VIRGINIA EMERSON HOPKINS, District Judge.
Plaintiff Ervine Romine ("Mr. Romine") initiated this civil rights lawsuit against Defendants City of Anniston (the "City"), Mayor Gene Robinson ("Mayor Robinson"), in his individual capacity, and City Manager Don A. Hoyt ("City Manager Hoyt"), in his individual capacity, on November 2, 2012, arising out of his loss of a lease to run the Cane Creek Grill located on the Cane Creek Golf Course in Anniston, Alabama. (Doc. 1 at 1; id. at 3 ¶ 2). Mr. Romine's complaint contains three counts.
Count One is for race discrimination under 42 U.S.C. § 1981 by and through § 1983. (Id. at 10-12 ¶¶ 39-49). Count Two is for equal protection and due process violations under the Fourteenth Amendment. (Id. at 12-14 ¶¶ 50-63). Finally, Count Three is for breach of contract under Alabama law. (Id. at 14-15 ¶¶ 64-70).
Pending before the court is Defendants' Motion for Summary Judgment (Doc. 26) (the "Rule 56 Motion") filed on March 24, 2014. The parties have briefed the Rule 56 Motion and it is now fully under submission. (Docs. 27, 34-36, 41).
Also pending is Mr. Romine's Motion To Strike (Doc. 37) (the "Strike Motion") filed on May 7, 2014. Defendants opposed (Doc. 41) the Strike Motion on May 28, 2014, and no reply from Mr. Romine was filed.
For the reasons explained below, Defendants' Rule 56 Motion is due to be granted. Mr. Romine's Strike Motion is due to be termed as moot.
Mr. Romine has been a business owner in the COA for over twenty-five years, having operated the Annistonian Restaurant as well as other restaurants and stores. AF No. 1.
After Mr. Spaulding's departure, the COA managed the golf course and restaurant by and through its Parks and Recreation Manager, Steven Folks ("Mr. Folks"). AF No. 4. In December of 2009, the COA publicized notice of its intention to accept requests for qualifications ("RFQs") from applicants who desired to bid on
Although four or five people initially indicated that they were interested in running the restaurant through their attendance at a pre-bid meeting, Mr. Romine, who is African American, submitted the only bid in February of 2010. AF No. 7; (Doc. 34-6 at 1 ¶¶ 2, 3). The City Council for the COA had Mr. Romine's bid on the agenda for many meetings, including one on March 9, 2010, March 23, 2010, April 27, 2010, and May 25, 2010. (Doc. 34-6 at 1¶ 4). At the meeting held on June 22, 2010, the City Council authorized City Manager Hoyt to negotiate a lease agreement with Mr. Romine for the operation of the restaurant. (Doc. 34-6 at 1¶ 4).
On August 24, 2010, Mr. Romine signed a three year lease with the COA. City Manager Hoyt signed the lease on behalf of COA. The term of the lease was scheduled to begin on September 1, 2010, and end on August 30, 2013.
The lease required Mr. Romine to pay quarterly installments towards the annual rent of $6,600.00, with the first $1,650.00 payment due on September 1, 2010. (Doc. 26-7 at 3 ¶ 3).
Another part of the lease provided that "[e]xcept for the prior written permission of the [City], through its City Manager, the [Plaintiff] shall at all times during the lease term, have the premises open, staffed, and available for food and beverage service," and that "failure to do so shall constitute a ground of default under the terms of this lease agreement." (Doc. 26-7 at 5 ¶ 5). However, Mr. Romine testified that City Manager Hoyt knew that this provision was unreasonable given the short duration of time (i.e., only one week) between the parties' execution of the lease on August 24, 2010, and the beginning of the term on September 1, 2010. (Doc. 26-3 at 20 at 75-76).
Additionally, the lease mandated Mr. Romine to have commercial liability, property, and liquor liability insurance and that "[c]ertified copies of all such policies shall be made available to the City of Anniston upon entering into this lease agreement." (Doc. 26-7 at 11 ¶7).
The lease further obligated Mr. Romine to "at all times" have and maintain all required liquor licenses. (Doc. 26-7 at 5 ¶ 4). During his deposition, Mr. Romine questioned the feasibility of this particular requirement by pointing out that the COA did not approve his liquor license until September 28, 2010. (Doc. 26-3 at 20 at 76).
The lease provided that any "[f]ailure by [the City] to enforce any provision of this lease shall not work as a forfeiture of [the City's] right to enforce any provision of this lease at any time." AF No. 16; (Doc. 26-7 at 15 ¶17). Finally, the lease stated that "[i]t is understood and agreed that this instrument constitutes the entire agreement between the parties hereto and that any changes or alterations hereunder must be made in writing, duly executed by and parties hereto, and attached to this instrument." AF No. 17; (Doc. 26-7 at 16 ¶ 20).
On August 27, 2010, City Manager Hoyt informed the City Council in an email message that Mr. Romine had experienced problems acquiring the required insurance coverages and licenses, but that Mr. Romine had assured him that he would have all these items in place when the term of the lease began on September 1, 2010. (Doc. 26-1 at 17, 18, 61-62, 66).
Mr. Romine did not pay the first quarterly payment of $1,650.00 due on September 1, 2010. AF No. 19.1; (see Doc. 26-3 at 12 at 43 ("I agree that it was, you know, September 1st, but when I asked him [i.e., City Manager Hoyt] about that, it was after the 1st.")). However, Mr. Romine testified that City Manager Hoyt told him that he could postpone making the first installment payment until he had gotten into the building. (Doc. 26-3 at 12 at 43-44).
Mr. Romine also had neither obtained the necessary policies of commercial liability, property, and liquor liability insurance, nor a liquor license by September 1, 2010. AF No. 19.2. However, Mr. Romine testified that he was not able to acquire the various insurance policies until after he had received a copy of the executed lease. (Doc. 26-3 at 20 at 76).
As for the delay in obtaining his license to sell alcohol, Mr. Romine pointed out during his deposition that it was the COA which did not approve his application for forwarding to the ABC Board until the end of September 2010. (Doc. 26-3 at 20 at 76; see also Doc. 34-6 at 4 ¶ 11 ("I made application for my Liquor License on September 16, 2010 and the city did not approve my application and forward it to the ABC Board until September 29, 2010.")).
Mr. Folks continued to operate the restaurant on behalf of COA during this interim time period. (Doc. 26-4 at 3-4; Doc. 26-6 at 5-6 ¶ 14). Mr. Romine testified that he did not get cooperation from COA personnel in securing maintenance records (Doc. 26-3 at 66 at 18), that he was treated with disrespect, and that he was ignored when he needed something for the building. (Doc. 34-7 at 17-18).
After signing the lease on August 24, 2010, Mr. Folks indicated that all Mr. Romine did with respect to getting the restaurant ready "was having a warming buffet table delivered, having an electrical contractor to install one 220 volt wall socket, and. . . [having] someone to remove carpet and replace[] [that] very small area of the restaurant [with tile.]" (Doc. 26-4 at 4).
Mr. Romine counters that Mr. Folks's recollection is an understatement as he proceeded to obtain: (i) commercial property coverage effective September 30, 2010, to September 30, 2011; (ii) liquor liability coverage effective September 10, 2010, to September 10, 2011; and (iii) an Alcohol Beverage License from the Alcohol Beverage Control Board, which became effective on October 25, 2010. (Doc. 34-6 at 3-4 ¶¶ 12, 14). Mr. Romine also met with the Health Department and made necessary upgrades to the restaurant. (Doc. 34-7 at 7). Mr. Romine further had menus printed up and paid for grand opening advertising. (Doc. 26-3 at 19 at 70; id. at 20 at 74-75).
City Manager Hoyt testified about a document dated October 21, 2010, which attempted to modify certain portions of the restaurant lease while it left other provisions unchanged. (Doc. 26-1 at 15-16 at 55-60). City Manager Hoyt indicated that he could not "recall the exact differences[,]" but thought that the "food sales" and "minimum menu may have been changed." (Doc. 26-1 at 16 at 57, 58). No underlying document, such as, for example, a copy of the City Council's minutes, confirms that it voted to have City Manager Hoyt modify the terms of the previously executed lease. Instead, City Manager Hoyt indicated that he understood that he had this authority from the City Council's original vote and that he did not "see that as a barrier to making minor changes [to the original lease]." (Id. at 16 at 59). Mr. Romine did not ever sign this amended lease. AF No. 26.3.
On November 4, 2010, City Manager Hoyt reported to the City Council in a written memorandum that Mr. Romine "has been out of compliance with his lease since the day it was signed." (Doc. 26-8 at 2).
On or about November 5, 2010, the COA, through City Manager Hoyt, delivered Mr. Romine a default notice dated November 4, 2010. AF No. 30; (Doc. 26-9 at 2). This notice identifies 7 terms of the restaurant lease in which the COA contends Mr. Romine has "been out of compliance . . . since September 1, 2010, the day you were supposed to open for business." (Doc. 26-9 at 2). The listed provisions include: (i) being open for business; (ii) acquiring and maintaining all necessary licenses and permits; (iii) holding a Restaurant Liquor License; (iv) operating a fully supplied beverage cart on the golf course; (v) maintaining a public liability insurance policy; (vi) providing certified copies of all such policies to the COA upon entering into the lease agreement; and (vii) paying rent in quarterly installments. Id. The notice also indicates that "the Council may entertain a reasonable monetary settlement for the expenses that [Mr. Romine] incurred in [his] attempts to comply with the agreement." Id. Finally, the notice invites Mr. Romine to make a subsequent bid. Id.
Mr. Romine disputes the legitimacy of grounds relied upon by the COA for issuing the default notice and offers several explanations for his inability to meet the referenced terms of the lease by September 1, 2010. (See, e.g., Doc. 35 at 23 (pointing out that lease was not finally executed until August 24, 2010, and that by "November 4, 2010, [Mr. Romine] had all the necessary insurance, had provided the [COA] with proof thereof in October of 2010, and had his liquor license")).
Neither Mayor Robinson nor the City Council ever took steps to rescind this termination notice delivered to Mr. Romine by City Manager Hoyt. Mr. Romine did not submit any requests for reimbursement from the COA immediately after his lease was terminated. However, as of November 3, 2011, the COA (through its insurance carrier) acknowledged Mr. Romine's race discrimination claim relating to the ending of his lease. (Doc. 34-9 at 2).
On June 29, 2011, the COA, once again, requested bids to operate a restaurant on the golf course property. AF No. 36. Mr. Romine did not submit a bid, but three other people did. Id. The COA selected Rocco Gomez ("Mr. Gomez") (a Mexican-American) and executed a lease with him on September 29, 2011. AF No. 37. At some point in 2013, Mr. Gomez's lease was, with the COA's consent, assigned to Chandler Wilborn (a white male) ("Mr. Wilborn") and Hunter LeCroy (a white male) ("Mr. LeCroy"). (See Doc. 34-10 at 2 ¶ 3 ("In the late Summer or early Fall of 2013, I approached Steven Folks, the Director of Parks and Recreation for the City of Anniston, and asked him whether the City would allow me to assign the [restaurant] lease to a qualified applicant.")).
Summary judgment is proper only when 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). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). "Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to `come forward with specific facts showing that there is a genuine issue for trial.'" International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)).
Finally "[i]f the movant bears the burden of proof on an issue, because, as a defendant, it is asserting an affirmative defense, it must establish that there is no genuine issue of material fact as to any element of that defense." International Stamp, 456 F.3d at 1274 (citing Martin v. Alamo Community College Dist., 353 F.3d 409, 412 (5th Cir. 2003)).
Both individual defendants assert that qualified immunity bars Mr. Romine's § 1983 claims brought against them in their personal capacities in Counts One and Two. (Doc. 27 at 19-20).
This is a two-part test. Under the first step, "the defendant must [prove that he or she was] performing a function that, but for the alleged constitutional infirmity, would have fallen within his legitimate job description." Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). Next, the defendant must prove that he or she was "executing that job-related function." Id. at 1267. "Once a defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that the defendant is not entitled to qualified immunity." Cottone, 326 F.3d at 1358.
Until 2009, the Supreme Court had required a two-part inquiry to determine the applicability of qualified immunity, as established by Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). Under the Saucier test, "[t]he threshold inquiry a court must undertake in a qualified immunity analysis is whether [the] plaintiff's allegations, if true, establish a constitutional violation." Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 2513, 153 L. Ed. 2d 666 (2002).
If, under the plaintiff's allegations, the individual defendants would have violated a constitutional right, "the next, sequential step is to ask whether the right was clearly established." Cottone, 326 F.3d at 1358 (quoting Saucier, 533 U.S. at 201, 121 S. Ct. at 2156). The "clearly established" requirement is designed to assure that officers have fair notice of the conduct which is proscribed. Hope, 536 U.S. at 739, 122 S. Ct. at 2515. This second inquiry ensures "that before they are subjected to suit, officers are on notice their conduct is unlawful." Saucier, 533 U.S. at 206, 121 S. Ct. at 2158.
The "unlawfulness must be apparent" under preexisting law.
However, the Saucier framework was made non-mandatory by the Supreme Court in Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 818, 172 L. Ed. 2d 565 (2009), in which the Court concluded that, "while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory." Thus, "judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id.
Despite the Supreme Court's modification of Saucier's analytical process, the substantive analysis remains unchanged; an officer is entitled to qualified immunity protection as long as he "could have believed" his conduct was lawful. Hunter v. Bryan, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L. Ed. 2d 589 (1991). Therefore, to deny immunity, a plaintiff must affirmatively demonstrate that "no reasonable competent officer would have" acted as the public official did. Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986).
"All evidentiary decisions are reviewed under an abuse-of-discretion standard." See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S.Ct. 512, 517, 139 L. Ed. 2d 508 (1997). "An abuse of discretion can occur where the district court applies the wrong law, follows the wrong procedure, bases its decision on clearly erroneous facts, or commits a clear error in judgment." United States v. Estelan, 156 F. App'x 185, 196 (11th Cir. 2005) (citing United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005)).
Moreover, as the Eleventh Circuit has made clear, not every incorrect evidentiary ruling constitutes reversible error:
Haygood v. Auto-Owners Ins. Co., 995 F.2d 1512, 1515 (11th Cir. 1993). Therefore, even the existence of many evidentiary errors does not guarantee the party appealing a new trial. Instead, such erroneous rulings by a district court must "affect the substantial rights of the parties" for reversible error to occur.
A § 1983 claim against a person in his official capacity seeks to impose liability on the entity which he represents, and not on him personally. See, e.g., Welch v. Laney, 57 F.3d 1004, 1008 (11th Cir. 1995) ("Welch's action against the Sheriff and Chief Deputy Sheriff in their official capacities imposes liability on the entity they represent, and not on them as individuals." (citing Brandon v. Holt, 469 U.S. 464, 471-72, 105 S.Ct. 873, 877-78, 83 L. Ed. 2d 878 (1985))). As the Eleventh Circuit has explained the distinctions between these two capacities in more detail:
Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1060 (11th Cir. 1992) (emphasis added).
Therefore, any official capacity claims that Mr. Romine seeks to assert against Mayor Robinson and City Manager Hoyt are duplicative of his federal claims brought against the COA. Accordingly, the Rule 56 Motion is due to granted as to all official capacity federal claims asserted against Mayor Robinson and City Manager Hoyt.
"Section 1981 prohibits intentional race discrimination in the making and enforcement of public and private contracts, including employment contracts." Ferrill v. Parker Group, Inc., 168 F.3d 468, 472 (11th Cir. 1999).
Lopez v. Target Corp., 676 F.3d 1230, 1233 (11th Cir. 2012).
As a threshold matter, a plaintiff can establish the element of intentional discrimination through either direct, circumstantial, or statistical evidence.
Mr. Romine contends that Mr. Little's statements constitute direct evidence of the discriminatory treatment of him. The court disagrees. As the Eleventh Circuit has explained, "only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of [race], . . . constitute direct evidence of discrimination." Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989) (citing Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 610-11 (11th Cir. 1987)).
Based upon this stringent standard and in the absence of
The court, as a threshold matter, assumes without deciding, that Mr. Romine is able to utilize Title VII's (less demanding) McDonnell Douglas disparate treatment structure in an effort to establish his § 1981 race discrimination claim even though his case arises outside of the employment context. (See Doc. 27 at 13 (Defendants' suggesting that question of whether Title VII framework is applicable in a non-employment lawsuit arising under § 1981 is still undecided within the Eleventh Circuit, but still analyzing Mr. Romine's race claims under both formats)); see Brown v. American Honda Motor Co., 939 F.2d 946, 494 (11th Cir. 1991) (embracing use of Title VII circumstantial evidence model "for a federal race discrimination claim by a
The Eleventh Circuit has fashioned the Title VII test for a discriminatory discharge claim when a plaintiff, such as Mr. Romine, is relying primarily upon comparator evidence as follows:
Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11th Cir. 1999).
Here, the focus of the parties' prima facie dispute is over satisfaction of the similarly situated prong. Mayor Robinson and City Manager Hoyt also maintain that Mr. Romine cannot demonstrate pretext. (Doc. 27 at 14-16).
As for purported comparator evidence, Mr. Romine contends that Mr. Gomez was not "required to provide any of the documents and qualifications as [he did]." (Doc. 35 at 23). However, Mr. Romine offers no proof to corroborate this point (much less to tie Mayor Robinson or City Manager Hoyt to this allegation) and, as the former Fifth Circuit has made clear, "[s]tatements by counsel in briefs are not evidence." Skyline Corp. v. N.L.R.B., 613 F.2d 1328, 1337 (5th Cir. 1980).
Further, the relevant comparator issue in this lawsuit is not disparate treatment in the awarding of a contract, but rather, in the ending of one due to a failure to meet certain contractual obligations as the lessee. As the Eleventh Circuit has explained regarding comparator evidence "[i]n determining whether employees are similarly situated for purposes of establishing a prima facie case, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways." Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (emphasis added). Here, Mr. Gomez's lease was never involuntarily terminated because he was in default; instead, the record confirms that his lease was voluntarily assigned to Mr. LeCroy and Mr. Wilborn with the consent of the COA.
Mr. Romine further contrasts his qualifications with the two white purported comparators, Mr. LeCroy and Mr. Wilborn, who ran the restaurant in 2013, subsequent to Mr. Gomez's operation of it. Mr. Romine contends that because of his superior qualifications in running a restaurant as compared to that of Mr. LeCroy and Mr. Wilborn, a jury may infer a racially-driven animus in how he was treated by the COA in ending his lease
Additionally, as it pertains to Mayor Robinson and City Manager Hoyt individually, the record does not even confirm that they were part of the decision-making group who recommended and/or approved the assignment of Mr. Gomez's lease to Messrs. LeCroy and Wilborn
Further, in the absence of pointing to a similarly-situated defaulted contractor, Mr. Romine has the burden of demonstrating that other pieces of proof can circumstantially show that race played a role in the termination of his contract. In an effort to do this, Mr. Romine points to the City Council's numerous delays in approving his contract (Doc. 35 at 20) as well as the absence of a formal vote by the City Council to end his lease. Mr. Romine additionally sets forth examples of how he attempted in good faith to meet all the September 1, 2010, deadlines included in the lease and faults City Manager Hoyt for not dealing with him fairly. (Id. at 21-22).
Mr. Romine also relies upon City Manager Hoyt's creation of what Mr. Romine calls a fraudulent amended lease (Doc. 34-2 at 62-77) that was purportedly executed on October 21, 2010 (but which Mr. Romine testified he did not sign) and cites to City Manager Hoyt's deposition testimony in which he was unable to recall if Mr. Romine was present when it was signed. (Id. at 22-23; see also Doc. 26-1 at 59 ("Q. (BY MS. LYONS:) Were you present when the plaintiff signed that? A. I don't recall.")). Although Mr. Romine disputes the authenticity of his signature on this amended lease (and Defendants have stated in their facts that Mr. Romine did not sign it), Mr. Romine does not link this irregularity to his race or to the decision to end the original lease (which he concedes he signed).
Regarding Mr. Romine's reliance upon evidence tied to City Manager Hoyt generally, reading the record in a light most favorable to the plaintiff, Mr. Romine has raised several issues which cast doubt upon City Manager Hoyt's willingness to fully cooperate with him or always deal with him reasonably under the lease. However, Mr. Romine has not sufficiently connected that questionable treatment to his race. Cf. Hawkins v. Ceco Corp., 883 F.2d 977, 986 (11th Cir. 1989) ("Hawkins presented evidence that Rascoe did not like him, but a dislike alone is not evidence of racial discrimination.").
Furthermore, Mr. Romine's other evidence to sustain an inference of discrimination is not nearly as compelling as that in cases in which the Eleventh Circuit found "other evidence" sufficient. In Rioux v. City of Atlanta, 520 F.3d 1269 (11th Cir. 2008), the plaintiff, a white male deputy fire chief, was demoted. Although he lacked a suitable comparator, the Eleventh Circuit found that the plaintiff nevertheless still established a prima facie case of race discrimination in light of the plethora of other
Rioux, 520 F.3d at 1277 (emphasis added).
In another published decision, subsequent to and expressly relying upon Rioux, the Eleventh Circuit again found that the absence of a similarly situated supervisory comparator was not a fatal defect in the context of a workplace misconduct/discriminatory discharge claim brought by a white supervisor, summarizing:
Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1341 (11th Cir. 2011).
In contrast to Rioux and Smith, the race-related pieces of evidence relied upon by Mr. Romine (other than his non-black replacement under the lease, Mr. Gomez)
Concerning Mr. Little's testimony, his statements amount to stray comments as they were not uttered by or otherwise attributable to a relevant decisionmaker and because the record lacks any evidence that Mr. Little influenced the decisionmaking process which impacted Mr. Romine. As recently reasoned by the Eleventh Circuit in an unpublished opinion:
Barsorian v. Grossman Roth, P.A., No. 13-14156, 2014 WL 3608511, at *6 (11th Cir. July 23, 2014) (emphasis added).
Barsorian, in conjunction with the published Eleventh Circuit authorities upon which it relies, firmly establish that Mr. Little's testimony does not salvage Mr. Romine's prima facie case against Mayor Robinson or City Manager Hoyt under the type of prima facie variation permitted in Rioux or the no reliance upon McDonnell Douglas option in Smith. See Smith, 644 F.3d at 1328 ("Here, Mitten did not need to rely on the McDonnell Douglas presumption to establish a case for the jury. . . . [because] the record contained sufficient evidence to allow a jury to infer that Lockheed fired Mitten because he is white.").
Similarly, Mr. Romine's testimony about a white friend named James Howard who told him that "we're not going to let no niggers come out there and run the business" (Doc. 26-3 at 24 at 89) is unconnected to Mayor Robinson, City Manager Hoyt, or to anyone working for the COA for that matter. (Id. at 90 ("Q. — does James Howard work for the City of Anniston? A. No, sir.")).
Alternatively, assuming further that it is appropriate to evaluate Mr. Romine's prima facie case under the less exacting test applicable to employment discrimination claims as set out in Maynard and Lee (referenced in n.19, supra), his claim nevertheless still fails due to his insufficient proof of pretext—the absence of sufficient evidence which supports a
As the Supreme Court has clarified, "[a]lthough intermediate evidentiary burdens shift back and forth under th[e] [McDonnell Douglas] framework, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff
In particular, the Supreme Court observed in Reeves that evaluating the triable nature of a race discrimination claim will oftentimes be a factor-intensive inquiry:
Reeves, 530 U.S. at 148-49, 120 S. Ct. at 2109 (emphasis by underlining added).
Here, Mayor Robinson and City Manager Hoyt have articulated a legitimate, non-discriminatory reason for terminating the restaurant lease-Mr. Romine's noncompliance with multiple provisions of the contract which he entered into with the COA voluntarily. While Mr. Romine has offered
Additionally, "[i]f the plaintiff does not proffer sufficient evidence to create a genuine issue of material fact regarding whether each of the defendant employer's articulated reasons is pretextual, the employer is entitled to summary judgment on the plaintiff's claim."Chapman v. AI Transport, 229 F.3d 1012, 1024-25 (11th Cir. 2000) (emphasis added) (citing Combs v. Plantation Patterns, 106 F.3d 1519, 1529 (11th Cir. 1997)). Here, summary judgment is appropriate because Mr. Romine has failed to create a genuine material fact over defaulting him on November 4, 2010, when he had already been given over 30 days from the execution of the lease to come into compliance with all of its voluntarily-agreed-to terms, including the deadline of September 1, 2010.
Mr. Romine also has not alternatively shown that Mayor Robinson and/or City Manager Hoyt treated other similarly situated non-black contractors more favorably, even though they, like him, fell into default under their contracts with the COA (e.g., Mayor Robinson and/or City Manager Hoyt accepted those comparators' excuses for being in breach and retained them as contractors for the COA). Because Mr. Romine has insufficient comparator evidence and the overall strength of his prima facie case and other proof of pretext is so weak, the record, with respect to his § 1981 race discrimination claim against Mayor Robinson and City Manager Hoyt, lacks "`evidence of such quality and weight that reasonable and fairminded men in the exercise of impartial judgment might reach different conclusions'" MacPherson v. University of Montevallo, 922 F.2d 766, 776 (11th Cir. 1991) (quoting Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1998)); cf. Smith, 644 F.3d at 1328 ("A triable issue of fact exists if the record, viewed in a light most favorable to the plaintiff, presents `a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decision maker.'" (footnote omitted) (quoting Silverman v. Bd. of Educ., 637 F.3d 729, 734 (7th Cir. 2011))). Thus, summary judgment in favor of Mayor Robinson and City Manager Hoyt in their individual capacities is independently appropriate when evaluating the pretext prong.
As the Eleventh Circuit has summarized the scope of protections afforded by the Equal Protection Clause:
Campbell v. Rainbow City, 434 F.3d 1306, 1313 (11th Cir. 2006) (citing E&T Realty v. Strickland, 830 F.2d 1107, 1112 (11th Cir. 1987)). Procedurally, an equal protection claim is brought through § 1983. See Bush v. Houston County Com'n, 414 F. App'x 264, 266 (11th Cir. 2011) ("Section 1983 is a vehicle for bringing civil lawsuits that `provides every person with the right to sue those acting under color of state law for violations of federal constitutional and statutory provisions.'" (quoting Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1299 (11th Cir. 2007))).
Here, Mr. Romine contends that Mayor Robinson and City Manager Hoyt have violated the Equal Protection Clause because the decision to end his restaurant lease was motivated by his race. To support his Equal Protection Clause claim, Mr. Romine relies upon the same body of evidence and arguments which he contends are sufficient to establish the triable nature of his § 1981 race claim. Because Mr. Romine's Equal Protection Clause claim resembles his § 1981 one, summary judgment in favor of Mayor Robinson and City Manager Hoyt is appropriate for all those reasons explained in section IV.A.2.a. above. Cf. Bush, 414 F. App'x at 266 ("In the employment context, §§ 1981 and 1983 claims require the same elements of proof and involve the same analytical framework as Title VII claims." (citing Rice-Lamar v. City of Ft. Lauderdale, 232 F.3d 836, 843 n.11 (11th Cir. 2000))).
In opposing summary judgment, Mr. Romine describes the nature of his procedural due process claim:
(Doc. 35 at 27). Here the court determines that Mr. Romine at least arguably had a property interest in the restaurant lease because the contract lacks a "without cause" termination provision. Cf. Economic Development Corp. of Dade County, Inc. v. Stierheim, 782 F.2d 952, 954 (11th Cir. 1986) ("Under this simple test EDCO did not possess a property interest in its contract with the county. EDCO admits that the contract allowed the county to terminate the agreement at its convenience, i.e., without cause.").
Even so, Mr. Romine cannot maintain a procedural due process violation because he has not alleged, nor can he show, that Alabama law leaves him without an adequate remedy in state court. As the Eleventh Circuit explained in McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994):
McKinney, 20 F.3d at 1562-63 (footnote omitted) (emphasis added).
While McKinney involves a plaintiff challenging an employment termination, no reason exists for dealing with a non-employment contract termination differently. See Stierheim, 782 F.2d at 953 (referencing district court's holding under Parratt that "there had been no denial of due process because Florida law provided EDCO with an adequate remedy in state court" to address contractual interest, but ultimately upholding decision on different grounds).
Additionally, as the Eleventh Circuit has observed:
Horton v. Board of County Com'rs of Flagler County, 202 F.3d 1297, 1300 (11th Cir. 2000) (emphasis added).
Therefore, akin to McKinney and Horton, Mr. Romine has no viable procedural due process claim because he has not asserted (much less shown) that
Alternatively, qualified immunity protects Mayor Robinson and City Manager Hoyt to the extent that Mr. Romine has established any triable constitutional issues against them in their individual capacities. Mr. Romine's lawsuit undoubtedly challenges Mayor Robinson and City Manager Hoyt's discretionary authority as public officials, which marks the first level of the qualified immunity analysis.
Turning to the next inquiry, Mr. Romine has not carried his burden of demonstrating how either one of them has violated clearly established law in carrying out their discretionary functions. See Santamorena v. Georgia Military College, 147 F.3d 1337, 1340 (11th Cir. 1998) ("To overcome this immunity, Plaintiff has the burden of pointing to case law which `pre-date[s] the offic[ial]'s alleged improper conduct, involve[s] materially similar facts, and `truly compel[s]' the conclusion that the plaintiff had a right under federal law.'" (quoting Ensley v. Soper, 142 F.3d 1402, 1406 (11th Cir. 1998))).
In particular, Mr. Romine makes no effort to address each one of his federal claims and has not offered any binding authority which concretely establishes the unlawfulness of Mayor Robinson and City Manager Hoyt's actions prior to when they occurred. Instead, Mr. Romine merely nominally addresses qualified immunity, citing only to Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L. Ed. 2d 396 (1982), and Anderson, supra, for general propositions pertaining to the defense.
Concerning race discrimination, while this court is aware that "[i]t is beyond doubt that the principal right allegedly violated by [Mayor Robinson and City Manager Hoyt]—the equal protection right to be free from intentional racial discrimination—was clearly established at the time [Mr. Romine's lease was ended,]" see Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1478 (11th Cir. 1991), the Eleventh Circuit has also made it equally clear that public officials "can be motivated, in part, by a dislike or hostility toward a certain protected class to which a citizen belongs
More specifically, under Foy, "state officials act lawfully despite having discriminatory intent, where the record shows they would have acted as they, in fact, did act even if they had lacked discriminatory intent." 94 F.3d at 1534. Because Mayor Robinson and City Manager Hoyt had adequate lawful reasons for terminating Mr. Romine's lease unrelated to his race and the record does not plainly show that the illegal criterion of race motivated their conduct, they are entitled to qualified immunity on Mr. Romine's race-related claims pursuant to Foy. See Foy, 94 F.3d at 1534 ("Unless it, as a legal matter, is plain under the specific facts and circumstances of the case that the defendant's conduct-despite his having adequate lawful reasons to support the act-was the result of his unlawful motive, the defendant is entitled to immunity.").
Furthermore, as it pertains to Mayor Robinson, Mr. Romine faces an additional qualified immunity hurdle. Mr. Romine has failed to factually develop
As the Eleventh Circuit has made clear regarding qualified immunity in the context of supervisory liability under § 1983:
Crawford v. Carroll, 529 F.3d 961, 978 (11th Cir. 2008). Mr. Romine has made no effort to meet this supervisory standard or to otherwise advance another applicable theory that would entitle him to pursue Mayor Robinson individually and, as a result, has abandoned his opposition to Mayor Robinson's qualified immunity defense. See, e.g., Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) ("[T]he onus is upon the parties to formulate arguments; grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned." (citing Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994))); Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000) (failure to brief and argue issue at the district court is sufficient to find the issue has been abandoned); Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir. 2001) (finding claim abandoned when argument not presented in initial response to motion for summary judgment).
Finally, the far from extreme nature of Mr. Romine's federal claims means that this dispute does not fall within that extraordinary class of so-called "obvious clarity" cases in which no preexisting binding authority is necessary to provide a public official with fair warning of his unconstitutional behavior. See Santamorena, 147 F.3d at 1340 n.6 ("[T]hese exceptional cases
While Mr. Romine contends that his case does properly belong within this highly uncommon category (Doc. 35 at 29), he does so perfunctorily and without offering any on-point support. See Flanigan's Enters., Inc. v. Fulton County, Ga., 242 F.3d 976, 987 n.16 (11th Cir. 2001) (holding that a party waives an argument if the party "fail[s] to elaborate or provide any citation of authority in support" of the argument); Ordower v. Feldman, 826 F.2d 1569, 1576 (7th Cir. 1987) (stating that an argument made without citation to authority is insufficient to raise an issue before the court). Thus, for these numerous reasons, qualified immunity, provides an independent basis for granting summary judgment in favor of Mayor Robinson and City Manager Hoyt on Mr. Romine's federal claims brought against them individually.
As set forth in Defendants' Rule 56 Motion, Mr. Romine's federal claims brought under § 1983 against the COA are governed by the rules established by the Supreme Court in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L. Ed. 2d 611 (1978). In order for the COA to be subjected to § 1983 liability, Monell requires that Mr. Romine prove, at a minimum: (1) that the individual defendants' actions were unconstitutional; and (2) that a municipal "policy" or "custom" of the COA caused these violations to occur. Id. at 694-95, 98 S.Ct. 2037-38.
Based upon the Monell doctrine, summary judgment in favor of the COA on Mr. Romine's federal claims is appropriate because as analyzed above, Mr. Romine has no viable cause of action under § 1981, the Equal Protection Clause, or the Due Process Clause against either Mayor Robinson or City Manager Hoyt. Alternatively, to the extent that Mr. Romine has established a triable federal claim, the COA is still entitled to summary judgment because Mr. Romine has not causally connected the federal violation to municipal action.
City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 2436, 85 L. Ed. 2d 791 (1985) (footnote omitted) (emphasis added).
Here, there is no evidence of an official COA policy or custom embracing race discrimination or due process violations in the handling of public contracts. Further, the only proof that Mr. Romine points to in an effort to show that his situation is not an isolated one is the vague testimony from former City Council member, Mr. Little, that "Anniston has a problem with black folks," that the COA has been involved in other litigation over "botched" contracts with black contractors, and that black citizens are forced to "go through extra hoops" in their dealings with the COA. (Doc. 35 at 28). Assuming the admissibility of this evidence, these sweeping, non-specific opinions offered by Mr. Little are simply inadequate proof for a reasonable jury to conclude that the COA has a policy or custom to such a degree that appropriately exposes it to liability for the (assumed in the alternative) unconstitutional conduct committed by its public officials.
Count Three of Mr. Romine's complaint for breach of contract is also subject to dismissal on summary judgment. As Mr. Romine correctly recognizes in his opposition brief, an ordinary breach of contract claim arising under Alabama law requires proof of the following elements:
Southern Medical Health Systems, Inc. v. Vaughan, 669 So.2d 98, 99 (Ala. 1995) (citing McGinney v. Jackson, 575 So.2d 1070, 1071-72 (Ala. 1991)).
In seeking summary judgment on Count Three, Defendants raise several viable grounds including: (1) the non-binding nature of the lease on Mayor Robinson and City Manager Hoyt as individuals (Doc. 27 at 20-21); (2) Mr. Romine's admitted defaulted status (i.e., his own
Mr. Romine makes no attempt to refute Defendants' evidence or arguments which all solidly demonstrate their entitlement to summary judgment on this claim. Instead, Mr. Romine minimally and ineffectually asserts:
(Doc. 35 at 30).
Mr. Romine's woefully underdeveloped response essentially constitutes an abandonment of his breach of contract claim. More importantly, his attempted opposition creates no triable contractual issue. Therefore, the court will enter an order that also dismisses Count Three of Mr. Romine's complaint with prejudice.
Mr. Romine's Strike Motion challenges Defendants' reliance upon a memo from Mr. Folks to the Mayor and City Council dated August 17, 2011, indicating that Mr. Gomez (and Debra Gomez) were "awarded the opportunity to lease the Cane Creek Restaurant." (Doc. 26-10 at 2). Because summary judgment is appropriate on all of Mr. Romine's claims with or without consideration of this memo, the Strike Motion is due to be termed as moot.
For the reasons stated above, Defendants' Rule 56 Motion is due to be granted, and Mr. Romine's complaint is due to be dismissed with prejudice. Further, Mr. Romine's Strike Motion is due to be termed as moot. Finally, the court will enter a separate order consistent with this memorandum opinion.
Rioux, 520 F.3d at 1276 (emphasis added).
Maynard v. Bd. of Regents of Div. of Univ. of Fla. Dep't of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003) (emphasis added); see also Lee v. Russell County Bd. of Educ., 684 F.2d 769, 773 (11th Cir. 1982) ("If plaintiff proves by a preponderance of the evidence that he or she is a member of a protected class, was qualified for the position held, and was discharged and replaced by a person outside of the protected class or was discharged while a person outside of the class with equal or lesser qualifications was retained, then plaintiff has established a `prima facie case' of discrimination."). Mr. Romine meets the "replaced by a person outside his protected class" element. To the extent that Maynard and Lee mean that Rioux is inapplicable to the court's prima facie assessment, summary judgment in favor of Mayor Robinson and City Manager Hoyt in their individual capacities is still appropriate for several other independent reasons (i.e., the absence of adequate pretext and the defense of qualified immunity) that are addressed infra.
