Horne v. Russell County Commission (379 F. Supp. 2d 1305, 2005)

MEMORANDUM OPINION AND ORDER

ALBRITTON, Senior District Judge.

I. INTRODUCTION

This cause is before the court on a Motion for Summary Judgment (Doc. # 124) filed by Defendants Russell County Commission and Russell County, Alabama (“the County Defendants”), a Motion for Summary Judgment filed by Tillman Pugh individually and in his official capacity (“Pugh”) (Doc. # 132), a Motion to Strike (Doc. # 159) and Renewed Motion to Strike (Doc. # 176) filed by all Defendants jointly, and a Motion for Leave to File a Corrected and Amended Reply Brief filed by Pugh (Doc. # 171).

This court previously granted in part and denied in part Motions to Dismiss the Plaintiffs Complaint. The Plaintiff, Leann Horne, subsequently filed a Third Amended Complaint. In her Third Amended Complaint, the Plaintiff brings claims for violation of her due process rights against the County Defendants and her equal protection and due process rights against Pugh pursuant to 42 U.S.C. § 1983 (Count I), violation of 42 U.S.C. §§ 1985, 1986 (Count II), defamation (Count III), assault (Count IV), tort of outrage (Count V), invasion of privacy (Count VI), breach of contract (Count VII), and Title VII and Equal Pay Act claims (Count VIII).

For the reasons to be discussed, the Motions for Summary Judgment are due to be GRANTED in part and DENIED in part.

II. SUMMARY JUDGMENT STANDARD

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The party asking for 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.” Id. at 323, 106 S.Ct. 2548. The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing, or pointing out to, the district court that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-324, 106 S.Ct. 2548.

Once the moving party has met its burden, Rule 56(e) “requires the nonmoving party to go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Id. at 324, 106 S.Ct. 2548. To avoid summary judgment, the nonmoving party “must do more than show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On the other hand, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

After the nonmoving party has responded to the motion for summary judgment, the court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

III. FACTS

The submissions of the parties establish the following facts, viewed in a light most favorable to the non-movant:

Plaintiff Leann Horne (“Horne”) is employed by the Russell County Commission and/or Russell County, Alabama as the County Administrator. Horne alleges that she has endured constant gender based remarks and other demeaning comments from former Commissioner Pugh and Commissioner Mervin Dudley (“Dudley”). She has presented evidence of comments directed to her and comments reported to her by others. She also has presented evidence that Pugh engaged in threatening conduct. Horne further contends that the Russell County Commission violated its own policies and procedures and filled an employee position in Horne’s office without Horne’s knowledge or consent. Horne eventually filed an EEOC charge and complaint in this court alleging violations of the constitution and various civil rights statutes.

At a July 16, 2003 meeting, the Russell County Commission voted 4 to 3 to place Horne on administrative leave with pay for a renewable 90 day period. The vote occurred after the County Attorney recommended that Horne be placed on leave because her lawsuit was entering the discovery phase. The Defendants have presented evidence that the County Commissioners had received reports that Horne was destroying and/or removing evidence relevant to the case.

Horne sought review of her placement on leave from the Russell County Personnel Review Board, but was informed that she was not entitled to review. Horne was taken off paid administrative leave and allowed to return to work in November 2003. She is currently employed as the Russell County Administrator.

IV. DISCUSSION

The court will first turn to the federal claims brought, and the bases for summary judgment asserted by the County Defendants and Pugh as to those claims, and then will turn to the state law claims and the bases for summary judgment asserted as to those claims.

A. Federal Claims

Because violations of different constitutional and statutory provisions have been asserted as to the County Defendants and Pugh, the court will separately address the federal claims asserted.

1. Federal Claims Against the County Defendants

a. Procedural Due Process

The County Defendants move for summary judgment on the § 1983 due process claim on several bases including that Horne has not demonstrated that state law relief is inadequate and that Horne has failed to present facts to support a “stigma plus” theory. The court will begin with the latter contention.

In order to prevail on a “stigma plus” due process claim, a plaintiff must establish the following: (1) a false statement, (2) of a stigmatizing nature, (3) attending a governmental employee’s discharge, (4) was made public, (5) by a governmental employer, (6) without a meaningful opportunity for employee name clearing. Cannon v. City of West Palm Beach, 250 F.3d 1299, 1301 (11th Cir.2001).

The County Defendants have argued that Horne cannot show that she was discharged or that a false statement was published in connection with her placement on administrative leave. Finally, the County Defendants state that because Horne is a public figure, she cannot show stigma because she must prove actual malice. See New York Times Co. v. Sullivan, 376 U.S. 254, 283, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The County Defendants state that the only statement made by placing Horne on administrative leave was that she was placed on administrative leave. The County Defendants further argue that Horne cannot prove the “plus” because she was not terminated, and has not suffered a negative impact on her future job prospects and has actually been sought out for a position.

In response to the argument that Horne cannot establish the “plus” because she was not terminated, Horne relies on a line of cases decided in the context of claims for discrimination on the basis of characteristics protected under the Civil Rights Act of 1964, as amended. In those cases, as Horne points out, employment actions taken which are short of discharge, but nonetheless are sufficient to be considered adverse employment actions can be the basis for a Title VII claim. See, e.g., Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir.2001). That does not appear, however, to be the standard to apply in due process cases.

The United States Supreme Court has examined a “stigma plus” claim brought under the Fifth Amendment against a federal official in which there was a publication of information which, without dispute, injured the plaintiffs future employment prospects. See Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). In Siegert, the employee resigned to avoid termination. The Supreme Court stated that because the alleged defamation was not uttered incident to his termination, even though the statements made would undoubtedly damage his reputation and impair his employment prospects, there was no constitutional violation. Id. at 234, 111 S.Ct. 1789.

The Eleventh Circuit has recently addressed a stigma plus due process claim in a case in which employees were transferred to another position. The court stated that “[e]ven assuming Plaintiffs could establish the requisites for defamation, Plaintiffs’ retention of employment negates a claim that they were denied their liberty interests.” Silva v. Bieluch, 351 F.3d 1045, 1048 (11th Cir.2003); see also Cannon, 250 F.3d at. 1303 (“in this circuit a ‘discharge or more’ is required in order to satisfy the ‘plus’ element of the stigma-plus test.”).

The former Fifth Circuit has explained that a significant demotion might present the type of loss of tangible interest connected with stigmatizing state action that could give rise to a liberty interest. Moore v. Otero, 557 F.2d 435 (5th Cir.1977). In that case, a police corporal was transferred to a patrolman position and the court stated that the stigma plus requirement was not met, but also noted that it might be met had he been transferred to a janitorial position. Moore, 557 F.2d at 438 n. 11. Although the statement in Moore was dicta, even assuming that such a rule can be applied consistently with the Eleventh Circuit’s holdings that a discharge is required, this court cannot conclude that the action taken against Horne rose to the level of a demotion. Her pay was unaffected and she was ultimately reinstated and allowed to perform her job duties.

Horne also relies on Hardiman v. Jefferson County Board of Education, 709 F.2d 635, 639 (11th Cir.1983), in which the court stated in a footnote that in certain circumstances a prolonged suspension might amount to a significant change of status under state law to implicate a constitutional liberty interest, for instance, “if the government in bad faith suspends an employee for an extended duration in the hope of forcing the employee to resign.” It is not clear that the dictum in Hardiman is consistent with later Eleventh Circuit holdings in this area. Even assuming it is, in light of the evidence that she was reinstated, the court cannot conclude that Horne’s argument that her administrative leave was punitive in nature is sufficient to establish that the suspension at issue was accomplished to force Horne to resign.

Accordingly, there is insufficient evidence to establish a due process violation in this case and the Motion for Summary Judgment is due to be GRANTED on Horne’s due process claim.

b. Title VII

Applicability of Statute

The County Defendants argue that Horne is not entitled to the protections of Title VII because she is not an employee, but instead is a member of the Commission’s personal staff. Title VII defines an employee as an individual employed by an employer except that “the term ‘employee’ shall not include any person elected to public office ... or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level....” 42 U.S.C. § 2000e(f).

There are several factors which are helpful in evaluating whether a person falls within the personal staff exception of Title VII. They are as follows: (1) whether the elected official has plenary powers of appointment and removal, (2) whether the person in the position at issue is personally accountable to only that elected official, (3) whether the person in the position at issue represents the elected official in the eyes of the public, (4) whether the elected official exercises a considerable amount of control over the position, (5) the level of the position within the organization’s chain of command, and (6) the actual intimacy of the working relationship between the elected official and the person filling the position. Laurie, v. Alabama Court of Criminal Appeals, 88 F.Supp.2d 1334, 1338 (M.D.Ala.2000), aff'd, 256 F.3d 1266, 1269 (11th Cir.2001).

The County Defendants contend that Horne is personal staff under this analysis. Horne disagrees. She argues that she, unlike the staff attorneys in Laime, did not have an intimate working relationship with the Commission. She also states that the exception applies to the staff of a public official, not a governing body.

Horne cites the court to Gomez v. City of Eagle Pass, 91 F.Supp.2d 1000 (W.D.Tex.2000). In Gomez, the court determined that the exception for personal staff did not apply to the relationship between the collective members of a city council and a city manager. The court reasoned that the clear statutory language applies to a person who is the personal staff of a single public official, not a collective body. Id. at 1006. The court reasoned that not only is the statutory language unambiguous, but also that it comports with common sense because the exception is grounded on Congress’ perception that elected officials need complete loyalty from close staff members. Id. The court explained that such close relationships intuitively seem less likely where a group of persons exerts control over a single individual. Id.

The County Defendants have cited the court to a case which applies the appointed policy maker exception also contained in 42 U.S.C. § 2000e(f) to a person appointed by a board. See Board of County Comm’rs, Fremont County, Colo. v. E.E.O.C., 405 F.3d 840, 842 (10th Cir.2005). Also, in Carlton v. City of Topeka, Kansas, No. 91-2273-JWL, 1993 WL 32780 (D.Kan. Jan.21, 1993), the court determined that a policy making position appointed by the mayor and approved by the city council was appointed by a public official. The court relied on an EEOC statement and reasoned that where the mayor and city council were all publicly elected, the position was appointed by public officials. Although the court did not specifically address the issue at hand in this case, the court apparently found no fault in applying the exception where a collective body was concerned.

The County Defendants have also cited one case which analyzes the issue in question with respect to the personal staff exception of the Fair Labor Standards Act. In Rodriguez v. Township of Holiday Lakes, 866 F.Supp. 1012, 1022 n. 8 (S.D.Tex.1994), the court stated that the exception seemed to be intended to cover members of a personal staff, and that one court had found that a common sense dictionary reading of the exception leads to the conclusion that it is to apply to staff of a particular person. The court noted that neither party had argued that the exception did not apply, however, and declined to find that the distinction between being hired by an elected group rather than an individual was significant. Id. The court did not explain why it was applying the exception in a manner inconsistent with the acknowledged plain meaning of the text.

The Eleventh Circuit has pointed out that “[o]ther courts, often citing the legislative history of Title VII, have also concluded that the ... personal staff exemption ... is to be narrowly construed.” E.E.O.C. v. Reno, 758 F.2d 581, 584 (11th Cir.1985). A district court within this circuit has examined the personal staff exception and, in holding that an assistant district attorney is a member of the personal staff of a publicly elected district attorney, determined that “to reach the result intended by Congress the words of this statutory exception ‘must be interpreted in the light of reason and common understanding' ... upon `the assumption that the legislative purpose is expressed by the ordinary meaning of the words used.'" Wall v. Coleman, 393 F.Supp. 826, 829 (S.D.Ga.1975) (citation omitted).

This court concludes that the better-reasoned view is that the statutory exception to the definition of employee does not apply in this case. The plain language of the statute does not encompass persons who serve at the direction of a board or body of public officials. This court agrees that limiting the exception to persons who serve at the direction of a single public official comports with the plain meaning of the language of the exception, is most consistent with the purpose of the exception, and is most consistent with applying a narrow construction of the exception.

Claims

The court now turns to the grounds for summary judgment raised as to the merits of Home's federal statutory claims of geñ-der discrimination against the County Defendants.

i. Title VII Hostile Work Environment Claim

The County Defendants' first argument is that Home cannot maintain a hostile environment claim based on the only event of alleged harassment which falls within 180 days of the filing of her EEOC charge. The law regarding timely filing of hostile environment claims is that a "charge alleging a hostile work environment claim, however, will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period." National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).

The County Defendants acknowledge this precedent, but contend that the last alleged harassing act was Commissioner Pugh's motion to have Vickie Luckerson placed in the Assistant Administrator position. Home contends that the Russell County Commission violated its own policies and procedures and filled an employee position in Home's office without Home's knowledge or consent. The County Defendants state that this act is not in the nature of harassing conduct.

In response, Home states that there were several comments made in the six months prior to the filing of her EEOC charge in May 2003. Cattie Epps' deposition has also been cited for the proposition that people called in to complain that Pugh talked down to Home during the March 5, 2003 meeting. Epps Dep. at page 41:11-15.

Apparently in recognition that Home has identified some instances of harassment which fall within six months of the EEOC filing date, the County Defendants also contend that Home cannot rely on instances of alleged harassment which were beyond her personal knowledge and which she only learned of only through others. In support of this argument, the County Defendants cite to a Seventh Circuit case which stands for the unremarkable proposition that "for alleged incidents of racism to be relevant to showing the severity or pervasiveness of the plaintiffs hostile work environment, the plaintiff must know of them." Mason v. Southern, Illinois University at Carbondale, 233 F.3d 1036, 1046 (7th Cir.2000). The County Defendants also cite to Caruso v. City of Cocoa, Fla., 260 F.Supp.2d 1191, 1220 (M.D.Fla.2003). The dispositive factor in the Caruso court’s analysis, however, was not merely that the plaintiffs did not hear comments directly, but that they had to “ferret out information.” Id.

The court may consider any alleged acts of harassment which were made known to the employee at the time of the alleged creation of a hostile environment, even if she did not hear it directly. Busby v. City of Orlando, 931 F.2d 764, 785 (11th Cir.1991) (district court abused its discretion in excluding slurs that the plaintiff did not hear or that were not directed toward her); Edwards v. Wallace Community College, 49 F.3d 1517, 1522 (11th Cir.1995).

The County Defendants have also argued that there is not a sufficient connection between the events to establish that they are part of the same hostile environment. The common connection, however, viewing the evidence in a light most favorable to the non-movant, is Commissioner Pugh and his alleged animus toward Horne on the basis of her gender. As will be more fully explained below, although not every instance of alleged harassment to which Horne has pointed is explicitly gender-based, the court concludes that the March 2003 meeting during which an employment decision was made without Horne’s input was an incident which was part of the overall hostile environment alleged by Horne, so that her hostile environment claim is not time-barred.

A hostile environment claim requires a showing that (1) the plaintiff is a member of a protected group; (2) she was the subject of unwelcome sexual harassment; (3) the harassment occurred because of her sex; (4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of her employment; and (5) a basis for holding the employer liable. See Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir.1999) (en banc), cert. denied, 529 U.S. 1068, 120 S.Ct. 1674, 146 L.Ed.2d 483 (2000). In evaluating the fourth of these factors, a court must “examine the conduct in context, not as isolated acts, and determine under the totality of the circumstances whether the harassing conduct is sufficiently severe or pervasive to alter the terms or conditions of the plaintiffs employment.” Id. at 1246. Factors relevant to such analysis are the frequency of the conduct, the severity of the conduct, whether the conduct is threatening or humiliating, and whether the conduct unreasonably interferes with the employee’s job performance. Id.

The County Defendants have argued that the instances of conduct pointed to by Horne are not evidence of sexually-based conduct or comments other than a remark by Pugh that his wife would not like him to take a trip with Horne and Pugh’s discussions of Horne’s alleged affairs. A claim of harassment can be based on conduct without sexual overtones, however. The Eleventh Circuit has stated that gender-based “[sjexual harassment, like racial harassment, which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality.” Bell v. Crackin Good Bakers, Inc., 777 F.2d 1497, 1503 (11th Cir.1985). Harassment on the basis of sex can be unwelcome sexual advances, but it does not have to be, and instead can be threatening, bellicose, demeaning, hostile or offensive conduct by a supervisor in the workplace because of the sex of the victim of such conduct. Id. Conduct of a nonsexual nature that ridicules women or treats them as inferior falls within this definition of prohibited sexual harassment. Cronin v. United Service Stations, Inc., 809 F.Supp. 922, 929 (M.D.Ala.1992). Therefore, the court will consider all of the conduct identified by Horne in evaluating whether sufficient evidence has been presented to establish the elements of a hostile environment claim.

Before the court can evaluate whether the evidence presented is sufficient to establish a claim of hostile work environment, however, the court must first identify what evidence presented in support of this claim is admissible evidence. Much of Horne’s evidence relevant to the claim is subject to a Motion to Strike jointly filed by all Defendants. Rather than separately address the Motion to Strike as a whole, however, the court will address the arguments raised in connection with that motion as they become relevant in the context of the hostile environment evidence presented. Although the court will follow the numbering system used by Horne and followed by the County Defendants, the court has divided the types of comments as to those which are arguably gender based and those which are not obviously based on gender.

1. Horne states that in 1998, Pugh told a newspaper editor that Horne was the token female candidate. As pointed out by the County Defendants, Horne does not offer a citation to the record in her list, but does cite to evidence in support of this proposition in her statement of facts. She cites to the Affidavit of Clint Claybrook and her own deposition. The document referred to as an affidavit of Clint Clay-brook is the subject of the Motion to Strike. The County Defendants move to strike the original document because, although it is notarized, it does not state that it is made under penalty of perjury or under oath. It states, “I am willing to testify under oath ...” Plaintiffs Exhibit C.

Having been given leave by the court to submit a new witness statement, Horne supplemented the record with a new statement by Clint Claybrook which states that it is made under penalty of perjury. This statement does not say anything about Pugh having stated that Horne was a token female candidate, however.

In her deposition, Horne stated that Pugh had made some comments that she was the token female and did not stand a chance at getting the position. Horne Dep. at page 58:1-6. She goes on to state that Mr. Claybrook told her that Pugh said it. Id. at page 58: 23. This evidence if offered for the truth of the matter that Pugh made the statement would be hearsay not subject to any exception.

2. Horne states that Pugh told the Reverend Cedric Jones that Horne keeps her job through her female influence. In her declaration, Horne states that Gordon Cox telephoned her and told her Pugh had told Cedric Jones, in effect, that Horne was a whore who provided sexual favors to keep her job. Horne Declaration at ¶ 29. Horne has established that she learned of this information during the relevant period. The County Defendants, however, have objected to this evidence on hearsay grounds, providing an affidavit of Jones in which he denied having made such a statement to Cox.

It appears to the court that whether or not Jones denies that he made the statement to Cox is not the relevant inquiry, but would merely create a question of fact if the evidence is otherwise admissible. The original declarant is Pugh. His statement to Jones is not hearsay, but is an admission. See Fed.R.Evid. 801(d)(2). The statement of Cox to Horne likewise is an admission of a party opponent because Cox was a Commissioner. The question before the court, therefore, is whether the alleged statement from Jones to Cox is admissible. If offered for the truth that Pugh made the statement to Jones, the statement is hearsay and is not subject to any hearsay exception. The court will not consider this evidence in evaluating whether there was a hostile environment. To the extent that the statement is offered to show that Commissioners received reports about Pugh’s conduct, however, Cox’s statement may be relevant on the issue of a basis for holding the Defendants liable.

3. and 4. Horne has presented evidence that Pugh expressed the opinion that the County did not need a woman in the position of County Administrator. Arthur Sanders (“Sanders”) has provided a statement in which he says that on several occasions Pugh expressed to him that he was angry that Horne got the County Administrator position and that Pugh said, “we didn’t need a woman up there in that position.” Plaintiffs Exhibit E. Sanders also describes a particular incident when he and Pugh were driving in a county truck and Pugh stated that “we didn’t need a woman up there running things and I am not the reason she is up there.” Id.

The County Defendants have moved to strike this evidence, stating that the form in which it was presented did not meet the requirements for a sworn affidavit. Although called a witness statement, Sanders’ statement substantially meets the requirements of 28 U.S.C. § 1746 in that it is signed and provides that “the above statements are true and correct under penalty of perjury.” See 28 U.S.C. § 1746 (requires the statement “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.”).

The County Defendants also state, however, that this evidence is not admissible in the evaluation of the hostile environment because it is hearsay, and there is no evidence that Horne was aware of this statement. With respect to the hearsay objection, the court finds the County Defendants’ position unavailing. Pugh’s statement to Sanders is an admission of a party and, therefore, definitionally not hearsay under Federal Rule of Evidence 801(d)(2). The court does agree with the County Defendants that the statement cannot be used to show that it contributed to a hostile environment without evidence that Horne was aware of it. There is another purpose for which this evidence is relevant, however. There is evidence of statements and conduct by Pugh which the County Defendants have stated was not based on gender and so should not be considered as part of a hostile environment. Drawing all reasonable inferences in favor of the non-movant, Sanders’ testimony as to Pugh’s admission tends to show that Pugh was motivated by gender animus in his actions toward Horne, and even in the anger he expressed toward Horne, so the court will consider the evidence for that purpose.

5. Horne states that Pugh spread rumors that Horne was having an affair with a married businessman. At item number 18 of her list, Horne states that Pugh told Taylor Headley that she should not be County Administrator because she was having affairs. Horne has stated in her declaration that Taylor Headley told her at a hospital task force meeting that Pugh had told him that Horne should not be Administrator because of her morals and character. Horne Declaration at ¶ 26. The County Defendants respond that Taylor Headley actually states in his declaration that Pugh said her character was such that she should not be County Administrator and that this comment was not gender-based. Headley actually states, however, that Pugh said that “you may wonder why I have been fighting that woman-the administrator” and that Pugh proceeded to discuss Horne’s “personal life” and “character.” Plaintiffs Exhibit 0 at ¶4. The court concludes, therefore, taking together Headley’s statement of Pugh’s admission and Horne’s separate statement that Headley informed her that the statement had been made while Horne was acting in her capacity as County Administrator, that this evidence will be considered in evaluating the alleged creation of a hostile environment.

Horne has also submitted the affidavit of Clayton Claybrook (“Claybrook”) who says that Pugh’s friend who was a minister told him that Pugh had said he wanted to get rid of Horne because a public employee should not be sleeping with a married man. The County Defendants have moved to strike this evidence. Horne responds that the evidence is not hearsay because the statement from Pugh to the minister is an admission and the statement from the minister to Claybrook is not offered for the truth of the matter, but to show publication of a defamatory statement. Horne does not argue a basis for the admissibility of such evidence for the hostile environment claim. Therefore, the court will not consider this evidence in connection with the hostile environment claim.

6. Wayne Bell, a county employee, told Horne that Pugh referred to her as a “bitch” during a commission meeting in 1999. See Horne Dep. at page 422. While Pugh’s use of the derogatory term is not offered for the truth of the matter, the statement from Wayne Bell to Horne is offered for the truth of the matter that Pugh made the statement. Drawing all inferences in favor of the non-movant, it appears that Bell told Horne about this statement while he was employed with the County. A statement of an agent or servant concerning a matter within the scope of his employment and made during the existence of the relationship, is an admission of his employer. Fed.R.Evid. 801(1)(2)(D). Drawing all inferences in favor of Horne, therefore, the court concludes that it can consider this evidence.

7. Pugh stated that his wife will not let him go on trips with the new administrator because his wife is a jealous person. There is apparently no dispute that this comment is relevant and admissible evidence offered in support of the hostile environment claim.

10. Horne also cites to evidence at item number 10 of her list that Pugh’s brother told him after the November 2000 election that Pugh could “fire that bitch now” and Pugh replied that he “planned to.” The County Defendants state that there is no evidence that Horne was aware of this comment and that the alleged declarant, Jimmy Adams, is not listed in Horne’s witness disclosures. Horne has responded that she was not aware that Jimmy Adams would be willing to give a statement and that Horne referenced Adams’ statements in her own deposition, so the County Defendants were aware of this evidence.

While it may be that Horne somehow alerted the County Defendants’ to Jimmy Adams’ version of the events in question, the court has not been pointed to that evidence. Without evidence to show that Horne was aware of such a statement, the evidence will not be considered as part of the creation of a hostile environment.

There is evidence in the form of Mike Gall’s declaration under penalty of perjury that after “the incident” between Pugh and Horne in her office, he asked Pugh what the problem with Horne was and Pugh told him that Horne was “just a bitch.” Exhibit G. Because there is no evidence cited as to whether Horne was made aware of this comment, the court will only consider it as possible evidence of Pugh’s alleged gender-based animus, and as evidence that others perceived Pugh’s conduct as objectionable.

11. Horne has stated that Pugh stated on more than one occasion that they did not need a single mom with children as county administrator. She has cited no evidence in her itemized list to support this allegation, however, and the court is not aware of any citation to such evidence elsewhere in her brief. The County Defendants state that the only source for this allegation is Horne’s verified complaint and that a verified complaint does not satisfy the requirements of Rule 56(e). A verified complaint may be used in the summary judgment context, but verification must be on personal knowledge alone, not knowledge, information and belief. Fowler v. Southern Bell Tel. & Tel. Co., 343 F.2d 150, 154 (5th Cir.1965). Horne’s Verified Complaint does not meet this requirement, and her Second Amended Complaint which took the place of the Verified Complaint is not verified in any manner. Therefore, the court will not consider this allegation.

13. Horne also contends that Pugh has stated that Horne is “doing woman things again, and we wouldn’t have this type of situation if we had hired the man that I wanted.” Horne has stated in her declaration that while Gentry Lee was chairman of the Commission he told her that Pugh told him Horne was not handling county business, but was off doing “woman things.” Horne Declaration at ¶ 27. In the Motion to Strike, the County Defendants state that this paragraph of the declaration is inadmissible double hearsay. The statement from Pugh to Lee is offered not for the truth of the matter, but to show that it was made, or alternatively is an admission under Rule 801(d)(2). Because the statement from Lee to Horne was also a statement by a Commissioner, the statement is an admission by the County Commission under Rule 801(d)(2). The court will consider this evidence.

15. and 24. Horne lists as evidence in support of her hostile environment claim that Commissioner Dudley made a comment that “we don’t need a skirt running the county.” The County Defendants state that the statements supporting this contention are inadmissible. The County Defendants also argue that Horne’s counsel confirmed before a dispositive motion was filed that she was not basing her claims on any conduct by Dudley.

The letter provided the court seeks to clarify that Dudley does not have to be present at a scheduled mediation conference because Horne does not seek to hold Dudley liable for invasion of privacy or other state law theories, and, according to the letter, Dudley’s actions were only inaction as a Commissioner and placing Horne on leave. The letter does not state that Dudley’s actions are not to be considered in creating a hostile environment. The court does not find, therefore, that the evidence may not be considered on that basis.

Wanda Lamb stated that she heard Dudley tell a member of the community that the County would be better off if it were not run by skirts. Although the County Defendants state that her statement does not comply with the requirements of Rule 56(e), her declaration under perjury that the statements are true and correct complies with § 1746. Horne has not provided the court, however, with evidence that she was aware of this comment. The court will, however, consider this evidence in evaluating the context of another comment by Dudley which has been pointed to by Horne and which will be discussed below.

19. Horne states that at a press conference for then-Governor Siegelman, Pugh said Horne was “owned by the Piggly Wiggly man” in reference to an alleged affair. The statement testified to by Curtis Lindsey is that Horne “belongs or is going with the Piggly Wiggly man.” Horne states in her declaration that Lindsey told her about the comment and that the comment implied an affair. Declaration at ¶ 28. The County Defendants have moved to strike Lindsey’s statement, but his statement that “I declare under the penalty of perjury that the foregoing is true and correct” complies with § 1746. The County Defendants also state that this testimony is inadmissible hearsay and that Horne has not provided evidence as to when she learned of the statement. Lindsey’s testimony as to what Pugh said would be admissible as an admission on the part of Pugh, and Horne’s separate testimony that Lindsey told her about it is offered merely for the fact that Lindsey told her and the effect that it had on her. As discussed above, because Horne has stated in her declaration that she learned of comments during her employment, and this comment follows that statement, and she testified that Lindsey told her about the statement, the court finds that a reasonable inference can be drawn that Horne was aware of this comment during the relevant time.

Finally, the County Defendants argue that this comment was made by Pugh in the natural flow of conversation to let Lindsey know that Horne was involved with someone else because Lindsey had expressed that Horne was attractive. Drawing all inferences in favor of the non-movant, however, the court will consider this evidence. Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 676 (7th Cir.1993) (holding that district court did not commit error in considering a comment not obviously based on race as evidence of harassment where it was plausible that the statement was based on race).

20. Pugh and Dudley visited Commissioner Cattie Epps and said that Horne did not need her job because she receives child support. Dudley Dep. at pages 38-40. The County Defendants dispute that this evidence is admissible and also argue that it is not gender-based because men can also receive child support. The court concludes that as the statements were made by Commissioners to another Commissioner, all defendants in this case, they are definitionally non-hearsay. See Rule 801(d)(2). Whether or not this evidence is evidence of gender bias is a question which must be resolved by the jury. See Rodgers, 12 F.3d at 676. Therefore, the court will consider this evidence, drawing all reasonable inferences in favor of the non-movant.

The court now moves to evidence of comments or conduct which is less obviously based on gender.

8. Horne has stated that Pugh became angry with Horne before an August 2000 meeting, yelled at her and told her she is not supposed to think, but do as she is told.

The County Defendants argue that Horne has failed to establish how Pugh’s actions were based on gender. Evidence that Pugh had expressed that the County did not need a woman in the County Administrator position, and other evidence of Pugh’s animus, with all reasonable inferences drawn in favor of the non-movant, is sufficient to create a jury question as to whether Pugh’s conduct was based on gender.

Similarly, Gordon Cox has stated under declaration of perjury that in Commission meetings he had witnessed, Pugh “seemed to always have a hostile tone and look on his face.” Exhibit F. This evidence, viewed in light of evidence of Pugh’s gender-based animus, will also be considered in evaluating the alleged creation of a hostile environment.

9. After the August 2000 meeting Pugh again yelled at Horne and asked her if she wanted to “go outside and finish this,” he also told her “if it is the last thing I ever do, I will get rid of you.” The County Defendants argue that this is not the kind of comment one would ordinarily make to a woman and so is not gender based. For the reasons discussed above, however, the court concludes that this is a conclusion to be made, or rejected, by a jury.

21. When Horne’s contract was up for renewal, Pugh passed out copies of Horne’s bankruptcy records at a Commission meeting and contacted the surety to have Horne’s bond revoked. Commissioner Lee testified in his deposition that he thought it inappropriate that Pugh passed out the bankruptcy reports during the meeting. Lee Dep. at page 53: 7-13. The court is unaware of admissible evidence concerning the calling of the bond surety, however, and will not consider the allegation regarding the bond.

22. Horne states that after her contract was renewed, Pugh objected to her sitting at the center of the Commission table. Horne states that the previous County Administrator, a man, had sat at the center of the table. The County Defendants argue that Pugh’s actions are indicative of personal animosity, not actions taken on the basis of gender. Given the other evidence of Pugh’s animosity, and given the evidence that Pugh’s objections to Horne sitting at the center of the table were a change in procedure from when there was a male County Administrator, the court concludes that the inference from these actions is one for a jury to draw.

25. Horne presents evidence that at the July 2003 meeting during which she was placed on administrative leave, Dudley asked some members of the public if they were there “for the hanging.” Wanda Lamb declared under penalty of perjury that Dudley asked a group of people gathered before the Commission meeting if they were there for the hanging and that Lamb saw Horne in the hall and asked her what Dudley meant by that. Lamb says that Horne responded that she was on the agenda that day. Exhibit M.

The County Defendants say that Lamb’s statement is due to be stricken, but as stated above, her statement complies with the requirements of § 1746. The County Defendants further contend that Dudley’s comments are not relevant to the hostile environment claim based on a letter written to counsel, but for the reasons already discussed, the court does not agree. Finally, the County Defendants state that the comment was not based on Horne’s gender and that Dudley has testified that he was making a reference to an old expression about people gathering. The court concludes, though, that given evidence that Dudley expressed the opinion that the County should not be run by a skirt, the inference to be drawn from his statement is one to be drawn by the trier of fact.

26. This item of Horne’s list is that almost continually from January 1999 until the present Pugh has spread rumors and lies about Horne. This item appears to be a restatement of earlier statements identified by Horne which have previously been discussed.

27. Horne lists at this item that Pugh criticized everything that Horne did. This statement is not supported by citation to any evidence and is too broad to be considered.

28. Horne cites to the statement of Gordon Cox wherein he identifies several aspects of Pugh’s treatment of Horne. See Plaintiffs Exhibit F. The court has already discussed aspects of Gordon Cox’s declaration under penalty of perjury. The court has only considered the aspects of his declaration which are admissible evidence. One aspect of his declaration which the court has not yet discussed which appears to be admissible is Gordon Cox’s personal observation that Horne conducted herself in a professional manner at Commission meetings and has been knowledgable and informed about the subject matter presented at the meeting. Some of Gordon Cox’s descriptions of Pugh’s actions do not appear to be within his personal knowledge, such as his statements about Pugh’s intent, but to the extent that Gordon Cox personally observed Pugh’s questioning of Horne during meetings in a manner which Gordon Cox perceived to be hostile, the court will consider that evidence as to the objective prong of the creation of a hostile environment. Cox also made the observation that Pugh did not treat the other department heads, including men, in the same manner in which he treated Horne, which the court will consider as evidence of Pugh’s bias.

29. Horne provides evidence that Cat-tie Epps testified in her deposition that voters called to complain that Horne was being talked down to during a Commission meeting. Epps Dep. at page 41. The County Defendants argue that there is no evidence that Horne was aware of the complaints and there is no evidence that Horne was being talked down to because of her gender. Although the court agrees that without evidence that Horne was aware of the complaints, the complaints themselves do not support that Horne subjectively suffered a hostile environment, the fact that complaints were made about the treatment she was experiencing will be considered as objective evidence. See Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir.1999) (stating that evaluation of severity and pervasiveness has both a subjective and an objective component).

30. Horne was not allowed to participate in the hiring of the new assistant administrator. She has pointed to Lee’s testimony that this was the first time the County Commission had made a personnel decision without input from the department head. Horne has testified that when she questioned the decision, Pugh informed her that he would not dignify her with an answer. The County Defendants state that there is no evidence that this event was based on Horne’s gender, and that Horne states in her affidavit that the Commission hired employees of other department heads. The court will consider this evidence as there is some evidence that it was a deviation from normal procedures.

31. Horne has pointed to evidence that she cried after the March 5, 2003 meeting and that she complained to Lee about how humiliated she felt. The court will consider this evidence.

The County Defendants have argued that Horne fails to meet the objective prong of hostile environment analysis. In advancing this argument, the County Defendants have limited their analysis to the comments by Pugh which they characterize as being arguably sexually-based comments. In other words, the County Defendants have argued that because only two comments were gender based, there is no hostile environment. As stated above, evidence of “threatening, bellicose, demeaning, hostile or offensive conduct,” may be considered. And, the evidence of Pugh’s comments indicated that he had gender-based animus which a reasonable jury could conclude animated the comments and conduct directed at Horne which were not explicitly gender-based. Therefore, this argument by the County Defendants is unavailing.

Having sifted through the objections to Horne’s evidence, the court will consider the following evidence with regard to the issue of the creation of a hostile environment as to both the subjective and objective component of the severe and pervasive analysis: evidence that Pugh referred to Horne as “that woman” and discussed Horne’s personal life and character with persons who had business with the Commission; that Pugh called Horne a “bitch” to a county employee; that Pugh said he could not go on trips with Horne because his wife is a jealous person; that Pugh stated to another Commissioner that Horne was not doing her work but was off doing woman things; that Dudley said they did not need skirts running the County and that the County would be better off if it were not run by skirts; that Pugh said that Horne belongs or is going with the Piggly Wiggly man during a press conference with the Governor; that Pugh and Dudley visited a Commissioner and told her that Horne did not need her job because she received child support; that Pugh became angry with Horne before an August 2000 meeting and after the meeting asked her to go outside and “finish this” and told her he would get rid of her; that Pugh passed out copies of Horne’s bankruptcy records at a Commission meeting; that Pugh objected to Horne sitting at the center of the Commission table, where the previous male County Administrator had sat; that Dudley asked whether members of the public were there for “the hanging” when Horne was placed on administrative leave; that a Commissioner perceived Pugh’s questioning of Horne during meetings to be hostile; that voters called to complain about Pugh’s treatment of Horne during a Commission meeting; and that Horne was not allowed to participate in a hiring decision. In addition to the above evidence, Pugh’s conduct which is not obviously based on Horne’s gender has been considered in light of Sanders’ evidence that Pugh said the County did not need a woman in the County Administrator position.

As stated above, factors relevant to the analysis of the severity and pervasiveness of the harassment are the frequency of the conduct, the severity of the conduct, whether the conduct is threatening or humiliating, and whether the conduct unreasonably interferes with the employee’s job performance. With respect to the factor of the frequency of the conduct, the County Defendants have stated that because Horne only saw the Commissioners four times a month, and because Pugh held a part-time position, Horne’s perception of a hostile environment was not reasonable. The evidence presented, however, indicated that persons other than Pugh were relating his comments to Horne, and so her awareness of conduct did not require Pugh’s presence. Horne Declaration at ¶ 26.

As to the severity of the conduct, some of Pugh’s conduct, such as yelling at Horne and asking her to step outside was severe as well as threatening. Reports from other Commissioners and from people who dealt with the Commission that Pugh was commenting on Home’s personal life and character and characterizing her activities as “woman things” could be perceived by a reasonable person to be humiliating. In addition, objections to Horne’s seating at the table, belittling questioning during meetings, and not allowing Horne to participate in a hiring decision could also be viewed as humiliating actions.

Considering all of the admissible evidence Horne has pointed to in a light most favorable to her, and drawing all reasonable inferences in her favor, the court concludes that a question of fact has been raised as to both the subjective and objective components of the severe and pervasive analysis.

The County Defendants also have argued that this court ought to grant summary judgment on the basis of the Far-agher/Ellerth defense. Horne contends that the Faragher/Ellerth affirmative defense ought not be applicable in this case as Commissioners Pugh and Dudley should be considered the same as owners and employers.

Although there does not appear to be an Eleventh Circuit case directly on point, there is Eleventh Circuit precedent, discussed above, that the discriminatory motive of a member of a municipal governing body cannot be imputed as a basis for finding the municipality liable. Under the same reasoning, the court concludes that harassment by two members of a seven member Commission does not preclude application of the Faragher/Ellerth defense. See also Mortenson v. City of Oldsmar, 54 F.Supp.2d 1118 (M.D.Fla.1999) (analyzing application of Faragher/Ellerth where harasser was a city council member).

Horne contends that she complained about the harassment she was experiencing, but that nothing was done in response. She states in her declaration that she reported the harassment to all of the Commissioners. Horne Declaration at ¶ 25. In her brief she states that there is no evidence that any investigation was conducted nor was any training conducted. Apparently as evidence that no effective action was taken, Horne has pointed to her deposition testimony that even after Pugh left office, he engaged in actions which Horne perceived as harassing, including taking her photograph during a Commission meeting and following her car closely. See Horne Dep. at pages 214-16.

Steps short of terminating a harasses when proven effective in ending harassment, have been recognized as appropriate remedial actions. For instance, in Mortensoji the County Defendants implemented harassment training in response to complaints. This court simply has not been presented with sufficient evidence of the response, if any, that the County Defendants made in light of Horne’s complaints. In view of the evidence that incidents of harassment did not end, the court concludes that the County Defendants have not established at this stage of the proceedings that they are entitled to summary judgment on the basis of Faragher/Ellerth

ii. Title VII Retaliation Claim

Horne has argued that she can establish a claim of retaliation through either direct or circumstantial evidence.

Direct Evidence Claim

The Eleventh Circuit has held that “[d]irect evidence is evidence that establishes the existence of discriminatory intent behind the employment decision without any inference or presumption. Therefore, remarks by non-decisionmakers or remarks unrelated to the decision making process itself are not direct evidence of discrimination.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.1998) (citations omitted). “[D]ireet evidence relates to actions or statements of an employer reflecting a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee.” Carter v. Three Springs Residential Treatment, 132 F.3d 635, 641 (11th Cir.1998).

The County Defendants have argued that Horne cannot demonstrate that she was subjected to an adverse employment action. The Eleventh Circuit has explained that a plaintiff in an employment ■discrimination case always bears the burden of proving that it is more likely than not that the employer took an adverse employment action against the plaintiff on the basis of a protected characteristic. Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1230 (11th Cir.2001), cert. denied, 534 U.S. 1127, 122 S.Ct. 1064, 151 L.Ed.2d 968 (2002). This is true “whether [the plaintiff] is relying on direct evidence of discrimination or employing the burden-shifting approach.... ” Id. at page 1230 n. 34 (citation omitted); see also Ferrell v. Masland Carpets, Inc., 97 F.Supp.2d 1114, 1123 (S.D.Ala.2000) (“there must be a direct correlation between the adverse employment action and the discriminatory comment for such a statement to constitute direct evidence.”).

To demonstrate that an employee has suffered an adverse employment action, “an employee must show a serious and material change in the terms, conditions, or privileges of employment.” Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir.2001) (emphasis in original). There must be a tangible adverse effect. Id.

The County Defendants argue that because Horne was placed on paid leave, her administrative leave was not an adverse employment action. As Horne points out, the Eleventh Circuit has explicitly held that a “plaintiff was the subject of an adverse employment action; he was suspended with pay for thirty days.” Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 920 (11th Cir.1993). The County Defendants respond that Hairston is not controlling because in that case the plaintiff was suspended as a punitive action after having been previously disciplined.

Horne has presented evidence, however, that at the July 2003 meeting, Dudley asked some members of the public if they were there “for the hanging.” This is some evidence from which to conclude that the action taken against Horne was punitive in nature. Accordingly, the court concludes that Horne has presented sufficient evidence of an adverse employment action.

With regard to the alleged direct evidence of discrimination, Horne argues that the Commission minute meetings from the July 16, 2003 meeting state that she was placed on administrative leave because of litigation she had begun against the County Defendants. The minutes of the County Commission meeting, which were taken by Horne, include the following remarks:

Upon returning from Executive Session Attorney Billy Benton stated the litigation presently pending, filed by Mrs. LeAnn Jordan against the Russell County Commission is fixing to enter the discovery phase of the litigation. It is recommendation of myself and Attorney Robbie Hyde, who is my co-council (sic) in this case, that you now place Mrs. Horne-Jordan on Administrative Leave for a period of 90 days. At the end of that time we will see if we need to extend the leave or for her to return to work.

Plaintiffs Exhibit BB.

This court must conclude that the evidence presented is not direct evidence of a retaliatory motive because it is only evidence that the attorney made a recommendation and the Commission voted to place Horne on leave. It is not direct evidence of the decisionmakers’ motive. There is no evidence that the Commission’s vote was based on the recommendation, but even if it was, the recommendation itself was not that she be placed on leave because she had filed an EEOC charge, but because the already pending case was entering the discovery phase.

Circumstantial Evidence Claim

Horne also argues that she can establish a circumstantial evidence case of retaliation. A prima facie case of retaliation consists of evidence that (1) the plaintiff participated in an activity protected by Title VII, (2) she suffered an adverse employment action, and (3) a causal connection. Berman v. Orkin Exterminating Co., Inc., 160 F.3d 697, 701 (11th Cir.1998).

The County Defendants then argue that no causal connection exists because the Commissioners were placed in an untenable position and had received reports that Horne was removing documents from her office. The third prong of the prima facie case is satisfied if the evidence shows that the protected activity and the adverse action are not totally unrelated. Id. Generally, close temporal proximity creates a genuine issue of fact as to causation. Brungart v. BellSouth, 231 F.3d 791, 799 (11th Cir.2000). The court concludes, therefore, that this element has been met in this case.

The County Defendants argue that non-retaliatory reasons existed for their decision. The County Defendants state that they were acting on the advice of counsel. Of course, if the Commissioners were merely rubber-stamping a retaliatory recommendation, then the fact that they were following advice would not necessarily absolve them of liability. They state, however, that the County Commission was fearful that Horne would destroy evidence relevant to the case. Sara Miles (“Miles”), Horne’s administrative assistant, has stated in a Declaration that Horne had a paper shredder in her office and began shredding documents after the lawsuit was filed and that Miles informed the County Attorney of these actions. Miles Declaration at ¶ 20. Isaiah Sumbry (“Sumbry”), a County Commissioner, has stated in an affidavit that the Commissioners considered the issue of placing Horne on