LISA GODBEY WOOD, District Judge.
Before the Court is Defendants Donnie Howard, Ryan Alexander, and Joseph Creswell's, in their individual capacities, Motion for Summary Judgment on the basis of qualified immunity. Dkt. No. 46. This Motion has been fully briefed and is ripe for review. For the following reasons, Defendants' Motion is
On January 22, 2019, the Court issued an Order denying Defendants' Motion for Summary Judgment,
On February 1, 2019, Defendants Howard, Alexander, and Creswell filed a Motion for Summary Judgment arguing that they are entitled to qualified immunity in their individual capacities from Plaintiff's discrimination claims under § 1983 for violation of the Equal Protection Clause and Plaintiff's First Amendment intimate association claim.
As the Court described the factual background and evidence in this case in lengthy detail in its prior Order, it will not reiterate all of those facts here. Rather, all of the facts from the prior summary judgment Order, dkt. no. 45 at 1-18, are incorporated herein by reference. However, Plaintiff has submitted new evidence into the record since the Court's prior Order.
First, Plaintiff submitted copies of the Darien Personnel Policies and Procedure manual ("City Manual") and the Darien Police Department's "Standard Operating Procedure" ("SOP"), which set forth, among other things, the city and police department's policies for discipline. Dkt. Nos. 48-2, 48-3. The relevant sections of those documents are discussed in the analysis below. Plaintiff also submitted the deposition testimony of Dr. Kidder, the counselor who Plaintiff saw upon Howard's recommendation during Plaintiff's two-week suspension. Dkt. No. 48-1. This testimony provides support for Plaintiff's claims that he was experiencing negative treatment at work because of his relationship with Miller. The relevant statements from the testimony are included below. Finally, Plaintiff also submitted a second affidavit in which he explains more details about his relationship with Miller, and specifically, he explains when Miller divorced her ex-husband. Dkt. No. 48-5. These facts are also discussed further below.
Summary judgment is required where "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). A fact is "material" if it "might affect the outcome of the suit under the governing law."
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact.
The nonmovant may satisfy this burden in one of two ways. First, the nonmovant "may show that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion, which was `overlooked or ignored' by the moving party, who has thus failed to meet the initial burden of showing an absence of evidence."
Defendants assert that they are entitled to qualified immunity from Plaintiff's claims under 1983 for discrimination in violation of the Equal Protection Clause and interfering with Plaintiff's right to intimate association under the First Amendment. Plaintiff responds that Defendant Alexander is not entitled to qualified immunity because he was not performing a discretionary function within the scope of his authority, and even if he was, all three Defendants violated Plaintiff's clearly established constitutional rights.
Qualified immunity grants "complete protection for government officials sued in their individual capacities if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
Plaintiff first argues that Alexander is not entitled to qualified immunity because the adverse actions that he took against Plaintiff were not within the scope of his discretionary authority. Defendants argue that Alexander was acting within the scope of his discretionary authority to administer discipline.
"To establish that the challenged actions were within the scope of his discretionary authority, a defendant must show that those actions were (1) undertaken pursuant to the performance of his duties, and (2) within the scope of his authority."
Here, the proper question is whether Alexander's duties and scope of authority included administering discipline to officers under his command for violations of Chief Howard's orders, his own orders, or other police department policies. In short, the answer to this question is yes. In this case, Alexander was at all times under Chief Howard's command and also Plaintiff's immediate supervisor. Both sides agree that the vehicle order, whatever its actual terms, came from Howard through Alexander to Plaintiff and Miller. Thus, Alexander, as Robinson's immediate supervisor, was entrusted with enforcing that order along with any other directions from Howard concerning Alexander's subordinates-including department vehicle policies set by Howard. So whether Plaintiff's reprimand and three-day suspension in February 2016 was for taking a work vehicle to Atlanta or for riding in the vehicle with Miller against Howard and Alexander's order, Alexander was operating within his capacity as Plaintiff's supervisor and under the authority given by Howard to administer discipline to Plaintiff.
As for the two-week suspension in May 2016, Alexander was acting in his capacity as Plaintiff's supervisor and head of narcotic investigations when he told Plaintiff and Miller to not work with the sheriff's office, and he acted pursuant to his authority as Plaintiff's supervisor when he suspended him for allegedly participating in an investigation with the sheriff's department. Therefore, Alexander was performing his duties and within his authority as Plaintiff's supervising officer when he administered discipline by reprimanding Plaintiff and suspending him for three days in February 2016 and suspending for two-weeks in May 2016. In other words, these suspensions, "if done for a proper purpose, would be within, or reasonably related to, the outer perimeter of" Alexander's "discretionary duties" as the head of the narcotics investigation unit and Plaintiff's immediate supervisor.
Plaintiff points to various sections of the City Manual and the Darien Police Department's SOP to argue that Alexander's actions fell outside of his discretionary function. However, the Court cannot say that based on the provisions of these documents highlighted by Plaintiff that Alexander's actions fell outside of his authority as Plaintiff's direct supervisor. In general, just because Alexander allegedly may not have followed proper procedure under the City Manual or SOP in suspending Plaintiff, it does not necessarily mean that he lacked the authority under his job position to do so. For example, Plaintiff argues that Alexander was required to give Plaintiff three-days notice before suspending him, but just because Alexander may have violated this provision does not mean he could not otherwise suspend Plaintiff.
Indeed, Section IV-A-3 of the SOP gives "[a]n immediate or higher level supervisor . . . authority to immediately relieve an employee from duty if the retention of such employee will cause or continue a disruption of the workforce" and then give a recommendation for the appropriate disciplinary action to the department head within one day. Dkt. No. 33-23 at 7. Moreover, the SOP does not require notice for conditions such as "gross insubordination or misconduct" or "any violation of department rules or regulations that would submit the violating employee to immediate dismissal."
Plaintiff only challenges Alexander's discretionary authority, but Defendants also independently show that Howard as the Chief of the Darien Police Department and Creswell as Plaintiff's immediate supervisor in the summer of 2016 also acted within the scope of their discretionary authority in their actions involving Plaintiff. Thus, Defendants have met their burden, and the burden shifts to Plaintiff to show a violation of clearly established law.
The Court will address qualified immunity with respect to Plaintiff's 1983 claims for discrimination under the Equal Protection Clause first.
In its prior Order denying Defendants' motion for summary judgment, dkt. no 45, the Court, reading the facts in the light most favorable to Plaintiff, found that Plaintiff had met his burden under the
To briefly reiterate Plaintiff's version of the facts of this case, Plaintiff, an African-American male, began dating Miller, a white female, sometime in the late summer of 2015, and that relationship became public knowledge around December 2015 or January 2016 at which time Alexander and Howard became aware of the relationship.
In June 2016, Plaintiff was told that he and Miller were no longer allowed to work private security at B&J's, a local seafood restaurant, because the owner, Terry Dowling, said that they made people uncomfortable.
In addition, Plaintiff has established that Howard had on two previous occasions made racist comments. First, while discussing the topic of interracial dating and standing outside of B&J's, he told another officer that when he heard his daughter was dating a black man, he became physically ill.
In addition to these facts discussed at length in the Court's previous Order, Plaintiff has also presented new facts supporting Plaintiff's claims for discrimination based on the deposition testimony of Thomas Kidder, the counselor with whom Howard arranged for Plaintiff to meet after Plaintiff was given the two-week suspension. Notably, Kidder testified that based on his notes from his meeting with Plaintiff, it was not relationship trouble that was distressing Plaintiff as Defendants argue; rather, it was issues at work. Dkt. No. 48-1 at 34-35. Specifically, Plaintiff indicated that "[t]here's something going on with [Alexander]" and that Alexander was "being difficult."
Based on all of this evidence in Plaintiff's version of events, he can establish a prima facie case under either the McDonnel-Douglas framework or the other evidence of discrimination standard and can show that Defendants' asserted non-discriminatory reasons are pretext as explained in the Court's prior Order. Specifically, this version of events shows that in the eight months after Plaintiff's interracial relationship with Miller became public, he received increasingly harsher punishments from Alexander and Howard ultimately leading to his termination from the police department by Creswell, and these events unfolded in light of evidence about Howard and Alexander's views on race such as Howard's stories and the Nazi flag. While numerous factual disputes exist in this case, taking Plaintiff's version of events, the Court finds that a reasonable jury could conclude that Howard, Alexander, and Creswell discriminated against him in violation of the Equal Protection Clause.
Turning to the second prong of the qualified immunity analysis, Plaintiff must show that Defendants were on notice that when they subjected Plaintiff to the various adverse actions in this case that they were violating clearly established law. As a general matter, the right to be free from racial discrimination in the workplace, which includes discrimination based on interracial relationships, is clearly established in this Circuit.
"We therefore turn to an examination of whether the defendant's conduct was nonetheless objectively reasonable in light of that [Equal Protection] right."
The Eleventh Circuit has since explained that "defendant is entitled to qualified immunity under the
Before turning to the facts of this case, it is important to note that the
Turning first to the allegations against Alexander, the Court determines that under the
However, Alexander is entitled to qualified immunity for this adverse action because the record indisputably shows that the reprimand and suspension were motivated, at least in part, by Plaintiff's violation of Alexander's order. It is important to note that this Court found material disputes of fact existed as to the exact language of the order, the timeline of when Plaintiff and Miller were dating, and when their relationship became public. But, what is not in dispute, is that even under Plaintiff's version of the facts, he admitted to violating the order. Under Plaintiff's version of the facts, the order was given prior to his relationship with Miller sometime before April 13, 2015, and the order was that he was supposed to notify Alexander when he was riding in the car with Miller. A document dated April 13, 2015, confirms that the order was given at some point prior to that date and that Plaintiff and Miller were verbally counseled for riding together without authorization from Alexander on April 10, 2015. Dkt. No. 27-2 at 26. Plaintiff admitted in his deposition that he had not always followed the order, dkt. no. 27-1 at 95-96, and at least two instances—the April 2015 verbal counseling and the February 2016 reprimand and suspension—of him not following the order are documented. As the Court stated in its prior Order, Plaintiff's deposition "shows that he did not follow the order, whether it be an order to not ride together period or to provide notice." Dkt. No. 45 at 29 n.7.
Therefore, even if Alexander enforced the order in February 2016 for mostly discriminatory reasons, the record indisputably shows that Plaintiff admitted to not following an order from his supervisor, whatever the content of that order may have been, and that he failed to do so on more than one occasion. Moreover, the record shows that even if Alexander was motivated mostly by discriminatory reasons in reprimanding and suspending Plaintiff for violating the order, Plaintiff's failure to follow the order was still necessarily part of that decision. This fact is demonstrated in the written reprimand that documents that Alexander met with Plaintiff and Miller about riding in the same patrol car together without approval and that Plaintiff stated that he did not deny the allegations. Dkt. No. 27-2 at 27. Plaintiff also recognized in his affidavit that he was suspended for violating the order—even though he thought the order meant something other than an outright ban on riding together up to that point—and the fact that Plaintiff said Archie Davis told him that the punishment was really about riding in the car with Miller, not the trip to Atlanta.
Turning to the two-week suspension in May 2016, the Court reaches the opposite conclusion because the record does not
Next, the Court finds that under
First, Alexander testified that he knew of other instances of Plaintiff's violation of the car order but did not present them to Howard before leaving the department and that he did not have any part in Plaintiff's demotion "at all." Dkt. No. 27-3 at 231-32. But, in his affidavit, Alexander says that while Plaintiff was on the two-week suspension, he told Howard about all the trouble he had been having with Plaintiff and Miller riding together against his order for the past year. Second, Howard's affidavit states that after he heard about Plaintiff's continued insubordination from Alexander, he concluded that he had to either remove Plaintiff or Miller from the investigation division. But Archie Davis testified that Howard explained his basis for transferring Plaintiff to patrol by stating that he was "shutting down narcotics and I'm going to give it a break . . . put Korone on patrol, if he does a good job, works hard for me, in three to six months . . . we'll open in back up and he can start running it again." Dkt. 27-5 at 148. This explanation conflicts with Howard's deposition testimony in which he stated that he disbanded the narcotics division because Plaintiff had already been transferred to patrol, leaving Alexander as the only narcotics investigator. Dkt. No. 27-4 at 237. As such, once Alexander resigned, there was no need for a narcotics division.
Looking to the final adverse action, despite all of the factual disputes surrounding things like why Plaintiff made people feel "uncomfortable" at B&J's restaurant such that he was not allowed to work security anymore and the timing and basis for terminating Plaintiff, the record indisputably establishes that Plaintiff's termination was motivated, at least in part, by lawful considerations—namely his statement over the radio that he was not allowed inside B&J's. On June 26, 2016, when Plaintiff was called over the police radio channel by dispatch to respond to an incident at B&J's Restaurant, he responded by stating "I'm not allowed inside that establishment." Dkt. No. 26-2 ¶ 103. Even if Plaintiff was not welcome to work security at B&J's anymore by the owner, Terry Dowling, for discriminatory reasons and even if that decision somehow involved Alexander or Howard, the fact remains that Plaintiff made a statement over the radio—a public channel available to police officers and other government officers like the fire chief who approached Howard about one of his officers being banned from the restaurant—that reflected poorly on the police department. Plaintiff also admitted that he knew that he was allowed on the premises of B&J's for work purposes and that his statement over the radio was based on his belief that he was not welcome at B&J's. However, Plaintiff said over the public channel that he was "banned" from the restaurant. This untrue statement reflected poorly on the police department because others who heard it would wonder why a police officer was banned from a popular restaurant in Darien. Thus, a supervising officer could decide that such an action that reflects poorly on the department warrants termination, and that is what Howard did in this case.
Howard is entitled to qualified immunity for this final adverse action because the record indisputably shows that his decision to terminate Plaintiff was motivated, at least in part, by the call over the radio. In other words, even if Howard had terminated Plaintiff for discriminatory reasons, part of his motivation was based on the call over the radio. This is shown by the fact that he made the decision to terminate Plaintiff upon hearing about the call over the radio at Nautica Joe's restaurant the next day. Moreover, it was one of the six infractions in the disciplinary forms listing the grounds for Plaintiff's termination. Therefore, even if the other five reasons were in dispute and Howard had terminated Plaintiff in part for discriminatory reasons, the record indisputably shows that Howard was motivated, at least in part, by the lawful consideration of an untrue statement over the public channel of the police radio that reflected poorly on the police department. As such, Howard is entitled to qualified immunity for this adverse action.
Finally, the Court determines that Creswell is entitled to qualified immunity. In this case, Creswell's involvement is limited to the following facts: Creswell was Plaintiff's direct supervisor on patrol; after Howard decided to terminate Plaintiff, Anthony Brown, at Howard's direction, directed Creswell to compile disciplinary justifications for terminating Plaintiff; and finally, Creswell terminated Plaintiff on August 3, 2016, after Plaintiff's 30-day grace period to find a new job had ended. Like Howard, Creswell is entitled to qualified immunity because, despite disputed facts about what he knew about Plaintiff's conduct on patrol when he was told that Plaintiff was being terminated and him being told to gather justifications for terminating Plaintiff, the record indisputably shows that he terminated Plaintiff, pursuant to Howard's direction, at least in part, because of Plaintiff's statement on the radio. Thus, even if Creswell terminated Plaintiff for discriminatory reasons, his decision was still motivated, at least in part, by a lawful consideration. As such, he is entitled to qualified immunity.
The Court now turns to Defendants' qualified immunity defense to Plaintiff's intimate association claim. Plaintiff claims that Defendants violated his First Amendment right to intimate association by interfering with his relationship with Miller through the various adverse actions that Plaintiff experienced. Defendants counter that at the time that Plaintiff experienced these adverse actions it was not clearly established in this circuit that the right to intimate association applied to an extramarital affair. The Court will first address the constitutional violation prong and then the clearly established prong.
As with the discrimination claims described in the section above, because the Court, reading the facts in the light most favorable to Plaintiff, denied Defendants' motion for summary judgment on Plaintiff's intimate association claim in its previous Order, it also finds that under Plaintiff's version of the facts, Plaintiff has established that a reasonable jury could find a violation of his First Amendment right to freedom of intimate association. Importantly, the Court found that Plaintiff's facts, if true, show that the adverse actions that he experienced were based in part on his relationship with Miller—such as the order about riding in the car with her or one of Howard's asserted justifications for Plaintiff's demotion to patrol that he was trying to separate either Plaintiff or Miller out of investigations because of what Alexander had told him.
In light of the Court's findings in its previous Order and the brief recitation of the facts in the previous section, the Court need not discuss all of those facts again to show that Defendants interfered with Plaintiff and Miller's relationship under Plaintiff's version of the facts. Specifically, if Plaintiff's version of the facts is true, then he and Miller suffered multiple adverse actions that interfered with their relationship after that relationship became public. This conclusion is bolstered by Kidder's testimony which highlights the fact that Plaintiff believed at that time that his relationship with Miller was the reason for the difficulties he was facing at work with Howard and Alexander. Thus, the Court finds that the first prong of the analysis is met and turns to the clearly established prong.
Defendants argue that they are entitled to qualified immunity from Plaintiff's intimate association claims because it is not clearly established in this circuit that an extramarital affair is a protected intimate association. Thus, a government official in Defendants' positions would not be on notice that interfering with such an affair violated the First Amendment. In response, Plaintiff submits evidence that Miller and her husband divorced in 2016, and therefore, at least some of the adverse actions were committed against Plaintiff when he and Miller were in a normal dating relationship, not an affair.
In its prior Order, the Court stated that it would assume that Plaintiff and Miller's extramarital affair was a protected intimate association based on the facts that the Eleventh Circuit had held a dating relationship to be protected and had assumed for the sake of argument—although not deciding the issue—that an extramarital affair was protected under the First Amendment. Dkt. No. 45 at 54. However, here, the Court must apply the law for qualified immunity which requires that a right be clearly established to put officials on notice that their conduct is unlawful. Under that rule, it was not clearly established at the time of this case that an extramarital affair was a protected intimate association. In
Looking to the facts of this case, Plaintiff and Miller began their relationship (under Plaintiff's version of the facts) at some point toward the end of the summer in 2015 while Miller was still married. Plaintiff submitted a second affidavit in which he swears that Miller filed for divorce on February 23, 2016, and that the divorce decree was granted on May 6, 2016. Therefore, as a legal matter, because Miller was married until May 6, 2016, her relationship with Plaintiff was an intimate, extramarital association until that point.
But, Plaintiff's demotion and termination occurred after the divorce, which means that those adverse actions occurred while Plaintiff and Miller were merely in a dating relationship. Such relationships are protected intimate associations under the First Amendment.
As with the discrimination claims discussed above, the analysis in
As for the demotion, for the same reasons discussed in the prior section, Howard is not entitled to qualified immunity for this adverse action under Plaintiff's intimate association claim either. Because the record shows conflicting justifications for why Howard deciding to demote Plaintiff to patrol, the Court cannot say that the record indisputably shows that the decision was motivated, at least in part, by lawful considerations.
To summarize, Defendants are entitled to qualified immunity in the following respects: (1) as to Plaintiff's claims for discrimination under § 1983 for violations of the Equal Protection Clause, Alexander and Howard are entitled to qualified immunity for the February reprimand and suspension and Plaintiff's termination but not the May two-week suspension or demotion to patrol; (2) as to Plaintiff's intimate association claims under the First Amendment, Alexander and Howard are entitled to qualified immunity for the February reprimand and suspension, the May two-week suspension, and Plaintiff's termination but not the demotion to patrol; (3) Creswell is entitled to qualified immunity with respect to both claims against him in his individual capacity. This Order does not change the Court's prior order denying Defendant's motion for summary judgment on the merits and does not affect Plaintiff's claims under § 1981 or 1985. Therefore, for these reasons, Defendants' Motion for Summary Judgment based on qualified immunity, dkt. no. 46, is
This Court used the "nearly identical" standard to determine that Miller was a comparator for two of the four adverse actions that Plaintiff experienced, that she was not a comparator for the initial February reprimand and suspension, and that other officers who had been fired could not be considered sufficient comparators to Plaintiff's termination. Because the new "similarly situated in all material respects" definition is less stringent that the "nearly identical" definition, the Court's findings that Miller was a comparator for the two-week suspension and the demotion necessarily meet the new definition. The Court's determination that Miller was not a comparator for the February reprimand and suspension was based on the fact that Plaintiff could not show any evidence that Miller's reprimand was removed from her file, not on the definition of a comparator.
Finally, the Court's determination that Plaintiff could not show a comparator for his termination because the officers he pointed to had very different disciplinary histories remains intact under the new "similarly situated in all material respects" test. The Eleventh Circuit points to four factors that will ordinarily be present for a comparator under the new definition: the comparator "will have engaged in the same basic conduct as the plaintiff; will have been subject to the same employment policy, guideline, or rule as the plaintiff; will ordinarily (although not invariably) have been under the jurisdiction of the same supervisor as the plaintiff; and will share the plaintiff's employment or disciplinary history."
