a letter to Malone on September 8, 1995, complaining of the verbal inflicted upon Johnson-Price. beating that Snowden Pl. s Ex. 21 (doc. no. 66- 4).3 Johnson-Price also sent a memo to Snowden, objecting to the director s decision to take unfounded and inappropriate disciplinary action in the presence of Johnson-Price s subordinates. Internal Protocol and Procedures: Throughout the year, Snowden repeatedly held meetings without informing Johnson-Price. In the meetings Johnson-Price did attend, 3. In her letter, Ledbetter also stated that Snowden repeatedly attempted to undermine and discredit Johnson-Price, and engaged in blatant attack[s] on her credibility as a manager. Pl. s Ex. 21 (doc. no. 66-4). 8 Snowden would often request detailed reports, to be completed on very short notice, or would falsely accuse Johnson-Price of failing to submit reports in a timely fashion. Furthermore, when Johnson-Price purchased furniture, supplies, equipment, or other enhancement items for the office, Pl. s Br. at 9 (doc. no. 61), Snowden would object to her purchases--though they had been discussed and approved beforehand--and refuse to pay the bills in a timely fashion. On January 11, Allocation of Supervisory Duties: 1996, Snowden distributed a memorandum to Calhoun County staff, informing them that she was taking a medical leave of absence absence. and As assigning Assistant Johnson-Price was nevertheless, upon supervisory Director second her in leave, of duties Calhoun command Snowden in her County, to Snowden; left Johnson- Price s subordinates in charge of many office functions. For instance, Supervisor Kay Tolbert was put in charge of one of the two Calhoun County 9 offices, and granted oversight of the agency s service delivery programs, financial transactions, and matters.4 personnel In contrast, Johnson-Price was left in charge of one agency office, and instructed to oversee leave processing, financial support programs, and emergency procedures. Pl. s Ex. 25 (doc. no. 66-8). When Snowden was again absent in June 1996, Supervisors Tolbert and Price were charged with operating one of the Calhoun County offices, while other. Johnson-Price was instructed to supervise the Johnson-Price submits that Snowden s delegation practices were inconsistent with Calhoun County procedure.5 Annual Performance Evaluation: In December 1995, Snowden conducted Johnson-Price s annual job-performance 4. The record indicates that Calhoun County operated two DHR offices, a building at 801 Noble Street, and another office at 1200 Noble Street Building. 5. After Snowden s retirement in 1996, Johnson-Price served as Assistant Director to Tony Black, who succeeded Snowden as Calhoun County Director. Johnson-Price notes that when Black took a leave of absence, she was left to oversee all office programs and administration. 10 evaluation and rated her as Partially Meets Standards. Pl. s Ex. 30 (doc. no. 66-13). In the evaluation, Snowden set forth several examples of Johnson-Price s allegedly poor performance.6 Johnson-Price did not agree with Snowden s review and refused to sign the form. a result of Snowden s rating, Johnson-Price was As not eligible for a merit-based pay raise. Under DHR policy, Snowden was expected to supply Johnson-Price with a pre-appraisal assessment at the beginning of the year, listing the relevant standards of evaluation for her position. Pl. s Br. at 9-10.7 6. In her review, Snowden declared that, on numerous occasions, Johnson-Price failed to notify her of planned trainings and workshops (including the Stress Management Workshop, described above), submitted requests for additional staff or equipment that were beyond the ability of the director to deliver, which created friction, disillusionment, and negatively impact[ed] morale, fomented health and safety risk[s] on DHR premises (referring to the asbestos tile incident), and repeatedly violated the National Association of Social Workers Code of Ethics. Pl. s Ex. 30 at 3-4 (doc. no. 66-13). 7. DHR s Personnel Manual states: The purpose of the pre-appraisal session is to enable the supervisor and (continued...) 11 However, Snowden did not distribute the pre-appraisal report until immediately before the actual evaluation. After receiving the negative performance review, JohnsonPrice filed a complaint with the CR/EE Office, charging Snowden with failing to provide task statements and performance standards over the course of the year and alleging that Snowden s evaluation was being used as a form of retaliation. unfair and Pl. s Ex. 36 (doc. no. 67-2).8 In response, Personnel Director Spencer notified Snowden that Johnson-Price had filed a complaint, and reprimanded Snowden for her failure to provide Johnson-Price with performance standards prior to her evaluation.9 In January 1996, Galloway conducted a 7. (...continued) worker to discuss written statement[s] concerning the employee s job tasks and the performance standards to be used in monitoring these tasks. Pl. s Ex. 29 at 6 (doc. no. 66-12). 8. In the CR/EE complaint, Johnson-Price alleged race discrimination and retaliation based on many of the same facts set forth in her brief opposing summary judgment. 9. In his memorandum to Snowden, Spencer referred to (continued...) 12 second performance evaluation, at which rating time to replace Johnson-Price Snowden s received perfect rating and a merit-based pay raise. a King Decl. (doc. no. 47-6). In internal October 1996, complaint, in response CR/EE Director to Johnson-Price s Smith issued an investigative report, which concluded that Snowden had retaliated against Johnson-Price in violation §§ 703(a)(1) and (2) and § 704(a) of Title VII.10 of Smith 9. (...continued) DHR s Departmental Personnel Manual (which states that [e]mployees shall not be given an Unsatisfactory Rating unless action has been taken on the part of the supervisor to bring the infraction to the attention of the employee ) and found that Snowden had failed to engage in this process prior to the evaluation. Spencer also informed Snowden that she had inappropriately based her evaluation on the National Association of Social Workers Code of Ethics, by failing to advise JohnsonPrice that she would be evaluated based on those criteria. Pl. s Ex. 37 (doc. no. 67-3). 10. In the investigative report, Smith determined that Snowden retaliated against Johnson-Price in the following ways: 1) coercive questioning, 2) retaliatory work assignments, 3) discriminatory job performance evaluation, 4) retaliatory (verbal) reprimands, 5) threats to take adverse employment action based on (continued...) 13 recommended that the performance evaluation conducted by Snowden be permanently removed from Johnson-Price s employment file and that DHR take reasonable steps to remedy the [effects] of the discriminatory retaliatory treatment directed against Laura Johnson-Price. Ex. 45 at 4 (doc. no. 67-11). Pl. s Snowden retired as County Director effective September 1, 1996, one month before the CR/EE Office issued its report. In June 1994, Johnson-Price filed a charge with the Equal Employment Opportunity Commission (EEOC),11 alleging that she had been the victim of racial discrimination and retaliation with respect to the terms and conditions of 10. (...continued) manufacturing a cause, 6) failing to provide to the complainant a non-hostile working environment, and 7) retaliatory usurping of the complainant s job authority. Pl. s Ex. 45 at 3 (doc. no. 67-11). 11. Johnson-Price first filed an EEOC charge against DHR in 1990, but the charge was resolved and its factual allegations are not at issue in this litigation. In November 2003, she filed a third EEOC charge against DHR, alleging race discrimination and retaliation, after she was removed by the Calhoun County Board as County Director and transferred to a position with the state DHR office in the Quality Control Unit. 14 her employment with DHR.12 In August 2004, she amended the charge, claiming that DHR employed a discriminatory selection system, which affected the agency s entrance requirements and examinations, job classifications, and the criteria and procedures used to formulate job registers 13 and Certificates of Eligibles. 14 Pl. s Am. EEOC Charge (doc. no. 47-12). On November 23, 1998, Johnson-Price sought to intervene in the case of Crum et al v. State of Alabama, 12. The charge specifically stated that DHR s systemic discrimination affected her opportunities in hiring, promotions, compensation benefits, selection ratings, training, discipline, and job assignments. Johnson-Price also alleged that, In the absence of such racial discrimination in hiring and promotions, I and other blacks would have had a great opportunity of supervising and being supervised by persons of my same race. Pl. s EEOC Charge (doc. no. 47-11). 13. Applicants for DHR positions may be placed on the register for a specific position only after filing a valid application and satisfying the position s entrance requirements, as set forth in the job announcements published by the DHR Personnel Department. 14. A Certificate of Eligibles constitutes a list of eligible applicants, adopted from the register, and ranked by examination score and personal service rating. 15 consolidated as In re Employment Discrimination Litigation Against the State of Alabama, CV 945-356-N. On June 1, 2007, this court granted her motion to intervene, and this case was subsequently converted into a separate lawsuit. III. DISCUSSION As a preliminary matter, Johnson-Price improperly asserted violations of 42 U.S.C. §§ 1981 and 1983 against instruments of the Alabama government. Agencies of the state are immune from such suits under the Eleventh Amendment, regardless of the relief requested. See Cory v. White, 457 U.S. 85, 90-91 (1982) (citing Edelman v. Jordan, 415 U.S. 651, 663 (1974)); see also Carr v. City of Florence, 916 F.2d 1521, 1525 (11th Cir. 1990) (noting that Alabama immunity). has not waived its Eleventh Amendment As to DHR and SPD, Johnson-Price admits they are immune from suit under § 1981, as enacted through § 1983. She also concedes that, as Buckner and Graham 16 are sued in their official capacities, they are immune from suit for monetary damages and parties to the Title VII claims. are unnecessary Johnson-Price may legally maintain suit for injunctive relief against these officials. See Taylor v. Alabama, 95 F. Supp. 2d 1297, 1310 (M.D. Ala. 2000) (DeMent, J.) (citing Ex Parte Young, 209 U.S. 123 (1908)). In opposing the defendants motions for summary judgment, Johnson-Price also concedes to the dismissal of the majority of her claims.15 claims remain. She has As a result, only six four claims of race discrimination as to (1) the selection of the Pickens County Director in 1993; (2) the hiring delay for the Calhoun County Assistant Director position in 1994; (3) her mistreatment as the Calhoun County Assistant 15. Johnson-Price does not contest summary judgment for her failure to hire claims as to the Calhoun County Director position in 1997, Regional Manager position, Pickens and Blount County Director positions, or the St. Clair County Director position. She also concedes to the dismissal of her claim alleging discriminatory delay in hiring for the Calhoun County Director position in 1998. 17 Director; and (4) the allocation of promotions within DHR. She also maintains two retaliation claims pertaining to (5) the hiring delay and (6) her treatment as Assistant Director. Each claim is governed by Title VII and § 1981, by and through § 1983. Finally, before reaching the merits in this case, the court addresses the defendants defense that JohnsonPrice s claims judicata. are precluded on the grounds of res Res judicata bars the re-litigation of claims that arise[] out of the same nucleus of operative fact, In re Piper Aircraft Corp., 244 F.3d 1289, 1297 (11th Cir. 2001), and which were raised or could have been raised in the prior litigation.16 Lines, Inc., 326 F.3d 1183, See Davila v. Delta Air 1187 (11th Cir. 2003). Johnson-Price previously brought actions in state court 16. In order to bar a subsequent action, the moving party must show: (1) the prior decision was rendered by a court of competent jurisdiction; (2) there was a final judgment on the merits; (3) the parties were identical in both suits; and (4) the prior and present causes of action are the same. Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1187 (11th Cir. 2003) (internal citations omitted). 18 (Johnson-Price v. Fuller et al., CV-2003-3236) and federal court (Clemons v. Alabama Department of Human Resources et al., CV-04-2939), alleging discrimination and retaliation based on her removal from the Calhoun County Director position in 2002. Judgment was entered for the defendants in both suits.17 However, res judicata does not apply to the remaining claims in this case. Johnson-Price filed the state and federal suits over five years after moving to intervene in the Crum litigation. In the later cases, she did not raise claims related to her tenure as Assistant Director for Calhoun County or her application for the Pickens County Director position, as litigation on those issues was already pending before this court. Instead, her suit concerned facts that arose after her intervention in Crum. 1298 See In re Piper Aircraft Corp., 244 F.3d 1289, (11th Cir. 2001) (internal citations omitted) 17. In the state suit, the court dismissed the action following a bench trial. Summary judgment was granted in the federal case. 19 (Claims are not precluded where the facts giving rise to the second case only arise after the original pleading is filed in the earlier litigation. ). Therefore, as the instant claims have not been previously litigated and as Johnson-Price had no opportunity to raise them in a prior action, they are not precluded by res judicata. Having addressed the necessary preliminary issues in this case, the court moves to a discussion of the merits. A. Race Discrimination Johnson-Price brings four claims of race discrimination pertaining to her employment with DHR. She asserts that DHR and Buckner engaged in racial discrimination (1) as to the selection process for the Pickens County Director position in 1993; (2) in delaying the hiring process for the Calhoun County Assistant Director position in 1994; and (3) in her mistreatment as Assistant Director after she was hired. 20 She also alleges (4) that SPD and Graham engaged in racial discrimination as to the allocation of promotions. Johnson-Price first asserts a failure-to-hire claim for the position of Pickens County Director. She alleges that the Pickens County Board of Directors discriminated against her in selecting Tony Black, a white man, for the position of County Director, though both she and Black were of commensurate rank, based on DHR hiring criteria. The court presumes that Johnson-Price has established a prima-facie case of race discrimination under both Title VII and § 1981.18 See Walker v. Prudential Property and Cas. Ins. Co., 286 F.3d 1270, 1274-75 (11th Cir. 2002) (To establish a prima-facie case of failure to hire, the plaintiff must show that she is a member of a protected class, that she applied for and was qualified 18. See Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) ( Both [Title VII and 42 U.S.C. § 1981] have the same requirements of proof and use the same analytical framework, therefore we shall explicitly address the Title VII claim with the understanding that the analysis applies to the § 1981 claim as well. ). 21 for an available position, that she was rejected, and that the defendant filled the position with a person outside the protected class. ). However, DHR provided evidence that the Pickens County Board chose Black as director based on the fact that one of the board members knew Black personally, had worked with him in the past and, as a application. Price is result, internally promoted Cowart Decl. (doc. no. 76-2). unable to rebut this Black s Johnson- legitimate, nondiscriminatory reason for the employee s rejection, Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981), and offers no evidence that the board s stated reasons for hiring Black were a pretext for discrimination. Id. (setting forth the burden-shifting framework for Title VII claims established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Johnson-Price also asserts race discrimination in Calhoun County s delay in hiring her for the Assistant Director position. She alleges that, in January 1994, 22 when Snowden was granted a reprieve from the hiring freeze and permitted to employ either a Financial Services Superior or an Assistant Director, she purposely chose to fill the former position so as not to hire Johnson-Price. Johnson-Price contends that Snowden delayed filling [the Assistant Director] position to retaliate and discriminate against her. Pl. s Br. at 41. Johnson-Price s claim cannot be analyzed under the failure to hire framework, as she was, in fact, hired for the Assistant Director position in January 1995. Instead, the court examines whether DHR s delay in hiring Johnson-Price constitutes an adverse action, so as to establish, absent direct evidence, a prima-facie case of disparate treatment. 376 F.3d 1079, 1087 See Wilson v. B/E/ Aerospace, Inc., (11th Cir. 2004) (in order to establish a prima-facie case of disparate treatment under both Title VII and § 1981, the plaintiff must show that she was a qualified member of a protected class and was 23 subjected to an adverse employment action in contrast with similarly situated employees outside the protected class ). the There is nothing in the record to indicate that hiring action. delay constituted an adverse employment At the time Johnson-Price applied for the Assistant Director position, she was employed as a Human Resources Program Specialist with the state DHR. She offers no evidence that, as a result of the delay, she suffered benefits. a loss in compensation or other employment In fact, she provides no evidence of any alteration in the conditions of her employment during the 12 months the position remained vacant. See Davis v. Town of Lake Park, Fla, 245 F.3d 1232, 1239 (11th Cir. 2001) ( [T]o prove adverse action in a case under Title VII s anti-discrimination clause, an employee must show a serious and material change in the terms, conditions, or privileges of employment. ) (emphasis in original). Johnson-Price instead expects the court to find a genuine issue of fact as to the discrimination claim based on Snowden s alleged propensity to ... discriminate, from 24 which a reasonable fact-finder could infer that she delayed filing the position to ... discriminate against [Johnson-Price]. This wholly tautological argument fails to satisfy Johnson-Price s burden at this stage in the litigation. Johnson-Price also claims race discrimination based on her treatment as Calhoun County Assistant Director, while under the supervision of Director Snowden. She states that Snowden repeatedly undermined her authority before subordinates, chastised her in a demeaning and disrespectful manner, delegated duties so that she was constructively demoted, Pl. s Br. at 14, and issued an unfounded annual performance evaluation. Johnson-Price s claim fails, however, as she is again unable to establish a prima-facie case of discrimination. Even assuming a jury could find that the above-named acts constitute adverse-employment action, Johnson-Price does not show that a similarly situated member of an unprotected class was treated more favorably during the relevant time period. In order to show that employees 25 are similarly situated, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different way. Silvera v. Orange County School Bd., 244 F.3d 1253, 1259 omitted). a (11th Cir. 2001) (internal quotations This is generally demonstrated by the use of comparator, a human measuring stick of racial discrimination, who must be nearly identical to the plaintiff to prevent courts from second-guessing a Wilson, 376 F.3d reasonable decision by the employer. at 1091. Johnson-Price does not provide such a comparator. She merely concludes that Snowden did not treat her with respect and that was different treatment than the white employees received. points to a Pl. s Br. at 42. letter from Calhoun As evidence, she County Supervisor Ledbetter, which stated that Snowden inflicted a verbal beating upon Johnson-Price subordinate employees. in the presence of Pl. s Ex. 21 (doc. no. 66-4). However, Ledbetter does not maintain that Snowden acted 26 in a discriminatory fashion; in fact, in this same letter, Ledbetter, a white woman, also complained that Snowden severely rebuked her before other supervisors. The record suggests that Snowden maintained antagonistic relationships with several of her employees, both white and black, and there is no evidence of racial favoritism in this regard. Johnson-Price does attempt to conduct a direct employee comparison by alleging that she was treated less favorably in the employees. pre-appraisal Specifically, she process states than that white Snowden conducted only a very general pre-appraisal prior to her annual performance evaluation, while detailed preappraisals [were] done in other counties on white employees. Pl. s Br. at 11. As evidence, Johnson-Price underlines the reports conducted on behalf of two white employees, In both order of to whom worked constitute in other similarly counties. situated employees, the individuals to be compared must have (1) dealt with the same supervisor, (2) been subject to the 27 same standards, and (3) engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer s treatment of them for it. Sanguinetti v. United Parcel Service, Inc., 114 F. Supp. 2d 1313, 1317 (S.D. Fla. 2000) (Ryskamp, J.); see also Jones v. Gerwens, 874 F.2d 1534, 1541 (11th Cir. 1989) (noting that disciplinary measures undertaken by different supervisors may not be comparable for purposes of Title VII analysis ). The pre-appraisal reports at issue here were conducted by different supervisors, who evaluated employees working in different offices, responsibilities. were not appraisal different job Johnson-Price and the white employees similarly reports performing situated, cannot be and thus, utilized as their pre- evidence of discrimination. In sum, Johnson-Price has provided no evidence that ties her treatment, albeit perhaps unfair, to race, such as that a supervisor treated a similarly situated white person differently from the way she was treated or that 28 there was otherwise an environment of discrimination against black persons in the place where she worked. Without any basis for comparison, no reasonable factfinder could conclude that performed with racial bias. Snowden s actions were Summary judgment will be granted on Johnson-Price s claim of race discrimination in the Assistant Director position. Finally, in her initial complaint, Johnson-Price charged SPD and Graham with race discrimination in the allocation of promotions, in violation of Title VII and § 1981. However, in her brief opposing summary judgment, Johnson-Price does not address either SPD or Graham, and she fails to undertake any arguments relating to the allocation and distribution of promotions. Consequently, there are no remaining issues of material fact as to the SPD defendants. Summary judgment will be granted on each of JohnsonPrice s claims of race discrimination. 29 B. Retaliation Johnson-Price brings two claims of retaliation. First, she asserts that DHR, acting through Snowden, retaliated against her by delaying her appointment to the position Second, of she Assistant contends Director that of Snowden Calhoun subjected County. her to retaliatory treatment after she accepted the position of Assistant Director in 1995. In order to establish a prima-facie case of retaliation, Johnson-Price may show that (1) she engaged in an activity protected under Title VII; (2) she suffered [a materially adverse] action; and (3) there was a causal connection between the protected activity and the adverse employment action. Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). In addressing the matter of causality, encapsulated in the third prong of the Crawford test, Johnson-Price relies principally upon a chronology drafted by Regional Manager Galloway as evidence that Snowden did not want to promote activity. [Johnson-Price] Pl. s Br. at because 35. 30 In of her this prior EEO chronology, Galloway summarizes the hiring process for the Calhoun County Assistant Director position and notes that Snowden was critical of [Johnson-Price s] history of filing EEO complaints and did not want to offer [Johnson-Price] the position. Pl. s Ex. 6 (doc. no. 64-7). Galloway s statement, if reliable and believable, is clear evidence that Snowden knew of Johnson-Price s protected activity; however, it also constitutes an unofficial memorandum, and there is no evidence that it was kept in the regular course of business. As such, the chronology is inadmissible hearsay and may not be considered in a See E.E.O.C. v. Alton motion for summary judgment. Packaging Corp., 901 F.2d 920, 926 (11th Cir. 1990) ( Under Fed. R. Evid. 803(6), business records are admissible if (1) they were made at or near the time the recorded events occurred; (2) they were made by, or from information transmitted by, a person with knowledge of the recorded events; (3) it was the regular business practice of the organization to keep such records; (4) the record was kept in the 31 course of a regularly conducted business activity; and (5) all of the above is shown by the testimony of the evidence custodian or other qualified witness. ); see also Macuba v. DeBoer, 193 F.3d 1316, 1323 (11th Cir. 1999) ( The general rule is that inadmissible hearsay cannot be considered on a motion for summary judgment. ) (internal citations omitted). Johnson-Price has submitted a motion pursuant to Fed. R. Civ. P. 56(f), requesting the opportunity to conduct additional discovery by deposing Regional Manager Galloway, so that he can provide testimony that Snowden was critical of [Johnson-Price s] history of filing EEO complaints. Pl. s Mot. at 2 (doc. no. 98). As Galloway s testimony may establish a genuine issue of fact as to Johnson-Price s retaliation claims, the court granted her motion to the limited extent of allowing the deposition of Galloway. addressing the merits Therefore, the court pretermits of Johnson-Price s retaliation claims until the evidentiary record is complete. *** 32 For the foregoing reasons, the defendants motions for summary judgment are granted as to the defense of Eleventh Amendment immunity and unnecessary parties and as to Johnson-Price s race discrimination claims; the motions are denied as to Johnson-Price s retaliation claims, with defendants on leave the for DHR retaliation and Buckner claims) to (the renew only the motions as to these claims within 35 days from today s date, so as to give Johnson-Price an opportunity to depose Galloway. If DHR and Buckner fail to renew the motions as to the retaliations claims within this timeframe, these claims will be set for trial. appropriate order will be entered. DONE, this the 30th day of March, 2010. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE An