JEFFREY U. BEAVERSTOCK, District Judge.
This matter is before the Court on Defendant the City of Selma's ("Selma") Motion for Summary Judgment ("Motion") and Brief in Support (Doc. 15 & Doc. 16), Plaintiff Franklin Edwards' Response in Opposition (Doc. 18), and Selma's Reply. (Doc. 19). The Motion is ripe for review. After careful consideration, the Court
This is a civil rights case. Plaintiff ("Edwards"), an African American man, works in the Selma Fire Department. Plaintiff alleges that his former supervisor, former Fire Chief Toney Stephens ("Stephens"), also an African American man, implemented racially discriminatory promotional procedures that precluded Plaintiff's advancement within the fire department in violation of the 42 U.S.C. § 1981 and the Equal Protection Clause of the Fourteenth Amendment. Specifically, Plaintiff alleges that Stephens carried out a policy whereby promotions to various "Chief-level" positions in the Department were done on a racially consistent basis; when one position was vacated by a member of one race, Stephens would recommend a candidate of the same race to fill that vacancy. For instance, if a position was vacated by a white person, Stephens would recommend a white applicant to fill that position, eliminating Plaintiff from consideration for the position due to his race.
Plaintiff also alleges that the City violated his Fourteenth Amendment Due Process rights when he was twice suspended without pay and was not afforded an appellate procedure to dispute his alleged misconduct. Plaintiff argues that the instances of misconduct resulting in his suspension were the result of Stephens abusing his power as Fire Chief and that they were used as pretext to prevent him from receiving a promotion within the Selma Fire Department.
"`Summary judgment is appropriate only if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.' Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11
To prevent summary judgment, a factual dispute must be both material and genuine. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A fact is `material' if it has the potential of `affect[ing] the outcome' of the case. Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1303 (11
Selma argues it is due summary judgment because Plaintiff's claim for racial discrimination is under the Equal Protection Clause and 42 U.S.C. § 1981, which provide no viable cause of action. Specifically, Selma argues that because Plaintiff failed to invoke 42 U.S.C. § 1983, and relies only on § 1981, he cannot move forward on his discrimination claims. Selma directs the Court to, inter alia, Taliaferro v. Conecuh County, 2005 WL 8158706 (S.D. Ala. 2005), from which it highlights the following excerpt: "Both the Equal Protection Clause and § 1981 claims can only be brought and enforced through 42 U.S.C. § 1983." Ultimately, Selma's argument here is unpersuasive and, as Plaintiff points out, the Eleventh Circuit has more recently spoken to this precise issue.
In King v. Butts County, 576 Fed. Appx. 923, *930 (11
Id. at 931.
In his Complaint, Plaintiff makes several allegations in an attempt to hold Selma liable for racial discrimination, including:
(Doc. 1 at 1-3). From these allegations, it is clear that Plaintiff claims that Stephens made promotional recommendations to the Mayor based on a racially discriminatory policy and did so under the color of state and local law. Notwithstanding Selma's objections (Doc. 19 at 4),
The issue of whether Plaintiff has satisfied the McDonnell Douglas standard for establishing a prima facie case of discrimination, and other issues concerning whether Stephens was a final policymaker related to Fire Department promotions, are addressed below. At this point, the Court only concludes that the facts contained in the Complaint provide Selma notice that Plaintiff sought to vindicate his rights under § 1983. In sum, based on the foregoing allegations, Plaintiff's Complaint is imbued with the hallmarks of a § 1983 claim as described in King and his Complaint should be treated as one in which he seeks redress of a violation of § 1981 "under" § 1983.
It is undisputed that Plaintiff has no direct evidence of discrimination. (See, e.g., Doc. 18 at 14). Therefore, in order the prevail on his Equal Protection claims, Plaintiff must make a showing of circumstantial evidence that satisfies the test in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which identified the necessary elements to establish a prima facie violation when an employee "loses out" to another applicant competing for a promotion. See also Crawford v. Western Electric Co., 614 F.2d 1300, 1315 (5th Cir. 1980). The elements of a prima facie showing include:
Harrington v. Disney Reg'l Entm't, Inc., 276 F. App'x 863, 872-73 (11th Cir. 2007); see also Walker v. Mortham, 158 F.3d 1177, 1187 (11th Cir. 1998) (noting that erroneous dicta requiring a plaintiff to show that the promoted employee had "equal or lesser qualifications" had entered the Eleventh Circuit's articulation of the standard, and reiterating that Crawford governs); see also Harrington, 276 F. Appx 863, 874 ("Appellants argue, correctly, that Harrington and Laney should not have been required to prove that the successful applicant for the promotion, Heinzman, was less or equally qualified. Rather, Heinzman's alleged superior qualifications should have been understood instead as a rebuttal to the initial presumption of discrimination that appellants would then need to show to be pretextual.").
If a plaintiff establishes a prima facie case, then the burden "shifts to the employer to articulate a legitimate, nondiscriminatory reason for [the adverse employment action]. [. . .] If the employer does so, the burden shifts back to the plaintiff to `introduce significantly probative evidence showing that the asserted reason is merely a pretext for discrimination.'" Zaben v. Air Prods. & Chems., 129 F.3d 1453, 1457 (11th Cir. 1997) (internal citations omitted).
Furthermore, the City of Selma cannot be held liable for the acts of Stephens based on a theory of respondeat superior. See Oladeinde v. City of Birmingham 230 F.3d 1275, 1295 (11
Selma argues Plaintiff's Equal Protection claims fail as a matter of law because Plaintiff cannot prove municipal liability under this applicable § 1983 framework.
Selma argues that the first of the three alternatives for holding a municipality liable, i.e. proof of an "official government policy," is foreclosed by the undisputed fact
To establish a custom or practice so pervasive and well-settled that it assumes the force of law, a plaintiff must show: (1) a persistent and wide-spread practice, and (2) actual or constructive knowledge of the custom by the governmental entity. Guardino v. Halifax Health, No. 6:18-cv-2035-Orl-41KRS, 2019 U.S. Dist. LEXIS 19338, at *9 (M.D. Fla. Jan. 10, 2019). To the extent Plaintiff's Equal Protection claims are based on the theory that Stephens' "demographic" rule of promotion constituted a custom or policy that was "so pervasive and well-settled that it assumed the force of law," those claims fail as a matter of law because there is no substantially probative evidence that Selma had actual or constructive knowledge of it. Plaintiff's relevant allegations include the following:
(Doc. 1 at 2, 3). Plaintiff's allegations, taken in the light most favorable to him as the non-movant, can be construed to allege that the policy in place that "assumed the force of law" was Stephens' unwritten rule that "Chief-level" positions would be filled by applicants of the same race as the person leaving. Stephens would, allegedly, base his recommendations on race alone, and the Mayor would approve Stephens' recommendation without any consideration. However, absent from Plaintiff's allegations — and the record — is any indicia that the Mayor or any other Selma official had actual or constructive knowledge of Stephens' unwritten rule. Instead, it is doubtful that the Mayor actually listened to Stephens' recommendations.
A municipality can be held liable for an official's actions where, inter alia, that official's actions are fairly deemed to represent government policy. Oladeinde, 230 F. 3d at 1295. However, a government official's actions can only be fairly deemed to represent government policy where that person has "final policymaking authority." Hernandez v. City of Thomson, No. CV 113-079, 2016 U.S. Dist. LEXIS 4966, at *7 (S.D. Ga. Jan. 14, 2016). Final policymaking authority is "a matter of state law to be determined by the trial judge," and such authority cannot be had if one's decisions on a particular issue are "subject to meaningful administrative review." Doe v. Sch. Bd., 604 F.3d 1248, 1264 (11th Cir. 2010) (finding no final policymaking authority where school officials'
"Final policy making authority over a particular subject area does not vest in an official whose decisions in the area are subject to meaningful administrative review." Id. (quoting Scala v. City of Winter Park, 116 F.3d 1396, 1401 (11th Cir.1997)). The opportunity for meaningful review will suffice to divest an official of any policy making authority. See Id. 218 F.3d at 1276. It is undisputed that Stephens undertook the following activities when making departmental promotions:
According to the record, Stephens could not remember a time where the Mayor did not follow his recommendation. (Doc. 16-2, supra note 5).
Selma's City Charter grants the Mayor exclusive authority to make certain appointments. Nothing in the City Charter concerning the Fire Chief's responsibilities state that he or she is authorized to make intra-departmental appointments. The City's Charter, therefore, establishes that Stephens was not authorized to make promotions within the Fire Department. As for custom, Stephens only recommended certain candidates to the Mayor. While Plaintiff insists that this behavior was more insidious, and that Stephens played a larger role in the promotional decision-making chain, the fact is that the Mayor made (and was the only official authorized to make) the appointments at issue. Nothing in the record indicates the contrary. Thus, Plaintiff's claims fail under this theory.
Despite the foregoing, Plaintiff insists that he can move forward on his Equal Protection claims by pursuing them under a "cat's paw theory" of liability. According to Plaintiff, Stephens' actions essentially represented government policy because his nomination of "Chief-level" candidates were "rubber-stamped" by the Mayor without any meaningful review. (Doc. 18 at 17, 21-24). In response, Selma reiterates that Plaintiff failed to satisfy the necessary prerequisites for carrying his claims (Doc. 19 at 6-10) and further argues that Plaintiff's "cat's paw theory" is inapplicable because the Eleventh Circuit does not recognize it as a viable theory of liability. (Doc. 19 at 5).
Under such a theory of liability, the underpinning prejudices of a subordinate's actions adopted by an unwitting superior officer can create municipal liability. About three months before the parties filed dispositive motions in this case, the Eleventh Circuit articulated that a party could proceed with such claims under this theory via an unpublished opinion:
Griffin v. City of Jacksonville, 762 F. App'x 965, 972 (11
It is undisputed that Edwards, as an African American man, is a member of a protected class. Maddox-Jones v. Bd. of Regents of Univ. Sys., 448 F. App'x 17, 20 (11th Cir. 2011). It is further undisputed that Edwards applied for the following positions: (1) Battalion Chief in 2016; (2) Assistant Chief in 2017; and two Battalion Chief positions that became available in 2018. (Doc. 1 at 3).
However, even assuming Plaintiff may state a prima facie claim for discrimination under a "cat's paw theory," Defendant is entitled to summary judgment because it has demonstrated legitimate, non-discriminatory reasons for refusing to promote or recommend Plaintiff for a "Chief-Level" position, and plaintiff has failed to provide sufficient evidence to demonstrate those reasons are pretextual.
Selma's proffered reasons for failing to recommend or promote Plaintiff to a "Chief-level" position include that applicants who received recommendations and promotions had been with the Fire Department longer than Plaintiff and had fewer disciplinary infractions. (Doc. 16 at 3, 4). Selma has presented evidence that each candidate who received a "Chief-level" recommendation and promotion was with the Fire Department longer than Plaintiff and/or had fewer disciplinary infractions than Plaintiff.
In an attempt to show that Selma's proffered non-discriminatory reasons for the challenged actions were merely pretextual, Plaintiff points the Court's attention to Stephens' alleged pattern of discriminatory recommendation procedures, i.e., recommending white candidates to "Chief-level" positions where the person leaving was white. (See generally, Doc. 1). Plaintiff also points to inconsistencies in the promotional process generally (e.g., whether the Mayor actually reviewed former Chief Stephens' recommendations and whether the Mayor was actually the best official to review those recommendations, etc.). (Doc. 18 at 23). Plaintiff also offers an affidavit that states, inter alia, "[f]ormer Chief Toney Stephens had a policy which he verbalized in my presence of promoting `white for white' and `black for black' when a vacancy arose." (Doc. 18-1 at 1).
The pattern of promotions within the department under Stephens' tenure is relevant to demonstrating pretext. Harrington, 276 F. App'x at 871-72 (". . . pattern and practice may be relevant to a claim of pretext in a private individual's case of discrimination . . ."). However, where members of the same protected class as a plaintiff are promoted during the time period where a plaintiff was not promoted, the Court should treat such evidence as a strong indication that an aggrieved party's non-promotion was not based on discrimination. Harrington, 276 F. App'x at 873 (11th Cir. 2007) ("the decision was not racially motivated because three other African-Americans servers were promoted to trainer around the time Hardin applied. This is strong evidence that the decision not to promote Hardin was not the result of racial discrimination.").
As noted in Edwards Complaint, at least one other African American man was promoted to a "Chief-level" position when Plaintiff applied for "Chief-level" positions. (See Doc. 1 at 3).
Selma argues that the Court should disregard Plaintiff's affidavit because it is a "sham," relying on Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656 (11
After Van T. Junkins, the Eleventh Circuit provided some greater guidance on when a court may properly disregard an affidavit as a "sham." In Lane v. Celotex Corp., 782 F.2d 1526, (11th Cir. 1986), that court reiterated that "a district court should not reject the content of an affidavit even if it is at odds with statements made in an earlier deposition" and only when "clear and unambiguous" answers are provided in prior testimony may a contradictory affidavit created thereafter be disregarded. Id. at 1529-30. However, a plaintiff may not avoid summary judgment by disputing his own admissions. See, e.g., Calvo v. B&R Supermarket, Inc., 63 F.Supp.3d 1369, 1372 (S.D. Fla. 2014) (Bloom, J.) (disregarding plaintiff's declaration where it contradicted her deposition testimony and "consist[ed] in large part of self-serving statement and opinions otherwise unsubstantiated by the record before the [court]"). Moreover, this Circuit's case law requires the Court to find some inherent inconsistency between an affidavit and a deposition before disregarding the affidavit. Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1316 (11th Cir. 2007).
Plaintiff's affidavit is sparse. Plaintiff's deposition testimony regarding Stephens' alleged discriminatory practices is equally brief. During his deposition, Plaintiff provided the following about his knowledge of those alleged practices:
(Doc. 16-1 at 3, 4). The questions and answers from Plaintiff's deposition are clear and unambiguous. When specifically asked about what Stephens said regarding his alleged discriminatory scheme, Edwards could not recall the exact content of that statement. Instead, he only remembered that Stephens allegedly said "demographics [would be kept] the same." Edwards did not refer to which demographics, e.g., new hires, intermediate promotions, or "Chief level" promotions, would be kept the same. Now, in his affidavit, Plaintiff states that Stephens said explicitly that "white[s] [would be promoted] for whites" and "black[s] for black[s]."
While Plaintiff might argue that because he previously testified that Stephens told him that demographics would to be kept the same, and that the statement encompassed demographics concerning promotions, thus leaving him some room to expand his testimony, this is not persuasive. Plaintiff unambiguously stated that he could not remember what Stephens said while they were in the parking lot adjacent to Station 3. Now however, without explanation, he testifies that he does remember what was said. This is not an expansion, but a change from an affirmative statement of no memory to a contradictory statement of a very specific memory without any justification. In short, Plaintiff, without equivocation, stated he could not remember what Stephens said regarding his alleged promotional scheme during his deposition, and now, without any justification, he provided the Court with a contradictory and expansive statement. This sort of inconsistency without explanation or justification is impermissible. Allen, 495 F.3d 1306, 1316. Accordingly, in light of Plaintiff's previous clear and unambiguous testimony and his contradictory statement put forward without any explanation or justification, the Court finds Plaintiff's affidavit is a "sham."
Selma also argues that Plaintiff faces a greater burden at this stage in the proceedings because he, Stephens, and Mayor Melton are members of the same protected class. (Doc. 19 at 6). Selma relies on Moore v. Ala. Dep't of Corr., 137 Fed.App'x 235, 239 n. 4 (11
In his final claim, Plaintiff asserts that his Fourteenth Amendment Due Process rights were violated as a result of an eight-shift suspension he received on April 12, 2018. (Doc. 1 at 4). Plaintiff alleges the following procedural Due Process rights: (1) he was not afforded a hearing to contest his suspension prior to its imposition; and (2) this suspension violated his right to uninterrupted employment and his property right to his lost wages. (Id.). Plaintiff also asserts that this suspension was "unjust." (Id.).
Selma correctly asserts that Plaintiff's claim here should only be understood as a procedural due process issue because, "[a]n employee with a property right in her employment is entitled to certain procedures but not to any substantive rights under the Due Process Clause." (Doc. 16 at 21) (relying on McKinney v. Pate, 20 F.3d 1550 (11
Edwards agrees with several of Selma's assertions and clarifies his stance on his due process claim. (Doc. 18 at 29). Edwards disagrees, however, with Selma's assertion that he was not entitled to a hearing. Instead, Plaintiff argues that his two suspensions that were imposed without a hearing — allegedly arising from the same conduct — did not comport with "the requirements of due process." (Id. at 30).
(Doc. 19 at 11).
Procedural Due Process claims brought under 42 U.S.C. § 1983 are subject to limitations in the context of municipal liability. Hoefling v. City of Miami, 811 F.3d 1271, 1279 (11th Cir. 2016).
Edwards has failed to allege, argue, or provide any support to the notion that Selma has an active or "passive" policy that allowed Stephens to "mete out" punishment in a way that violated Plaintiff's Due Process rights. Instead, Plaintiff's allegations include (and the record supports) that he was suspended by Stephens on two occasions based on a single instance of conduct that comprised two separate violations. (See Doc. 16-16). Plaintiff alleges in his Complaint and Brief in Opposition that "[he] was not allowed to have a hearing to contest the suspension" and that "the evidence discloses that this alleged policy violation was artfully manipulated to impose a suspension . . . of eight (8) days for a singular offense without providing a hearing for what was a singular offense." (Doc. 1 at 4; Doc. 18 at 30). Absent entirely from Plaintiff's allegations is anything related to a policy or custom Selma had in place. Rather, Plaintiff appears to want to hold Selma vicariously liable for Stephens' actions. This, Plaintiff cannot do. Oden, LLC, 707 F. App'x 584, 586-87 (11th Cir. 2017). Accordingly, Plaintiff's Due Process claim fails as a matter of law.
Plaintiff finds himself at the summary judgment stage of proceedings where there is sufficient evidence to show that those who allegedly discriminated against him did not act with any sort of racial animus. Further, Plaintiff has not provided significantly probative evidence that the proffered reasons for non-promotion were merely pretextual, and Plaintiff has not provided any evidence suggesting that Selma violated his Due Process rights when Stephens suspended him. Accordingly, the Court
Defendant also argues that there is no individual defendant named in the Complaint. Defendant acknowledges in its Motion, though, that Plaintiff is seeking relief pursuant to an alternative theory of liability by which naming an individual defendant would not be necessary. (See Doc. 16 at 11, 12). Defendant's final contention, that "the Complaint does not allege that the individual with an alleged racial bias was the `final policymaker'" is the most plausible contention. The Court shall address this infra.
Griffin v. City of Jacksonville, 762 F. App'x 965, 972 (11th Cir. 2019).