SHARION AYCOCK, District Judge.
Presently before the Court are four Motions for Summary Judgment [50, 52, 55, 59] filed by Defendant City of West Point. Each motion for summary judgment corresponds with the claims asserted by the four separate Plaintiffs involved in this action. After reviewing the motions, responses, rules, and authorities, the Court finds as follows:
The Plaintiffs, Romelle Matthews (African American), Timothy Campbell (Caucasian), Jesse Anderson (African American), and Jeremy Dubois (Caucasian), are former and current police officers with the City of West Point. While there are four separate Plaintiffs, with each individual Plaintiff asserting his own independent claims of discrimination or retaliation, each of the actions brought stem from a series
In 2005, the City of West Point's Board of Selectmen had a racial composition of four Caucasian selectmen and one African American selectman. In 2007, the racial makeup of the Board changed to three Caucasian and two African-American selectmen. In July 2009, West Point held a city-wide election. As a result of this election, the racial composition of the selectmen changed to four African-American selectmen and one Caucasian selectman. Shortly thereafter, the newly-elected selectmen met and voted four to one to discharge then-Chief of Police, Steve Bingham, who is Caucasian. The four selectmen who voted to discharge Bingham-Jasper Pittman, Rod Bobo, Charles Collins, and Homer Cannon — are African American. The Board elected Bobby Lane, an African American, to serve as the acting chief following Bingham's termination.
After the Board elected Lane, a myriad of decisions were made that affected the City of West Point's police department. More specifically, these decisions impacted the jobs of the four Plaintiffs and fueled the filing of this lawsuit. It is alleged that the Board, as well as Chief Lane, considered race as a factor when making employment decisions, and that the Board sought to adopt a "race-based" arrest policy. The two Caucasian Plaintiffs, Dubois and Campbell, bring claims of intentional race discrimination under Title VII, Section 1981, and the Fourteenth Amendment's Equal Protection Clause. The two African-American Plaintiffs, Anderson and Matthews, allege that they were retaliated against in violation of Title VII, Section 1981, and the Fourteenth Amendment's Equal Protection Clause.
Plaintiff Jeremy Dubois ("Dubois" or "Plaintiff Dubois"), Caucasian, began his employment with the West Point Police Department in February 2003, as a patrolman. A few years later, Dubois was promoted to the rank of corporal. In March 2007, Dubois contends that he was "promoted" to the newly-created narcotics division, along with Jesse Anderson and Shane Lampkin. A year later, Dubois was again promoted, this time to the rank of sergeant. Dubois asserts that, after Lampkin left the police force due to health reasons, Anderson "took over supervision of narcotics." Shortly thereafter, Bobby Lane (African American), the newly appointed Acting Chief of Police for the City of West Point, held a staff meeting wherein it was announced that several changes would be made in the Police Department. According to all of the Plaintiffs, at the meeting, "Bobby Lane told everyone that he was under the directive of the Board [of Selectmen] and doing what the Board wanted him to do, and he would be moving people around because that is what the Board wanted done."
It appears that Bobby Lane held a second meeting in November 2009. At this meeting, Lane informed Jesse Anderson
Plaintiff Tim Campbell ("Campbell" or "Plaintiff Campbell"), Caucasian, began his employment with the West Point Police Department in 1985, as a paid internist while he was attending Northeast Mississippi Community College. He began working full time as a patrol office in 1987. In either 2003 or 2004, Campbell was promoted to sergeant and, in 2007, he was promoted to, and still remains in, a lieutenant position. In this capacity, Plaintiff Campbell appears to be a lieutenant over patrol, wherein he supervises five patrol officers on a shift.
Campbell's complaints of discrimination stem from decisions announced after Bobby Lane (African American) was appointed the new Acting Chief of Police for the City of West Point. At a November 2009 meeting, Lane advised that multiple changes would be taking place within the police department. In particular, Lane revealed that Avery Cook (African American) would serve as Lane's Acting Assistant Chief of Police. Campbell maintains that he was "passed over" for the position of assistant chief because of his race (Caucasian).
Plaintiff Romelle Matthews ("Matthews" or "Plaintiff Matthews"), African American, began his employment with the West Point Police Department in October 2007, as a sergeant of detectives. Around a year later, Matthews was promoted to the position of deputy chief. According to Matthews, this promotion meant that he was the captain over investigations. In 2009, however, Matthews work situation quickly changed. In November 2009, Matthews was allegedly demoted and, shortly thereafter, he was suspended and eventually terminated. Matthews brings claims of retaliation pursuant to Title VII, 42 U.S.C.
During his tenure working under former Police Chief Steve Bingham, Matthews contends that he never encountered any problems or complaints concerning his job performance. Yet, Matthews alleges that, in the spring of 2009, Selectman Jasper Pittman (African American) confronted him and accused him of racially profiling African Americans. Matthews also contends that, around the same time, Bingham told him that he was getting a lot of "pressure" about the need to arrest more Caucasians.
Further, Matthews testified that Anderson came to him to complain about this conversation with Pittman. Matthews asserts that he told Anderson, "don't worry about it, I'[ll] take care of it."
As noted supra, Bingham's employment was terminated less than two months after the racial composition of the Board of Selectmen became majority African American. The Board selected Bobby Lane (African American) to be the new Acting Chief of Police and, at a November 2009 meeting, Lane advised that multiple changes would be taking place within the police department. In particular, Lane allegedly informed Matthews that he was no longer captain, but instead was just an "acting captain." Lane also allegedly advised Matthews that he would be returning to patrol, he would no longer have a car, and his responsibilities would allegedly be taken away. Matthews contends Lane also told him that as long as Matthews' pay was not affected, this could not be
Matthews further alleges that he and Jesse Anderson were repeatedly called "Bingham's Boy" after the Board's racial composition changed to majority African American and Lane was selected as acting chief. According to Matthews, Anderson, and Zate McGee,
Matthews appears to have worked for "a couple of weeks in patrol" before he was suspended and eventually terminated. Matthews maintains that, after Bingham was terminated, Lane started writing him up "for frivolous reasons to create a paper trail." Matthews responded to Lane's write-ups, and he filed a grievance with CAO Randy Jones. According to Matthews, after he received the first write-up, he prepared to file a charge with the EEOC and, subsequently, Bobby Lane found the back page of a letter Matthews wrote to the EEOC. Lane allegedly questioned Matthews about the letter. Specifically, Matthews testified that the following exchange occurred:
Matthews was then suspended indefinitely without pay pending a request for termination. Shortly thereafter, Plaintiff Matthews' counsel advised the Mayor, City Attorney, and Chief Administrative Officer that the proposed termination of Matthews would result in litigation. At a subsequent meeting of the Mayor and the Board of Selectmen, held on December 28, 2009, the Board voted 3-2 to terminate Plaintiff Matthews. Matthews alleges that he was suspended and terminated in retaliation for filing a charge with the EEOC.
Jesse Anderson ("Anderson" or "Plaintiff Anderson") began working for the West Point Police Department in either 2000 or 2001.
As noted above, following an election in July 2009, a new Board was seated. The new Board terminated Bingham as the police chief and appointed Lane (African American) to take his position. Apparently at a meeting in October 2009, Lane informed everyone that he was making changes to the police department or else the Board "would have his head." Lane allegedly also informed the Plaintiffs that if they had any grievances, the grievances would be denied. Shortly thereafter, in November 2009, Lane announced several changes that would be taking place within the structure of the police department. In particular, Lane advised that Anderson would be moving back to patrol. Anderson contends that he was "demoted" in retaliation for his opposition to implementing a race-based arrest policy, as well as his opposition to being called a racially-derogatory name. Anderson brings claims of retaliation pursuant to Title VII, 42 U.S.C. § 1981, and the Equal Protection Clause of the Fourteenth Amendment.
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil Procedure when evidence reveals no genuine dispute regarding any material fact and that the moving party is entitled to judgment as a matter of law.
The party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. 2548. The nonmoving party must then "go beyond
Plaintiff Dubois asserts that he was "passed over" for a supervisory position in the narcotics division due to his race. Defendant, in response, contends that Plaintiff (i) failed to exhaust his administrative remedies, and (ii) cannot demonstrate that he was denied a promotion. The Court considers each of Defendant's arguments in turn.
Before addressing the merits of this argument, the Court turns to a point of concern raised in Defendant's brief. Defendant maintains that "[c]ourts do not have
Employment discrimination plaintiffs must exhaust their administrative remedies before pursuing claims in federal court. Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir.2002). Exhaustion
The scope of a lawsuit is limited to the allegations made in the EEOC charge and any claims that could reasonably be expected to grow out of it. See Fine v. GAF Chemical Corp., 995 F.2d 576, 578 (5th Cir.1993). Courts are to "construe employment discrimination charges with the `utmost liberality,' bearing in mind that such charges are generally prepared by laymen untutored in the rules of pleading." Price v. Sw. Bell Tel. Co., 687 F.2d 74, 78 (5th Cir.1982); see also Preston v. Tex. Dep't of Family and Protective Servs., 222 Fed.Appx. 353, 356 (5th Cir.2007). To determine whether an allegation in a complaint falls within the scope of a charge filed with the EEOC, a court must "engage in fact-intensive analysis of the statement given by the plaintiff in the administrative charge, and look slightly beyond its four corners, to its substance rather than its label." Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir.2006). The Fifth Circuit has stated that courts "must ever be mindful that the provisions of Title VII were not designed for the sophisticated or the cognoscenti, but to protect equality of opportunity among all employees and prospective employees. This protection must be extended to even the most unlettered and unsophisticated." Sanchez, 431 F.2d at 463 (citation omitted); see also Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 400-03, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008) (discussing the "permissive standard" of what constitutes a charge under the ADEA and noting that "[t]he system must be accessible to individuals who have no detailed knowledge of the relevant statutory mechanisms and agency process"); Edelman v. Lynchburg College, 535 U.S. 106, 112-113, 122 S.Ct. 1145, 152 L.Ed.2d 188 (2002); Fine, 995 F.2d at 578 (holding that a plaintiff may assert a Title VII cause of action based on a type of discrimination not explicitly listed on the charge if that discrimination is "like or related to the charge's allegations....").
Here, Defendant asserts that Plaintiff Dubois did not file a denial of promotion charge with the EEOC prior to commencing this action. Plaintiff Dubois' charge states, in pertinent part, as follows:
The Court finds that the substance of the allegations contained within the factual statement could reasonably result in an investigation for a denial of a promotion
Under Title VII, it is "an unlawful employment practice for an employer ... to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Plaintiff does not seek to prove his case with direct evidence, instead presenting alleged circumstantial evidence and analyzing his claim under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In order to establish prima facie case that Defendant failed to promote Plaintiff Dubois because of his race, Plaintiff must demonstrate: "(1) [he] belongs to a protected class; (2) [he] sought and was qualified for the promotion; (3) [he] was denied the promotion; and (4) the position [he] sought was filled by someone outside the protected class." Johnson v. Louisiana ex rel. Louisiana Bd. of Sup'rs, 79 Fed.Appx. 684, 686 (5th Cir.2003) (citing Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002)) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)).
Once a plaintiff has made a prima facie case, the defendant then has the burden of producing a legitimate, nondiscriminatory motive for the adverse employment action. Parker v. State of La. Dep't of Educ. Special Sch. Dist., 323 Fed.Appx. 321, 327 (5th Cir.2009). The defendant's burden at this stage is merely one of production-not persuasion. Id.
If the defendant can articulate a reason that, if believed, would support a finding that the action was nondiscriminatory, then the inference of discrimination created by the plaintiff's prima facie case disappears, and the factfinder must decide the ultimate question of whether the plaintiff has proven intentional discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511-12, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The plaintiff must present substantial evidence that the employer's proffered reason is a pretext for discrimination. Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir.2003). To show pretext on summary judgment, "the plaintiff must substantiate his claim of pretext through evidence demonstrating that discrimination lay at the heart of the employer's decision." Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir.2002).
Pretext may be established "either through evidence of disparate treatment or by showing that the employer's proffered explanation is false or `unworthy of credence.'" Laxton, 333 F.3d at 578 (quoting Reeves, 530 U.S. at 143, 120 S.Ct. 2097). "To raise an inference of discrimination, the plaintiff may compare his treatment to that of nearly identical, similarly situated individuals." Bryant v. Compass Group USA Inc., 413 F.3d 471, 478 (5th Cir.2005). To establish disparate treatment, however, a plaintiff must show that the employer gave preferential treatment to another employee under "nearly identical circumstances." Id. Alternatively, "[a]n explanation is false or unworthy of credence if it is not the real reason for the adverse employment action." Laxton, 333 F.3d at 578.
In contrast, the Fifth Circuit has modified the McDonnell Douglas formulation to permit proof that discrimination was one motivating factor among others for an adverse employment action. See generally Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir.2004). At one time, the Fifth Circuit required that a plaintiff
Defendant begins by arguing that Dubois has not demonstrated an adverse employment action. According to Defendant, while Plaintiff claims he was denied a promotion, "there was no promotion to be had. Rather, what occurred was that Plaintiff's coworker was reassigned to a different unit and another person was brought in." Defendant maintains that Carl Lampton and Jesse Anderson essentially switched jobs. Lampton was moved from patrol to narcotics, while Anderson was moved from narcotics to patrol. Hence, according to Defendant, no promotion was available. As to this, the Court first notes that merely because the alleged job was not advertised (i.e., merely because the Defendant moved another individual into the job without announcement) does not automatically lead to the conclusion that Plaintiff Dubois was not passed over for an alleged promotion.
At the outset, the Court notes that the Fifth Circuit has held that "a failure to promote is an adverse employment action." Gordon v. Peters, 2008 WL 162866, at *2 (5th Cir. Jan. 16, 2008). It is undisputed that Lampton, Anderson, and Plaintiff Dubois are all sergeants with the police department. Even when Lampton was moved to the narcotics division, he remained a sergeant and his pay remained the same. In support of its contention that no promotion was offered or given, Defendant points to the deposition testimony of Bobby Lane, wherein Lane testified that Lampton was not "over" Dubois. However, Lampton's deposition testimony stands in stark contrast to this assertion:
In a written letter to Chief Administrator Randy Jones, Dubois also noted as follows:
Dubois further testified in his deposition that Jesse Anderson was in a supervisory position over him prior to Anderson being moved to patrol. Along the same lines, Dubois additionally testified that even though he and Lampton were technically the same "rank," Lampton was in a supervisory position over him. Furthermore, Romelle Matthews advised, via a written letter to Chief Administrator Randy Jones, that Bobby Lane stated,
After reviewing the record, the Court concludes that it cannot decide at this stage in litigation whether there was a promotion to be had in the narcotics division. Accordingly, there is a factual dispute as to whether Plaintiff Dubois can demonstrate of prima facie case of race discrimination under Title VII.
After finding that factual disputes exist as to whether Plaintiff Dubois can demonstrate a prima facie case of racial discrimination, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its decision. Here, Defendant fails to articulate a legitimate, nondiscriminatory reason in its summary judgment motion. Defendant also neglects to provide a pretext analysis;
Plaintiff Dubois brings claims under Section 1981 and Section 1983.
The Court finds that summary judgment should be denied as to both Plaintiff Dubois' Section 1981 claim brought via Section 1983 and Plaintiff's Fourteenth Amendment Equal Protection Claim brought under Section 1983. First, the Court held above that factual questions exist as to whether Plaintiff Dubois was indeed passed over for a promotion. Second, the Court has before it competent summary judgment evidence showing alleged statements from Bobby Lane relevant to the Section 1983 claims. Several police officers — including the Plaintiffs in this action — have alleged that Bobby Lane stated that he was acting at the direction of the Board when he made decisions to the structure of the City of West Point's police department. According to a written statement by Romelle Matthews to Chief Administrator Randy Jones, Bobby Lane allegedly advised as follows:
Furthermore, it is alleged by the Plaintiffs in this action that the Board attempted to adopt a race-based arrest policy.
Under Title VII, it is "an unlawful employment practice for an employer ... to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Plaintiff does not seek to prove his case with direct evidence, instead presenting alleged circumstantial evidence and analyzing his claim under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In order to establish prima facie case that Defendant failed to promote Plaintiff Dubois because of his race, Plaintiff must demonstrate: "(1) [he] belongs to a protected class; (2) [he] sought and was qualified for the promotion; (3) [he] was denied the promotion; and (4) the position [he] sought was filled by someone outside the protected class." Johnson v. Louisiana ex rel. Louisiana Bd. of Sup'rs, 79 Fed.Appx. 684, 686 (5th Cir.2003) (citing Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002)) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)).
Once a plaintiff has made a prima facie case, the defendant then has the burden of producing a legitimate, nondiscriminatory motive for the adverse employment action. Parker v. State of La. Dep't of Educ. Special Sch. Dist., 323 Fed.Appx. 321, 327 (5th Cir.2009). The defendant's burden at this stage is merely one of production-not persuasion. Id.
If the defendant can articulate a reason that, if believed, would support a finding that the action was nondiscriminatory, then the inference of discrimination created by the plaintiff's prima facie case disappears, and the factfinder must decide the ultimate question of whether the plaintiff has proven intentional discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511-12, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The plaintiff must present substantial evidence that the employer's proffered reason is a pretext for discrimination. Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir.2003). To show pretext on summary judgment, "the plaintiff must substantiate his claim of pretext through evidence demonstrating that discrimination lay at the heart of the employer's decision." Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir.2002).
Pretext may be established "either through evidence of disparate treatment or by showing that the employer's proffered explanation is false or `unworthy of credence.'" Laxton, 333 F.3d at 578 (quoting Reeves, 530 U.S. at 143, 120 S.Ct. 2097). "To raise an inference of discrimination, the plaintiff may compare his treatment to that of nearly identical, similarly situated individuals." Bryant v. Compass Group USA Inc., 413 F.3d 471, 478 (5th Cir.2005). To establish disparate treatment, however, a plaintiff must show that the employer gave preferential treatment to another employee under "nearly identical circumstances." Id. Alternatively, "[a]n explanation is false or unworthy of credence if it is not the real reason for the adverse employment
In contrast, the Fifth Circuit has modified the McDonnell Douglas formulation to permit proof that discrimination was one motivating factor among others for an adverse employment action. See generally Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir.2004). At one time, the Fifth Circuit required that a plaintiff present direct evidence of discrimination in order to receive the benefit of a mixed-motive analysis. See Fierros v. Tex. Dep't of Health, 274 F.3d 187, 191 (5th Cir.2001). However, the Supreme Court in Desert Palace, Inc. v. Costa held that Congress's failure to require a heightened burden of proof suggested that courts should not depart from the general rule of civil litigation that "requires a plaintiff to prove his case `by a preponderance of the evidence,' using `direct or circumstantial evidence.'" 539 U.S. 90, 99, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) (quoting Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714 n. 3, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)). Therefore, a plaintiff asserting a Title VII discrimination claim may utilize the mixed-motive analysis whether she has presented direct or circumstantial evidence of discrimination. Id. at 101, 123 S.Ct. 2148; Smith v. Xerox Corp., 602 F.3d 320, 327-28 (5th Cir.2010).
Here, Defendant concedes that Plaintiff Campbell has set forth a prima facie denial of promotion claim. Campbell is a Caucasian male who was qualified for the position as Acting Assistant Chief and the position was filled by Avery Cook (African American). The burden of production thus shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its decision. Defendant contends that Avery Cook was selected due to his "leadership" and "social" skills. In his deposition testimony, Bobby Lane stated, "I just thought Avery had those social skills, those leadership skills I was looking for and Tim does not have it."
An employer's subjective reason for not selecting a candidate, such as a subjective assessment of the candidate's performance, may serve as a legitimate, nondiscriminatory reason for the candidate's non-selection. Alvarado v. Tex. Rangers, 492 F.3d 605, 616 (5th Cir.2007) (recognizing that McDonnell Douglas does not preclude an employer from relying on subjective reasons for its personnel decisions). Such a reason will satisfy the employer's burden of production, however, only if the employer articulates a clear and reasonably specific basis for its subjective assessment. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Patrick v. Ridge, 394 F.3d 311, 316-17 (5th Cir.2004); see also Chapman v. AI Transport, 229 F.3d 1012, 1034 (2000) ("A subjective reason is a legally sufficient, legitimate, nondiscriminatory reason if the defendant articulates a clear and reasonably specific factual basis upon which it based its subjective opinion."); EEOC v. Target Corp., 460 F.3d 946, 957-58 (7th Cir.2006) (agreeing with the Eleventh Circuit that "an employer must articulate reasonably specific facts that explain how it formed its [subjective] opinion of the applicant in order to meet its burden under Burdine"). In Alvarado, a female state trooper applied for a transfer to the Texas Rangers that she did not receive. The Fifth Circuit held that the employer's subjective reason for not selecting a candidate, e.g., a subjective assessment of the candidates' performance during an oral interview, may serve as a legitimate, nondiscriminatory reason for the candidate's non-selection for purposes of the candidate's discrimination claim, but only if the employer articulates a clear and reasonably specific basis for its subjective assessment.
In this case, there are factual questions concerning the subjective criteria articulated by Defendant as its legitimate, nondiscriminatory reason. Defendant's blanket statement that Chief Lane "thought" Avery Cook had better social and leadership skills does not provide the Court with a clear and specific basis to evaluate Defendant's subjective assessment of Plaintiff Campbell. In Lindsey v. Prive Corporation, 987 F.2d 324, 326 (5th Cir.1993), a gentlemen's club failed to promote two waitresses to dancers because they were not "beautiful, gorgeous, and sophisticated." The waitresses sued the club claiming age discrimination. See id. The district court granted summary judgment in favor of the club on the ground that the waitresses had failed to meet its subjective hiring criteria. In reversing the district court's decision, the Fifth Circuit acknowledged that an employer can make employment decisions based on subjective criteria. See id. at 328. However, the court also said that distinguishing legitimate employment decisions based entirely on subjective criteria and those in which subjective criteria serve as pretext for discrimination can only be made by weighing the employer's credibility. See id. at 327-28. "Beauty is in the eye of the beholder and the beholder in this case" is the employer, but the "question left for the judge or jury will not require second guessing of the [club's] personnel decisions but, rather, will require an evaluation of the credibility of the defendant's testimony about the reasons for that decision." Id. at 328. The same rationale is applicable in the case sub judice.
In Bobby Lane's deposition testimony, he testified as follows:
Hence, Lane testified that he did not necessarily even believe Cook to be "more qualified"; rather, Cook apparently just obtained certain subjective "attributes" that Lane was looking for. As far as objective qualifications are concerned, however, the Court notes that while Avery Cook had eight years in law enforcement, Plaintiff Campbell had twenty-four years of experience in law enforcement in the City of West Point. Avery Cook had been in a supervisory position for approximately a year, and Plaintiff Campbell had been in a supervisory position for six years. Furthermore, Avery Cook was a sergeant, and Plaintiff Campbell was a lieutenant. Given all of the above, the Court finds genuine disputes of material facts exist concerning Defendant's legitimate, nondiscriminatory reason. Such factual questions similarly exist as to whether Plaintiff Campbell can demonstrate that Defendant's articulated reason was pretext or a motivating factor
Plaintiff Campbell additionally brings claims under Section 1981 and Section 1983.
The Court finds factual disputes as to both Plaintiff Campbell's Section 1981 claim brought via Section 1983 and Plaintiff's Fourteenth Amendment Equal Protection Claim brought under Section 1983. The analysis is substantially similar to that discussed supra regarding Plaintiff Dubois' racial discrimination claim. Specifically, the Court has before it competent summary judgment evidence demonstrating that Bobby Lane stated that he was acting at the direction of the Board when he made decisions to the structure of the City of West Point's police department. Furthermore, it is alleged by the Plaintiffs in this action that the Board attempted to adopt a race-based arrest policy. The Court has carefully mined the quite voluminous record in this case and cannot hold as a matter of law that Plaintiff Campbell's rights secured by Section 1983 — either brought via Section 1981 or the Equal Protection Clause — were not violated. This case presents numerous conflicting descriptions of a muddled set of facts, and the Court may not make credibility or factual determinations at this stage. For this reason, Defendant's summary judgment motion as to Plaintiff Campbell's racial discrimination claims is denied.
The McDonnell Douglas test is applicable to Title VII unlawful retaliation
Once the plaintiff makes out a prima facie case of retaliation, the burden shifts to the employer to articulate a legitimate, non-retaliatory reason for the employment action. Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir.2008). To survive summary judgment, plaintiff must then offer evidence that (1) the defendant's reason is not true, but is instead a pretext for retaliation (pretext alternative), or (2) the defendant's reason, though true, is only one of the reasons for its conduct, and another motivating factor is retaliation for the plaintiff engaging in protected activity (mixed-motives alternative). See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir.2004); Smith v. Xerox Corp., 602 F.3d 320, 330-33 (5th Cir.2010). However, according to the Fifth Circuit, "[a] plaintiff can only avoid summary judgment on `but for' causation by demonstrating `a conflict in substantial evidence on this ultimate issue.'" Nunley v. City of Waco, 440 Fed.Appx. 275, 280-81 (5th Cir.2011) (quoting Hernandez v. Yellow Transp., Inc., 641 F.3d 118, 129 (5th Cir.2011)). Evidence is "substantial" if it is of a quality and weight such that "reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions." Id.
In Nunley, the Fifth Circuit addressed retaliation post- the court's decision in Smith v. Xerox Corp., 602 F.3d 320 (5th Cir.2010), where the court held that the Price Waterhouse "mixed motive" framework applies to Title VII retaliation cases, and a plaintiff may show that a protected activity was a "motivating" or "substantial" factor. The Fifth Circuit in Smith also dispensed with the previous requirement that a plaintiff offer direct evidence of retaliation in order to proceed on the mixed-motive theory. The plaintiff in Nunley, relying on the Smith decision, argued that a Title VII retaliation claim need only offer evidence that retaliation was a factor, i.e., that the City had "mixed motives," and such evidence may be circumstantial. The Fifth Circuit, responding to such an argument, stated as follows:
Nunley, 440 Fed.Appx. at 281. In short, and according to Nunley, the only thing the mixed-motive analysis does is increase the bar for a defendant to reach before the ultimate burden of proving but-for causation reverts to the plaintiff.
Plaintiff Matthews asserts that he was demoted when he was moved from investigations back to patrol. Matthews maintains that this alleged demotion occurred because he "had opposed a race-based arrest policy, and because he objected to being called one of `Bingham's Boys.'" Defendant, in contrast, contends that Matthews cannot demonstrate a prima facie case of retaliation.
Defendant, in one sentence, contends that Plaintiff has failed to show his demotion was in retaliation for any practice rendered unlawful by Title VII. Defendant neither provides legal authority for its assertion nor any further analysis. Plaintiff, on the other hand, maintains that he opposed implementing a race-based policy and that this constitutes engaging in protected activity. First, the Court finds that disputes of material fact exist as to whether Jasper Pittman and the African-American members of the Board of Selectmen sought to implement such a policy. The Plaintiffs in the case sub judice have asserted that Pittman told Jesse Anderson that the police department was arresting too many African Americans, and not enough Caucasians. Pittman allegedly stated that the City of West Point wanted a balance in the number of African-American arrests and Caucasian arrests. Both Anderson and Romelle Matthews testified that they both refused to consider race when making arrests and, as a result, Pittman allegedly began referring to them as "Bingham's Boys," a term that allegedly contains a racially-offensive connotation. In his deposition testimony, Jasper Pittman acknowledged that he had a conversation with Anderson in February 2009:
After the new Board of Selectmen took office, Matthews and Anderson were both
Second, the Court finds that, assuming the evidence at trial demonstrates that the Board desired to embrace a racially-hostile policy, Plaintiff Matthews engaged in protected activity when he allegedly opposed the implementation of such a policy. Protected activity encompasses opposition to any practice rendered unlawful by Title VII (the "opposition clause"), and participation in Title VII processes (including making a charge, testifying, assisting, or participating in any investigation, proceeding, or hearing under Title VII) (the "participation clause"). 42 U.S.C. 2000e-3(a).
When proceeding under the opposition clause, plaintiffs need not prove that the discriminatory practices alleged were unlawful in fact; but rather that they had a reasonable belief that such conduct constituted unlawful employment practices protected by Title VII. Turner v. Baylor Richardson Med. Cnt., 476 F.3d 337, 348 (5th Cir.2007); De Anda v. St. Joseph Hosp., 671 F.2d 850, 853 n. 2 (5th Cir. 1982). The Court finds this standard met for purposes of summary judgment. See Rogers v. EEOC, 454 F.2d 234, 236 (5th Cir.1971), cert. denied, superseded by statute on other grounds as stated in Harrington v. Harris, 118 F.3d 359, 367 n. 8 (5th Cir.1997) (reversing the lower court's finding that the complainant, a Spanishsurnamed woman, who brought a complaint before the EEOC alleging that the group of optometrists she worked for acted in a discriminatory manner in violation of Title VII by "segregating the patients" and espousing a very broad standard, stating that while "the district court may have viewed lightly the connection between the petitioners' alleged discrimination against its patients and Mrs. Chavez's sensibilities... the relationship between an employee and his working environment is of such significance as to be entitled to statutory protection ... [P]etitioners' failure to direct intentionally any discriminatory treatment toward Mrs. Chavez is simply not material to the finding of an unlawful employment practice.").
Viewing the evidence in the light in the most favorable to the Plaintiff, the Court is unable to hold as a matter of law that Jasper Pittman and the Board did not advise that the City wanted a racial balance in the number of arrestees. Thus, the Court is also unable to conclude as a matter of law that Defendant did not create an employment environment polluted with racially-discriminatory practices. The question thus becomes whether Romelle Matthews, as an African American, has a right
In Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), the Supreme Court explained that an adverse employment action in the Title VII retaliation context depends on whether the act was materially adverse, meaning that it would "have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 68, 126 S.Ct. 2405 (internal quotation marks and citation omitted). "Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances." Id. at 71, 126 S.Ct. 2405 (internal quotation marks and citation omitted).
Defendant asserts that Plaintiff Matthews cannot demonstrate that he suffered an adverse employment action when he was allegedly demoted. More specifically, Defendant maintains Plaintiff Matthews' title, rank, and pay were not affected when he was moved from investigations to patrol. However, "`to be equivalent to a demotion, a transfer need not result in a decrease in pay, title, or grade; it can be a demotion if the new position proves objectively worse-such as being less prestigious
Here, Lane allegedly informed Matthews that he was no longer captain, but instead was just an "acting captain." Lane also allegedly advised Matthews that he would be returning to patrol, he would no longer have a car, and his responsibilities would be taken away. Matthews contends Lane also told him that as long as his pay was not affected, this could not be considered a demotion. Matthews further asserts that this alleged demotion "put [him] back as a status" and that Lane "had — one of the patrolman [Sean Keller] actually running [his] shift." Given this, and the record in its entirety, the Court finds factual disputes in existence as to whether Matthews was demoted when he was moved from investigations to patrol.
As to the third prong, in order to establish a `causal link' as required by the third prong of the prima facie case, a plaintiff does not have to prove that his protected activity was the sole factor motivating the employer's challenged actions. Gee v. Principi, 289 F.3d 342, 345 (5th Cir.2002). Close timing between an employee's protected activity and an adverse action against the employee may provide the causal connection needed to make out a prima facie case of retaliation. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam). Even beyond temporal proximity alone,
Nowlin v. Resolution Trust Corp., 33 F.3d 498, 507-09 (5th Cir.1994).
Defendant contends that there is no temporal proximity; thus, Plaintiff Matthews cannot establish a prima facie case of retaliation. Defendant provides no further analysis of the causal link prong beyond this single sentence. The Court acknowledges that the temporal proximity in this action is attenuated when viewed in isolation; however, when viewed in context, the attenuation is diminished. Jasper Pittman allegedly made race-based statements regarding the arrest policy of the
The Court finds the temporal proximity of the events occurring in this case at least minimally indicative of circumstantial evidence of retaliation, especially when coupled with the other evidence present in this action. Plaintiff Matthews appears to have had an exemplary employment record, as he had never been written up or received any complaints prior to being allegedly demoted by Lane. After this alleged demotion, Matthews was written up by Lane approximately four times in three weeks. Plaintiff contends the reasons for such write ups were "frivolous." The Court finds Plaintiff has — for purposes of summary judgment — met his burden of demonstrating a prima facie case of retaliation.
After concluding that, for purposes of summary judgment, Plaintiff has presented a prima facie case of retaliation, the burden shifts to Defendant to articulate a legitimate, non-retaliatory reason for the employment action. Here, Defendant does not provide a legitimate, non-retaliatory reason for the alleged demotion. Rather, Defendant only contends Plaintiff cannot demonstrate a prima facie case. Due to this, Defendant also neglects to urge through its summary judgment motion that Plaintiff Matthews cannot prove pretext,
Matthews appears to have worked for "a couple of weeks in patrol" before he was suspended and eventually terminated. According to Matthews, after being allegedly demoted, Bobby Lane learned that he was preparing materials in order to file a charge with the EEOC. Matthews maintains that Lane found the back page of a letter written to the EEOC, and Lane questioned him about the letter. After such questioning, Lane allegedly advised Matthews that he was suspended without pay and Lane was seeking his termination with the Board. At a subsequent meeting of the Mayor and the Board of Selectmen, held on December 28, 2009, the Board voted 3-2 to terminate Plaintiff Matthews. Defendant contends that Matthews cannot demonstrate a prima facie case of retaliation. More specifically, Defendant argues that Plaintiff Matthews cannot demonstrate
Protected activity encompasses opposition to any practice rendered unlawful by Title VII (the "opposition clause"), and participation in Title VII processes (including making a charge, testifying, assisting, or participating in any investigation, proceeding, or hearing under Title VII) (the "participation clause"). 42 U.S.C. 2000e-3(a). When proceeding under the participation clause, there is no "reasonable belief" requirement; however, the plaintiff may be required to show that he made his claim alleging discrimination in good faith. See Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1007 (5th Cir.1969) (holding that letter to EEOC was protected activity even though it contained false, but not malicious, accusations); Mattson v. Caterpillar, Inc., 359 F.3d 885, 891-92 (7th Cir.2004) (holding that a good faith, reasonable requirement applies to retaliation claims based on the participation clause). The Court finds that Plaintiff Matthews engaged in protected activity when he prepared a letter and filed a charge with the EEOC and informed Lane of this fact.
Plaintiff Matthews' suspension and termination constitute an adverse employment action within the context of Title VII. This point appears to be undisputed between the parties.
As to the third prong, in order to establish a `causal link' as required by the third prong of the prima facie case, a plaintiff does not have to prove that his protected activity was the sole factor motivating the employer's challenged actions. Gee v. Principi, 289 F.3d 342, 345 (5th Cir.2002). Close timing between an employee's protected activity and an adverse action against the employee may provide the causal connection needed to make out a prima facie case of retaliation. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam). Even beyond temporal proximity alone,
Here, Plaintiff maintains that when he informed Lane he was filing an EEOC charge, Lane immediately suspended him and advised that he was seeking his termination. Thus, the timeline reflects that Matthews both filed and allegedly informed Lane of the EEOC charge in December 2009, and he was suspended immediately and subsequently discharged, also in December 2009. The Court finds the close timing alone minimally sufficient for purposes of the motion at bar to establish a prima facie case of retaliation.
After concluding that, for purposes of summary judgment, Plaintiff has presented a prima facie case of retaliation, the burden shifts to Defendant to articulate a legitimate, non-retaliatory reason for the employment action. Here, Defendant maintains that it suspended and terminated Plaintiff Matthews due to insubordination, conduct unbecoming of an officer, and poor job performance. This articulated reason satisfies Defendant's burden of production.
In order to survive summary judgment, Plaintiff must offer evidence that (1) the defendant's reason is not true, but is instead a pretext for retaliation (pretext alternative), or (2) the defendant's reason, though true, is only one of the reasons for its conduct, and another motivating factor is retaliation for the plaintiff engaging in protected activity (mixed-motives alternative). The Court finds that Plaintiff has met his burden at the summary judgment stage of demonstrating pretext.
First, Matthews alleges the following exchange took place between him and Bobby Lane:
Second, Plaintiff contends that Defendant's legitimate, non-retaliatory reason is unworthy of credence. Lane filed approximately four written complaints against Matthews in three weeks; however, Matthews had not been reprimanded or written up in two and a half years prior to this.
Plaintiff also brings his retaliation claim based on his demotion under 42 U.S.C. § 1981.
The Supreme Court has held that Section 1981 encompasses "the claim of an individual (black or white) who suffers retaliation because he has tried to help a different individual, suffering direct racial discrimination, secure his § 1981 rights." See CBOCS West, Inc. v. Humphries, 553 U.S. 442, 452, 128 S.Ct. 1951, 1958, 170 L.Ed.2d 864 (2008). Recovery against a municipality under § 1981 may not be predicated on a theory of respondeat superior. Monell v. Dep't of Soc. Serv. of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Evans v. City of Houston, 246 F.3d 344, 357 (5th Cir.2001). Rather, a municipality may be held liable under § 1981 for the deprivation of rights guaranteed by the Constitution or federal law only if the deprivation was the result of an official policy or custom. Evans, 246 F.3d at 358 (applying "custom or policy" test for municipality liability under 42 U.S.C. § 1983 to claim against city under § 1981).
The Fifth Circuit has defined an "official policy" as
Id. (internal citations and quotation marks omitted, brackets in original).
Plaintiff has presented factual disputes as to whether he was retaliated against for opposing an alleged race-based policy stemming from the final policymaker for the City: the Board of Selectmen. While admitting that the Board is the final policymaker for personnel matters relating to the City of West Point, Defendant contends that a Board member individually (referring to Jasper Pittman) cannot make policy as a matter of law. It is logical that a Board may transact official business only through a quorum consisting of a majority of its members. Here, however, there is competent summary judgment evidence illustrating that Lane was allegedly acting at the direction of the Board, as opposed to at the direction of one individual board
As it relates to the alleged race-based arrest policy, Defendant contends that the alleged statements giving rise to allegations of such a policy came from one Board member (Jasper Pittman), and the statements are not reflected in the Board minutes. While the Court does not have before it concrete evidence that each and every member of the Board of Selectmen allegedly sought to adopt an "unofficial" race-based arrest policy, the Court finds that, in light of the record in its entirety, there is circumstantial evidence demonstrating that an African-American Board member (Jasper Pittman) allegedly approached Jesse Anderson about the police department arresting too many African Americans and not enough Caucasians. There are at least factual disputes in existence as to whether the City wanted a racial "balance" in the number of arrests, and that Matthews opposed the implementation of such a policy. The evidence taken as a whole creates fact issues as to whether Plaintiff Matthews' rights secured by Section 1981 (brought via Section 1983) were violated when he was allegedly demoted. The Court may not make credibility or factual determinations at this stage in litigation; thus, Defendant's motion for summary judgment as to this claim is denied.
Plaintiff also brings his retaliation claim based on his termination under 42 U.S.C. § 1981. Section 1981(a) provides in relevant part:
The Supreme Court has held that Section 1981 encompasses "the claim of an individual (black or white) who suffers retaliation because he has tried to help a different individual, suffering direct racial discrimination, secure his § 1981 rights." See CBOCS West, Inc. v. Humphries, 553 U.S. 442, 452, 128 S.Ct. 1951, 1958, 170 L.Ed.2d 864 (2008). Recovery against a municipality under § 1981 may not be predicated on a theory of respondeat superior. Monell v. Dep't of Soc. Serv. of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Evans v. City of Houston, 246 F.3d 344, 357 (5th Cir.2001). Rather, a municipality may be held liable under § 1981 for the deprivation of rights guaranteed by the Constitution or federal law only if the deprivation was the result of an official policy or custom. Evans, 246 F.3d at 358 (applying "custom or policy" test for municipality liability under 42 U.S.C. § 1983 to claim against city under § 1981).
The Fifth Circuit has defined an "official policy" as
Id. (internal citations and quotation marks omitted, brackets in original). Here, Plaintiff Matthews' termination claim falls on different footing than his demotion claim. Matthews does not allege that he
Plaintiff also brings his retaliation claims pursuant to the Equal Protection Clause of the Fourteenth Amendment under 42 U.S.C. § 1983. The Equal Protection Clause provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1. "This is not a command that all persons be treated alike but, rather, `a direction that all persons similarly situated should be treated alike.'" Artway v. Attorney Gen. of N.J., 81 F.3d 1235, 1267 (3d Cir.1996) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)); accord Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); Priester v. Lowndes Cnty., 354 F.3d 414, 424 (5th Cir.2004); Beeler v. Rounsavall, 328 F.3d 813, 816 (5th Cir.), cert. denied, 540 U.S. 1048, 124 S.Ct. 820, 157 L.Ed.2d 697 (2003); Bryan v. City of Madison, 213 F.3d 267, 276 (5th Cir.2000), cert. denied, 531 U.S. 1145, 121 S.Ct. 1081, 148 L.Ed.2d 957 (2001); Mayabb v. Johnson, 168 F.3d 863, 870 (5th Cir.), cert. denied, 528 U.S. 969, 120 S.Ct. 409, 145 L.Ed.2d 319 (1999); Stefanoff v. Hays Cnty., 154 F.3d 523, 525-26 (5th Cir.1998). "`[W]henever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution's guarantee of equal protection.'" Grutter v. Bollinger, 539 U.S. 306, 327, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 229-30, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995)).
A municipality is a "person" subject to suit under Section 1983. See
Here, Plaintiff Matthews has expressly disavowed any discrimination claims brought in this action. See Docket [83]. Thus, Plaintiff's equal protection claim is based solely on retaliation.
The McDonnell Douglas test is applicable to Title VII unlawful retaliation cases. Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir.2000). A plaintiff establishes a prima facie case of retaliation under 42 U.S.C. § 2000e-3(a) by showing that: (1) he engaged in an activity protected by Title VII; (2) he was subjected to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action. See Stewart v. Mississippi Transp. Comm'n, 586 F.3d 321, 331 (5th Cir.2009).
Once the plaintiff makes out a prima facie case of retaliation, the burden shifts to the employer to articulate a legitimate, non-retaliatory reason for the employment action. Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir.2008). To survive summary judgment, plaintiff must then offer evidence that (1) the defendant's reason is not true, but is instead a pretext for retaliation (pretext alternative), or (2) the defendant's reason, though true, is only one of the reasons for its conduct, and another motivating factor is retaliation for the plaintiff engaging in protected activity (mixed-motives alternative). See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir.2004); Smith v. Xerox Corp., 602 F.3d 320, 330-33 (5th Cir.2010). However, according to the Fifth Circuit, "[a] plaintiff can only avoid summary judgment on `but for' causation by demonstrating `a conflict in substantial evidence on this ultimate issue.'" Nunley v. City of Waco, 440 Fed. Appx. 275, 280-81 (5th Cir.2011) (quoting Hernandez v. Yellow Transp., Inc., 641 F.3d 118, 129 (5th Cir.2011)). Evidence is "substantial" if it is of a quality and weight such that "reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions." Id.
In Nunley, the Fifth Circuit addressed retaliation post- the court's decision in Smith v. Xerox Corp., 602 F.3d 320 (5th Cir.2010), where the court held that the Price Waterhouse "mixed motive" framework applies to Title VII retaliation cases, and a plaintiff may show that a protected activity was a "motivating" or "substantial" factor. The Fifth Circuit in Smith also dispensed with the previous requirement that a plaintiff offer direct evidence of retaliation in order to proceed on the mixed-motive theory. The plaintiff in Nunley, relying on the Smith decision, argued that a Title VII retaliation claim need only offer evidence that retaliation was a factor, i.e., that the City had "mixed motives," and such evidence may be circumstantial. The Fifth Circuit, responding to such an argument, stated as follows:
Nunley, 440 Fed.Appx. at 281. In short, and according to Nunley, the only thing the mixed-motive analysis does is increase the bar for a defendant to reach before the ultimate burden of proving but-for causation reverts to the plaintiff.
Plaintiff Anderson asserts that he was demoted when he was moved from narcotics back to patrol. Anderson maintains that this alleged demotion occurred because he had opposed a race-based arrest policy, and because he objected to being called a racially-offensive name. Defendant, in contrast, appears to contend that Anderson cannot demonstrate a prima facie case of retaliation.
The Court finds that the analysis required for Plaintiff Anderson's action is substantially similar to the analysis discussed supra concerning Plaintiff Matthews' claims of retaliation. Disputes of material fact exist as to whether Jasper Pittman and the African-American members of the Board sought to implement a race-based arrest policy. The Plaintiffs have asserted that Pittman told Anderson that the police department was arresting too many African Americans, and not enough Caucasians. Pittman allegedly stated that the City of West Point wanted a balance in the number of African-American
After the new Board took office, Matthews and Anderson were both allegedly demoted. Defendant contends that Jasper Pittman was only making an inquiry about the racial composition of arrestees within the City, as opposed to setting forth any type of policy. The evidence at trial may very well prove this to be true; however, the Court cannot hold this as a matter of law at this stage in litigation.
In Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), the Supreme Court explained that an adverse employment action in the Title VII retaliation context depends on whether the act was materially adverse, meaning that it would "have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 68, 126 S.Ct. 2405 (internal quotation marks and citation omitted). "Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances." Id. at 71, 126 S.Ct. 2405 (internal quotation marks and citation omitted).
Defendant asserts that Plaintiff Anderson cannot demonstrate that he suffered an adverse employment action when he was allegedly demoted. More specifically, Defendant maintains Plaintiff Anderson's title, rank, and pay were not affected when he was moved from narcotics to patrol. However, "`to be equivalent to a demotion, a transfer need not result in a decrease in pay, title, or grade; it can be a demotion if the new position proves objectively worse-such as being less prestigious or less interesting or providing less room for advancement.'" Alvarado v. Texas Rangers, 492 F.3d 605, 613 (5th Cir. 2007) (quoting Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir.1999)) (citing Forsyth v. City of Dallas, 91 F.3d 769, 774 (5th Cir.1996)); Click v. Copeland, 970 F.2d 106, 109 (5th Cir.1992); see also Serna v. City of Antonio, 244 F.3d 479, 483 (5th Cir.2001) ("A transfer, even without an accompanying cut in pay or other tangible benefits, may constitute an adverse employment action...."); Hinson v. Clinch County, Ga. Bd. of Educ., 231 F.3d 821, 829 (11th Cir.2000) ("In a Title VII case, a transfer to a different position can be `adverse' if it involves a reduction in pay, prestige or responsibility.").
Defendant appears to contend that Anderson was never in a supervisory position over narcotics; thus, he was not "demoted" when moved back to patrol. As discussed supra under the claims asserted by Plaintiff Dubois, Bobby Lane informed the police department at the November 2009 meeting that Plaintiff Anderson would be returning to patrol and Carl Lampton (African American) would replace Anderson in narcotics. In a written
Dubois further testified in his deposition that Jesse Anderson was in a supervisory position over him prior to Anderson being moved to patrol. Lampton's deposition testimony also supports the fact that Anderson's former position in narcotics may have been "supervisory." Lampton testified as follows:
Given this, factual disputes exist as to whether the position formerly filled by Anderson was a supervisory position within the narcotics division. As such, the Court cannot hold as a matter of law that Anderson's move back to patrol was not a demotion.
As to the third prong, in order to establish a `causal link' as required by the third prong of the prima facie case, a plaintiff does not have to prove that his protected activity was the sole factor motivating the employer's challenged actions. Gee v. Principi, 289 F.3d 342, 345 (5th Cir.2002). Close timing between an employee's protected activity and an adverse action against the employee may provide the causal connection needed to make out a prima facie case of retaliation. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam). Even beyond temporal proximity alone,
Nowlin v. Resolution Trust Corp., 33 F.3d 498, 507-09 (5th Cir.1994).
Defendant contends that there is no temporal proximity; thus, Plaintiff Anderson cannot establish a prima facie case of retaliation. Defendant provides no further analysis of the causal link prong. The Court acknowledges that the temporal proximity in this action is attenuated when viewed in isolation; however, when viewed
Further, in the spring of 2009, Jasper Pittman allegedly confronted Plaintiff Matthews and accused him of racially profiling African Americans. Plaintiff Matthews has also stated that, around the same time, Bingham, the former police chief, told him that he was getting a lot of "pressure" about the need to arrest more Caucasians. Matthews avers that he told Bingham that "it doesn't operate like that." Shortly thereafter, in July 2009, the racial composition of the Board of Selectmen changed to majority African American. Subsequently, Bingham (Caucasian) was terminated in August 2009 and, soon thereafter, he was replaced by Lane (African American). Right after Lane became the Acting Chief of Police, Anderson was allegedly demoted. The Court finds the temporal proximity of the events occurring in this case at least minimally indicative of circumstantial evidence of retaliation, especially when coupled with the other evidence present in this action, including Anderson's past disciplinary and employment record. Therefore, the Court finds Plaintiff has — for purposes of summary judgment — met his burden of demonstrating a prima facie case of retaliation.
After concluding that, for purposes of summary judgment, Plaintiff has presented a prima facie case of retaliation, the burden shifts to Defendant to articulate a legitimate, non-retaliatory reason for the employment action. Here, Defendant does not provide a legitimate, non-retaliatory reason for the alleged demotion. Rather, Defendant only contends Plaintiff cannot demonstrate a prima facie case. Due to this, Defendant also neglects to urge through its summary judgment motion that Plaintiff Anderson cannot prove pretext,
Plaintiff Anderson also alleges his retaliation claims based on his demotion under 42 U.S.C. § 1981.
The Supreme Court has held that Section 1981 encompasses "the claim of an individual (black or white) who suffers retaliation because he has tried to help a different individual, suffering direct racial discrimination, secure his § 1981 rights." See CBOCS West, Inc. v. Humphries, 553 U.S. 442, 452, 128 S.Ct. 1951, 1958, 170 L.Ed.2d 864 (2008). Recovery against a municipality under § 1981 may not be predicated on a theory of respondeat superior. Monell v. Dep't of Soc. Serv. of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Evans v. City of Houston, 246 F.3d 344, 357 (5th Cir.2001). Rather, a municipality may be held liable under § 1981 for the deprivation of rights guaranteed by the Constitution or federal law only if the deprivation was the result of an official policy or custom. Evans, 246 F.3d at 358 (applying "custom or policy" test for municipality liability under 42 U.S.C. § 1983 to claim against city under § 1981).
The Fifth Circuit has defined an "official policy" as
Id. (internal citations and quotation marks omitted, brackets in original). Here, Defendant has not made a motion for summary judgment on Plaintiff's Section 1981 retaliation claim. Defendant's motion for summary judgment concerning Plaintiff's 1981 action is only one for racial discrimination.
Plaintiff also brings his retaliation claim pursuant to the Equal Protection Clause of the Fourteenth Amendment under 42 U.S.C. § 1983. The Equal Protection Clause provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1. "This is not a command that all persons be treated alike but, rather, `a direction that all persons similarly situated should be treated alike.'" Artway v. Attorney Gen. of N.J., 81 F.3d 1235, 1267 (3d Cir.1996) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)); accord Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); Priester v. Lowndes Cnty., 354 F.3d 414, 424 (5th Cir.2004); Beeler v. Rounsavall, 328 F.3d 813, 816 (5th Cir.), cert. denied, 540 U.S. 1048, 124 S.Ct. 820, 157 L.Ed.2d 697 (2003); Bryan v. City of Madison, 213 F.3d 267, 276 (5th Cir.2000), cert. denied, 531 U.S. 1145, 121 S.Ct. 1081, 148 L.Ed.2d 957 (2001); Mayabb v. Johnson, 168 F.3d 863, 870 (5th Cir.), cert. denied, 528 U.S. 969, 120 S.Ct. 409, 145 L.Ed.2d 319 (1999); Stefanoff v. Hays Cnty., 154 F.3d 523, 525-26 (5th Cir.1998). "`[W]henever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution's guarantee of equal protection.'" Grutter v. Bollinger, 539 U.S. 306, 327, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (quoting Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 229-30, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995)).
A municipality is a "person" subject to suit under Section 1983. See Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A local government entity may be sued "if it is alleged to have caused a constitutional tort through `a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.'" City of St. Louis v. Praprotnik, 485 U.S. 112, 121, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (quoting Monell, 436 U.S. at 690, 98 S.Ct. 2018). Alternatively, municipal liability may attach where the constitutional deprivation is pursuant to a governmental custom, even if such custom has not received formal approval. Monell, 436 U.S. at 690-91, 98 S.Ct. 2018. "[M]unicipal liability under Section 1983 requires proof of three elements: a policymaker; an official policy; and a violation of constitutional rights whose moving force is the policy or custom." Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.2001) (citation omitted).
Here, Plaintiff Anderson has expressly disavowed any discrimination claims brought in this action. See Docket [83]. Thus, Plaintiff's equal protection claim is based solely on retaliation.
As Judge Jordan has recently noted, "the Equal Protection Clause does not preclude workplace retaliation." Robinson v. Jackson Public School Dist., 2011 WL 198127, at *5 (S.D.Miss. Jan. 20, 2011); see also, e.g., Teigen v. Renfrow, 511 F.3d 1072, 1086 (10th Cir.2007) ("The mere illegality of a retaliatory action under a separate body of law does not make the resulting classification so illegitimate, irrational, or arbitrary as to violate the Equal Protection Clause"); R.S. W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 440 (6th Cir. 2005); Watkins v. Bowden, 105 F.3d 1344 (11th Cir.1997) (per curiam) ("A [ ] retaliation claim, however, simply does not implicate the Equal Protection Clause."); Boyd v. Illinois State Police, 384 F.3d 888, 898 (7th Cir.2004); Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir.1996) ("[W]e know of no court that has recognized a claim under the equal protection clause for retaliation following complaints of racial discrimination,"); Ratliff v. DeKalb County, 62 F.3d 338, 340-41 (11th Cir.1995) (reversing denial of qualified immunity on equal protection retaliation claim because "[t]he right to be free from retaliation [for making complaints of discrimination] is clearly established as a First Amendment right and as a statutory right under Title VII; but no clearly established right exists under the Equal Protection Clause to be free from retaliation"); Gray v. Lacke, 885 F.2d 399, 414 (7th Cir.1989), cert. denied, 494 U.S. 1029, 110 S.Ct. 1476, 108 L.Ed.2d 613 (1990) ("Gray's right to be free from retaliation for protesting sexual harassment and sex discrimination is a right created by Title VII, not the equal protection clause."); Yatvin v. Madison Metro. Sch. Dist., 840 F.2d 412, 418-19 (7th Cir. 1988); Tafoya v. Adams, 816 F.2d 555, 558 (10th Cir.), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 108 (1987); Smith v. City of Easton, 2010 WL 413051, at *4 (E.D.Tex. Jan. 27, 2010); Tinoco v. Raleeh, 2006 WL 27287, at *2 (E.D.Tex. Jan. 5, 2006); Cordova v. City of Mansfield, 2006 WL 2513923, at *7 (W.D.La. Aug. 29, 2006) ("[A]s a matter of law, there is no such thing as a retaliation claim under the Equal Protection Clause[.]"); Gates v. City of Dallas, 1998 WL 401602, at *4-5 (N.D.Tex. July 15, 1998) (noting that "retaliation does not support an equal protection claim" and that the plaintiffs' "retaliation-based Equal Protection Clause claim is meritless as a matter of law"). Thus, Anderson's retaliation claim is not actionable under § 1983 via the Fourteenth Amendment's Equal Protection Clause.
For the reasons stated above, Defendant's Motions for Summary Judgment [50, 52, 55, 59] are GRANTED in part and DENIED in part:
The Motion for Summary Judgment [52] as to Plaintiff Dubois is DENIED in its entirety.
The Motion for Summary Judgment [50] as to Plaintiff Campbell is DENIED in its entirety.
The Motion for Summary Judgment [59] as to Plaintiff Mathews is GRANTED in part and DENIED in part. The motion is DENIED as to Plaintiff Matthews' Title VII retaliation claims for demotion and suspension/termination. The motion is DENIED as to Plaintiff Matthews' Section 1981 retaliation claim based on his alleged demotion brought pursuant to Section 1983. The motion is GRANTED as to Plaintiff Matthews' Section 1981 retaliation claim based on his suspension/termination brought pursuant to Section 1983. The motion is GRANTED as to Plaintiff Matthews'
The Motion for Summary Judgment [55] as to Plaintiff Anderson is GRANTED in part and DENIED in part. The motion is DENIED as to Plaintiff Anderson's Title VII retaliation claim. The motion is DENIED as to Plaintiff Anderson's Section 1981 retaliation claim brought pursuant to Section 1983. The motion is GRANTED as to Plaintiff Anderson's retaliation claim based on his alleged demotion brought under the Equal Protection Clause of the Fourteenth Amendment pursuant to Section 1983.
While Defendant failed to raise this issue, the Court notes that this could presumably impact Plaintiff Dubois' claim for damages.
