IN	THE	UNITED	STATES	DISTRICT	COURT

FOR	THE	SOUTHERN	DISTRICT	OF	ALABAMA

SOUTHERN	DIVISION

DOROTHY	M.	GIPSON,	 )

)

Plaintiff,	 )

)

v.	 ) CIVIL	ACTION	NO.	13-0532-KD-M

)

SHERIFF	SAM	COCHRAN,	 )

)

Defendant. )

ORDER

This	action	is	before	the	Court	on the	motion	for	summary	judgment	and	supporting	

documents	filed	by	defendant	Sheriff	Sam	Cochran	(docs.	54-57),	the	response	in	

opposition	filed	by	plaintiff	Dorothy	M.	Gipson	and	supporting	documents	(docs.	62,	63),	

and	Sheriff	Cochran’s	reply	and	supporting	documents	(doc.	65,	66).		Upon	consideration,	

the	motion	is DENIED in	part	and	GRANTED in	part	as	set	forth	herein.	

I.	Procedural	History

On	October	30,	2013,	Plaintiff	Dorothy	M.	Gipson	filed	her	complaint	against	Sheriff	

Sam	Cochran	alleging	violations	of	Title	VII	of	the	Civil	Rights	Act	of	1991,	and	the	

Uniformed	Services	Employment	and	Reemployment	Rights	Act	of	1994	(USERRA)	(doc.	1).		

Gipson	alleges	that	Sheriff	Cochran	violated	USERRA	by	extending	her	probationary	period	

due	to	absences	for	military	training	and	refusing	to	provide	the	same	training	as	other	

deputies,	and	by	terminating	her	employment. (Count	1)		Gipson	also	alleges	that	Sheriff	

Cochran	discriminated	against	her	on	basis	of	sex	by	treating	similarly	situated	male	

officers	differently	in	the	terms	and	conditions	of	employment,	application	of	work	rules,	

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extension	of	probation	and	termination	(Count	2).	1		As	relief,	Gipson	seeks declaratory	and	

injunctive	relief	as	to	the	alleged	sex	discrimination	and violation	of	USERRA,	

reinstatement	to	the	position	of	deputy,	back-pay	plus	interest, compensatory	and	

liquidated	damages,	costs,	attorney’s	fees,	and	expenses.	

II.		Findings	of	Fact

Dorothy	Gipson,	a	female,	was	hired	as	a	Deputy	Sheriff	on	March	19,	2011.	Gipson	

was	a	member	of the	United	States	Air	Force	Reserve	during	her	employment	with	

defendant	Sheriff	Cochran.		Before	she	was	hired,	Gipson	had	been	a	police	officer	with	the	

City	of	Prichard,	Alabama.		

Gipson	was	required	to	go	through	a	“Working	Test	Period”	or	probation for	one	

year.		A	deputy	initially	goes	through	Field	Training	and	is	assigned	a	Field	Training	Officer

(FTO).	The	FTO	documents	the	deputy’s	work	performance	and	training	on	a	daily	and	

weekly	basis.	Field	Training	is	scheduled	to	last	8	weeks	and	at	such time	the	new	deputy	is	

deemed	able	to	perform	the	job	solo	and	is	assigned	to	a	squad.	Once	assigned	to	a	squad,	

the	new	deputy	is	evaluated	quarterly	with	the	expectation	of	completing	the	Working	Test	

Period	within	a	year	of	being	hired.		If	the	Working Test	Period	is	successfully	completed,	

the	deputy	then	becomes	a	permanent	deputy.

Gipson’s	first	FTO	Sergeant’s	Weekly	Report	is	dated	March	21,	2011	through	March	

27,	2011.	(Doc.	63-12,	p.	1)	During	her	eight	weeks	of	field	training	her	performance	was

generally	rated	as	“Acceptable”	and	during	the	last	four	weeks	her	performance	was	

“Acceptable”	but	for	driving	skills	which	were	marked	as	“Unacceptable”	(Doc.	63-12,	p.	7-

																																																							 1		In	the	response	to	the	motion	for	summary	judgment,	Gipson	conceded	Count	3	for	

retaliation	under	Title	VII	and	42	U.S.C.	§	1981.	

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10).		Most	of	the	“Comments”	indicated	that	Gipson’s	work	was	“Good”	but	for	driving	

skills.	(Id.)		At	the	8th	week,	Sergeant	Lori	O’Farrell	indicated	that	Gipson	was	performing	

at	“solo	deputy	level”	but	recommended	“one	week	of	extended	training	with	being	

assigned	to	the	north	side	to	assure	she	is	ready	to	be	released	from	FTO	training.”	(Doc.	

63-12,	p.	10)2

																																																							 2		The	Daily	Observation	Reports	from	March	24,	2011	through	June	19,	2011,	indicate	that	

Gipson’s	performance	was	rated	“o.k.”	or	“acceptable”	or	“not	observed”	(Doc.	63-10;	63-

11).		She	was	marked	“not	acceptable”	for	driving	skills	on	two	occasions	occasion,	which	

were	related	to	use	of	maps.	(Id.,	p.	61;	Doc.	63-11,	p.	36)		She	was	marked	“not	acceptable”	

for	radio.	(Doc.	63-11,	p.	36)		The	Daily	Observation	Reports	question	the	FTO	for	“The	

most	satisfactory	area	of	performance”	and	“The	least	satisfactory”.	(Doc.	63-10)		During	

June	2011,	as	to	least	satisfactory,	the	FTO	noted	on	three	days	that	Gipson	was	still	

learning	the	area	of	the	Sheriff’s	jurisdiction	(on	three	days),	that	she	needed	to	use	her	

map	book	instead	of	GPS to	learn	the	area	so	that	she	could	‘arrange	meeting	points	for	her	

back	up	units	before	responding	to	calls”	(once),	and	that	she	was	“still	learning	the	

M.C.S.O.	procedures”	(on	two	days)		(Doc.	63-11).		

Throughout	the	observation	period,	under	the	“most	satisfactory”	section,	the	FTO	

observed	that	Gipson	used	proper	safety	skills	in	arresting	suspects	on	warrants	or	making	

traffic	stops;	got	along	well	with	the	other	officers;	obtained	information	from	a	minor	

victim	of	a	sex	crime	and	the	family	and	“was	professional	and	very	sympathetic	with	the	

family”;	investigated	a	domestic	violence	call,	determined	that	a	subject	should	be	arrested,	

“completed	the	proper	paperwork	and	transported	the	subject	to	jail”;	made	a	traffic	stop	

for	improper	tag,	ascertained	on	the	NCIC	that	the	driver	had	a	suspended	license	and	no	

insurance,	issued	two	citations	and	a	warning	ticket,	and	“was	very	professional	and	fair	to	

the	citizen”;	that	she	responded	to	a	house	fire	call,	spoke	with	complainant	and	the	fire	

department,	determined	the	house	was	set	on	fire	by	a	known	subject,	and	“applied	the	

proper	charge	and	completed	the	proper	paperwork”;		that	she	made	several	traffic	stops	

during	one	shift,	used	proper	safety,	issued	a	warning	ticket,	and	“was	very	professional

and	fair	with	the	citizens”;	that	Gipson	investigated	a	domestic	incident	in	a	bar	and	“was	

able	to	maintain	control	of	all	parties	who	had	been	drinking”	and	“remained	calm	and	was	

able	to	handle	the	situation”;	that	Gipson	was	on	her	own	for	a	shift		and	shadowed,	during	

which	time	she	“did	a	good	job	paying	attention	to	the	radio	traffic	and	knowing	what	was	

going	on	with	other	units	that	she	worked	with”;	and	that	Gipson	served	a	warrant	on	a	

female	felony	suspect,	used	proper	safety	skills	in	dealing	with	the	subject,	arrested	her,	

and	took	her	to	jail.		(Doc.	63-10,	63-11)	

The	FTO	also	made	at	least	three	specific	observations	that	Gipson	wrote	several	reports	

and	completed	the	proper	paperwork	with	correct	grammar	and	spelling.		The	FTO	made	at	

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During	this	time,	Gipson	was	absent	from	duty	with	the	Sheriff’s	Department	for	

military	training.	(Doc.	63-3)		There	are	no	FTO	Weekly	Reports	for	the	four-week	time	

period	between	April	11,	2011	and	May	8,	2011,	so	it	appears this	is	when	Gipson	was	at	

military	training.	(Doc.	63-12)		Her	field	training	was	extended	to	ensure	that	she	received	

eight	weeks	of	field	training.	(Doc.	63-3)		

Gipson	returned	from her	April	2011	military	leadership	training	in	May 2011.	

Gipson	testified	that	during	a	combined	roll	call	for	both	shifts:	“I	basically	just	remember	

[Lt.	Roderick	Bonner]	directing	his	attention	to	me	and	saying	that	I	needed	to	be	there.”		

Gipson	refers	to	this	incident	as	blurting	out	for	no	reason,		“Deputy	Gipson,	you	need	to	be	

here.”		(Doc.	63-27,	p.	5)

At	the	completion	of	field	training	in	May	2011,	Gipson	was	first	assigned	to	“the	

Alpha	part	of	100	squad.”	(Doc.	57-1,	p.	21,	Bonner	deposition)	The	Alpha	squad	Sergeants	

were	O’Farrell	and	Sergeant	Robert	Miller. (Id.,	p.	21-22).		Lt.	Bonner,	Captain	Carlos	

Thompson,	Deputy	Chief	David	Wilhelm	and	Sheriff	Cochran	were	her	chain	of	command.		

During	Gipson’s	term	with	Alpha	Squad,	Lt.	Bonner	was	not	aware	of	any	deficiencies	

documented	by	Sgt.	Miller	as	to	Gipson.	(Doc.	63-25,	p.	9)		During	this	time,	Gipson	went	on	

military	leave.	3

																																																																																																																																																																																		

least	two	specific	observations	that	Gipson’s	appearance	was	good,	her	equipment	was	in	

order,	and	she	was	neat	and	professional	in	appearance.		On	June	11,	the	FTO	wrote	that	

Gipson	“was	able	to	make	her	own	decisions	without	assistance	while	handling	complaints	

today”	and	on	June	7,	that	“Gipson	was	able	to	handle	herself	and	make	decisions	on	calls.”	

(Doc.	63-11,	p.	27,	35)

3		Gipson	provided	the	Court	with	a	copy	of	Lt.	Bonner’s	letter	to	Chief	Deputy	Wilhelm	

wherein	Bonner	requests	an	extension	of	the	Working	Test	Period.	(Doc.	63-3)		In	the	

letter,	Lt.	Bonner	states	that	Gipson	has	missed	time	on	duty	for	attending	drills,	and	

references	a	copy	of	her	military	schedule	for	2011.	However,	the	schedule	is	not	attached	

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In	September	2011,	Gipson	was	assigned	to	the	Bravo	part	of	100	squad	and	her	

Sergeants	were	Steven	Hale	and	Todd	Friend	(Id.,	p.	23).		Lt.	Bonner,	Capt.	Thompson,	

Deputy	Chief	Wilhelm	and	Sheriff	Cochran	remained	her	chain	of	command.		During	this	

time	Gipson	went	on	military	leave.	

Gipson	testified	that	Deputies	Pettway,	Watson,	and	Cooper	told	her	that	Lt. Bonner	

did	not	like	females	working	in	law	enforcement	and	would	do	whatever	it	took	to	get	them	

terminated.	(Doc.	63-27,	p.	6)4 In	her	answers	to	interrogatories,	Gipson	states	that	while	

she	was	assigned	to	work	with	Deputy	Cooper,	Lt.	Bonner	called	her	to	the	Northside	Office	

and	told	her	that	she	was	“progressing	well”,	that	he	then	asked	her	“numerous	personal	

questions	and	then	commented	that	‘[she]	would	decide	if	[she]	would	be	treated	as	a	slut	

within	the	department.”	(Doc.	63-28,	p.	4)			At	her	deposition,	Gipson	testified	that	at	the	

station,	in	the	roll	call	room,	with	Sgt. Hale	present,	Lt.	Bonner	asked	Gipson	where	she	

lived	and	“then	he	said	I	didn't	have	to	answer	the	question.	He	asked	who	did	I	live	with	

and	he	said	oh,	your	son.	Then	I	think	that's	when	he	went	into	saying	that	I	was	black	and	

female.”		(Doc.	63-27,	p	7)		(Gipson’s	testimony	is	unclear	as	to	whether	there	were	two	

conversations	with	Lt.	Bonner	wherein	he	asked	personal	questions.)

On	November	9,	2011,	Gipson	injured	her	back	while	getting	into	her	patrol	car	and	

was	on	injured	with	pay	status	until	December	16,	2011,	when	she	returned	to	full	duty	

status.		Gipson	was	off	duty	for	sixteen	12-hour	days. (Doc.	63-3,	Lt.	Bonner’s	request	for	

extension)	

																																																																																																																																																																																		

to	the	letter.	Thus,	the	Court	does	not	have	information	as	to	how	many	days	Gipson	missed	

for	military	service	before	Lt.	Bonner	wrote	the	letter	(Doc.	63-3).	

4		Gipson	did	not	provide	the	Court	with	an	affidavit	or	deposition	testimony	of	Deputies	

Pettway,	Watson	or	Cooper	to	support	this statement.

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On	December	28,	2011,	Lt.	Bonner	wrote	Chief	Deputy	Wilhelm	to	request	a	ninetyday	extension	of	Gipson’s	Working	Test	Period,	which	was	scheduled	to	end	March	2012.	

(Doc.	63-3)		Lt.	Bonner	stated	as	follows:	

After	reviewing	the	work	performance	of	Deputy	Dorothy	Gipson,	as	well	as	

her	availability	for	duty	since	her	hiring	date	of	March	21,	2011,	I	am

requesting	her	probationary	period	be	extended	of	a	period	of	90	days.	

Deputy	Gipson	has	the	potential	to	be	an	asset	to	the	Mobile	County	Sheriff's	

Office	however,	due	to	circumstances	which	may	be	beyond	her	control,	she	

has	missed	a	great	deal	of	duty	time.

When	Deputy	Gipson	was	hired	by	the	Mobile	County	Sheriff's	Office,	she	was	

already	a	member	of	the	United	States	Air	Force	Reserve.	Her	military	drill	

dates	have	required	that	she	be	absent	from	duty	with	the	Mobile	County	

Sheriff's	Office.	Also,	due	to	her	military	training	dates,	I	was	forced	to	extend	

her	field	training	four	additional	weeks	to	ensure	she	was	trained	the	eight	

required	weeks.	Deputy	Gipson	completed	field	training,	however,	there	was	

a	delay	of	her	release	from	training	status.	I have	enclosed	a	copy	of	Deputy	

Gipson's	military	training	schedule	for	2011	which	reflects	the	dates	she	had	

to	report	to	the	Air	Force	Reserve	for	military	drills	and	training.	Deputy	

Gipson	is	still	in	the	Reserve	and	will	continue	to	attend	drills	and	be	forced	

to	miss	time	on	duty	with	the	Mobile	County	Sheriff's	office.	Using	the	2011	

schedule	as	a	reference,	Deputy	Gipson	will	miss	at	least	six	more	working	

days	prior	to	completing	her	now	scheduled	Probationary	period	of	March	

2012.	We	are	fully	supportive	of	her	mission	with	the	Air	Force	Reserve	

however,	when	time	is	missed	with	the	Sheriff's	Office	her	duty	performance	

can	not	be	evaluated.

On	November	09,	2011,	Deputy	Gipson	reported	that	she	injured	her	back	

while	getting	into	her	patrol	car	prior	to	going	on	patrol.		As	a	result	of	this	

reported	injury,	Deputy	Gipson	was	placed	on	Injured	With	Pay	(IWP)	status	

from	November	09,	2011	until	she	was	released	to	full	duty	status	on	

December	16,	2011.	During	this	time,	Deputy	Gipson	was	absent	from	duty	

sixteen	12	hour	days.	Again,	this	was	time	that	her	duty	performance	could	

not	be	evaluated	by	me	or	her	first	line	supervisor.

When	evaluating	Deputy	Gipson's	performance,	based	on	the	time	she	has	

been	employed	by	the	Mobile	County	Sheriff's	Office and	been	present	for	

duty,	it	becomes	apparent	that	Deputy	Gipson	has	a	lack	in	job	knowledge	or	

lacks	the	necessary	confidence	to	complete	some	of	her	assigned	tasks.	

Sergeant	Steve	Hale	has	observed	that	Deputy	Gipson	will	call	him	on	nearly	

all	of	her	calls	for	service	before	she	takes	any	action.	While	it	is	sometimes	

necessary	to	contact	a	supervisor,	her	repeated	calls	tend	to	show	a	lack	of	

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the	basic	working	knowledge	of	the	laws,	rules	and	regulations	needed	by	a	

Deputy	Sheriff	in	performance	of	his/her	duties.	It	is	also	an	indication	of	a	

lack	of	confidence	needed	to	make	a	decision.

A	few	recent	examples	of	Deputy	Gipson's	lack	of	job	knowledge,	lack	of	

confidence	or	reluctance	to	make	a	decision,	occurred	during	the	month	of	

December	2011:

I.	12/22/2011	- A	citizen	met	Deputy	Gipson	at	the	substation	

in	Semmes	and	requested	that	she	inspect	his	car	and	sign	off	

on	a	Uniform	Traffic	Citation	he	received	for	No	Tag	Light	

Deputy	Gipson	contacted	Sergeant	Hale	to	determine	what	

action	to	take.	The	action	she	took	was	to	advise	the	citizen	to	

return	to	the	location	where	he	received	the	citation	and	then	

call	the	sheriff's	office.	Signing	off	on	an	equipment	violation	

citations	is	[a]	common	task	within	law	enforcement.	When	

Deputy	Gipson	was	asked	why	she	took	the	action	she	took,	her	

reply	was	that	she	did	not	feel	comfortable	signing	off	on	the	

citation.

2.	12/30/2011- Deputy	Gipson	issued	a	warrant	slip	to	Mr.	

Michael	Pond	for	the	arrest	of	Terry	Burdett	charging	his	(sic)	

with	Theft	of	Services	(Case#	Slll20847).	The	facts	of	the	case	

did	not	support	the	charge.	Deputy	Gipson	indicated	that	Mr.	

Pond	told	her	that	he	had	contacted	his	lawyer	concerning	the	

matter.	It	appears	that	Deputy	Gipson	issued	the	warrant	slip	

because	of	the	mention	of	the	lawyer's	involvement,	not	based	

on	the	elements	of	the	allegation.	Deputy	Gipson's	action	could	

have	caused	Mr.	Burdett	to	be	wrongly	arrested.	

Deputy	Gipson's	absence	from	duty	has	impeded	my	ability	to	evaluate	her	

performance	and	her	merit	as	a	permanent	employee.	It	can	be	assumed	that	

most	of	her	noted	shortcomings	can	be	directed	(sic)	attributed	to	her	lack	of	

experience.	I	believe	that	extending	her	probationary	status	an	additional	90	

days	from	March	21,	2012	to	June	21,	2012	would	afford	me	and	her	first	line	

supervisor	a	better	opportunity	to	judge	the	merit	of	Deputy	Gipson	and	then	

make	a	recommendation	for	her	future	employment	with	the	Mobile	County	

Sheriff's	Office.

(Doc.	63-3)	

On	January	12,	2012,	Sheriff	Cochran	made	a	formal	request	to	the	Mobile	County	

Personnel	Board	stating	as	follows:	

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I	am	requesting	an	extension	for	Deputy	Dorothy	Gipson’s	Working	Test	

Period.	Deputy	Gipson	has	failed	to	master	basic	job	skills	necessary	to	be	a	

successful	Deputy	Sheriff.		With	further	training, it	may	be	possible	to	assist	

Deputy	Gipson	in	becoming	a	fully	successful	Deputy	Sheriff.		Therefore,	I	

request	her	Working	Test	Period	be	extended	for	six	months	commencing	on	

March	17,	2012	and	ending	on	September	17,	2012.

(Doc.	63-4)	

Sheriff	Cochran	testified	that	the	length	of	the	extension	is	“three	months,	six	

months,	depending	on	.	.	.	whatever	is	recommended	or	just	whatever	my	thoughts	are	at	

the	time.”	(Doc.	63-26,	p.	5).		Lt.	Bonner	and	Deputy	Chief	Wilhelm	were	unaware	of	other	

deputies	that	were	given	a	six-month	extension.	(Doc.	63-25,	p.	17-18,	Bonner	deposition;	

Doc.	63-24,	p.	5,	Wilhelm	deposition)

After	the	Working	Test	Period	was	extended,	Gipson	was	placed with Deputy	

Cooper,	an	experienced	senior	deputy	with	knowledge	of	policy,	procedures	and	Alabama	

law	to	“train	her	and	answer	all	the	questions	- - not	formal	training,	...	but	just	answer	all	

the	questions,	show	her	how	to	do	it	on	the	job.”	(Doc.	63-25,	p,	22-23,	Bonner	deposition)5		

Lt.	Bonner	described	Deputy	Cooper	as	Gipson’s “de	facto	Training	Officer.”	(Id,	p.	23)	

No	other	deputies	were	assigned	to	work	with	Gipson	as	a	“pseudo-training	Officer	

or	to	assist	her	during	this	working	period.”	(Doc.	63-25,	p.	119,	Bonner	deposition)		Sgt.	

Hale	testified	that	he	believed	that	the	extension	was	to	provide	the	additional	training	that	

Gipson	needed	to	catch-up	for	her	absences. (Doc.	63-29,	p.	7)		Capt.	Thompson	testified	

Gipson’s	lieutenant	would	have	been	the	person	to	recommend	remedial	training and	that	

the	extension	was	to	provide	the	remedial	training.	(Doc.	63-30,	p.	16)	

																																																							 5		Gipson	stated	that	the	placement	with	Deputy	Cooper	lasted	two	weeks,	and	cited	to	page	

60	of	her	deposition	in	support.	However,	that	page	was	not	included	in	her	exhibits.		

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On	March	1,	2012,	Gipson	met	with	Sgt.	Hale	and	Lt.	Bonner	to	discuss	her	job	

performance.	Two	minor	issues	were	discussed.	(Doc.	63-25,	p.	25,	Bonner	deposition;	Doc.	

63-5,	Sgt.	Hale’s	Memorandum)	(“I	spoke	with	Deputy	Gipson	in	reference	to	two	minor	

problems	that	needed	to	be	addressed.”)		Sgt.	Hale	testified	that	Gipson	was	“doing	a	little	

bit	better”	at	that	time	and	that	he	made	clear	with	Lt.	Bonner	that	he	believed	Gipson	was	

improving.	(Doc.	63-29, p.	46)		Lt.	Bonner	testified	that	he	was	“not	aware	of	any	major	

problems	or	any	deficiencies”	in	Gipson’s	“work	from	January	through	March.”	(Doc.	63-25,	

p.	25)	

On	May	18,	2012,	Gipson	met	again	with	Sgt.	Hale	and	Lt.	Bonner	to	discuss	her	job	

performance.		Gipson	was	told	that	there	were	no	problems	with	her	work	product	at	that	

time.	(Doc.	63-6,	p.	1;	“We	asked	Deputy	Gipson	if	she	had	any	problems	she	wanted	to	

discuss	with	us	and	she	stated	no.		We	advised	Deputy	Gipson	that	we	did	not	have	any	

problems	with	her	work	product	at	this	time.”)		Sgt.	Hale	testified	that	from	March	to	May	

2012,	he	“didn’t	find	any	problems”	with	her	work.		(Doc.	63-29,	p.	11)	

On	June	16,	2012,	Gipson	responded	to	a	call	for	back-up	from	Senior	Deputy	

Pitzulo.	(Doc	63-41,	Memorandum	from	Sgt.	Hale	to	Chief	Deputy	Wilhelm)		Deputy	Pitzulo

was	investigating	a	suspicious	vehicle.		He had	asked	the	driver	for	consent	to	search,	

which	was	given,	and	had	placed	the	driver	in	the	rear	of	his	patrol	car.		He	asked	the	

female	passenger	to	exit	the	car.		When	she	did,	she	placed	a	backpack	on	her	shoulder.		

Deputy	Pitzulo	asked	her	to	place	the	backpack	on	the	front	seat,	which	she	did.		He	then	

placed	her in	front	of	the	vehicle.		Deputy	Pitzulo	searched	the	car	for	weapons	and	then	

when	he	searched	the	backpack	he	found	a	small	amount	of	methamphetamine	and	some	

loaded	syringes.		(Doc.	63-41,	p.1)		

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Gipson	arrived	at	the	scene	and	walked	up	to	the	vehicle.		Deputy	Pitzulo	placed	the	

female	under	arrest.		When	he	attempted	to	place handcuffs	on	her,	she	turned	but	he	

regained	control	and	handcuffed	her	behind	her	back.		He	then	asked	Gipson	to	place	the	

female	in	her	patrol	car.	Gipson	was	walking	the	female	to	the	patrol	car	while	holding	her	

by	her	right	arm.		As	Gipson	reached	to unlock	the	patrol	car	door,	the	female	snatched	

away	and	ran	into	the	woods.		(Doc.	63-41,	p.	2)		

As	a	result	of	this	incident,	Sgt.	Hale	found	that	Gipson	was	careless	in	the	

performance	of	her	duties	and	recommended	a	Letter	of	Reprimand.	(Id.)		Sgt.	Hale	

testified	that	he	did	not	recommend	termination	because	he	believed	a	Letter	of	Reprimand	

was	appropriate.	(Doc.	63-29,	p.	12)		Lt.	Bonner	concurred	with	issuing	a	Letter	of	

Reprimand.	(Id.,	p.13)		Lt.	Bonner	testified	that	neither	he	nor	Sgt.	Hale,	Capt.	Thompson,	

nor	Chief	Deputy	Wilhelm	recommended	that	Gipson	be	terminated	based	on	the	escape.	

(Doc.	63-25,	p.	33).		Deputy	Pitzulo	was	not	counseled	or	reprimanded.	(Doc.	63-25,	p.	34)

On	June	27,	2012,	Capt.	Thompson	and	Lt.	Bonner	met	with	Gipson	and	presented	

the	June	21,	2012,	Letter	of	Reprimand.		Capt.	Thompson	also	told	Gipson	that	he	had	

“recommended	termination	.	.	.	or	he	was	going	to	terminate	[her],	something	to	that	

effect.”	(Doc.	63-26,	p.	14-15,	Gipson	deposition)		Gipson	and	Capt.	Thompson	discussed	

the	option	of	her	resigning	in	lieu	of	termination.		Capt.	Thompson	told	Gipson	“that	the	

Sheriff	had	offered	him	to	offer	to	[her]	the	opportunity	to	resign	in	lieu	of	termination”	

and	that	he	made	that	offer	to	her.	(Id., p.	14-15)		Gipson responded	that	she	wanted	to	take	

the	decision	to	terminate	her	employment	up	the	chain	of	command, but	Capt.	Thompson	

told	her	that	she	did	not	have	appeal	rights.	(Id., p.	15)	

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Capt.	Thompson	testified	that	the	“subject	of	termination	probably	started	with”	

him	and	grew	out	of	a	conversation	with	Lt.	Bonner	wherein	he	was	telling	Sheriff	Cochran	

and	Capt.	Thompson	about	Gipson’s	deficiencies.	(Doc.	63-30,	p.	31,	Thompson	deposition)		

Capt.	Thompson	stated	that	Gipson	was	not	terminated	because	of	the	incident	resulting	in	

the	Letter	of	Reprimand,	but	instead	was	terminated	because	“[s]he	didn’t	know	her	area.		

She	didn’t	have	a	working	knowledge	to	do	the	job.		She	contacted	her	Supervisor	or	

another	Deputy	on	every	call	she	went	on.		She	utilized	her	GPS	to	get	around	the	County.		

She	didn’t	have	a	working	knowledge	of	the	job.”	(Doc.	63-30,	p.	11,	13-14)	

When	Capt.	Thompson	was	asked	for	documentation	to	support	the	stated	reasons	

for	the	termination,	he	answered	that	he	did	not	have	any	documentation or	any	

memorandum	up	the	chain	to	recommend	termination.		(Doc.	63-30,	p.	12,	20)		When	

pressed	for	other	reasons,	Capt.	Thompson	stated:		“She	didn’t	know	the	job”	because	“she	

struggled”, referencing	the	“ticket	incident”, and	also	stated	that	“her	job	knowledge	was	

severely	lacking	for	someone	who	should	have	policed	somewhere.”	(Doc.	63-30,	p.	14)		

However,	Capt.	Thompson	admitted	that	this	conduct	occurred	prior	to	the	decision	to	

extend	her	Working	Test	Period.	(Doc.	63-30,	p.	14)		When	questioned	as to	“any	other	

reasons,	other	than	the	four	areas,”	that	lead	to	termination,	Capt.	Thompson	stated	that:	

“We	didn’t	see	any	improvement	in	her	performance.		There	was	no	improvement.”	(Doc.	

63-30,	p.	15)		But,	Capt.	Thompson	agreed	that	this	reason	was	contrary	to	the	May	2012	

memorandum	indicating	that	Sgt.	Hale	and	Lt.	Bonner	had	told	Gipson	that	there	were	no	

problems	with	her	work	product.	(Doc.	63-30,	p.	15)	

Sgt.	Hale	observed	Gipson	when	she	was	working,	he	reviewed	her	reports,	

monitored	where	she was	on	calls,	and	reviewed	her	work	progress	and	logs.		In	his	

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opinion,	“she	was	doing	her	job.”		(Doc.	63-29,	p.	19)		He	testified	that	in	the	two-month	

period	between	March	and	May	2012,	he	did	not	find	any	problems	with	her	work.	(Doc.	

63-29,	p.	11)		He	also	testified	that	after	she	was	assigned	to	work	with	Deputy	Cooper	

during	the	extension,	he	saw	improvement	with	her	report-writing	and	problems	related	to	

paperwork.	(Doc.	63-29,	p.	2-3).		Sgt.	Hale	testified	that	Lt.	Bonner	discussed	his	concerns	

about	Gipson	after	Capt.	Thompson	brought	up	the	escape	at	a	staff	meeting.		(Doc.	63-29,	

p.	15-16)		Sgt.	Hale	testified	that	Lt.	Bonner’s	concerns	were	the	escape	and	“some	other	

problems	.	.	.	with	the	paperwork	and	things	like	that.”	(Id.,	p.	16)		Sgt.	Hale	testified	that	he	

was	talking	to	Chief	Deputy	Wilhelm	about	the	paperwork	issues	and	that	he	believed	that	

Chief	Deputy	Wilhelm	recommended	termination, but	did	not	discuss	the	matter	with	Lt.	

Bonner	or	Sgt.	Hale.	(Id).		Sgt.	Hale	did	not	recommend	termination	but	only	recommended	

a	Letter	of	Reprimand	as	to	the	escape.	(Id.).		

Lt.	Bonner	testified	that	he	met	with	Capt.	Thompson,	Chief	Deputy	Wilhelm	and	Sgt.	

Hale	sometime	prior	to	June	27,	2012	and	that	the	“reason	for	the	termination”	was	that	he	

“expressed	to	them	it	was	of	[his]	opinion	that	she	was	marginal	at	best,	and	[he]	didn’t	see	

any	upside,	based	on	what	he	had	been	told	by	Sgt.	Hale	and	the	documented	reports	

leading	up	to	the	extension	of	the	Working	Test	Period.	(Doc.	57-1,	p.	25)		Lt.	Bonner	

explained	that	Gipson	“hadn’t	gotten	any	better,	hadn’t	gotten	any	worse”	and	that		“This	

was	the	best	we’re	going	to	get,	so	I	consider	that	marginal.”	(Id.,	p.	26)

		 Sheriff	Cochran	testified	that	Gipson	was	not	terminated	because	of	the	escape	and	

that	the	decision	to	terminate	was	made	separately.	(Doc.	63-26,	p.	7)		Sheriff	Cochran	

testified	that	the	reason	for	termination	was	that	Gipson	was	not	performing	up	to	

standards	and	that	her	probation	had	already	been	extended.	(Doc.	63-26,	p.	9)		Sheriff	

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Cochran	testified	that	it	was	his	understanding	that	Lt.	Bonner	and Sgt.	Hale,	as	her	

supervisors,	had	recommended	termination.	(Id.)	

When	she	was	terminated,	Gipson	asked	to	go	up	the	chain	of	command, but	Capt.	

Thompson	told	her	that	she	did	not	have	any	appeal	rights.		(Doc.	63-27,	p.	14)		Gipson	filed	

an	appeal	with	the	Mobile	County	Personnel	Board	on	July	6,	2012.	(Doc.	63-27,	p.	11)		Lt.	

Bonner	testified	that	Gipson	had	the	right	to	request	to	speak	up	the	chain	to	Chief	Deputy	

Wilhelm	or	Sheriff	Cochran,	and	that	it	would	be	his	responsibility	to	forward	that	

information	up	the	chain.		However,	he	could	not	speak	as	to	whether	her	request	for	a	

meeting	would	be	granted.	(Doc.	63-25,	p.	30-32)		As	to	the	delay	between	when	she	was	

terminated	and	filing	the	appeal,	Gipson	testified	that	she	“was	awaiting	the	opportunity	to	

appeal	to	the	sheriff,	and	.	.	.	was	advised	to	file	the	appeal.”	(Id.,	p.	12)		Gipson	sent	a	letter	

to	Sheriff	Cochran	dated	June	28,	2012, outlining	the	discrimination	that	she	perceived	she	

had	encountered	at	the	Sheriff’s	Department	(Doc.	63-36).		Sheriff	Cochran	did	not	meet	

with	Gipson,	rather	Deputy	Chief	Wilhelm	met	with	her	(Doc.	63-26,	p.	2).			Sheriff	Cochran	

also	indicated	that	by	the	time	he	received	Gipson’s	letter,	he	had	learned	that	she	filed	a	

charge	of	discrimination	with	the	Equal	Employment	Opportunity	Commission and	turned	

the	letter	over	to	the	legal	department	(Id.	p.	2-3).		

III.		Conclusions	of	law

A.	Summary	Judgment	Standard

“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)	(Dec.	2010).	Rule	56(c)	provides	as	follows:

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(1)	Supporting	Factual	Positions. A party	asserting	that	a	fact	cannot	be	

or	is	genuinely	disputed	must	support	the	assertion	by:

(A) citing	to	particular	parts	of	materials	in	the	record,	including	

depositions,	documents,	electronically	stored	information,	affidavits	or	

declarations,	stipulations	(including	those	made	for	purposes	of	the	

motion	only),	admissions,	interrogatory	answers,	or	other	materials;	or

(B)	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.

(2)	Objection	That	a	Fact	Is	Not	Supported	by	Admissible	Evidence.	A	

party	may	object	that	the	material	cited	to	support	or	dispute	a	fact	cannot	

be	presented	in	a	form	that	would	be	admissible	in	evidence.

(3)	Materials	Not	Cited.	The	court	need	consider	only	the	cited	materials,	

but	it	may	consider	other	materials	in	the	record.

(4)	Affidavits	or	Declarations. An	affidavit	or	declaration	used	to	support	

or	oppose	a	motion	must	be	made	on	personal	knowledge,	set	out	facts	

that	would	be	admissible	in	evidence,	and	show	that	the	affiant	or	

declarant	is	competent	to	testify	on	the	matters	stated.	

Fed.R.Civ.P.	Rule	56(c)	(Dec.	2010).		

Sheriff	Cochran,	as	the	party seeking	summary	judgment	bears “the	initial	burden	to	

show	the	district	court,	by	reference	to	materials	on	file,	that	there	are	no	genuine	issues	of	

material	fact	that	should	be	decided	at	trial.”	Clark	v.	Coats	&	Clark,	Inc., 929	F.2d	604,	608	

(11th	Cir.	1991).		The	party	seeking	summary	judgment	“always	bears	the	initial	

responsibility	of	informing	the	district	court	of	the	basis	for	its	motion,	and	identifying	

those	portions	of	‘the	pleadings,	depositions,	answers	to	interrogatories,	and	admissions	on	

file,	together	with	the	affidavits,	if	any,’	which	it	believes	demonstrate	the	absence	of	a	

genuine	issue	of	material	fact.”	Clark,	929	F.2d	at	608	(quoting	Celotex	Corp.	v.	Catrett,	477	

U.S.	317,	323,	106	S.	Ct.	2548,	2553	(1986)).

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Once	Sheriff	Cochran has	satisfied	his	responsibility,	the	burden	shifts	to	Gipson,	as	

the	non-movant,	to	show	the	existence	of	a	genuine	issue	of	material	fact.	Id.	“In	reviewing	

whether	the	nonmoving	party	has	met	its	burden,	the	court	must	stop	short	of	weighing	the	

evidence	and	making	credibility	determination	of the	truth	of	the	matter.	Instead,	the	

evidence	of	the	non-movant	is	to	be	believed,	and	all	justifiable	inferences	are	to	be	drawn	

in	his	favor.”	Tipton	v.	Bergrohr	GMBH-Siegen,	965	F.2d	994,	999	(11th	Cir.	1992)	(citing	

Anderson	v.	Liberty	Lobby,	477	U.S.	242,	255,	106	S.	Ct.	2505	(1986));	Adickes	v.	S.H.	Kress	&	

Co.,	398	U.S.	144,	158-159,	90	S.	Ct.	1598,	1608-1609	(1970).	

However,	“[a]	moving	party	is	entitled	to	summary	judgment	if	the	nonmoving	party	

has	‘failed	to	make	a	sufficient	showing	on	an	essential	element	of	her	case	with	respect	to	

which	she	has	the	burden	of	proof.’”	In	re	Walker,	48	F.	3d	1161,	1163	(11th	Cir.	1995)	

(quoting	Celotex	Corp.,	477	U.S.	at	323,	106	S.	Ct.	at	2552).	Overall,	the	court	must	“resolve	

all	issues	of	material	fact	in	favor	of	the	[non-movant],	and	then	determine	the	legal	

question	of	whether	the	[movant]	is	entitled	to	judgment	as	a	matter	of	law	under	that	

version	of	the	facts.”	McDowell	v.	Brown,	392	F.3d	1283,	1288	(11th Cir.	2004)	(citing	

Durruthy	v.	Pastor,	351	F.3d	1080,	1084	(11th	Cir.	2003)).	

However,	the	mere	existence	of	any	factual	dispute	will	not	automatically	

necessitate	denial	of	a	motion	for	summary	judgment;	rather,	only	factual	disputes	that	are	

material	preclude	entry	of	summary	judgment.	Lofton	v.	Secretary	of	Dept.	of	Children	and	

Family	Services,	358	F.3d	804,	809	(11th	Cir.	2004).		“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.	It	is	genuine	if the	record	taken	as	a	whole	could	lead	a	rational	trier	of	

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fact	to	find	for	the	nonmoving	party.”	Reeves	v.	C.H.	Robinson	Worldwide,	Inc.,	594	F.3d	798,	

807	(11th	Cir.	2010)	(citation	omitted).	

B.	Analysis

1.	Count	I	– Violation	of	the	Uniformed	Services	Employment	and	Re-Employment	

Rights	Act	of	1994	(USERRA)

In	Count	I,	Gipson	alleges	that	Sheriff	Cochran	violated	USERRA	because	he

extended	her	Working	Test	Period	because	of	the	absences and	then	terminated	her	

employment	during	the	extended	Period.		Gipson	also	contends	that	Sheriff	Cochran	failed	

to	provide	her	with	additional	training	to	qualify	her	for	the	position.

USERRA	prohibits	discrimination	against	employees	on	basis	of	their	military	

service.	The	statute	sets	forth,	in	relevant	part,	as	follows:	

A	person who	is	a	member	of,	applies	to	be	a	member	of,	performs,	has	

performed,	applies	to	perform,	or	has	an	obligation	to	perform	service	in	a	

uniformed	service	shall	not	be	denied	initial	employment,	reemployment,	

retention	in	employment,	promotion,	or	any	benefit	of	employment	by	an	

employer	on	the	basis	of	that	membership,	application	for	membership,	

performance	of	service,	application	for	service,	or	obligation.

38	U.S.C.	§	4311(a).			

An	employer violates	the	USERRA	if	the	employee's	“membership,	...	service,	...	or	

obligation	for	service in	the	uniformed	services	is	a	motivating	factor	in	the	employer's	

action	unless	the	employer	can	prove	that	the	action	would	have	been	taken	in	the	absence	

of	such	membership,	...	service,	...	or	obligation	for	service[.]” 38	U.S.C.	§	4311(c)(1).

“Section	4311	requires	proof	of	a	discriminatory	motive”,	and	the	Eleventh	Circuit	Court	of	

Appeals	employs the	“but	for”	test.	Landolphi	v.	City	of	Melbourne,	Fla., 515	Fed.	Appx.	832,	

834	(11th	Cir.	2013)	(quoting	Coffman	v.	Chugach	Support	Services,	Inc.,	411	F.3d	1231,	

1238	(11th	Cir.2005) (“the	standard	of	proof	is	the	‘but	for’	test”)).	

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“In	order	to	establish	a	prima	facie	case	of	discrimination,	the	plaintiff	must	

demonstrate	by	a	preponderance	of	the	evidence	that	his	military	membership or	

obligation	was	a	motivating	factor	in	the	employer's	decision.” Landolphi,	515	Fed.	Appx.	at	

834;	(citing	Coffman,	411	F.3d	at	1238));	Ward	v.	United	Parcel	Service,	580	Fed.	Appx.	735,	

738	(11th	Cir.	2014). “A	motivating	factor	does	not	necessarily	have	to	be	the	sole	cause	for	

the	employer's	decision,	but	is	defined	as	one	of	the	factors	that	a	truthful	employer	would	

list	as	its	reasons	for	its	decision.” Id.	“A	court	can	infer	a	discriminatory	motivation	from	a	

variety	of	considerations,	such	as:	(1)	the	temporal	proximity	between	the	plaintiff's	

military	activity	and	the	adverse	employment	action;	(2)	inconsistencies	between	the	

proffered	reason	for	the	employer's	decision	and	other	actions	of	the	employer;	(3)	an	

employer's	expressed	hostility	toward	members	of	the	protected	class	combined	with	its	

knowledge	of	the	plaintiff's	military	activity;	and	(4)	disparate	treatment	of	similarly	

situated	employees.” Id.		

Once	Gipson	meets	her	prima	facie	burden,	the	burden	shifts	to	Sheriff	Cochran	to	

“establish	an	affirmative	defense	by	proving	by	a	preponderance	of	the	evidence	that	

legitimate	reasons,	standing	alone,	would	have	induced	[him] to	take	the	same	adverse	

action.	Id. at	834-835	(citing	Coffman,	411	F.3d	at	1238-1239)).		Sheriff	Cochran	“does	not	

violate	USERRA if	[he]	can	prove	that	the	action	would	have	been	taken	in	the	absence	of	

the	military	service.”	Preacely,	588	Fed.Appx.	at	997.6		This	burden-shifting	framework	

																																																							 6		“The	procedural	framework	and	evidentiary	burdens	set	out	in	§ 4311,	as	explained	in	

Transportation	Management	for	NLRB	rulings,	are	different	from	those	in	discrimination	

cases	under	Title	VII	of	the	Civil	Rights	Act	of	1964,	42	U.S.C.	§	2000e–2(a)(1),	as	described	

in	McDonnell	Douglas	Corp.	v.	Green,	411	U.S.	792,	93	S.Ct.	1817,	36	L.Ed.2d	668	(1973),	and	

subsequent	decisions.	McDonnell	Douglas,	while	allocating	the	burden	of	production	of	

evidence,	does	not	shift	the	burden	of	persuasion	to	the	employer.	See	Nat'l	Labor	Relations	

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“applies	to	both	so-called	‘dual	motive’	cases	and	so-called	‘pretext’	cases.”	Coffman,	411	

F.3d	at	1238.

To	rebut	the	proffered	reasons,	Gipson	“may	establish	pretext	indirectly	by	

showing” that Sheriff	Cochran’s	proffered	reasons for	his decision are “unworthy	of	

credence.”	Landolphi, 515	Fed.	Appx.	at	835.		“Under	this	analysis,	courts	must	evaluate	

whether	[Gipson] demonstrated	such	weaknesses,	implausibilities,	inconsistencies,	

incoherencies,	or	contradictions	in	the	proffered	reason	so	that	a	reasonable	factfinder	

could	conclude that	it	is	unworthy	of	credit.”	Id.	 Proof	that	Sheriff	Cochran’s	“justification	is	

unworthy	of	credence	may	be	probative	of	discrimination,	and may	therefore,	permit	a	

factfinder	to	reasonably	find	discrimination.”	Id. (citing	Reeves	v.	Sanderson	Plumbing	

Products,	Inc., 530	U.S.	133,	147–48,	120	S.Ct.	2097,	147	L.Ed.2d	105	(2000)).

a.	Extension	of	Gipson’s	Working	Test	Period

Sheriff	Cochran	does	not	dispute	that	Gipson’s	military	status	was	a	factor	in	

extending	her	Working	Test	Period,	but	argues	that	it	was	not	a	“motivating	factor.”		(Doc.	

56,	p.	8)		He	explains	that	the	extension	was	requested	because	of	absences	from	both	

Gipson’s	military	leave	and	her	injured	with	pay	status	which	prevented	her	from	gaining	

the	necessary	experience	to	become	a	Deputy	Sheriff	and allowing	her	supervisors	time	to	

																																																																																																																																																																																		

Bd.	v.	Weiss	Memorial	Hospital, 172 F.3d	432,	442	(7th	Cir.1999)	(contrasting	Wright	Line

with	“the	shifting	burdens	of	production	under	the	ubiquitous	McDonnell	Douglas analysis,	

which	is	merely	a	method	for	ordering	the	proof”);	Walker	v.	Mortham, 158	F.3d	1177,	

1184–85	n.	10	(11th	Cir.1998),	cert.	denied	528	U.S.	809,	120	S.Ct.	39,	145	L.Ed.2d	36	

(1999)	(distinguishing	the	employer's	burden	to	prove	its	affirmative	defense	under	the	

NLRA	from	the	McDonnell	Douglas prima	facie	case,	which	shifts	the	burden	of	production	

but	not	the	risk	of nonpersuasion).		Thus	in	USERRA	actions	there	must	be	an	initial	

showing	by	the	employee	that	military	status	was	at	least	a	motivating	or	substantial	factor	

in	the	agency	action,	upon	which	the	agency	must	prove,	by	a	preponderance	of	evidence,	

that	the	action	would	have	been	taken	despite	the	protected	status.	“		Sheehan	v.	

Department	of	Navy,	240	F.3d	1009,	1014	(Fed.	Cir.	2001).

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evaluate	her	performance.	 His	position	is	supported	by	the	information	contained	in	Lt.	

Bonner’s	letter	requesting	an	extension. (Doc.	63-3)		However,	 Sheriff	Cochran	argues	that	

the	extension	was	not	an	adverse	action.			

Gipson	responds	that	the	extension	was	adverse.	She	proffers	that	had	her	Working	

Test	Period	not	been	extended	for	six	months,	she	would	have	become	a	permanent	

employee	before	she	was	terminated	in	June.

7 Thus,	Gipson	argues	that	she	would	have	

had certain	property	rights	in	her	employment at	that	time including	the	right	to	a	predisciplinary	hearing	before	her	termination	and	an	appeal,	and	that	Sheriff	Cochran	would	

have	had	the	heightened	burden	to	support	her	termination	by	a	preponderance	of	the	

evidence.8			She	also	argues	that	the	extension	resulted	in	a	lack	of	prestige	and	a	lack	of	

stability.		

																																																							 7		Gipson	relies	upon	the	ratings	of	acceptable	and	comments	of	good	performance	and,	the	

satisfactory	observations	noted	by	her	Training	Officers	from	March	2011	through	June	

2011,	the	absence	of	any	significant	deficiencies	in	performance	noted	in	her	record	for	the	

ten	months	between	hiring	in	March	2011	and	December	2011	but	for	those	identified	in	

the	request	for	extension, and	the	absence	of	any	significant	deficiencies	between	

December	2011	and	March	2012	– the	time	when	her	one-year	Working	Test	Period	would	

have	ended	- but	for	the	two	minor	items	discussed	in	the	March	2012	memorandum	from	

Lt.	Bonner	and	Sgt.	Hale	to	Gipson.	

Gipson	also	relies	on	Chief	Deputy	Wilhelm’s	testimony	and	argues	that	he	stated	Gipson	

would	have	been	a	permanent	employee	in	June	2012	had	her	Working	Test	Period	not	

been	extended.		(See Doc.	63-24,	p.	167-168)		It	is	too	far	of	a	stretch	to	say	that	this	

testimony	supports	this	conclusion.		The	question	began	with	“if”,	was	compound	and	

ended	like	the	previous	question,	with	a	query	whether	a	permanent	employee	would	have	

been	due	a	disciplinary	hearing.			

8		Gipson	references	Personnel	Board Rule	XI,	which	states	that	during	a	working	test	

period,	an	employee	does	not	have	the	right	to	a	pre-disciplinary	hearing,	the	right	to	file	a	

grievance	or	appeal	a	dismissal	and	does	not	have	a	property	interest	in	the	position.	(Doc.	

63-35)		She	also	asserts	that	probationary	employees	may	be	terminated	on	lesser	grounds	

and	without	any	supporting	evidence.		

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The	Court	finds	that	Gipson’s	extension	of	her	Working	Test	Period	was	not	an	

adverse	employment	action.		Specifically,	the	extension	did	not	alter in	any	way	Gipson’s	

employment	status.		It	is	too	speculative	to	assume	that	she	would	have	become	a	

permanent	employee	at	the	conclusion	of	her	Working	Test	Period	in	March	2012.			

Moreover,	USERRA	was	certainly	never	intended	to	allow	a	person	to	be	exempt	from	

necessary	and	important	training	for	a	job.		Thus,	extending	a	training	period,	in	part,	to	

make	up	for	absences	due	to	military	leave,	does	not	violate	USERRA,	and	in	fact	is	

contemplated	by	USERRA.	See 38	U.S.C.	§	4313(a)(1)(B)	(requiring	an	employer	to	make	

reasonable	efforts	to	qualify	an	employee	that	has	been	absent	for	military	service).		

b.	Termination	

Sheriff	Cochran	argues	that	there	is	no	evidence	that	Gipson’s	military	leave	

factored	in	to	her	termination	and	that	even	if	it	did,	she	would	have	been	terminated	

anyway.		Sheriff	Cochran	states	that	Gipson	had	three	years	prior	experience	as	a	police	

office	and	was	given	over	a	year	to	develop	the	experience	and	expertise	to	be	a	Deputy	

Sheriff,	but	the	“consensus	was	that	she	was	just not	cutting	it”	(doc.	56,	p.	9).		 Sheriff	

Cochran	stated	that	Gipson	was	a	“marginal	employee”	and	there	was	no	reason	to	

continue	her	employment.	(Id.)	

Gipson	responds	that	this	assertion	is	false	and	not	supported	by	the	evidence.	She	

argues	that	the reasons	for	termination	are	contrary	to	the	evidence, because	in	May	2012,	

a	month	before	her	termination	in	June	2012,	Sgt.	Hale	and	Lt.	Bonner	stated	that	she	had	

no	work-related	problems.		Gipson	argues	that	the	reasons	Capt.	Thompson	gave	to	

support his	opinion	that	she	could	not	do	the	job	were	reasons	alleged	in	support	of	

extending	her	Working	Test	Period	in	December	2011.		Then,	when	Capt.	Thompson	stated	

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that	she	had	shown	no	improvement	since	that	time,	Gipson	pointed	out	that	in	May	2012,	

just	a month	before	her	termination,	Lt.	Bonner	and	Sgt.	Hale	informed	her	that	they	had	no	

problems	with	her	work.		Gipson	also	argues	that	Capt.	Thompson	never	personally	

observed	her	work	whereas	her	immediate	supervisor	Sgt.	Hale	testified	that	she	was	

improving.		Gipson	also	points	out	the	absence	of	any	written	documentation	to	support	

Capt.	Thompson’s	decision.	 Gipson	also	argues	that	Deputy	Chief	Wilhelm	testified	that	the	

only	documentation	between	January	2012	and	June	2012,	are	the	March	2012	and	May	

2012	memoranda,	and	neither	indicate	that	Gipson	was	below	standard	and	needed	to	be	

terminated.

The	Court	finds	that	Gipson	has	failed	to	show	by	a	preponderance	of	the	evidence	

that	her	military	service	was	a	factor	in	the	decision	to	terminate	her	employment,	and	

therefore,	she	has	failed	to	make	her	prima	face	case.	Landolphi,	515	Fed.	Appx.	at	834 (“In	

order	to	establish	a	prima	facie	case	of	discrimination,	the	plaintiff	must	demonstrate	by	a	

preponderance	of	the	evidence	that	his	military	membership or	obligation	was	a	

motivating	factor	in	the	employer's	decision.”)			There	is	simply	no	evidence that	Gipson’s	

military	service	factored	in	to	Capt.	Thompson’s	decision, such	as	was	shown	in	Lt.	

Bonner’s	request	for	an	extension	of	the	Working	Test	Period.		Nor	can	the	Court	infer	a	

discriminatory	motivation	based	on	the	temporal	proximity	between Gipson’s military	

activity	and	the	adverse	employment	action. Gipson	has	failed	to	present	any	evidence	as	

to	whether	she	may	have	been	on	military	leave	in	close	temporal	proximity	to	June	27,	

2012.		Moreover,	although	“an	employer's	expressed	hostility	toward	members	of	the	

protected	class	combined	with	its	knowledge	of	the	plaintiff's	military	activity”,	id.,	may	

give	rise	to	an	inference,	Gipson	presents	only	Lt.	Bonner’s	one	statement	at	roll	call	in	May	

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2011	– “Deputy	Gipson,	you	need	to	be	here”.		This	statement	alone,	made	over	a	year	

before	termination	is	not	sufficiently	hostile	to	support	an inference	that	Gipson’s	military	

service	was	a	factor in	her	termination.		

Lastly,	“disparate	treatment	of	similarly	situated	employees”,	id.,	may	give	rise	to	an	

inference	that	military	service	was	a	factor	in	the	decision.	 In	this	regard,	Gipson	

references	the	Court	to her	argument in	support	of	her	sex	discrimination	claim	under	Title	

VII,	that	male	patrol	officers	were	treated	more	favorably although	they	had	similar	

deficiencies	in	performance.		However,	Gipson	fails	to	explain	how	these	are	similar	

comparators	under	her	USERRA	claim;	that	is	that	other	probationers	had	periods	of	

absence,	and	had	deficiencies	in	performance,	but	their	Working	Test	Period	was	not	

extended.			The	Court	sees	no	reason	to	do	that	for	her.		

c.	Additional	training	required	under	USERRA

Gipson	alleges	that	Sheriff	Cochran	violated	USERRA	because	after	her	military	

service,	he	failed	to	provide	her	with	additional	training	necessary	to	qualify	her	as	a	

permanent	deputy.	(Doc.	1)		Sheriff	Cochran	argues	that	Gipson	received	the	additional	

training	in	that	her	Working	Test	Period	was	extended	for	six	months	in	lieu	of	terminating	

her	and	to	provide	her	the	opportunity	to	gain	the	necessary	experience;	and	thus	the	

extension	was	a	reasonable	effort	to	qualify	her.		He	also	argues	that	assigning	Gipson	to	

work	with	a	more	experienced	Deputy	was	a	reasonable	effort.	(Doc.	56,	p.	9)	

Gipson	disagrees	with	Sheriff	Cochran.	She	argues	that	a	permanent	deputy	position	

is	the	position	she	would	have	had	at	the	end	of	Working	Test	Period	in	March	2012,	if	she	

had	not	taken	military	leave.		Thus,	if	Sheriff	Cochran	thought	she	was	not	qualified	for	a	

permanent	position,	he	should	have	provided	her	with	additional	or	specific	training	in	

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addition	to	the	extension	and	assignment.	She	argues	summary	judgment	should	be	denied	

because	there	is	an	issue	of	fact	as	to	whether	his	actions	were	reasonable.	

If	the	period	of	service	was	91	days	or	less,	USERRA	requires	that	the	service	

member	be	“reemployed”	in	“the	position	of	employment	in	which	the	person	would	have	

been	employed	if	the	continuous employment	of	such	person	with	the	employer	had	not	

been	interrupted	by	such	service,	the	duties	of	which	the	person	is	qualified	to	perform[.]”	

38	U.S.C.	§	4313(a)(1)(A).			But	if	the	employer	finds	the	person	is	not	qualified	for	the	

position,	then	USERRA	requires	the	employer	to	make	“reasonable	efforts”	to	qualify	the	

employee.	Id.	at	(B);	20	C.F.R.	§	1002.198;	20	C.F.R.	1002.196(a).	20	C.F.R.	1002.5(I)		

“Reasonable	efforts,	in	the	case	of	actions	required	of	an	employer,	means	actions,	

including	training	provided	by	an	employer	that	do	not	place	an	undue	hardship	on	the	

employer.”		20	CFR	§	1002.5(i).			

Viewing	the	evidence	in	the	light	most	favorable	to	Gipson,	the	Court	finds	that	there	

is	no	material	dispute	of	fact	that	Sheriff	Cochran	made	reasonable	efforts	to	qualify	Gipson	

for	the	permanent	deputy	position	and	therefore,	summary	judgment	is	granted	in	favor	of	

Sheriff	Cochran	as	to	this	claim.		Lt.	Bonner	noted	in	his	request	for	extension	that	Gipson	

when	evaluating	Gipson's	performance,	“based	on	the	time	she	has	been	employed .	.	. by	

and been	present	for	duty”	he	found	that	she	“has	a	lack	in	job	knowledge	or	lacks	the	

necessary	confidence	to	complete	some	of	her	assigned	tasks.”	(Doc.	63-3)	In	response,	her	

Working	Test	Period	was	extended to	allow	her	more	time	to	gain	the	necessary	

experience9 and	she	was	assigned	to	work	with	a	more	senior	deputy	who	could	function	

																																																							 9		Sgt.	Hale	and	Capt.	Thompson	both	testified	that	the	extension	was	to	provide	the	

additional	or	remedial	training	that	Gipson	needed.	(Doc.	63-29,	p.	7;	Doc.	63-30,	p.	16)	

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as	her	Training	Officer	and	answer	her	questions.10 Gipson	has	not	sufficiently	rebutted	this	

evidence.	

2. Count	II	– Gipson’s	claim	of	sex	discrimination	pursuant	to	Title	VII

Gipson	alleges	that	she	was	subjected	to	disparate	treatment	on	basis	of	her	sex.		

She	alleges	that	similarly	situated	male	deputy	sheriffs	were	treated	differently	in	regard	to	

the	terms	and	conditions	of	employments,	application	of	work	rules,	extension	of	

probation,	and	termination.	(Doc.	1)	

Under	Title	VII,	it	is	unlawful	for	Sheriff	Cochran,	an	employer,	“to	discharge	any	

individual,	or	otherwise	to	discriminate	against	any	individual	with	respect	to	his	

compensation,	terms,	conditions,	or	privileges	of	employment,	because	of	such	individual’s	

...	sex.”	42	U.S.C.	§	2000e–2(a)(1)).			“In	order	to	establish	a	case	under	Title	VII,	a	plaintiff	

may	use	three	different	kinds	of	evidence	of	discriminatory intent:	direct	evidence,	

circumstantial	evidence	or	statistical	evidence.”	Standard	v.	A.B.E.L.	Services,	Inc.,	161	F.3d	

1318,	1330	(11th	Cir.1998).		Gipson	relies	upon	circumstantial	evidence.	

In	Title	VII	disparate	treatment	actions	based	upon	circumstantial	evidence, the	

burden	lies	first	with	Gipson	to	establish	a	prima	facie	case.		Wilson	v.	B/E	Aerospace,	Inc.,	

376	F.3d	1079,	1087	(11th	Cir.	2004)	(citing	McDonnell	Douglas	Corp.	v.	Green, 411	U.S.	

792,	93	S.Ct.	1817	(1973)	and	Texas	Department	of	Community	Affairs	v.	Burdine,	450	U.S.	

248,	101	S.Ct.	1089	(1981).		Gipson	may	establish	a	prima	facie	case	of	sex	discrimination	

by	showing	that:	(1)	she	was	a	member	of	a	protected	class;	(2)	she	was	qualified	to	do	the	

																																																																																																																																																																																		

10		Lt.	Bonner	testified	that	Deputy	Cooper	was	an	experienced	senior	deputy	with	

knowledge	of	policy,	procedures	and	Alabama	law	and	could	train	Gipson	“and	answer	all	

the	questions	- - not	formal	training,	...	but	just	answer all	the	questions,	show	her	how	to	

do	it	on	the	job.”	(Doc.	63-25,	p,	22-23,	Bonner	deposition)	

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job;	(3)	she	was	subjected	to	an	adverse	employment	action	by	her	employer;	and	(4)	

similarly	situated	employees	outside	of	the	protected	class	were	treated	more	favorably.	

Wilson, 376	F.	3d	at	1091.		

As	to	the	third	element,	an	“adverse	employment	action	is	not	only	an	element	of	

the	prima	facie	case,	but	an	element	of	the	claim	itself.”		McCone	v.	Pitney	Bowes,	Inc.,	582	

Fed.Appx.	798,	800	(11th	Cir.	2014)	(quoting	Holland	v.	Gee,	677	F.3d	1047,	1056	(11th	Cir.	

2012).	An	adverse	employment	action	is	“a	serious	and	material	change	in	the terms,	

conditions,	or	privileges	of	employment.”	Id.	(internal	citation	and	emphasis	omitted).		“The	

employee's	subjective	view	of	the	significance	and	adversity	of	the	employer's	action	is	not	

controlling.	Rather,	the	employment	action	must	be	materially adverse	as	viewed	by	a	

reasonable	person	under	the	same	circumstances.”	Id. (internal	citation	omitted).	

Generally,	firing	an	employee	is	a	significant	change	in	employment	status	that	is	an	

adverse	employment	action.		See Davis	v.	Town	of	Lake	Park,	Fla.,	245	F.3d	1232,	1239	

(11th	Cir.2001).		However,	“[c]riticisms,	negative	evaluations	and	temporary	and	nonsubstantial	changes	in	work	assignments	are	not	actions	that	have	a	‘serious	and	material	

effect’	on	the	terms	and	conditions	of	employment.”	White v.	Hall,	389	Fed.	Appx.	956,	960	

(11th	Cir.	2010)	(citation	omitted).	

Additionally,	“memoranda	of	reprimand	or	counseling	that	amount	to	no	more	than	

a	mere	scolding,	without	any	following	disciplinary	action,	do	not	rise	to	the	level	of	

adverse	employment	actions	sufficient	to	satisfy	the	requirements	of	Title	VII.”		Barnett	v.	

Athens	Regional	Medical	Center	Inc.		550	Fed.	Appx.	711,	713-714	(11th	Cir.	2013)	(citing	

Davis,	245	F.	3d	at	1236).		“The	negative	evaluation	must	actually	lead	to	a	material	change	

in	the	terms	or	conditions	of	employment[.]”	Id.	“Although	proof	of	direct	economic	

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consequences	is	not	required	in	all	cases,	‘the	asserted	impact	cannot	be	speculative	and	

must	at	least	have	a	tangible	adverse	effect” on	the	employment. Id.	

As	to	the	fourth	element,	Gipson	and	the	similarly	situated	employees	she	identifies	

as	her	comparators,	“must	be	similarly	situated	‘in	all	relevant	respects.’”	Wilson, 376	F.	3d	

at	1091.		“The	comparator	must	be	nearly	identical	to	the	plaintiff	to	prevent	courts	from	

second-guessing	a	reasonable	decision	by	the	employer.”	Id. (citation	omitted).		Where	

there	are	allegations	of	discriminatory	discipline,	establishing	the	fourth	element	“requires	

showing	a	similarly	situated	employee,	who	was	engaged	in	the	same or	similar	

misconduct	but	did	not	receive	similar	discipline.”	Archie	v.	Frank	Cockrell	Body	Shop,	Inc.,	

581	Fed.	Appx.	795,	798	(11th	Cir.	2014)	(citation	omitted).		The	“quantity	and	quality	of	

the	comparator's	misconduct”	must	be	“	‘nearly	identical’	” to	prevent	judges	from	secondguessing	employers'	reasonable	decisions.”		Archie,	581	Fed.	Appx.	at	798.

If	Gipson	establishes	her	prima	facie	case,	then	she	creates	a	rebuttable	

presumption	of	unlawful	sex	discrimination	and	the	burden	of	production	shifts	to	Sheriff	

Cochran	to	articulate	legitimate,	nondiscriminatory	reasons	for	his	actions.	Wilson,	376	

F.3d	at	1087.		If	Sheriff	Cochran	meets	this	burden,	then	the	presumption	of	discrimination	

is	rebutted,	and	the	burden	shifts	back	to	Gipson	to	show	that	the	Sheriff’s	proffered	

reasons	are	a	pretext	for	illegal	discrimination.	Id.

To	do	so,	Gipson	must	show	both	that	the	reasons	were	false,	and	that	

discrimination	was	the	real	reason.		“A	‘new	level	of	specificity’	applies	to	the	inquiry	at	this	

step,	in	which	the	plaintiff	must	demonstrate	‘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.’”

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Archie,	581	Fed.	Appx.	at	798.		“If	the	proffered	reason	might	motivate	a	reasonable	

employer,	a	plaintiff	cannot	merely	recast	the	reason,	but	must	‘meet	the	reason	head	on	

and	rebut	it.’”	Id, at	798-799	(quoting	Chapman	v.	AI	Transp.,	229	F.3d	1012,	1030	(11th	

Cir.2000)	(en	banc).	

If	Gipson	makes	her	prima	facie	case,	and	a	reasonable	jury	could	disbelieve	Sheriff	

Cochran’s	proffered	legitimate	reasons	for	the	alleged	discriminatory	actions,	the	“court	

cannot	grant	summary	judgment	to	the	defendants.”	Keene	v.	Prine,	477	Fed.	Appx.	575,	

581	(11th	Cir.	2012)	(citing	Reeves	v.	Sanderson	Plumbing	Products,	Inc., 530	U.S.	133,	148,	

120	S.Ct.	2097,	2109	(2000)	(“[A]	plaintiff's	prima	facie	case,	combined	with	sufficient	

evidence	to	find	that	the	employer's	asserted	justification	is	false,	may	permit	the	trier	of	

fact	to	conclude	that	the	employer	unlawfully	discriminated.”).	

a.	Extension	of	the	Working	Test	Period

Sheriff	Cochran	argues	that	the	extension	was	not	an	adverse	employment	action;	

therefore,	Gipson	cannot	meet	the	third	element	of	her	prima	facie	case.	He	argues	that	in	

the	face	of	the	absences	caused	not	only	by	military	leave	but	also	due	to	Gipson’s	Injuredwith-Pay	status	resulting	from	her	back	injury,	his	options	were	to	extend	the	Working Test	

Period	or	terminate	her,	based	upon	the	opinions	of	her	Supervisors	that	she	was	not	

satisfactorily	performing	her	duties	at	that	time.		

Alternatively,	assuming	the	extension	was	an	adverse	employment	action,	Cochran	

argues	that	there	were	legitimate,	non-discriminatory	reasons	for	the	extension.	

Specifically,	Gipson	had	not	had	a	sufficient	training	period	as	evidenced	by	Lt.	Bonner’s	

request	for	an	extension	and	documentation	of	two	instances	of	lack	of	job	skills.		Sheriff	

Cochran	also	argues	that	Gipson	had	no	right	to	permanent	status	at	the	end	of	the	Working	

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Test	Period	and	that	it	is	only	speculation	on	her	part	that	she	would	have	achieved	that	

status	at	the	end	of	one	year or	at	the	end	of	any	extension.		

Gipson	argues	that	the	6-month	extension	is	an	adverse	employment	action	and	

thus	she	meets	the	third	element	of	her	prima	facie	case.		Gipson	argues	that	if	her	Working	

Test	Period	had	not	been	extended	for	six	months	or	extended	for	only	90	days,	then	based	

on	her	record she	would	have become	a	permanent	deputy	June	21,	2012.	 Gipson	argues	

that	because	she	was	not	made	permanent,	she	was	precluded	from	receiving	a	property	

interest	in	her	job	and	certain	rights	and	benefits.	Specifically	that	she	would	have	been	

entitled	to	a	pre-disciplinary	hearing	before	she	was	terminated	on	June	27,	2012,	Sheriff	

Cochran	would	have	to	meet	a	higher	burden	to	terminate	her,	and	she	could	have	

appealed	that	decision.		She	also	argues	that	the	extension	and	denial	of	a	permanent	

position	resulted	in	a lack	of	stability	and	loss	of	prestige.	

Overall,	Gipson’s	adverse	component	is	based	on	the	premise	that	she	would	have	

been	a	permanent	employee	in	June	2012	when	she	was	terminated	and	would	have	had	a	

property	interest	in	her	position	and	certain	rights	and	protections.		Under	the	Mobile	

County	Personnel	Board	Rule	XI,	an	employee	in	a	working	test	period	does	not	have	a	

right	to	a	pre-disciplinary	hearing	and	does	not	have	a	property	interest	in	his	or	her	

position	until	the	working	test	period	“has	been	successfully	completed.”	(Doc.	63-35,	Rule	

XI	“Working	Test	Period”)		The	Rule	also	provides	that	“The	[Personnel	Board]	Director	

may	extend	the	working	test	period	of	any	appointee	upon	the	request	of	the	Appointing	

Authority.		.	.	.		If	not	removed	during	the	working	test	period	or	any	extension	thereof,	the	

employee	shall	be	deemed	to	have	earned	permanent	status.”	(Id.)		The	Rule	contemplates	

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a	successful	completion	of	the	Working	Test	Period	and	“if	not	removed,”	the	employee	will	

earn	permanent	status.	

For	reason	previously	stated,	the	Court	finds	that	the	extension	of	Gipson’s	Working	

Test	Period	was	not	an	adverse	employment	action.			Accordingly,	Gipson	fails	to	establish	

her	prima	facie	case	of	discrimination.		

However,	assuming	for	purpose	of	this	summary	judgment	that	Gipson	could	make	a	

prima	facie	case,	the	burden	of	production	shifts	to	Sheriff	Cochran	to	articulate	legitimate,	

nondiscriminatory	reasons	for	his	actions.	Wilson,	376	F.3d	at	1087. If	Sheriff	Cochran	

meets	this	burden,	then	the	presumption	of	discrimination	is	rebutted,	and	the	burden	

shifts	back	to	Gipson	to	show	that	the	Sheriff’s	proffered	reasons	are	a	pretext	for	illegal	

discrimination.	Wilson,	376	F.3d	at	1087.		Gipson	must	show	both	that	the	reasons	were	

false,	and	that	discrimination	was	the	real	reason	for	the	decision	to	terminate	her	

employment.		She	must	“demonstrate	‘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.’”	Archie,	581	Fed.	

Appx.	at	798.		If	Sheriff	Cochran’s	“proffered	reason	might	motivate	a	reasonable	

employer”,	Gipson “cannot	merely	recast	the	reason,	but	must	‘meet	the	reason	head	on

and	rebut	it.’”	Id., at	798-799.		

In	that	regard,	Sheriff	Cochran	states	that	the	extension	was	necessary	for	Gipson	to	

have	time	on	duty	to	gain	more	experience	and	to	allow	her	Supervisors	an	appropriate	

amount	of	time	to	observe	and	evaluate	her	work.		Sheriff	Cochran	states	that	Gipson	was	

not	performing	as	evidenced	by	Lt.	Bonner’s	statements	in	the	request	for	extension	that	

Gipson	lacked	knowledge	of	the	procedures	and	lacked	confidence.			He	points	out	that	Sgt.	

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Hale	and	Lt.	Bonner	both	believed that	part	of	the	reason	Gipson	was	not	performing	was	

because	of	the	time	away	from	work.		

In	rebuttal,	Gipson	argues	that	there	is	no	factual	basis	for	the	extension	because	she	

had	no	documented	deficiencies	during	the	ten-month	period	between	her	employment	in	

March	2011	and	the	request	in	December	2011,	that	the	two	December	incidents	outlined	

in	the	request	for	extension	were	minor,	and	that	she	had	been	rated	as	acceptable	and	had	

good	comments	during	her	initial	training	period.		Gipson	also	argues	that	the	fact	that	her	

extension	was	for	six-months	as	opposed	to	the	customary	90	days	coupled	with	the	lack	of	

an	explanation11 as	to	why	she	was	extended	for	6	months	is	evidence	that	Sheriff	

Cochran’s	reasons	are	false.	

The	Court	finds	that	Gipson	has	failed	to	proffer	sufficient	evidence	from	which	a	

reasonable	jury	could	find	that	Sheriff	Cochran’s	reasons	were	false	and	his	real	reason	for	

the	extension	was	sex	discrimination. Although	Gipson	argues	that	there	are	no	

documented	deficiencies,	Lt.	Bonner’s	request	for	the	extension	contains	sufficient	

documentation	of	two	specific	issues	– lack	of	knowledge	and	lack	of	confidence	- that	he	

and	Sgt.	Hale	observed	that	may	motivate	a	reasonable	employer	to	extend	the	Working	

Test	Period	in	order	to	further	evaluate	a	probationary	employee.		 Accordingly,	summary	

judgment	is	granted	in	favor	of	Sheriff	Cochran	as	to	Gipson’s	claim	of	sex	discrimination	

under	Title	VII	as	to	the	extension	of	her	Working	Test	Period.

b.	Termination	

																																																							 11		Sheriff	Cochran	testified	that	the	length	of	the	extension	is	“three	months,	six	months,	

depending	on	.	.	.	whatever	is	recommended	or	just	whatever	my	thoughts	are	at	the	time.”	

(Doc.	63-26,	p.	5)

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Sheriff	Cochran	acknowledges	that	Gipson	is	a	member	of	a	protected	class	and	that	

she	was	subject	to	an	adverse	employment	action,	i.e., a	termination.		Sheriff	Cochran

argues	that	Gipson	cannot	meet	the	fourth	element	of	her	prima	facie	case	that	she	was	

terminated	on	basis	of	her	sex,	because	she	cannot	identify	any	comparators	that	are	

similar	situated who	were	treated	differently.		He	argues	that	because	the	deputies	

identified	were	not	similarly	situated	or	did	not	engage	in	similar	conduct,	the	application	

of	different work	place	rules	does	not	constitute	discrimination.	12		

The	Court	finds	that	Gipson	has	presented	sufficient	evidence	to	create	an	issue	of	

material	fact	as	to	whether she	was	terminated	based	on	her	sex.	 Accordingly,	Sheriff	

																																																							 12			Gipson	proffered	Officer	Pitzulo,	but	he	is	not	similarly	situated	in	that	he	was	a	

permanent	Deputy	and	did	not	engage	in	substantially	the	same	conduct	as	Gipson.		Also,	

there	is	no	evidence	that	he	had	problems	with	decision-making	or	general	knowledge	of	

the	criminal	code	or	was	a	marginal	employee.		

Gipson	proffers	Deputy	William	Pines.	However,	Sheriff	Cochran	states	that	Deputy	Pines

did	not	make	permanent	status	and	was	terminated.	(Doc.	63-25,	p.	62-63,	Bonner	

deposition) Thus,	Pines	was	not	treated	more	favorably	than	Gipson.	

Gipson	proffers	Deputy	Wesley	Barnett.		However,	Deputy	Barnett	was	offered	the	option	

of	either	resigning	or	being	terminated	and	he	resigned.	(Doc.	63-25,	p.	62-63,	Bonner

deposition) Thus,	Barnett	was	not	treated	more	favorably	than	Gipson.		

Gipson	proffers	Deputy	Demetrius	Watts	who	was	hired	on	October	3,	2011,	and	was	also	

subject	to	a	Working	Test	Period	and	the	same	chain	of	command.		Deputy	Watts	received	

reprimands	for	reckless	driving,	failure	to	report	to	work,	a	citizen	complaint,	failure	to	

write	a	report	and	a	suspension	for	unauthorized	leave.		However,	despite	his	issues,	

Deputy	Watts	resigned	in	lieu	of	termination,	before	his	Period	ended.		Thus,	Watts	was not	

treated	more	favorably	than	Gipson.	(Doc.	63-25,	p.	67-68;	Doc.	66,	Exhibit	9,	excerpts	from	

Watts’	personnel	file)		

Gipson	proffers	Deputy	Darryl	Gomien.		However,	the	deposition	testimony	to	which	she	

cites,	page	223	of	Lt.	Bonner’s	deposition	is	not	in	the	record	and	the	Court	cannot	verify	

whether	Gomien	was	terminated	for	his	infractions	or	insufficiencies.		

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Cochran’s	motion	for	summary	judgment	is	denied	as	to	Gipson’s	claim	of	sex	

discrimination	based	on	her	termination.		

IV.	Conclusion

Upon	consideration	of	the	evidence	and	for	the	reasons	set	forth	herein,	Sheriff	

Cochran’s	motion	for	summary	judgment	is	GRANTED in	part,	but	DENIED,	as	to	Gipson’s

claim	of	sex	discrimination	under	Title	VII	based	upon	her	termination.				

DONE	and	ORDERED	this	3rd day	of	March 2015.

s/	Kristi	K.	DuBose		

KRISTI	K.	DuBOSE

UNITED	STATES	DISTRICT	JUDGE

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