JOHNSON v. SULLIVAN

Summers has failed to present evidence that any of the allegedly discriminatory actions were taken pursuant to an official policy. In fact, in her Response, she completely failed to address the City of Dothan's arguments on this issue, discussing only the merits of the underlying discrimination claim and making no mention of § 1983's requirement that the action be taken under color of state law. Additionally, the undisputed evidence before this Court establishes that the official policy of the City of Dothan was to prohibit race and gender discrimination in all personnel procedures and practices and to prohibit retaliation for complaining of discrimination. This undisputed evidence also establishes

the City of Dothan's official policy against racial or sexual harassment. ii. Official Representing Government Policy

Nor has Summers presented evidence establishing the alleged discrimination resulted from "the actions of an official fairly deemed to represent government policy." Denno, 218 F.3d at 1276. For an official to be fairly deemed to represent government policy, "the acting official must be imbued with final policymaking authority" in that his "decisions in the area are [not] subject to meaningful administrative review." Id. (citations omitted). Summers's Complaint and Response include allegations of mistreatment by other police officers, by dispatchers, and by superiors such as Captain Draughon and Chief Powell. However, she has offered no evidence or argument regarding the policymaking authority of these persons within the particular area that their actions were undertaken. Additionally, the undisputed evidence establishes that the City of Dothan has a grievance and appeal procedure. (Doc. # 33 Ex. E, McKay Aff. Ex. A). Under this procedure, an employee first files a complaint with his supervisor. If unsatisfied with the department head's disposition of the grievance, the employee can then appeal to the Personnel Board, which Summers did in regards to her termination. See Doc. # 32, at 22; Doc. # 39, at 13. Thus, not only has Summers failed to establish the policymaking authority of any of the persons at issue, but the undisputed evidence establishes that they are subject to administrative review. Summers has presented no evidence or argument that this administrative review is anything but meaningful.

iii. Custom or Practice

Finally, Summers has failed to establish that the allegedly discriminatory actions were undertaken pursuant to a "custom or practice so pervasive and well-settled that it assumes the force of law." Denno, 218 F.3d at 1276. To prove a pervasive custom or practice, the plaintiff must establish a "`persistent and widespread practice'" of the alleged acts of discrimination "about which the [City of Dothan] knew or of which practice it had constructive knowledge, because `normally random acts or isolated incidents are insufficient to establish a custom.'" Id. at 1277 (quoting Church v. City of Huntsville, 30 F.3d 1332, 1345 (11th Cir. 1994)). Here, not only has Summers failed to argue a pervasive custom or practice of discrimination, but her main argument is that the City of Dothan did not follow its normal policies or customs with regards to disciplining

and firing her. See, e.g., Doc. # 39, at 3 (arguing that Summers was disciplined for the UTC incident "even though the Police Department did not have a policy and practice of enforcing the 48 hour rule") (emphasis added). Summers also points to Officer Cole — a white, male officer who turned in a complaint form for an arrestee but failed to sign it within the applicable time period, resulting in the charges being dismissed after the unsigned complaint was lost. (Doc. # 39, at 11). She states that he was only charged with a Minor offense whereas she was charged with a Major offense for violating the same rule. Id. at 12. Assuming these allegations are true, such isolated incidents are still insufficient to establish a pervasive custom or policy. See Denno, 218 F.3d at 1277.

In sum, Summers failed to proffer sufficient evidence to establish that the allegedly discriminatory acts were done under color of state law. Indeed, she has failed to even argue the color-of-state-law requirement of § 1983 even after the City of Dothan demonstrated her failure to present evidence on this issue. Thus, Summers has not established a "genuine" factual dispute with a "real basis in the record" as to the under-color-of-state-law requirement. Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993) (citing Matsushita, 475 U.S at 586-87), reh'g en banc denied, 16 F.3d 1233 (11th Cir. 1994), reh'g denied, No. 92-2485, 1994 U.S. App. LEXIS 40941 (11th Cir. Feb. 16, 1994). Given that Summers bears the ultimate burden of proof on this issue, this Court finds that the City of Dothan has met its burden on summary judgment and is entitled to judgment as a matter of law on the § 1983 claims. Therefore, the City of Dothan's motion for summary judgment is due to be GRANTED with respect to the Fourteenth Amendment and § 1981 claims brought pursuant to § 1983.

Title VII prohibits employers from "discriminat[ing] against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). In Count II of the Complaint, Summers alleges sex discrimination, race discrimination, and retaliation "with respect to discipline, her termination, and other terms, conditions, and privileges or her employment" in violation of Title VII. (Doc. # 1, at 9-10, ¶¶ 62-70). Prior to examining the merits of Summers's Title VII claims, this Court must first determine whether she has met the procedural requirements for bringing such claims — namely, the 180-day time bar in 42 U.S.C. § 2000e-5(e)(1).

i. The 180-Day Time Bar

For Title VII claims, a plaintiff must satisfy the prerequisites of 42 U.S.C. § 2000e-5(e)(1) before filing a private civil action. See Thomas v. Ala. Council on Human Rels., Inc., 248 F. Supp. 2d 1105, 1114 (M.D. Ala. 2003) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002)). Pursuant to this provision, a plaintiff must file a charge of discrimination with the EEOC "within one hundred and eighty days after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1); accord Pijnenburg v. W. Ga. Health Sys., Inc., 255 F.3d 1304, 1305 (11th Cir. 2001) (11th Cir.

2001) ("It is settled law that in order to obtain judicial consideration of [a Title VII] claim, a plaintiff must first file an administrative charge with the EEOC within 180 days after the alleged unlawful employment practice occurred."), reh'g en banc denied, 273 F.3d 1117. "[I]f a plaintiff fails to file an EEOC charge before the 180-day limitations period, the plaintiff's subsequent lawsuit is barred and must be dismissed for failure to exhaust administrative remedies." Thomas, 248 F. Supp. 2d at 1115 (citing Brewer v. Alabama, 111 F. Supp. 2d 1197, 1204 (M.D. Ala. 2000)).

In deciding whether any of the alleged acts of discrimination and retaliation are untimely filed, this Court must determine when such acts occurred. Thomas, 248 F. Supp. 2d at 1115. This determination in turn depends on whether the plaintiff has alleged a "hostile environment" claim or "discrete retaliatory or discriminatory acts such as termination of employment, failure to promote, denial of transfer, or a refusal to hire." Id. (citing Morgan, 536 U.S. at 110, 114). Because Summers alleges discrete incidents of discrimination and retaliation, each one "occurr[ed] on the day that it happen[ed]." Id. As the Thomas court explained:

"Each incident of discrimination and each retaliatory adverse employment decision constitutes a separable actionable `unlawful employment practice.'" Morgan, 122 S.ct. at 2073. Consequently, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Morgan, 122 S.ct. at 2072.

Here, Summers filed her EEOC charge on June 20, 2007 and amended that charge on June 30, 2007 after she was terminated. (Doc. # 32, at 21; Doc. # 39, at 17). Only the termination of her employment covered by the amended charge and the acts of alleged discrimination that occurred within 180 days before the initial charge — namely, December 22, 2006 — are actionable. See Morgan, 536 U.S. at 114 ("[O]nly incidents that took place within the timely filing period are actionable."). On June 1, 2006, Summers was transferred to the First Squad Patrol Division. (Doc. # 1, at 5, ¶ 31). While a member of First Squad Patrol, Summers's employment was terminated in June of 2007. Id. at 7, ¶ 43. Therefore, only the alleged acts of discrimination and retaliation that occurred while Summers was a part of the First Squad Patrol, including the termination of her employment, and after December 22, 2006 can serve as the basis for her Title VII claims. Although Summers is unclear as to what exactly are the allegedly discriminatory actions during this time period, at the very least, they include the discipline for the Shack

incident, the discipline for the UTC incident, and her termination. This Court finds that all of Summers's Title VII claims relating to alleged discriminatory or retaliatory acts occurring prior to December 22, 2006 are time-barred by the procedural requirements of 42 U.S.C. § 2000e-5(e)(1) and that the City of Dothan is entitled to judgment as a matter of law for these claims.

ii. The Disparate Treatment Claims

In McDonnell Douglas Corporation v. Green, the Supreme Court set forth a burden-shifting framework for disparate treatment claims under Title VII. 411 U.S. 792, 802-03 (1973). The plaintiff bears the initial burden of establishing a prima facie case of discrimination. Id. When direct evidence of discrimination is lacking, a plaintiff may establish disparate treatment with circumstantial evidence by "show[ing] (1) she belongs to a protected class; (2) she was qualified to do the job; (3) she was subjected to adverse employment action; and (4) her employer treated similarly situated employees outside her class more favorably." Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (citing Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) (per curiam)); see also Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004) ("A plaintiff establishes a prima facie case of disparate treatment by showing that she was a qualified member of a protected class and was subjected to an adverse employment action in contrast with similarly situated employees outside the protected class.") (citing McDonnel Douglas, 411 U.S. at 802), reh'g en banc denied, 116 Fed. Appx. 257 (2004).

Under McDonnell Douglas, once the plaintiff has established a prima facie case of discrimination, the burden then shifts to the employer "to articulate some legitimate, nondiscriminatory reason for the [adverse employment action]." 411 U.S. at 802; see also Damon, 196 F.3d at 1361. The employer has a burden of production, not a burden of persuasion, and it need not persuade the court that it was actually motivated by the proffered reasons. Wilson, 376 F.3d at 1087 (citing Burdine, 450 U.S. at 254-55).

If an employer satisfies its burden by articulating a non-discriminatory reason, it rebuts the presumption of discrimination created by the prima facie case. Id. "A plaintiff then bears the ultimate burden of proving them to be pretext for . . . discrimination." Damon, 196 F.3d at 1361; see also McDonnell Douglas, 411 U.S. at 805 ("[A Title VII plaintiff] must be given a full fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for [the adverse employment action] were in fact a coverup for a . . . discriminatory decision.").

Here, the parties disagree over whether Summers has established a prima facie case of disparate treatment. The City of Dothan does not dispute the first two elements of a prima facie case of disparate treatment. Rather, the disagreement between the parties arises over whether Summers can establish the third and fourth elements — namely adverse employment action and more favorable treatment of similarly situated employees outside of her protected classes — as to some or all of her remaining claims. See Doc. # 32, at 29-41. There must be some evidence from which a reasonable factfinder would find discrimination — namely, evidence of similarly situated employees outside the protected class who have been treated more favorably. That is lacking here. a. Standard for Similarly Situated Employees

To establish a prima facie case of discrimination, Summers must show that the City of Dothan treated similarly situated employees outside of her protected classes more favorably. In order for other employees to qualify as comparators, a plaintiff "must show that the `employees are similarly situated in all relevant aspects.'" Knight, 330 F.3d at 1316 (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)) (emphasis added); see, e.g., Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1082 (11th Cir. 2005) (doctor discharged from clinic due to patient complaints about his conduct who could not show that he was replaced by someone outside his protected class or that a comparable person outside of his protected class received "nearly identical" complaints, but was not fired, failed to establish a prima facie case); Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001) (reversing judgment in favor of the plaintiff because the employer was entitled to judgment as a matter of law where plaintiff's comparator engaged in fewer instances of misconduct than plaintiff), cert. denied, 534 U.S. 976; Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11th Cir. 1999) (affirming summary judgment in the employer's favor where the alleged misconduct of comparators was not sufficiently similar to support disparate treatment claim); Holifield, 115 F.3d at 1563 (affirming summary judgment where the plaintiff failed to produce sufficient evidence that non-minority employees with which he compares his treatment were similarly situated in all aspects, or that their conduct was of comparable seriousness to the conduct for which he was discharged); Jones v. Gerwens, 874 F.2d 1534, 1540-42 (11th Cir. 1989); Nix, 738 F.2d at 1187 (African-American plaintiff who was replaced by another African-American after termination for violation of work rule failed to make out a prima facie case of race discrimination because he did not meet his burden of showing that a white employee in similar circumstances was retained while he was fired).

In evaluating the similarity of the comparators identified by the plaintiff, the most important variables in a discriminatory-discipline case are the nature of the offenses committed and the nature of the punishments imposed. See Jones, 874 F.2d at 1539. Both the "quantity and the quality of the comparator's misconduct must be nearly identical to prevent courts from second-guessing employers' reasonable decisions and confusing apples and oranges." Maniccia, 171 F.3d at 1368. In making this analysis a court must keep in mind that "Title VII does not take away an employer's right to interpret its rules as it chooses, and to make determinations as it sees fit under those rules[.]" Id. at 1369. "Moreover, the actions of the employer toward the proffered comparators are only relevant if the decisionmaker knew of the prior rule violations by the comparators and took no action against them." Walton v. Neptune Tech. Group, Inc., No. 2:08-cv-5-MEF, 2009 U.S. Dist. LEXIS 97213, at *37 (M.D. Ala. Oct. 20, 2009) (citing Jones, 874 F.2d at 1542).

b. The Shack Incident

Here, Summers spends much of her Response arguing that she did nothing wrong with regards to the Shack incident. (Doc. # 39, at 4-11). However, a prima facie case of discrimination is not established when a plaintiff shows merely that she did not, in fact, violate a work rule that the employer found her to have violated. Miller-Goodwin, 2010 U.S. App. LEXIS 14038, at * 12-14 n. 2 ("[N]o plaintiff can make out a prima facie case by showing just that she belongs to a protected class and that she did not violate her employer's work rule. The plaintiff must also point to someone similarly situated (but outside the protected class) who disputed a violation of the rule and who was, in fact, treated better."). Instead, a plaintiff fired for misconduct must show "`that the misconduct for which [he] was discharged was nearly identical to that engaged in by [an employee outside the protected class] whom [the employer] retained.'" Nix, 738 F.2d at 1185 (citing Davin, 678 F.2d at 570).

Summers claims that the "investigation [into the Shack incident] uncovered numerous problems with [the City of Dothan's] procedures and uncovered facts which suggested that a number of [the City of Dothan's] employees were potentially responsible for the absence of the complaint." (Doc. # 39, at 6). She then argues that despite such evidence, "blame for the incident [was placed] solely on Officer Summers and not the other individuals named in the report — none of whom were disciplined." Id. However, the alleged misconduct of these other employees was not nearly identical to Summers's.

For example, Summers claims that Officer Evans was supposed to fill out the first part of the complaint and post it on the swear board. Id. at 5. However, the undisputed evidence before this court shows that section II(A) of PGO 511 — the work rule that Summers was charged with violating in the Shack incident — states that "[t]he Officer shall be responsible for obtaining warrants in State misdemeanor cases the same working day, if possible, or the next working day the Magistrate is available." (Doc. # 33 Ex. F, Powell Aff. Ex. A). The City of Dothan interpreted this work rule as meaning that the arresting officer, not the transporting officer, bore the ultimate responsibility of filling out and swearing to the complaints for misdemeanor arrestees. (Doc. # 32, at 10). The City of Dothan was entitled to interpret its rule this way. Maniccia, 171 F.3d at 1369. Summers herself admits that it was "usual practice" for the arresting officer to swear to the complaints; however, she also contends that it was also "usual practice" for the transporting officer to "fill out the first part of the complaint form, attach it to the arrest report, and send it through channels where ultimately it is posted on the `swear board' at the [M]agistrate's office for the arresting officer to sign." (Doc. # 39, at 5). Officer Evans misconduct, if any, was not a violation of the same work rule that Summers's was found to have violated — namely the arresting officer's ultimate responsibility of swearing to a complaint as soon as possible — but rather a the transporting officer's responsibility of posting complaints to the swear board. Thus, this Court finds that Officer Evans's alleged misconduct was not nearly identical to Summers's and that he is not a similarly situated employee for purposes of her Title VII disparate treatment claims.

Summers does argue that Officer Cole, a white male, violated the same rule regarding the swearing of complaints but that he only received a Minor offense while Summers received a Major offense. Id. at 6. The investigation into Summers's own incident with Shack brought this incident to the City of Dothan's attention. (Doc. # 32, at 12). In its motion for summary judgment, the City of Dothan asserted that Officer Cole arrested Shack on November 22, 2005 and that he filled out an arrest complaint — something which the Magistrate's office had no record of for Summers's arrest of Shack. Id. at 12. At this point, the Magistrate's office became aware that Shack was in jail on that pending charge — again, something which did not happen in Summers's arrest of Shack for criminal trespassing. Id. Summers does not dispute these facts.

The parties do, however, appear to disagree over what happened next. Taking the facts in the light most favorable to Summers — and indeed, as the facts appear from the City of Dothan's own evidentiary submissions — the Magistrate's office then called Officer Cole to remind him to sign the complaint form. (Doc. # 39, at 11; Doc. # 33 Ex. F, Powell Aff. Ex. C). When Officer Cole arrived at the office, the complaint that he had completed earlier could not be found. (Doc. # 39, at 11; Doc. # 33 Ex. F, Powell Aff. Ex. C). Officer Cole left and did not return to sign the complaint. (Doc. # 39, at 11; Doc. # 33 Ex. F, Powell Aff. Ex. C). Thirteen days later, Shack appeared in front of a Magistrate Judge, who determined that he had been in the jail for thirteen days without a signed complaint against him. (Doc. # 33 Ex. F, Powell Aff. Ex. C). The Magistrate Judge then nolle prossed the charge due to Officer Cole's lack of action. (Doc. # 39, at 11; Doc. # 33 Ex. F, Powell Aff. Ex. C). In the ensuing investigation, it was determined that this incident — like Summers's own incident with Shack — violated PGO 511 § II(A) and subjected the City of Dothan to undue financial loss, (Doc. # 39, at 11-12; Doc. # 33 Ex. F, Powell Aff. Ex. C). Although this was grounds for a Major offense under the City of Dothan's Personnel Rules, (Doc. # 33 Ex. E, McKay Aff. Ex. A), Officer Cole was only charged with a Minor offense. (Doc. # 39, at 11-12; Doc. # 33 Ex. F, Powell Aff. Ex. C). Officer Summers, on the other hand, was charged with a Major offense. (Doc. # 39, at 12; Doc. # 33 Ex. F, Powell Aff. Ex. C).

Despite the fact that Officer Summers and Officer Cole violated the same rule and both were found to have subjected the City of Dothan to undue financial loss, their misconduct is not nearly identical such that Officer Cole would be a similarly situated employee. See Maniccia, 171 F.3d at 1368 (holding that the "quantity and the quality of the comparator's misconduct must be nearly identical") (emphasis added). The City of Dothan found that "[b]ecause Cole filled out an arrest complaint and attempted on two occasions to sign the necessary documents, his conduct, though not acceptable, was not as serious as that of [Summers] who totally failed to turn in any paperwork to the Magistrate's office regarding Shack's arrest." (Doc. # 32, at 13). In sum, the City of Dothan found the circumstances underlying the two incidents to be "entirely distinguishable." Id. at 39. The City of Dothan is entitled to differentiate between Officer Summers and Officer Cole based upon the severity of their conduct. In Nix, the Eleventh Circuit explained:

Punitive action against employees for violating work rules must not differentiate on the basis of any of the criteria reprobated by Title VII. When an individual proves that he was fired but one outside his class was retained although both violated the same work rule, this raises an inference that the rule was discriminatorily applied against the individual, regardless of the race or sex of the replacement. [The plaintiff] could therefore establish a prima facie case of . . . discrimination by establishing that he was fired but [an employee outside his protected class] was retained for `nearly identical' conduct. . . . [The plaintiff] has failed to link this inconsistency . . . with a discriminatory motive. Nondiscriminatory differences just as readily explain the differences in treatment. . . . If an employer applies a rule differently to people it believes are differently situated, no discriminatory intent has been shown"

Here, as in Nix, nondiscriminatory differences just as readily explain the different offense levels charged to Officer Cole and Summers. The City of Dothan concluded, and this Court agrees, that the conduct of Officer Cole was not nearly identical to and was, in fact, much less severe than Officer Summers's conduct. Thus, with regards to her conduct during and discipline for the Shack incident, Summers has failed to establish a similarly situated employee outside of her class who was treated differently. See Lochin v. Verizon Fla., LLC, No. 8:09-cv-1535-T-23TBM, 2010 U.S. Dist. LEXIS 110097, at *12 (M.D. Fla. Oct. 15, 2010) ("[A]n employee generally qualifies as similarly situated if the employee (1) answered to the same supervisor, (2) worked under the same standards of conduct and (3) engaged `in the same conduct without such differentiating or mitigating circumstances that would distinguish the[] [employee's] conduct or the employers treatment of the[] [employee]' as a result of the conduct.") (quoting Sanguinetti v. United Parcel Serv., Inc., 114 F. Supp. 2d 1313, 1317 (S.D. Fla. 2000)) (emphasis added). As such, the City of Dothan is entitled to judgment as a matter of law for the Title VII claims arising from Summers's discipline for the Shack incident.

c. The UTC Incident

As for the UTC incident, Summers's entire argument rests upon the grounds that the City of Dothan does not have a policy or practice of enforcing the 48-hour rule for UTCs and that she was the only one disciplined for having violated it. (Doc. # 39, at 12-15). However, in order for other employees to be similarly situated, the Summers must "show that [the Internal Affairs investigator] who recommended that [s]he be disciplined, or Chief Powell, who acted on that recommendation, knew of, and condoned, prior similar violations." Jones, 874 F.2d at 1542 n. 14. In other words, the employer must have been "aware of prior [rule violations and] . . . consciously overlooked them" at the time he disciplined the plaintiff. Id. at 1542; see also Moreland v. Miami-Dade County, 255 F. Supp. 2d 1304, 1314 (S.D. Fla. 2002) ("[E]ven if [the employer] knew about the other violations [by other employees], the evidence does not show that [the employer] consciously overlooked those violations when he disciplined [the plaintiff] more severely.") (emphasis added).

Here, the City of Dothan clarified in its Reply that, "unless a late UTC is brought to the attention of the City, as was the case with [Summers], the Police Department does not have knowledge of and is not on notice of whether a UTC was turned in late." (Doc. # 41, at 9). As Summers herself points out, "[a]t Officer Summers' appeal hearing, [the City of Dothan] was confronted with evidence that a number of police officers wrote tickets that were not sworn to within 48 hours." (Doc. # 39, at 13). She further admits that "[t]he only reason the other police officers' UTCs were even reviewed was because [her] merit system attorney subpoenaed those records" and that "the Police Department does not normally go through UTCs and determine if they are timely." Id. at 15 (emphasis added). Thus, not only has Summers failed to demonstrate that either the investigator or Chief Powell had knowledge of these prior violations at the time they disciplined her, the reasonable inferences from the evidence demonstrate that they only gained this knowledge, at the earliest, when the subpoenas for the appeal were served. Nothing in the record indicates that these other tickets resulted in a citizen being unable to pay them, as occurred in Summers violation of the 48-hour rule, such that would give the investigator or Chief Powell knowledge of their violations. This Court cannot permit a Title VII plaintiff to dig up prior unknown violations and then demand that the employer either face charges of discrimination or punish the other employees months after their violations occurred. Such a course would essentially require employers to do the impossible: discover and punish all violators so that they could not serve as the basis for a discrimination claim months, or even years, down the road. The purpose of Title VII is to prevent discrimination, not to police employers' procedures for uncovering violations of their work rules.

Having failed to establish similarly situated employees outside of her protected class who violated the 48-hour rule — and of which violations the investigator or Chief Powell had knowledge when they disciplined Summers for her own violation of that rule — Summers has failed to establish a prima facie case of discrimination with respect to the UTC incident. Also, having identified no further comparators, Summers has failed to establish prima facie cases of discrimination for the other alleged adverse employment actions taken against her. Thus, the City of Dothan's motion for summary judgment as to the race and sex discrimination claims is due to be GRANTED. See Holifield, 115 F.3d at 1562 ( "If a plaintiff fails to show the existence of a similarly situated employee, summary judgment is appropriate where no other evidence of discrimination is present.") (emphasis in original).

iii. The Retaliation Claims

Title VII prohibits employers from retaliating against an employee "`because [s]he has opposed any practice made an unlawful employment practice by [Title VII] or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing [under Title VII].'" 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under either the opposition clause or the participation clause, a plaintiff must "show that (1) she engaged in 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." Crawford, 529 F.3d at 970 (citing Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001)).

Here, assuming arguendo that Summers can establish a prima facie case of retaliation, this Court finds that the City of Dothan is still entitled to summary judgment on the retaliation claim because Summers has not established that the City of Dothan's reasons for her termination are pretextual. As in discrimination claims, once the plaintiff establishes a prima facie case, the burden then shifts to the employer to establish a legitimate, nondiscriminatory reason for the adverse employment action. Sullivan v. Nat'l R.R. Passenger Corp., 170 F.3d 1056, 1059 (1999) ("Once the plaintiff makes out a prima facie case, `the burden shifts to the defendant to rebut the presumption of retaliation by producing legitimate reasons for the adverse employment action.'") (quoting Raney v. Vinson Guard Serv., 120 F.3d 1192, 1196 (11th Cir. 1997)), reh'g en banc denied, 182 F.3d 938 (1999), cert. denied, 528 U.S. 966 (1999). "This intermediate burden is `exceedingly light.'" Holifield, 115 F.3d at 1563 (citing Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1061 (11th Cir. 1994)). It is a burden of production, not of persuasion, meaning that the employer need not persuade the court that it was actually motivated by the proffered reason. See Burdine, 450 U.S. at 253-255; see also Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1021 (11th Cir. 1994).

If the employer satisfies this burden of production, "the presumption of discrimination [or retaliation] is eliminated and `the plaintiff has the opportunity to come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision.'" Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (citations omitted). Merely establishing a prima facie case does not entitle a plaintiff to survive a summary judgment motion. Campbell v. Gannett Co., No. 2:05-cv-615-MEF, 2006 U.S. Dist. LEXIS 49584, at *26 (M.D. Ala. July 19, 2006) ("The establishment of a prima facie case does not in itself entitle a plaintiff to survive a motion for summary judgment.") (citing Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir. 1987); Pace v. S. Ry. Sys., 701 F.3d 1383, 1389 (11th Cir. 1983)). After an employer proffers its non-discriminatory or non-retaliatory reasons for its actions, "`[i]n order to avoid summary judgment, a plaintiff must produce sufficient evidence for a reasonable factfinder to conclude that each of the employer's proffered . . . reason is pretextual.'" Id. (citing Chapman, 229 F.3d at 1037).

Here, Summers argues pretext because "[the City of Dothan] determined that Officer Summers was responsible for the fact that Brian Shack remained in jail even though there was no evidence that she did anything wrong." (Doc. # 39, at 24). She points out that she was the only employee disciplined for that incident. Id. at 9. She also claims disparate discipline "for her honest mistake in failing to turn in three tickets." Id. at 24. However, "[t]he inquiry into pretext centers on the employer's beliefs, not the employee's belief, and to be blunt about it, not on reality as it exists outside of the decision-maker's head." Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010) (citing Holifield, 115 F.3d at 1565). The issue here is not whether Summers actually did anything wrong, but rather "whether her employer[] [was] dissatisfied with her for these or other nondiscriminatory reasons, even if mistakenly or unfairly so, or instead merely used those [reasons] . . . as cover for discriminating against her because of her [race or gender]." Id. (citing Elrod v. Sears Roebuck Co., 939 F.2d 1466, 1470 (11th Cir. 1991)); see also Sweeney v. State of Alabama Alcoholic Bev. Control Bd., 117 F. Supp. 2d 1266, 1273 (M.D. Ala. 2000) ("[W]hat is material is whether or not the employer believed the allegations [of work rule violations] to be true, not whether they were in fact true."). As this Court has explained:

Thus, to establish pretext the employee must show more than facts establishing that she did not commit the work rule violation. The employee must point to evidence which raises a question as to whether the decisionmaker, in fact, knew that the violation did not occur and, despite this knowledge, fired the employee based upon the false premise of an alleged work rule violation. For example where the employer relies on a subordinate's report that a plaintiff violated a work rule,

the plaintiff must establish pretext by showing (or, at least, pointing to evidence that suggests) that the employer either did not rely on that report or that the employer did rely on that report but knew it was false. In either case, the plaintiff would have shown that the employer was likely lying about the reasons for its behavior and that, by definition, is pretext.

Summers has presented no evidence to suggest that Chief Powell did not believe that she had violated both PGO 511 § II(A) and the 48-hour rule for UTCs when he disciplined her. Essentially, Summers simply argues that she did nothing wrong and that the City of Dothan should not have punished her for the Shack incident or the failure to turn in the three UTCs. This Court will not consider the "wisdom or accuracy" of the City of Dothan's determination that Summers's was responsible for the Shack incident or that she violated the 48-hour rule in failing to turn in three tickets. Id.; see also Chapman, 229 F.3d at 1030 ("`[F]ederal courts do not sit as a super-personnel department that reexamines an entity's business decisions.'") (quoting Elrod, 939 F.2d at 1470). In fact, the undisputed evidence establishes that Summers did not timely swear to the complaint for Shack and did not turn in the UTCs within 48 hours. Simply claiming that she did nothing wrong and was, in fact, a good employee is insufficient to establish pretext. Id. ("[The] plaintiff cannot succeed simply by quarreling with the wisdom of [the proffered] reason . . . [because the courts] must be careful not to allow Title VII plaintiffs simply to litigate whether they are, in fact, good employees.") (citations omitted).

Summers further argues that pretext is evident from Officer Cole's receipt of a Minor offense for failing to swear to a complaint and the fact that no other officers were disciplined for violating the UTC 48-hour rule. (Doc. # 39, at 24). It is true that pretext can be shown by the fact that "other employees outside the protected class, who engaged in similar acts, were not similarly treated." Boyland v. Corr. Corp. of Am., No. 09-14583, 2010 U.S. App. LEXIS 16501, at * 6 (11th Cir. Aug. 6, 2010). As with establishing a prima facie case of discrimination, a plaintiff making such a claim of pretext must show that the comparators are similarly situated "in all relevant aspects." Rioux v. City of Atlanta, 520 F.3d 1269, 1280 (11th Cir. 2008) (internal citations omitted) (emphasis added), reh'g en banc denied, 285 Fed. Appx. 741 (2008). "Misconduct merely `similar' to the misconduct of the disciplined plaintiff is insufficient." Id. Again, the "quantity and quality of the comparator's misconduct" must be "nearly identical" to that of the plaintiff. Id.

As shown above, Summers has failed to point to any similarly situated employees outside of her protected class who received more favorable treatment with regards to any of the alleged employment actions taken against her. Therefore, Summers has failed to establish pretext and the City of Dothan's motion for summary judgment is due to be GRANTED with respect to the Title VII retaliation claims.

As Summers has no claims due to survive summary judgment, the parties' Joint Motion to Extend is due to be DENIED as MOOT.

For the foregoing reasons, it is hereby ORDERED that:

1. The Motion to Strike, (Doc. # 44), is GRANTED in part and DENIED in part;

2. The City of Dothan's Motion for Summary Judgment, (Doc. # 31), is GRANTED;

3. The Joint Motion to Extend, (Doc. # 56), is DENIED as MOOT.

4. The Clerk of the Court is DIRECTED to remove the above-styled case from the trial docket.

The Court will enter a separate final judgment consistent with this Memorandum Opinion and Order.

DONE this the 29th day of October, 2010.