SHARON LOVELACE BLACKBURN, District Judge.
This case is presently pending before the court on defendants' Motion for Summary Judgment. (Doc. 18.)
Pursuant to FED. R. CIV. P. 56(a), summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings and show that there is a genuine issue of fact for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Fed. R. Civ. P. 56(c)(1); see also Clark, 929 F.2d at 608 ("it is never enough simply to state that the non-moving party cannot meet its burden at trial").
In deciding a motion for summary judgment, the court's function is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. "[C]ourts are required to view the facts and draw reasonable inferences `in the light most favorable to the party opposing the [summary judgment] motion.'" Scott v. Harris, 550 U.S. 372, 378 (2007)(quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam)). Nevertheless, the non-moving party "need not be given the benefit of every inference but only of every reasonable inference." Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999)(citing Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988)); see also Scott, 550 U.S. at 380 ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.").
Plaintiff Robert Green was hired by defendant City of Northport as its Chief of Police on April 17, 2006. (Doc. 19-1 at 27.) The Chief of Police is responsible for the organization and efficient operation of the Northport Police Department. (Id. at 164.)
At the time he was hired, Green acknowledged receipt of the City's Anti-Harassment Policy, effective March 9, 2001. (Doc. 19-1, Def. Exh. 9, at 271.) At the same time, he acknowledged that he had "New Employee Orientation," during which the anti-harassment policy was explained. (Id.) According to the City's policy, "Harassment consists of unwelcome conduct whether verbal, physical, or visual." (Doc. 19-1, Def. Exh. 9, at 272.) The procedures established for reporting harassment are set forth in the policy as follows:
(Id. at 273 [emphasis added].) The City's Personnel Policies and Procedures apply to all police department employees. (Doc. 19-3, Exh. 5, at 229.)
Defendant Scott Collins, Northport's City Administrator, began work on December 15, 2008.
On January 6, 2009, Collins came to Green and stated he had two complaints, one from Mayor Bobby Herndon about Green allegedly using a curse word at a speaking engagement and a second about Green driving a BMW that had been confiscated by the Police Department. (Doc. 19-1 at 71-74.) Green testified that he felt harassed by Collins because he had "never received any complaints of any kind and on his second day on the job
Green testified "there is a possibility" that Herndon made up his complaint about plaintiff's use of a curse word in public because, with the change in city administration, Herndon may have wanted a new Chief of Police. (Id. at 100.) According to Green, approximately one week after he was elected, Herndon had said to said Green, "[`]Chief, you are the exact person I want to see.[`] He said, [`H]ave you heard that I am a member of the Ku Klux Klan?[`]" (Id. at 99.) Green said, "No," and Herndon then asked, "Do you think that I am a member of the KKK," to which plaintiff replied, "I don't know; that's what I have heard." (Id.)
Green was driving a BMW that had been confiscated in a drug raid. (Doc. 19-7 at 352.) On January 6, 2009, Collins told Green not to drive the BMW to conferences or "home." (Doc. 19-1 at 89, 92.) He lived in an apartment in Northport during the week and he drove the BMW to his Northport apartment. (Id. at 87, 92.) Green testified that he interpreted Collins's instructions as telling him not to drive the BMW to his home in Selma. (Id. at 86-87.) He continued to drive the BMW to his Northport apartment.
On May 20, 2009, Collins sent Green an email on May 20, 2009, regarding Green's driving of the BMW; this email stated:
(Doc. 22-1 at 2.) Green responded, "I was under the impression that you did not want me to drive the BMW to Selma. I always drive the BMW to my apartment in Northport." (Id.) Thereafter, Collins took the BMW and gave it to the West Alabama narcotics squad. (Doc. 19-7 at 354.)
Collins sent a memorandum to all department heads on February 25, 2009, informing them that all final personnel decisions, including discipline, were to be made by him. (Doc. 22-17 at 2.) He testified that, as City Administrator, he had the authority to correct any action of a department heads that violated City policy. (Doc. 19-7 at 211-12.)
On March 20, 2009, Collins sent an email to all department heads, asking for all employees' time sheets. (Doc. 19-8, Pl. Exh. 48, at 7.) He also told the department heads, "[B]eginning next pay period I will need to review and sign all department head time sheets and leave requests." (Id.) Green responded:
(Id.)
Collins sent Green a reply, which stated that he was trying to get "some uniformity" in the payroll process. (Id.) He also stated, "All department heads, including me, have to submit a time sheet including all time off taken. And know this, regardless of what has been done at other agencies this is the process that all of us will follow." (Id.)
In his deposition, Green testified to a number of actions taken by Collins. Green testified that Collins undermined his authority "[b]y performing those tasks that should have been performed by me," including changing the striping on police cars, sitting on his purchase order, and withholding the psychological reports. (Id. at 157-59.) He testified that Collins sat on his purchase orders for three to six weeks at a time. (Id. at 158.)
The Northport Police Department Policies and Procedures Manual contains the procedures for Psychological Screening, that states at § 2.3.2:
(Doc. 22-11 at 2; see also doc. 19-3 at 24-26.) An applicant received a psychological evaluation only after he or she had been offered a position. (Doc. 19-3 at 30.) The purpose of a psychological evaluation is to make sure that the City has fit applicants to fill the positions of police officer. (Doc. 19-7 at 159.)
Green had received all the psychological examination reports before Collins became City Administrator. (Doc. 19-1 at 212-13.) He contends this undermined his authority. (Id. at 157-59, 211-12.) He complained to Collins and Collins told Green he was not authorized to receive the reports. (Id. at 147.) Thereafter, Green received an e-mail from the Human Resources department saying the applicant had passed or failed the psychological examination. (Id. at 213-14.)
Without Green's input, Collins made decisions about changing the appearance of the police vehicles by changing the striping on the vehicles. (Doc. 19-1 at 157-60.) Green testified that the striping of police vehicles had been an "understood responsibility" of the Chief of Police because he was responsible for the organization and efficient operation of the Police Department. (Id. at 163-64.) After becoming City Administrator, Collins started ordering police vehicles. (Id. at 161-62.)
Collins interviewed an applicant for a bailiff position without informing Green of the interview or including him in the interview. (Doc. 19-1 at 160.) According to Green, the position of bailiff is a sworn officer position, and like a police officer position, it comes under the supervision of the Chief of Police. (Id. at 197-98.) Green was the only person who could order the bailiff a badge and gun. (Id. at 199-200.) Green told Collins the bailiff would have to be placed under the supervision of the Police Chief and Collins agreed. (Id.)
Collins sent some of the police officers to a supervisor's school despite Green's objections. (Id. at 160.) Also, Green testified that Collins would not allow him to promote an officer to sergeant and an officer to lieutenant even though Green needed to make these promotions. (Doc. 19-1 at 347.) Green wanted to offer the promotional exam because there was an officer who was scheduled to leave to work for another employer and Green needed to replace this officer ranking position. (Id. at 347-48.) Also, he had a vacant lieutenant position he needed to fill. (Id. at 348-49.) Green talked to Collins about filling the positions and Collins told Green to hold up on making the promotions. (Id. at 349-50.)
Green testified that he was forced to supervise three problem employees, two animal control officers and one environmental officer, that no one else in the City wanted to supervise. (Id. at 492.) Complaints were lodged frequently against these employees. No other department heads wanted to supervise these employees. (Id.) Other department heads made jokes about Green because he had been assigned these three employees to supervise. (Id. at 493-94.)
On May 1, 2009, Collins gave Green a letter regarding allegations against Green. (Doc. 22-10 at 2.) This letter stated:
(Id. [emphasis in original].)
Green testified, "[A] week later I asked [Collins] about this letter that he had presented me with all these charges and he tells me to forget about them." (Doc. 19-1 at 317.) Green testified that he believed Collins sent the letter to try to force him out as Police Chief. (Id.)
Green's relationship with Assistant Police Chief Sharon Crowder was good until around the time she questioned him about an employee job assignment in February 2009, and again when she appealed his one-day suspension given for an accident in April 2009, when, according to Green, Collins let Crowder jump the chain of command. (Doc. 19-1 at 289-92, 541.) The City of Northport Police Department has a policy regarding the chain of command. (See doc. 22-15 at 2.) This policy states, "The chain of command within the police department is intended to provide a clear avenue for communication between [s]upervisors and subordinate officers, and to provide established methods of appeal, when conflicts exist." (Id.)
On February 25, 2009, Crowder sent Green an email suggesting that Stacy Simerly, a part-time evidence custodian, be removed from the supervision of Janis Green, Chief Green's Administrative Assistant, and be placed under the supervision of the Criminal Investigation Division [CID] Sergeant. (Doc.19-8, Def. Exh. 49, at 36; doc. 19-1 at 451.) Green responded:
(Id. [emphasis in original].)
Green testified that Janis Green and Stacy Simerly had complained to him about Crowder. (Doc. 19-1 at 542.) Simerly had complained Crowder did not like her. (Id.) Janis Green had also complained that Crowder did not like her and she told Green that Crowder always gave her the cold shoulder. (Id.)
Crowder testified that she did not know there was tension between her and Simerly and Janis Green. (Doc. 19-3 at 81.) However, she did not discuss the issue with Green because he had told her he was going to avoid her. (Id. at 332-33.) Despite Green's avoidance strategy, Crowder continued to meet with Green when he called a meeting and continued to handle police department business. (Id. at 98.)
Crowder met with Collins regarding the "avoidance strategy" email on February 27, 2009. (Doc. 19-1 at 265-66; see also doc. 23-2 at 2.) On March 2, 2009, Crowder sent an email to Collins in which she recounted that Green had asked her about her visit to Collins on February 27, 2009. (Doc. 23-2 at 2; doc. 19-3 at 338.) Crowder told Collins that Green had accused her of violating the chain of command. (Doc. 23-2 at 2.) Crowder responded that she could go to Collins under City policy because she did not feel like she could talk to Green about his email. (Id.) Green told Crowder she could have talked to him. (Id.) Green gave Crowder a verbal discipline for failing to follow the chain of command. (Doc. 19-1 at 264-65.) Collins did not believe that Crowder's complaints at that time required his attention. (Doc. 19-7 at 299.) Between March 30, 2009, and April 27, 2009, Crowder made numerous complaints to Collins and Collins testified that he "thought that the majority of the matters raised could have been handled by two adults. (Doc. 19-7 at 296-97; see also id. at 295, 298-308.)
Green's secretary, Lou Draper, testified she had witnessed Crowder talking to herself — like she was carrying on a conversation in her head; Draper said Crowder was not "talking to somebody that wasn't there." (Doc. 19-2 at 19-20.) Draper also heard rumors that Crowder was afraid of the dark and afraid to be in the office alone. (Id. at 20.) She testified that Crowder's office looked "slightly disorganized" from in front of her desk, but behind her desk "there was literally trash, crumbled up papers on the floor . . . four or five inches deep." (Id. at 22.) She said that Crowder's chair sat in the middle of the papers on the floor. (Id. at 22-23.)
According to Green, Crowder had started turning on the lights in all the offices and the conference room. (Doc. 19-1 at 345.) He also said she had asked him if she could put a door stop to prop open the door that opens to the hallway to her office; Green gave her permission and never objected to her request. (Id.) He also testified that Crowder had stopped picking up her reports and would leave them in her incoming basket. (Id. at 345-46.)
On April 28, 2009, Crowder, driving her police department vehicle, backed into a utility pole in her driveway. (Doc. 19-3 at 103; see also doc. 19-7, Pl. Exh. 44, at 151; doc. 19-8, Pl. Exh. 44, at 1.) The accident caused an estimated $1,879.70 of damage to the vehicle. (Doc. 19-7, Pl. Exh. 44, at 150.) Green informed Crowder that she would receive a one-day suspension, which was the same discipline he had imposed on other police officers involved in traffic accidents. (Doc. 19-1 at 292-93.) Green testified that he could only recommend a one-day suspension; the final decision was for Collins. (Doc. 19-1 at 306-07.) He had recommended and applied the same rule of discipline for all employees that had an accident, and he had recommended a one-day suspension for eight or nine other officers that had accidents. (Id. at 292-93; see also doc. 19-9 at 80-81; see generally doc. 22-3.) Crowder told Green she would appeal the suspension. (Doc. 19-3 at 366-67.)
Before Green could take any disciplinary action against Crowder or even fill out the paperwork to confer with the City Administrator or Human Resources Director, Jeff Standifer, about disciplining Crowder, Crowder met with Collins to complain. (Doc. 19-1 at 292.) She sent Collins an e-mail on April 28, 2009, telling him that Green had come to her to ask when she was taking her one day suspension. (Doc. 23-8 at 2.) The following day, April 29, 2009, Crowder went to Collins's office and told him she wanted to appeal. (Doc. 19-3 at 140.) Thereafter, Collins asked Green about a pre-disciplinary hearing for Crowder. (Doc. 19-1 at 296.) Green asked Collins how he knew about Crowder's discipline when he had not even taken any disciplinary action against Crowder. (Id.) At this point he learned that Crowder had spoken with Collins.
On April 30, 2009, Green met with Crowder and told her that "if [she] contacted [Collins] again that he was going to take disciplinary action against [her]." (Doc. 19-3 at 141-42.) Crowder informed Collins about her meeting with Green and, on May 1, 2009, she told him she "wish[ed] to file a formal intimidation complaint." (Doc. 19-6, Pl. Exh. 36, at 156; doc. 19-3 at 175-76.) In her statement, she noted:
(Id.) Crowder testified that she believed the City's harassment policy allowed her to go straight to the City Administrator or HR Director for protection. (Doc. 19-3 at 176-78, 182.)
Other than Crowder, Green disciplined Stacy Cooper and Steve Ward for meeting with Collins without his permission. (Doc. 19-1 at 126-27.) Green gave Steve Ward a verbal reprimand for going outside the chain-of-command and placed a copy of the disciplinary action in his personnel file. (Doc. 19-1 at 262-63.) He gave Stacy Cooper a verbal reprimand for going outside the chain of command and placed a copy of the disciplinary action in her personnel file. (Id. at 263.)
On April 10, 2009, Green complained to Collins about Collins failing to follow the chain of command and the problems with Collins directly contacting officers.
On May 6, 2009, the City conducted Crowder's pre-disciplinary hearing regarding her April 28, 2009, vehicle accident. (See doc. 22-5 at 5.) Immediately after the conclusion of the pre-disciplinary hearing, Green told Collins that he was "getting ready to change [Crowder's] duties. (Doc. 19-8, Pl. Exh. 56, at 69 [transcript pages 70-71].)
The following Monday, May 11, 2009, Collins notified Crowder in writing that she would not be subject to the suspension proposed by Green for "Conduct Unbecoming an Employee" regarding her vehicle accident. (Doc. 19-3 at 379; doc. 19-3, Def. Exh. 11, at 160.) He stated, "This accident is appropriate for a hearing by the Accident Review Board and is subject to any Board recommendations offered as a resolution to this accident." (Doc. 22-18 at 2; doc. 19-7 at 224-25.) However, Crowder never attended any accident review board meeting regarding the accident and she never received any report or findings from the Accident Review Board regarding this accident. (Doc. 19-3 at 311.)
On May 13, 2009, Green sent an e-mail to Crowder stating that she "should . . . receive a memorandum tomorrow regarding some much needed supervisory changes." (Doc. 19-3, Def. Exh. 12, at 161.) He did not specify what the changes were or consult with her regarding the changes. (Doc. 19-3 at 382, 384.)
The following day, May 14, 2009, Janis Green posted the memorandum on a bulletin board at the police department. (Doc. 19-1 at 425-26.) The memo announced a number of changes that would affect Crowder's duties and responsibilities:
(Doc. 19-7, Pl. Exh. 43, at 148; see also doc. 19-3 at 202.) According to Green he made the changes because Crowder was not performing her job duties and he had been performing the bulk of her duties in these areas. (Doc. 19-1 at 427-28.) He testified:
(Id. at 418-19.) He did not speak to Crowder about any problems with her performance and he did not tell her about the pending changes. (Id. at 421-22, 424, 427; see also doc. 19-3 at 203, 384.) Green said he he had been planning to make some changes to Crowder's duties for around five months. (Doc. 19-1 at 422, 427.)
On the same day, May 14, 2009, Green filed his first EEOC Charge setting forth his claims of race discrimination against the City Administrator, Scott Collins. (Doc. 22-7.) This Charge stated:
(Doc. 19-2 at 37.) The EEOC mailed a copy of Green's first EEOC Charge to the City on May 19, 2009. (Doc. 22-9 at 2.) Collins also received a copy of Green's May 14, 2009, EEOC Charge. (Doc. 19-7 at 116.)
Green sent his first request, via email, to meet with the City Council to William Tunnell, Council President, around May 20, 2009, because Green wanted to complain about Collins's harassing conduct. (Doc. 19-1 at 336-37.) The City Council never met with Green. (Id. at 328, 336.)
The City sent a Notice of Pre-Disciplinary Hearing to Green on May 29, 2009. (Doc. 22-6 at 2-3.) This Notice stated:
(Id.)
On June 2, 2009, Plaintiff filed his second EEOC Charge regarding his claims of racial discrimination and retaliation and faxed Scott Collins a copy of his Charge on the same day. (Doc. 22-8.) The Amended EEOC Charge stated "Since I filed [the May 14, 2009,] charge I have been summoned for a hearing where possible disciplinary action may be taken. I have never been disciplined for anything since I took the Chief's job in 2006. I received notice of my hearing
On June 8, 2009, Green attended his Pre-Disciplinary Hearing before Collins. After the pre-disciplinary hearing, Collins issued a decision finding Green had retaliated against Crowder and proposing that Green be suspended for ten working days. (Doc. 19-8, Pl. Exh. 56, at 91.) Collins set forth his reasons for suspending Green in his Decision Upon Pre-Disciplinary Hearing. (See id. at 83-92.) In this Decision, Collins stated:
Regarding the subsequent "Supervisory Changes," it is clear that Chief Green created a hostile environment with his Assistant Chief by telling her in an e-mail that he had an "avoidance strategy" and would no longer deal with her until she resolved her "problems." As a result, communications between the two declined. However, Chief Green cannot use this fact to justify taking away significant parts of the Assistant Chief's duties and responsibilities. Chief Green has an obligation to effectively manage the employees of the Police Department, particularly the Assistant Chief and senior staff. It is a situation as manager of the entire Police Department that the Chief neglected to correct. In this set of circumstances the defenses put forth by Chief Green regarding his actions are not justified.
Additionally, the timing of his "Supervisory Changes" memo is of concern. Assistant Chief Crowder was promoted to her current position effective October 23, 2006. Chief Green was responsible for assigning the duties and responsibilities for the Assistant Chief of Police. Those duties and responsibilities [had] remained unchanged until his May 14, 2009, memo. In his hearing Chief Green asserted that he had thought about and/or considered these changes or similar changes for months, dating back to 2007. However, he chose not to make any changes until after participating in Assistant Chief Crowder's Pre-Disciplinary Hearing on May 6th. Within days of that hearing, during which Assistant Chief Crowder challenged Chief Green and told him she believed she was being treated unfairly and subjected to a hostile environment, Chief Green took away the greater balance of her supervision and authority, transferred it to himself, and replaced it with less substantive duties. It is significant that Assistant Chief Crowder never requested any of the changes, she did not formerly hold a majority of the replacement duties, that Chief Green never discussed the proposed changes with her, and that he decided to make this only after Assistant Chief Crowder's Pre-Disciplinary hearing and being notified of the results of that hearing.
Accordingly, Police Chief Robert Green will be suspended for ten (10) working days without pay commencing Monday July 20, 2009.
(Id. at 90-91.)
In August, the Civil Service Bard upheld Green's suspension but reduced it from ten days to five days.
Collins was allowed to participate in the investigations of Green's claims in his EEOC Charges. (Doc. 19-7 at 118.) According to Collins, his participation was limited to notifying legal counsel and scheduling a meeting; he does not remember any other involvement in the investigation of Green's EEOC charge. (Id. at 118-20.) Internal complaints of harassment, discrimination or retaliation are initially investigated by Human Resources. (Id. at 74-75, 80.) External complaints, like an EEOC charge, involve legal counsel. (Id. at 81-82.) Jeff Standifer, HR Director, testified there was an investigative team that would be assembled to investigate complaints, but he does not recall the investigative team ever being assembled to investigate any complaints made by Crowder or complaints against Green. (Doc. 19-9 at 109-10.)
On December 16, 2009, Collins came to the Police Department sometime between 4:00 p.m. and 4:45 p.m. (Doc. 19-2 at 25-26.) He went into Green's office and slammed the door. (Id. at 27.) Lou Draper, Green's secretary, testified that it was not normal for a door to be slammed in the office. (Id. at 28.) Collins testified that he did not remember slamming the door, but he "probably did." (Doc. 19-7 at 331.)
Collins testified he told Green "that [he] may bully other people but [he] was not going to bully [Collins]." (Doc. 19-7 at 325.) Collins testified that he was aware that Green had bullied Sharon Crowder and Jeff Standifer and he was determined to have the conversation with Green without "get[ting] pushed." (Id. at 325-26.) He also admits to telling Green that needed to decide whether he wanted to stay as the police chief. (Id. at 323.) Collins testified that he did not recall pointing his finger at Green. (Id. at 323-24.) He admits raising his voice was inappropriate and he should not have yelled at Green. (Id. at 314, 323-24, 330, 357-58.) He also acknowledged that such conduct could be unwelcome conduct under the City's anti-harassment policy. (Id. at 316-17.)
Green told Collins words to the effect that Collins was not going to yell at him like he was a little kid. (Id. at 324.) Draper heard Collins say to Green, "Don't you dare raise your voice at me." (Doc. 19-2 at 29.) She testified she never heard Green raise his voice or speak above a murmur during the conversation with Collins. (Id. at 29, 31.) However, she testified Collins was shouting in a "furious voice." (Id. at 29.) Draper testified Collins'[s] voice was still raised when he opened the door to Green's office to leave. (Id. at 32.)
On December 21, 2009, Green made a second written request to the City Council President to meet with the Council to complain about Collins harassing him and subjecting him to a hostile environment. (Doc. 19-1 at 337-38, 340; doc. 22-14.) In this letter, Green stated:
• Literally screamed at me [while] telling me that he was tired of me questioning him and being confrontational
• Yelled and pointed his finger once again and told me that I needed to decide whether I wanted to stay here — meaning the police department or police chief
• When I responded and told the city administrator that he was not going to yell and scream at me like I was a little kid
(Doc. 22-14 at 2-3 [emphasis in original; footnotes added].) This letter does not mention that Green considered the hostile environment to be based on his race or retaliation for complaining about race discrimination. (Id.) Rather, he contends that Collins berated him on this occasion because he had stated that he was going to contact the United States Department of Labor regarding issues with his work hours. (Id.)
Green testified that he copied Collins on his second request to meet with the Council and that Collins told him the Council would not meet with him. (Doc. 19-1 at 338.) Collins testified he does not remember if he was ever informed of Green's complaints or that Green sent this complaint letter to the City Council. (Doc. 19-7 at 320-21.) The City Council never met with Green to discuss his complaints of harassment and hostile environment regarding Collins. (Doc. 19-1 at 341.)
Collins does not recall ever being contacted or questioned about Green's complaints of harassment and hostile environment. (Doc. 19-7 at 322.) He was never disciplined for this conduct. (Id. at 319.) Also, he never apologized to Green for his conduct because he "wasn't sorry for it." (Id. at 317.)
In 2010, plaintiff was the only African-American department head working for the City. (Doc. 19-1 at 488-89.) He retired on July 1, 2012. (Id. at 27.)
Plaintiff's Amended Complaint contains three counts — race discrimination by the City, retaliation by the City, and race discrimination and retaliation by Collins in his individual capacity. (See generally doc. 4.) In his response to defendants' Motion for Summary Judgment, plaintiff asserts that he was suspended and suffered a hostile work environment on the basis of his race, African-American, and in retaliation for complaints of race discrimination.
Defendants argue that plaintiff cannot prove that Collins's reasons for suspending him were pretext for unlawful race discrimination. According to Collins's written decision, Green was suspended for "retaliat[ing] against Assistant Chief Crowder by threatening to reprimand her on April 30, 2009, for exercising her rights under the City's Anti-Harassment Policy," and by taking "away the greater balance of her supervision and authority" on May 14, 2009. (Doc. 19-8, Pl. Exh. 56, at 90-91.) Green contends that he has direct evidence of discriminatory intent, based on statements made by Herndon and Collins, and that he has circumstantial evidence that Collins's articulated reasons for his suspension, are unworthy of belief and the real reason he was suspended was because of his race.
As direct evidence of race discrimination, plaintiff points to two statements (1) Collins's statement that "he was going to get rid of that black son-of-a-bitch who drives the BMW," and Herndon's statement, "Have you heard that I am a member of the Ku Klux Klan?" Green contends that these "racist comments are direct evidence of . . . discrimination [sufficient] to establish [defendants'] allegedly legitimate reasons for Plaintiff's suspension and harassment were pretextual." (Doc. 25 at 64.) The court disagrees.
"Direct evidence of discrimination is `evidence which reflects a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee' and `that, if believed, proves the existence of a fact without inference or presumption.'" Hamilton v. Southland Christian School, Inc., 680 F.3d 1316, 1320 (11th Cir. 2012)(quoting Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004)); see also Damon v. Fleming Supermarkets, 196 F.3d 1354, 1358-59 (11th Cir. 1999)("We have defined direct evidence of discrimination as evidence which reflects a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee.)(internal quotations and citations omitted).
By separate Order, the court has excluded Green's testimony regarding what he was told by Collins's former father-in-law regarding Collins's statements about Green driving the BMW. Such statement is not admissible and, therefore, has not been considered by the court.
The second statement that plaintiff alleges is direct evidence of discrimination is Herndon's statement to Green, asking Green if he had "heard [Herndon was] a member of the Ku Klux Klan."
The court finds that plaintiff has not presented direct evidence that plaintiff was suspended because of his race.
Because the court finds that plaintiff does not have direct evidence, the court's analysis of his race discrimination claims based on his suspension is governed by the tripartite framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and later refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000). The Supreme Court has explained this framework as follows:
Id. at 142-43 (internal citations and quotations omitted).
For purposes of deciding defendants' Motion for Summary Judgment, the court assumes that plaintiff can establish a prima facie case of race discrimination with regard to his suspension because it finds, as a matter of law, he has not shown that the reasons for his suspension are unworthy of credence or that the real reason was his race. See Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1257 (11th Cir. 2012)(" Because it does not matter to the result, we will assume, as the district court did, that [plaintiff] has established a prima facie case of race discrimination."); Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010)("It matters not whether [plaintiff] has made out a prima facie case if she cannot create a genuine issue of material fact as to whether [defendant's] proffered reasons for firing her are pretext masking discrimination. For that reason, we will assume that [plaintiff] has established a prima facie case of discrimination.")(internal citations omitted).
The law in this circuit is well established: A plaintiff may not establish pretext merely by quarreling with the wisdom of the alleged discriminatory and/or retaliatory decision. Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997).
"To satisfy this threshold showing of pretext, a plaintiff may discredit the employer's proffered legitimate reasons by showing (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the employment decision, or (3) that they were insufficient to motivate the employment decision." Walker v. NationsBank of Florida N.A., 53 F.3d 1548, 1564 (11th Cir. 1995)(Johnson, J, concurring)(citations omitted). "If the proffered reason is one that might motivate a reasonable employer, a plaintiff cannot recast the reason but must meet it head on and rebut it." Springer v. Convergys Customer Management Group Inc., 509 F.3d 1344, 1350 (11th Cir. 2007)(quoting Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir.2004)).
In order to establish that a defendant's articulated reason is not worthy of credence —
Wilson, 376 F.3d at 1092. "In other words, it does not matter whether the plaintiff is actually innocent of the infraction for which the adverse employment action is taken; the only relevant inquiry is whether the employer believes he is guilty." Masso v. Miami-Dade County, No. 06-16611, 247 Fed. Appx. 190, 192 (11th Cir. Sept. 6, 2007).
As evidence that defendants' articulated reasons for suspending him are unworthy of credence, Green argues that Herndon and Collins's "racist comments are direct evidence of . . . discrimination [sufficient] to establish their allegedly legitimate reasons for Plaintiff's suspension . . . were pretextual," or "powerful statements relating to circumstantial evidence." (Doc. 25 at 64-65.) However, as set forth above, the court will not consider Watkin's statement to Green regarding Collins's reference to him as a "black SOB," and plaintiff has presented no evidence that Herndon was involved in any way in the decision to suspend him. Therefore, the court finds that Green's evidence of alleged racist comments does not rebut or call into question defendants' articulated reason for his suspension.
In the section of his Opposition discussing his retaliation claims, Green contends he did not actually retaliate against Crowder.
Green does not address Collins's finding that Green had threatened Crowder with discipline for engaging in protected activity — complaining to Collins that Green was harassing her. Moreover, Green's articulated reasons for changing Crowder's job duties, even if legitimate, do not alone prove that Collins did not believe that Green had taken this action in retaliation for Crowder's decision to appeal her suspension. Therefore, the court finds Green has not shown substantial evidence that the reasons given by Collins for Green's suspension were not the real reasons for Collins's decision.
Lastly, Green argues that the court can find that Collins's reason for his suspension is a pretext for race discrimination based on the "overwhelming circumstantial evidence of Collins'[s] determination to rid the [City] of its only African American department head." (Doc. 25 at 65.) According to Green, this circumstantial evidence includes the following:
(Doc. 25 at 66-67.)
This circumstantial evidence, however, does not address "head on" Collins's articulated reasons for suspending Green. Moreover, consideration of these incidents does not support a finding that Collins's articulated reasons for suspending Green — the incident of threatened discipline against Crowder and the reduction in Crowder's duties following her appeal of her suspension — are unworthy of credence and/or that the real reason Collins suspended Green was because of his race. The court finds that Green has not submitted sufficient evidence to support a finding that defendants' articulated reasons for suspending him are unworthy of credence and that the real reason for his suspension was his race.
Therefore, defendants' Motion for Summary Judgment as to plaintiff's race discrimination claims based on his suspension is due to be granted and such claims will be dismissed.
"Title VII [and Section 1981] prohibit[ ] the creation of a hostile work environment." Vance v. Ball State University, 133 S.Ct. 2434, 2441 (2013)(citations omitted). In a hostile work environment case, "the plaintiff must show that the work environment was so pervaded by discrimination that the terms and conditions of employment were altered." Id. at 2441 (citations omitted). "When the workplace is permeated with racially discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII [and Section 1981 are] violated." Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012)(quoting National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) and citing Edwards v. Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010))(internal quotations omitted); see also Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
Id. (quoting Edwards, 602 F.3d at 1300). The Eleventh Circuit has held:
Jones v. UPS Ground Freight, 683 F.3d 1283, 1297 (11th Cir. 2012); see also Laosebikan v. Coca-Cola Co., 167 Fed. Appx. 758, 765 (11th Cir. 2006). Plaintiff has not presented evidence that the conduct at issue related to his race. The acts themselves do not involve racist statements or overt insult and intimidation related to Green's race. Indeed, he testified that he believed Collins acted with the purpose to undermine his authority to get rid of him when the administration changed. (Doc. 19-1 at 385.)
Even if plaintiff had evidence on which a reasonable juror could find that Collins's conduct was based on Green's race, his evidence is still insufficient to establish a hostile environment claim.
"The fourth element — that the conduct complained of was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment — is the element that tests the mettle of most [hostile environment] harassment claims." Gupta v. Florida Bd. of Regents, 212 F.3d 571, 583 (11th Cir. 2000). "While not everything that makes an employee unhappy is an actionable adverse action, conduct that alters an employee's compensation, terms, conditions, or privileges of employment does constitute adverse action under Title VII." Shannon v. Bellsouth Telecommunications, Inc., 292 F.3d 712, 716 (11th Cir. 2002).
Defendants contend that plaintiff cannot establish a hostile work environment claim because he cannot show that the alleged conduct was sufficiently severe or pervasive to alter the terms and conditions of his employment. (See doc. 18 at 32-37.) Plaintiff does not directly address defendants' contentions, rather he states:
(Doc. 25 at 65-66.)
Despite these allegations, Green never argues that the terms and/or conditions of his employment were altered by Collins's conduct. As set forth above, to establish that his work environment was hostile or abusive because of racially discriminatory harassment, Green must establish that his "workplace [was] permeated with racially discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to alter the conditions of [his] employment." Jones v. UPS Ground Freight, 683 F.3d at 1292.
The record contains undisputed evidence that Collins made changes to Green's responsibilities and duties as Police Chief once he became the City Administrator. Green objected to many if not all changes instituted by Collins. Nevertheless, except for the incident of December 11, 2009, in which Green testified Collins yelled at him and pointed his finger at Green, not one of the actions of which Green complains "permeated" his workplace with "discriminatory intimidation, ridicule, [and/or] insult." Id. Instead, Green complains of discrete decisions that Collins, as Green's superior was authorized to make or disagreements regarding the proper protocol for police department employees making complaints. The fact that Green desired autonomy over the department and its employees does not convert Collins's decisions regarding the police department into discriminatory harassment. No reasonable person in Green's position would find that Collins's conduct permeated the work environment with racially discriminatory intimidation, ridicule, and/or insult sufficient to alter Green's working conditions. Considering all of the incidents of which Green complains, the court finds no reasonable jury could find that Collins's conduct created an abusive or hostile work environment for Green based on his race.
Therefore, defendant's Motion for Summary Judgment as to plaintiff's racial harassment claim will be granted.
The court assumes that Green can establish a prima facie of retaliation with regard to his suspension. However, for the reasons set forth above, the court finds that Green has not submitted sufficient evidence to allow a reasonable jury to find that defendants' articulated reasons for his suspension are unworthy of credence and/or the real reason was retaliation for filing a Charge of Discrimination with the EEOC.
Therefore, defendants' Motion for Summary Judgment will be granted as to plaintiff retaliation claim based on his suspension.
The Eleventh Circuit has recognized a cause of action for retaliatory harassment. Gowski v. Peake, 682 F.3d 1299, 1312 (11th Cir. 2012). In so doing, the court established that this cause of action, like other claims based on a hostile work environment, required a jury "to conclude that the actions complained of were sufficiently severe or pervasive to alter the terms and conditions of employment, thus constituting an adverse employment action." Id.
Because this court has determined that Green has not established that the alleged harassing conduct altered the terms and conditions of his employment, summary judgment is due to be granted as to his claim of retaliatory harassment. Defendants' Motion for Summary Judgment as to this claim will be granted.
For the foregoing reasons, the court is of the opinion that there are no material facts in dispute and defendants are entitled to judgment as a matter of law. An Order granting defendants' Motion for Summary Judgment, (doc. 18), will be entered contemporaneously with this Memorandum Opinion.
(Doc. 22-16 at 2.)
Combs, 106 F.3d at 1543 (11th Cir. 1997)(emphasis in original).
