Gray v. City of Dothan

Filing 63

OPINION AND ORDER: it is the ORDER, JUDGMENT, and DECREE the court as follows: (1) Dft City of Dothan's 34 & 39 motions for summary judgment are granted with respect to following claims by plf Ivan "Keith" Gray: First Amendment cla im, consent decree claim, Title VII claim of race discrimination based transfer of supervisory authority; (2) Said motions are denied as to all other claims. Signed by Honorable Judge Myron H. Thompson on 6/22/2015. (Attachments: # 1 Civil Appeals Checklist) (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
IVAN “KEITH” GRAY,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CITY OF DOTHAN,
Defendant.

CIVIL ACTION NO.
1:14cv592-MHT
(WO)

OPINION AND ORDER
Plaintiff Ivan “Keith” Gray, a former captain of
the

Dothan

employer,

Police

Department,

defendant

City

of

asserts

that

Dothan,

his

Alabama,

discriminated against him on the basis of his race and
retaliated against him for attempting to remedy that
discrimination, both in violation of Title VII of the
Civil

Rights

§§ 1981a

and

Act
2000e

of

1964,

through

as

amended,

2000e-17;

that

42

U.S.C.

the

city

violated his First Amendment right of association, as
enforced through 42 U.S.C. § 1983; and that the city
violated

a

consent

decree
1

prohibiting

race

discrimination in the City of Dothan.

This court has

original jurisdiction over his claims pursuant to 28
U.S.C.

§§ 1331

(federal

question)

and

1343

(civil

rights), and 42 U.S.C. § 2000e-5(f)(3) (Title VII).
The case is now before this court on the city’s
motions for summary judgment.

For the reasons below,

summary judgment will be entered in favor of the city
only in part.

I.

LEGAL STANDARD

“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on

which

summary

judgment

is

sought.

The

court shall grant summary judgment 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).

The court must view

the admissible evidence in the light most favorable to
the non-moving party and draw all reasonable inferences
2

in favor of that party.

Matsushita Elec. Indus. Co.

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

II. BACKGROUND
Gray, an American of African descent, served in the
Dothan Police Department for 28 years. At the time he
was terminated, he had risen to the third-highest rank
in the department, captain, and he was the only black
sworn police supervisor on the force.
The department
itself employed only 15 black sworn officers out of a
total of 165.
(Notably, in 2010, the population of
Dothan was 32.5 % black.
See United States Census,
2010
Demographic
Profile
Data,
http://factfinder.census.gov/faces/tableservices/jsf/pa
ges/productview.xhtml?src=bkmk.)
Gray also rides motorcycles.
In 2008, he formed
Bama

Boyz

Motorcycle

Club,

motorcycle club in Dothan.
managed

the

club

and

a

predominantly

black

As its first president, he

its

affairs,

which

included

recruiting members; maintaining peaceful relations with
other

area

motorcycle

events and charity runs.

clubs;

and

organizing

social

One charity run raised money

for the Dothan Police Athletic League, and the police
chief accepted payment on the league’s behalf.

Several

other Dothan police officers, black and white, were
3

members of different area motorcycle clubs, but they
were not part of Bama Boyz.
Gray

describes

a

history

of

race

discrimination

dating back to his first days on the force.

Though he

applied to be a police officer, he was hired in 1985 as
a jail-security officer, a less prestigious position.
He

was

placed

on

a

registry

of

candidates

for

an

officer position, but when his name was next on the
registry to be promoted to officer, the police chief
abandoned the registry system.

He complained to the

police chief at the time, threatening suit.
eventually promoted later that year.
denied

the

opportunity

to

take

the

He was

In 1988, he was
corporal

exam

because he had not accumulated enough service years,
but

three

white

officers

with

the

same

experience were permitted to take the exam.

amount

of

He filed a

lawsuit in state court to allow him to take the exam;
he won the suit; and he was promoted.

4

Gray

continued

to

training

opportunities

Several

times,

changed

and

initiated

denied

throughout

qualifications

meritless

to

candidates

be

allow

over

his

for

internal

the

of

police

career.
were

investigations

were

department

to

on

him;

occasions,

other

civil-service

and

promotions

candidates were scored higher than
portions

promotional

promote

white
white

he on subjective

promotional

exams.

He

repeatedly requested training that white officers had
received and that had enabled their career advances,
but

he

was

informally

denied.
about

career, including

Gray

race

complained

discrimination

formally

and

throughout

his

filing two charges with the Equal

Employment Opportunity Commission (EEOC) and the filing
of a state-court lawsuit.
Frustrated

with

what

he

perceived

to

be

race

discrimination in scoring on promotional exams, Gray
complained about the testing method.

In 2006, the city

agreed to implement an external assessment center in an
5

attempt to make the exam more objective; Gray contends
that, by then, other white officers had advanced in
their careers at a rate faster than he had.
After the assessment center was in place, Gray once
tied

with

a

lieutenant.
city

officer

for

a

promotion

to

The day the tied score was announced, the

placed

investigation

white

Gray
for

under

an

alleged

internal-affairs

misconduct.

Gray

successfully fought the allegations and received the
promotion, becoming the first and only black lieutenant
on the Dothan force.

(Prior to Gray, the city had

posthumously

promoted

another

black

officer

to

Lieutenant.)

He believes that he had been targeted

with these allegations because of his race.
Throughout his employment, Gray was denied numerous
training

opportunities

that

were

offered

to

white

officers, and, as a result, he was passed over for
other

promotional

opportunities.

For

example,

he

requested to attend the FBI National Academy, but was
6

never selected.

This program was added as a “preferred

qualification” for the Chief of Police position when
the

position

was

posted

in

2009;

the

candidate

ultimately selected for the position, Gregory Benton, a
white

officer,

2009,

the

had

only

attended

listed

the

“preferred

program.

Prior

qualification”

to
for

Chief of Police had been a Master’s Degree, which Gray
had obtained, but Benton had not.
Gray contends that racially hostile attitudes of
his fellow officers permeated the department.

First,

racial slurs were directed at him and used around him.
Gray was called the “nigger” himself by white officers,
and he heard the word used by white superiors.

On one

occasion, he and his white supervisor were patrolling
for a young black juvenile; his supervisor remarked,
while

passing

a

convenience

Niggers over there.”
at 4.

store,

“There

ain’t

no

Gray Declaration (doc no. 48-1)

Another time, a white officer referred to his

patrol area as the “poor black trash part of town.”
7

Id.

Once, when exchanging money with a white officer

on a public corner, the officer said to him, “People
aren’t going to know what to think with a nigger giving
a white man money.”
110.

Gray Deposition (doc. no. 34-3) at

Gray also recounts several uses of the slur by

officers away from his presence; he became aware of
these
that

incidents
they

through

sparked.

He

the
also

internal
contends

investigations
that

superior

officers developed code words to refer to people of
different races.
Several officers were affiliated with organizations
and viewpoints that Gray considered racially offensive.
For example, Gray’s direct supervisor at the time of
his termination, Steve Parrish, was once a member of
the Sons of Confederate Veterans, a group dedicated to
memorializing the history and values of the Southern
Confederacy.1

Parrish

named

his

son

after

Nathan

1. Gray has submitted evidence explaining that
there is an ongoing debate among members of the Sons of
Confederate Veterans as to whether the focus of the
8

Bedford

Forrest,

a

confederate

general

and

first

national leader and “Grand Wizard” of the Ku Klux Klan;
Parrish’s

office

memorabilia.

was

decorated

with

confederate

Several other city police officers were

members of the Sons of Confederate Veterans, including
the officer who replaced Gray after his termination.
Gray complained about Parrish’s association with the
group

in

an

internal

race-discrimination

complaint

described below.
Gray
private

also

witnessed

behavior

from

other

his

racially

fellow

offensive

officers.

For

example, he once viewed a picture on Officer Michael
Woodside’s

Facebook

page

depicting

the

partially

charred face of President Obama and derogatory comments
about

the

President.

Moreover,

Gray

submitted

a

organization should be a history or genealogy club, or
to promote racial extremism. In any case, it is clear
that representatives of the group have organized events
supporting the values of the Confederacy and its
associations with slavery and apartheid enforced by
violence.
9

picture of eleven white men--nine of whom are current
or former officers on the city police force, including
Parrish and Gray’s replacement--posing behind a large
Confederate

flag,

and

he

avers

that

this

photo

was

widely circulated within the Department.
Parrish became Gray’s supervisor in 2010.

Over the

next four years, he scrutinized and nitpicked Gray’s
performance; gave more deference and respect to white
officers and command staff than to Gray; and attempted
to

embarrass

example,

Gray

Parrish

and

defame

accused

his

Gray

of

character.

For

“micromanaging”

officers under his command; publicly questioned Gray’s
whereabouts on work days; chastised Gray for delays in
paperwork and reports; lodged critical reviews of Gray
on

an

internal-communications

system;

and

wrote

positive reviews for white officers while failing to
make

favorable

entries

for

deserved.

10

Gray

when

they

were

In February 2012, Gray was put under three separate
internal-affairs

investigations.

One

of

those

investigations stemmed from assistance he gave to a
black

dispatcher-trainee

in

filing

a

race-discrimination complaint; another was due to an
incident that arose at a nightclub between Gray and
another officer in Gray’s off-duty hours; and the third
had to do with counseling he had given to an inferior
officer.
plan,”

Gray was put on a “performance improvement
which

character.

he

felt

demeaned

and

undermined

his

In May 2012, he complained to Chief Benton

that Parrish’s treatment and the performance plan were
based on race.

Gray was removed from the performance

plan the next day.
In December 2012, Gray complained about the
targeting

and

treatment

of

city’s
minority

citizens--specifically, an arrest of two young black
men, an arrest that Gray believed to be illegal, based
on trumped up charges, and discriminatory.
11

Parrish

discouraged Gray from investigating the matter and told
him to “move on.”

Not long after these complaints,

Gray was reassigned from Field Operations Bureau to
Administrative Services Bureau, a lower-status position
with less supervisory authority, though with the same
pay

and

at

transfer

the

same

publicly

in

rank.
the

Parrish

Police

posted

Department

Gray’s
office,

which Gray contends was both unusual and humiliating.
Gray complained directly to Parrish about the transfer;
Parrish, in turn, reported to Chief Benton that Gray
had

made

a

“faintly

veiled

discrimination

claim.”

January 23, 2013 Internal Memo (doc. no. 40-11) at 29.
Gray

also

complained

to

the

department’s

Equal

Employment Opportunity (EEO) Officer Darryl Matthews,
but was told that his complaint would have to wait
until another race-discrimination allegation lodged by
another officer had been resolved.
In

May

2013,

the

department

removed

Gray’s

supervisory authority by creating a new position and
12

placing a lower-ranked white officer, Michael Etress,
between

Gray

and

the

staff

he

commanded.

Gray

previously had directly supervised 60 employees; he now
supervised only two: Etress and the Police Department’s
only black secretary.

Parrish continued to scrutinize

Gray’s supervision of Etress.
was

“watching”

him,

He warned Gray that he

and

“micromanaging” Etress.

he

accused

Gray

of

Gray Declaration (doc. no. 48-

1) at 7.
In

June

2013,

Gray

filed

a

internal-communications

system

critical

received

review

complaint
accused

he

alleged
Parrish

favorably;

had
race

of

requested

in

be

on

response

from

white
removed

by

a
His

Parrish;

officers
from

the

to

Parrish.

discrimination

treating
to

complaint

more

Parrish’s

supervision due to his affiliation with the Sons of
Confederate Veterans; and notified his supervisors that
he planned to file EEOC charges.

The next day, Gray

brought his complaint to Delvick McCay, the Personnel
13

Board Director; after requests from McCay, Parrish, and
Chief

Benton,

investigation.

EEO

Officer

Mathews

began

an

While this investigation was pending,

Gray filed a charge of race discrimination with the
EEOC on August 2, 2013, which was amended on October 4
to add a charge of retaliation.2
EEO Officer Mathews’s internal-investigation report
was released a few days before Gray was terminated.
Mathews

determined

that

Gray’s

allegations

discrimination were unsubstantiated.

of

race

He also reported

that the Sons of Confederate Veterans group was not a
racist organization, relying on his finding that the
group is not listed as a hate group by the Southern
Poverty Law Center, though Gray has submitted evidence
2.
It is unclear from the record when Gray's
individual supervisors found out that he had filed
these charges, though, they had been on notice for
several weeks that he intended to file such charges.
However, it is certain that, by the time of his first
internal-affairs interview in late August 2013, all
relevant officers knew of the charges, because he
accused his interviewers of retaliation during that
interview. Gray's accusation was included in the
investigative report for two to Chief Benton
14

that the group has been tracked by the Southern Poverty
Law Center’s “Hate Watch” blog for its sponsorship of
various pro-Confederacy events and causes.
Three

weeks

after

Gray

filed

his

EEOC

charge,

Officers Parrish and Woodside responded to an assault
at a clubhouse run by the local chapter of a black
motorcycle club, Outcast.
“outlaw”

organization,

Outcast was known to be an
a

term

used

to

describe

motorcycle clubs that operate as conduits for criminal
enterprise--for
violence.
a

example,

to

traffic

drugs

or

commit

The parties dispute whether Outcast is also

“one-percenter”

club,

that

is,

a

group

motorcyclists who identify as law-breakers.

of

The term

“one-percenter” is “derived from an American Motorcycle
Association

official’s

remark

in

the

1950s

that

99

percent of all bikers were law-abiding, and thus ‘only’
one percent of the motorcycles on the roads belonged to
persons

who

were

trouble-makers.”

Murphy, 511 F.3d 247, 255 (2d Cir. 2007).
15

Piscottano

v.

At

the

clubhouse,

Woodside

questioned

a

local

firefighter and affiliate of Outcast, Willie McGuire.
Woodside

asked

McGuire

whether

he

knew

any

other

firefighters or police officers involved with Outcast.
Woodside

specifically

described

Gray

and

asked

if

McGuire had seen him around.
McGuire stated that he had seen Gray at several
charity events and that Gray’s group, the Bama Boyz,
sometimes hung around Outcast events, though the Bama
Boyz

were

not

formally

affiliated

with

Outcast.

McGuire also reported that another Dothan officer was a
member of a different black motorcycle club that was an
official “support” group for Outcast.
Six

Outcast

members

were

brought

back

to

the

station for questioning regarding the extent of Gray’s
and the other officer’s association with their group.
Gray contends that these suspects were offered lenience
in their criminal charges in exchange for providing

16

information

about

Gray’s

involvement

with

their

motorcycle club.
The chapter president reported that he had once
asked Gray whether the Dothan Police Department was
investigating Outcast.

Gray denied any investigation,

but the president explained that he knew Gray was lying
because

a

otherwise.

different

black

officer

had

told

him

The president also told the police that

Bama Boyz fell under the “guidance” of Outcast.

Other

members reported they had seen Gray around the Outcast
clubhouse

during

various

functions,

and

some

stated

that they had seen Gray in the presence of marijuana,
though none had seen him smoking.

At least two of

these members had criminal records.
Later

that

evening,

Gray

was

police department for questioning.

brought

into

the

Gray admitted that

Bama Boyz had a “blessing” from Outcast, which meant
that

the

group

could

ride

in

Outcast’s

territory

without being harassed, but he denied that there were
17

strings attached to the blessing or that the two groups
were formally affiliated.

Gray also stated that he

sought other blessings from other outlaw clubs when he
opened up another branch of the Bama Boyz in Anniston,
Alabama.

Gray admitted that he had been to the Outcast

clubhouse

on

occasion

for

social

events,

and

he

identified himself in a photograph standing alongside
Outcast members.
After this interview, the police department placed
Gray on paid administrative leave for four weeks while
it investigated the allegations.

Gray reports that,

throughout his 28-year career, he had never known of
such

a

long

internal-affairs

investigation.

Most

investigations, he reports, last for about a week or
less.

While on leave, Gray was questioned once more

for over five hours.

He contends that both interviews

resembled

interrogations

criminal

internal-affairs
questioning

investigations.

officers

wore

their
18

more
For

than

an

example,

the

firearms

during

the

interview,
despite

in

violation

the

“firearm

of

departmental

dropbox”

kept

policy
outside

and
the

interrogation room.
Through
learned

the

investigation,

several

ultimately

other

used

termination.

to

First,

the

things
bolster
the

Police

about
the

Department

Gray

that

basis

it
his

asserted

department

for

that

Gray’s city-issued cell phone had been used to access
pornography.

The cell phone has been the subject of

much discovery litigation before the magistrate judge,
and

Gray

city’s

vehemently

allegation.

preserve

the

cell

denies

the

However,
phone,

so

credibility
the

Gray

city
could

of

failed
not

the
to

conduct

independent forensic testing of the phone.
Second,
used

the

the

police

information

of

department
database

other

determined
to

officers

reasons.

19

that

access
for

the

Gray

had

personal

non-work-related

Finally, it determined that Gray had been evasive
during his internal-affairs interviews.
The investigation concluded in mid-September.

The

Police Department determined that Gray was associated
with

the

Outcast

motorcycle

report to Chief Benton.

club

and

submitted

its

After receiving the report,

Benton decided to terminate Gray.3

Though Gray’s notice

of termination cited several policy violations behind
his

discharge,

the

primary

reason

for

Gray’s

termination, according to Benton, was his association
with

outlaw

unbecoming

motorcycle
of

an

groups.

officer,”

This

which

was

the

“conduct

department

classified as an “intolerable offense.”
Gray

appealed

his

termination

to

the

personnel

board, made up of both black and white members, and the
board

unanimously

upheld

the

decision

to

terminate.

Gray was replaced by Carlton Ott, a white male.

Gray

then brought this lawsuit.
3. Gray was offered the opportunity to resign, but
he declined.
20

III. DISCUSSION
Gray

asserts

claims

of

race

discrimination

and

retaliation in violation of Title VII; violation of his
First

Amendment

right

to

free

association;

and

violation of a longstanding consent decree against the
City of Dothan.

The court will discuss each claim in

turn.

A. Title VII Claims
1. Timeliness
Gray

asserts

three

types

of

Title

VII

claims

against the City: discrete acts of race discrimination;
a racially hostile-work environment; and a retaliatory
hostile-work

environment.

Gray

makes

two

discrete

claims of race discrimination: the first is based on
the transfer of his supervisory authority in May 2013;
and the second is based on his termination in September
2013.

He also claims that he was subject to racial
21

harassment throughout his career, which began in 1985,
and that a retaliatory work environment following his
complaints in December 2012 and through his termination
the next fall.
In describing these claims, Gray chronicles a long
history
argues

of
is

allegedly

alleged

discrimination,

irrelevant

because

discriminatory

untimely--and

thus

not

the

which

the

history

conduct

that

actionable--if

city

recounts
would

be

brought

as

discrete claims of discrimination.
Under Title VII, a party may not sue on discrete
discriminatory acts that occurred more than 180 days
before the EEOC charge was filed.
Corp.

v.

Morgan,

discriminatory

536

conduct

U.S.

Nat’l R.R. Passenger
101

that

(2002).

is

But

outside

the

statute-of-limitations period is not necessarily barred
from the court’s consideration as background evidence
for other timely discrete claims.
such

conduct

necessarily

barred
22

Id. at 113.
from

the

Nor is
court’s

consideration of a hostile-environment claim, if the
plaintiff

can

discrimination

establish
was

part

that

of

the

the
same

untimely
pattern

of

intimidation, ridicule, and insult that continued into
the

statutory

period

hostile environment.

and

cumulatively

produced

a

See id. at 117 (“Provided that an

act contributing to the claim occurs within the filing
period,

the

environment

entire
may

be

time

period

considered

by

of
a

the
court

purposes of determining liability.”).

hostile
for

the

Thus, to the

extent that any untimely acts contribute to a timely
hostile-environment claim, they too may be considered
for that purpose.
not

separate

hostile

See id. at 118 (“The statute does

individual

environment

acts

claim

that

from

are

the

part

whole

of

the

for

the

purposes of timely filing and liability.”); Gowski v.
Peake, 682 F.3d 1299, 1313 (11th Cir. 2012) (explaining
that a jury can consider discrete acts as part of a
hostile-environment

claim);
23

cf.

Chambless

v.

Louisiana-Pac. Corp., 481 F.3d 1345, 1349-50 (11th Cir.
2007) (“Where the discrete act is sufficiently related
to a hostile work environment claim so that it may be
fairly considered part of the same claim, it can form
the basis for consideration of untimely, non-discrete
acts that are part of the same claim.”).
The reasoning behind the city’s argument seems to
be

that

when

an

act

of

discrimination

is

offensive

enough to rise to the level of actionability, it needs
to be addressed promptly.

In other words, the Title

VII statute of limitations--and the EEOC administrative
process

it

incentive

promotes--operate
to

remedy

prophylactically,

discrimination

before it gets any worse.

in

the

as

an

workplace

Filing an EEOC charge long

after the violation has ended prevents the EEOC from
doing its job.
But the city’s argument ignores the fundamental way
that a hostile-environment claim is different from a
claim based on a discrete act of discrimination: the
24

illegal

workplace

hostile-environment

practice
claim

is

sued
the

upon

hostile

in

a

environment

that arose from an accumulation of many acts--not any
particular act itself.

It does not follow, therefore,

that the most compelling evidence of the existence such
an environment should not be considered by this court
merely because the act was egregious enough on its own
to have been a basis for suit.

Moreover, perhaps a

plaintiff waited to file his EEOC charge because he
wanted

to

see

if

things

would

get

better

before

ruffling feathers with management; or perhaps he was
not sure if any particular act was offensive enough.
Whatever might have been the reason to wait, if the
plaintiff can establish the existence of a hostile-work
environment within the limitations period, the court
will

not

ignore

discrimination

the

merely

evidence

of

untimely

because

they

might

sufficient for liability as “discrete” acts.

25

acts

have

of

been

Therefore,

while

any

discrete

acts

of

discrimination occurring more than 180 days before Gray
filed

his

actionable

EEOC
as

charge

on

separate

August

2,

claims,

2013,

the

are

court

not
will

nonetheless consider them as background evidence for
Gray’s

timely

discrete

claims

of

discrimination,

as

well as evidence of racial harassment and a retaliatory
hostile-work environment.

2. Discrimination
Gray

contends

discrimination

are

that

two

timely

discrete

Title

VII

acts

of

claims:

the

transfer of his direct supervisory authority to Etress
in May 2013, and his unlawful termination.

a. Transfer of Supervisory Authority
A few months
Administrative

after

Services

Gray

was

Bureau,

transferred to
a

new

the

supervisory

position was created below him, and Lieutenant Etress
26

assumed direct supervision over Gray’s staff.4

Gray

contends that this is a discrete act of discrimination.
For a discrete Title VII discrimination claim, an
employee

must

employment
employment

demonstrate

action--that
action”

he

is,

such

as

suffered
either

an

an

termination,

adverse
“ultimate

failure

to

hire, or demotion, or “a serious and material change in
the terms, conditions, or privileges of employment.”
Crawford v. Carroll, 529 F.3d 961, 970-71 (11th Cir.
2008) (emphasis in original) (internal quotation marks
omitted), overturned on other grounds by Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006);
see also Wilborn v. S. Union State Cmty. Coll., 720 F.
Supp. 2d 1274, 1301 (M.D. Ala. 2010) (Thompson, J.).
In this case, it could be argued that the creation
of

a

new

management

position

below

Gray

in

the

Administrative Services Bureau effectively removed much
4. Gray concedes that the transfer to the
Administrative Service Bureau falls outside of the
statute of limitations, so that it may not be sued on
as an individual claim.
27

of his supervisory authority, effectively resulting in
a demotion for him.

However, the problem for a Gray is

that his complaint does not assert this claim as a
separate one; indeed, it was not apparent until his
summary-judgment response that he intended to do so.
Nor was the city on notice of it, because the city did
not respond to such a claim in its filings.

Because

the claim comes too late, summary judgment on it will
be entered in favor of the city.

b. Unlawful Termination
Gray

next

terminated

him

Title VII.
ground

that

reason

for

summary

contends
because

that
of

his

the

Police

race

in

Department

violation

of

The city moves for summary judgment on the
it

had

a

terminating

judgment

is

legitimate

non-discriminatory

him.

court

not

The

appropriate

finds

because

that

Gray’s

evidence has created a genuine issue for trial as to

28

whether his race was, at least, a “motivating factor”
in the department’s decision to terminate him.
Title

VII

provides

that

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,
such

or

privileges

individual’s

of

race.”

employment,

42

U.S.C.

because

§

of

2000e–2(a).

“[A]n unlawful employment practice is established when
the complaining party demonstrates that race ... was a
motivating

factor

for

any

employment

practice,

even

though other factors also motivated the practice.”

42

U.S.C. § 2000e–2(m).
Under Title VII,
broad

array

of

the employee may be

relief,

including

awarded

“compensatory

a

and

punitive damages,” he can demonstrate the employer’s
unlawful

intentional

discrimination.

42

U.S.C.

§ 1981a(a)(1). However, when the employer demonstrates
that

it

“would

have

taken
29

the

same

action

in

the

absence of the impermissible motivating factor,” the
relief is limited.

42 U.S.C. § 2000e-5(g)(2)(B).

If

the employer can show that it would have taken the
“same action” even absent discriminatory animus, the
court

may

grant

injunctive

declaratory

relief,

demonstrated

to

and

be

relief,

attorney’s

directly

some
fees

forms
and

attributable

to

of

costs
the

discrimination claim, but it cannot award damages or
issue an order requiring any admission, reinstatement,
hiring, promotion, or payment.

Id.

“Thus, ... If the

employee shows merely that [an impermissible factor]
was a motivating factor, he has established liability
and thus may be entitled to some relief.
employer

has

met

its

‘same

action’

Whether the

burden

of

proof

would go to the nature of the relief available.”

Hall

v. Ala. Ass’n of Sch. Bds., 326 F.3d 1157, 1165 (11th
Cir.
Inc.,

2003);
2014

see

also

Morgan

WL

1239240,

at

(Thompson, J.).
30

v.
*4

Saehaesung
(M.D.

Alabama,

Ala.

2014)

In considering a claim of discrimination at trial,
therefore,

the

assessment.5
determines

In

of

factor

must

the

whether

preponderance
motivating

court

first

the

the
for

go

through
step,

employee

evidence
the

the

has

that

two-step
factfinder

proved

his

employer’s

a

by

a

race

was

a

decision,

though other factors also motivated the employer.

even
If

the employee has shown this fact by a preponderance of
the evidence, liability is established.

The factfinder

5. The parties argued their positions on summary
judgment in the terms of the burden-shifting approach
set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973).
McDonnell Douglas provides a helpful
heuristic device for establishing liability through
circumstantial evidence.
St. Mary’s Honor Center v.
Hicks, 509 U.S. 502, 521 (1993); see also Herawi v.
State of Alabama Dep't of Forensic Sciences, 311 F.
Supp. 2d 1335 (M.D. Ala. 2004) (Thompson, J.).
The
burden-shifting approach is “a sensible, orderly way to
evaluate the evidence in light of common experience as
it bears on the critical question of discrimination.”
United States Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 715 (1983) (internal quotations and
citations omitted).
But it is merely one analytic
methodology, and it is “is not, and never was intended
to be, the sine qua non for a plaintiff to survive a
summary judgment motion in an employment discrimination
case.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321,
1328 (11th Cir. 2011).
31

then proceeds to step two of the process.
the

factfinder

determines

whether

the

At step two,
employer

has

proved by a preponderance of the evidence that it would
have taken the same adverse-employment action against
the employee even in the absence of the impermissible
factor.

See also Desert Palace, Inc. v. Costa, 539

U.S. 90, 101 (2003) (in order to obtain a mixed-motive
jury instruction under Title VII, 42 U.S.C.A. § 2000e–
2(m),

“a

evidence

plaintiff
for

preponderance

need

a

reasonable

of

the

only

present

jury

evidence,

to

that

sufficient

conclude
race

...

by

a

was

a

motivating factor for any employment practice”). Here,
the court concludes that the evidence is sufficient to
go to a factfinder, that is, the jury, to undertake
this two-step process.
On

the

one

conclusion that
reasonably

hand,

the

evidence

could

support

a

the city terminated Gray because it

relied

on

the

conclusions

of

the

department’s investigation that Gray was involved with
32

an outlaw motorcycle club.

Gray was a high-ranking

police officer, and his actual or perceived involvement
with a group that condones violence could have brought
disrepute to the force or compromised the department’s
ability to protect its community.

The evidence thus

supports the city’s argument that it fired Gray for an
entirely legitimate reason, or, at least, would have
terminated Gray absent race bias.
On

the

other

hand,

however,

the

evidence

also

supports a conclusion that the city wanted to get rid
of Gray because he was black.

There is evidence to

support a finding that racial hostility was pervasive
in attitudes shared by some of Gray’s supervisors and
fellow

officers.

record

that,

First,

throughout

there
his

is

evidence

career,

Gray

in

the

was

the

subject of racial slurs used by colleagues and heard
them

used

decorated
other

around
his

him.

office

colleagues

were

Moreover,

with

Confederate

photographed
33

his

supervisor
memorabilia;

smiling

behind

a

large Confederate flag.

While Confederate memorabilia,

including the flag, have historical significance, they
have

also

towards

been

used

as

symbols

of

and

other

African-Americans

racial

hostility

minorities.

A

factfinder could find that, at best, the display of
such

memorabilia

insensitivity,
feelings

of

if
all

in

the

not

workplace

conscious

those

(black

reflects

disregard,
and

an

for
in

white)

the
the

workplace, or, at worst, an actual reflection of racial
hostility toward the inclusion of African Americans and
other

minorities

factfinder

could

in

the

find

workplace.
that

the

In

short,

Dothan

a

Police

Department’s workplace environment is not hospitable to
equal opportunity for people of all races.
Moreover, Gray’s race and his advocacy on behalf of
himself and other black officers and community members
had been a continual source of conflict throughout his
employment.

He had been denied training opportunities

and promotions because of his race, and he had to fight
34

to advance in his career almost every step of the way.
As it stood, he was the only black supervisor on staff.
Construing

the

evidence

most

favorably

to

Gray,

a

factfinder could find that the city used the assault at
the Outcast clubhouse as an opportunity to seek out
information on Gray that could justify his termination,
and his unusually long suspension provided
enough time to dig up dirt.

the city

Indeed, Gray contends that

it offered lenience to criminal suspects in exchange
for information that could hurt Gray.
That race discrimination was, at least, in play at
the time of his discharge is a reasonable inference.
Moreover, given that Gray’s termination came on the
heels of a management shuffle which transferred his
supervisory

authority

to

a

white

officer;

that

he

ultimately was replaced by a white officer; and that it
has not fired any other officers for their association
with motorcycle clubs, the evidence could also support
the

conclusion

that

Gray’s
35

race

was

not

only

a

‘motivating’ factor in his termination, it was the only
factor.
Whether the first conclusion (no discrimination) or
the second (discrimination, in whole or in part) is
correct

cannot

Rather,

because

“convincing
would

be

resolved
the

mosaic

allow

discrimination,”

the
it

of

on

evidence

summary
has

circumstantial
jury

will

to
go

to

judgment.

presented
evidence

infer
trial.

a

that

intentional
Smith

v.

Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir.
2011).

3. Racially Hostile-Work Environment
Reading Gray’s complaint broadly, as is required
will,

the

court

evaluates

Gray’s

racially hostile-work environment.

allegations

of

a

To establish the

claim here, Gray must show: (1) that he belongs to a
protected racial group; (2) that he has been subject to
unwelcome harassment; (3) that the harassment must have
36

been based on his race; (4) that the harassment was
sufficiently severe or pervasive to alter the terms and
conditions of employment and create a discriminatorily
abusive working environment; and (5) that his employer
is

responsible

for

such

environment

under

theory of vicarious or of direct liability.

either

a

See Miller

v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th
Cir. 2002) (applying these factors to a national-origin
claim).
A hostile-work environment claim is an allegation
that “the workplace is permeated with discriminatory
intimidation,
sufficiently

ridicule,
severe

or

and

insult,

pervasive

to

that

is

alter

the

conditions of the victim’s employment and create an
abusive working environment.”

Harris v. Forklift Sys.

Inc., 510 U.S. 17, 21 (1993).

As discussed above, the

“very nature [of a hostile-environment claim] involves
repeated

conduct,”

and

liability

is

based

“cumulative effect of individual acts.”
37

on

the

Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002).
When

a

hostile-environment

discriminatory

conduct

that

claim

occurred

involves
before

the

statutory filing period, the claim is actionable only
if

some

portion

of

the

limitations time period.

claim

continued

into

the

Id. at 117 (“Provided that an

act contributing to the claim occurs within the filing
period,

the

environment

entire
may

be

time

period

considered

by

of
a

the
court

hostile
for

the

purposes of determining liability.”); see also Shields
v. Fort James Corp., 305 F.3d 1280, 1282 (11th Cir.
2002) (“Put simply, if the smallest portion of that
‘practice’ occurred within the limitations time period,
then the court should consider it as a whole.”).
Here, Gray claims that he was subjected to racial
harassment throughout his career.

Of course, untimely

evidence of harassment may be considered as part of his
hostile-environment claim only if it contributed to the
same unlawful employment practice that continued into
38

the limitations period--that is, if it contributed to
the

same

environment

of

discriminatory

intimidation,

ridicule, and insult that Gray experienced within 180
days of filing his EEOC charge.
To

determine

whether

pre-

and

post-limitations

period conduct is part of the same unlawful employment
practice, the Supreme Court advises looking to whether
the incidents involved “the same type of employment
actions,”

the

frequency

perpetrated the acts.

of

the

conduct,

and

who

See Nat’l R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 120 (2002).

Here, during the

post-limitations period, Gray’s allegations of racial
harassment

include

having

his

supervisory

capacity

nitpicked by his supervisor, Parrish; being reviewed
critically

by

Parrish

on

the

internal-communications

system; being treated differently than his fellow white
officers by Parrish; and being exposed by Parrish to an
office culture that set pro-Confederacy viewpoints on
proud display.

Additionally, Gray’s direct supervisory
39

authority
officer.

was

transferred

to

a

lower-ranked

white

Prior to the limitations period, Gray alleged

similar conduct by Parrish: Parrish scrutinized Gray’s
supervisory

style

and

diligence;

humiliated

Gray

by

questioning his whereabouts to others and posting his
transfer publicly; lodged critical reviews against Gray
and failed to praise him equally to other officers; and
put Gray on a Performance Improvement Plan.
also

transferred

from

Field

Gray was

Operations

to

Administrative Services, a less prestigious position.
Because

Gray

alleges

post-limitations-period

racial

that

the

harassment

was

perpetrated primarily by Parrish and because Gray has
alleged

no

frequency

material
of

difference

Parrish’s

between

harassing

the

conduct

type

or

before

or

after the limitations period, the court finds that the
same allegedly hostile environment existed at Gray’s
workplace at least from the time when Parrish became

40

Gray’s supervisor--that is, 2010.6
the

purposes

relevant

any

of

timeliness,

alleged

In other words, for

the

harassment

court

that

considers

occurred

while

Parrish was Gray’s supervisor.
The

city’s

hostile-environment
untimely

instances

defense
claim
of

to

primarily
alleged

Gray’s

racial

concerns

whether

racial

harassment

throughout Gray’s career can be considered under the
statute of limitations.

As such, the City does not

dispute the various elements of Gray’s prima-facie case
on this claim, and it does not address head-on whether
Parrish’s history of harassing conduct towards Gray was

6. The court does not opine on whether a hostile
environment also existed prior to 2010. Because Gray’s
evidence of a racially hostile environment within the
filing period primarily concerns harassment by Parrish,
as described above, the court looks only to evidence of
that same environment prior in conduct preceding the
filing period.
41

sufficient

to

create

an

actionable

hostile-work

environment on the basis of race.7

7. The city’s failure to brief the elements of
Gray’s hostile-environment claim seems to arise from
confusion as to Gray’s theories of recovery.
In its
first summary-judgment motion, the city argued that
Gray
did
not
properly
state
a
racially
hostile-environment claim.
See Def. Motion (doc. no.
34) at 11 (“Count I does not state a claim for hostile
work environment....”).
As such, at this stage, its
arguments were responsive to only Gray’s claim of
retaliatory hostile-environment.
Indeed, Gray did not plead racial harassment as a
separate count in his complaint; rather, he subsumed
his evidence of harassment into a count he titled “Race
Discrimination: Title VII.” Complaint (doc. no. 1) at
10.
But the facts alleged in that count pertain both
to discrete acts of discrimination and repeatedly
harassing
conduct-–the
foundation
of
a
hostile-environment claim.
And his complaint explains
several times that he brings claims of “discrimination,
harassment, and retaliation.” See id. at 1, 2, 9. As
Gray himself admits, the complaint was not a “model of
clarity.”
See McCurdy v. Auburn University, 2015 WL
2064248, at *4 (M.D. Ala. 2015) (Thompson, J.). But it
was enough to put the city on notice.
To the extent that any ambiguity remained as to
whether Gray’s hostile-work environment claims were
based on theories of both racial harassment and
retaliation,
Gray’s
summary-judgment
briefing
delineated his several theories of recovery. See Plf.
Resp. Br. (doc. no. 48) at 68 (“Gray’s Title VII claims
include discrimination, harassment, and retaliatory
42

The city does assert a thorough defense to Gray’s
evidence
(which

of

a

includes

retaliatory
the

hostile-work

investigation

of

environment

his

motorcycle

associations and the other events leading up to his
termination).

The

relevance

of

that

argument

is

somewhat limited here, because the alleged cause of the
each hostile environment is obviously
harassment
charges

due
and

discrimination?

to

Gray’s

other
But

race,

or

due

complaints
to

the

not the same:

extent

to

of
that

his

EEOC

race-based
the

city

analyzes Parrish’s harassing conduct as part of the
retaliatory hostile-environment claim, the court notes
that

its

argument

is

not

responsive

to

Gray’s

hostile environment....
Defendant erroneously argues
that Count I does not state a claim for harassment
under Title VII.... Despite the header’s use of the
term ‘discrimination,’ the Complaint provides Defendant
with more than adequate notice of a Title VII
harassment claim....”).
Yet even after this clarification, the city’s reply
briefing on summary judgment still failed to address
Gray’s racial harassment claim on the merits. Rather,
its argument about Gray’s racially hostile-environment
claim rests entirely on timeliness.
43

prima-facie
allegations

case.
as

Indeed,
“a

few

its

recasting

examples

of

of

Gray’s

Plaintiff’s

supervisor checking in on him or correcting him” that
could not constitute “harassment” because they served a
“legitimate purpose” is simply not in line with the
meaning of harassment under Title VII.

Def. Sum. J.

Br. (doc. no. 39) at 71, 64; see Henson v. City of
Dundee, 682 F.2d 897, 903 (11th Cir. 1982) (explaining,
in a context of a sexual harassment case, that conduct
constitutes

harassment

when

it

has

“the

purpose

or

effect of unreasonably interfering with an individual's
work performance or creating an intimidating, hostile,
or offensive working environment”).
Construing the evidence in the light most favorable
to Gray, the court finds that there is, at least, a
genuine dispute of material fact as to whether Gray
suffered harassment based on

his race sufficient to

impose liability under Title VII.
finds

sufficient

evidence
44

to

Indeed, the court
substantiate

Gray’s

hostile-environment

claim

even

considering

only

Parrish’s conduct towards Gray during the period that
he was his supervisor, and even excluding any of Gray’s
allegations that might amount to “discrete” acts of
discrimination.
Therefore,

summary

judgment

will

be

denied

on

Gray’s racially hostile-work environment claim.

4. Retaliatory Hostile-Work Environment
The Eleventh Circuit Court of Appeals recognizes a
retaliatory hostile-environment claim when, as a result
of the employee’s opposition to an unlawful employment
practice

or

workplace
intimidation,
sufficiently

participation
is

in

permeated
ridicule,

severe

or

EEOC
with

and

proceedings,

discriminatory

insult,

pervasive

“the

to

that

is

alter

the

conditions of the victim’s employment and create an
abusive working environment.”

45

Gowski v. Peake, 682

F.3d 1299, 1311 (11th Cir. 2012).8

The city does not

dispute that Gray engaged in protected activity by both
complaining

about

race-discrimination

throughout

his

tenure and filing the EEOC charge that gave rise to
this case.9

8. This cause of action was only recently
recognized in this circuit, see Gowski v. Peake, 682
F.3d 1299 (11th Cir. 2012), though some unpublished
cases issued since Gowski offer guidance as to the
elements of the claim that the court will look to here.
A plaintiff establishes a prima facie case of a
retaliatory harassment by demonstrating (1) he engaged
in protected activity; (2) after doing so, he was
subjected to unwelcome harassment; (3) his protected
activity was a “but for” cause of the harassment; (4)
the harassment was sufficiently severe or pervasive to
alter the terms or conditions of his employment; and
(5) a basis exists for holding her employer liable
either directly or vicariously.
Swindle v. Jefferson
Cnty. Comm’n, 593 F. App’x 919, 929 n.10 (11th Cir.
2014).
9. Gray also contends that he was subject to a
retaliatory
hostile
environment
following
his
complaints
about
the
department’s
discriminatory
treatment of minority citizens.
Whether this is an
example
of
race
discrimination
towards
community
members, it is not an example of retaliation under
Title VII.
Title VII’s retaliation clause protects
employees who oppose unlawful discrimination practices
in employment, not unlawful discrimination generally.
46

Gray’s

hostile-environment

claim

describes

both

discrete acts that could be actionable and retaliatory
harassment that would not rise to the discrete level.
Both,

he

contends,

were

of

the

same

type

of

intimidation, ridicule, and insult giving rise to a
retaliatory

hostile

environment.

Cf.

Chambless

v.

Louisiana-Pac. Corp., 481 F.3d 1345, 1350 (11th Cir.
2007) (explaining that the “pivotal question is whether
the timely discrete acts are sufficiently related to
the hostile work environment claim”).

His theory of

liability is consistent with the court’s discussion of
discrete

acts

above,

and

with

Eleventh

Circuit

precedent holding that, while “[d]iscrete acts cannot
alone

form

the

basis

of

a

hostile

work

environment

claim,” a jury can “consider discrete acts as part of a
hostile work environment claim.”

Gowski v. Peake, 682

F.3d

2012)

1299,

1313

(11th

Cir.

original).

47

(emphasis

in

Gray’s claim focuses on the environment that arose
after

he

targeting

began
and

to

voice

treatment

2012.10

December

concerns
of

Shortly

about

minority

the

city’s

citizens

thereafter,

in

Gray

was

transferred from Field Operations to a less prestigious
position

in

Administrative

Services

with

less

supervisory authority.

Following this transfer, Gray

complained

Parrish,

Benton.

directly
He

to

also

who

complained

to

reported

it

Departmental

to
EEO

Officer Mathews about his belief that the transfer was
motivated by race discrimination.
complaint

had

to

wait

Mathews told him his

until

another

officer’s

race-discrimination claim had been resolved.
As
officer,

stated,
Etress,

in

May

was

2013,

a

transferred

lower-ranked
to

white

Administrative

10. As discussed in the preceding footnote, the
court does not consider Gray’s opposition to the police
department’s
treatment
of
community
members
as
protected Title VII activity.
However, because Gray
made
informal
and
formal
complaints
of
race
discrimination both before and immediately after his
transfer, there is no question that Gray participated
in protected activity sufficient to plead retaliation.
48

Services,

and

direct

staff--approximately

60

supervision

over

employees--was

Gray’s

reassigned

to

Etress and Parrish; Gray now supervised only Etress and
the department’s only black secretary.
that,

after

the

supervisory

transfer,

authority

even

he
over

had

Gray alleges
little

actual

Etress.

Parrish

repeatedly warned Gray not to “micromanage” Etress, and
that he was being “watched.”

In June 2013, in response

to a critical performance review from Parrish, Gray
complained that Parrish was discriminating against him
on

the

basis

forwarded

his

of

his

race,

complaint

to

and,
his

the

next

personnel

day,

he

director.

Gray filed an EEOC charge in August 2013 on the same
basis.
Three weeks after Gray filed his EEOC charge, there
was

an

assault

investigating

at

the

officers

Outcast

clubhouse.

specifically

sought

The
out

information that could harm Gray’s employment with the
department,

though

Gray

had
49

nothing

to

do

with

the

assault.

This was followed by intense interrogations

of Gray and an extended suspension; Gray describes this
conduct

as

a

“witch

hunt.”

After

the

four-week

investigatory period, Gray was terminated.
The

city

investigation,
termination

argues
Gray’s

are

non-discriminatory
that

no

act

that

internal-affairs

administrative

all

leave,

justified

reasons;

alleged

the

as

considered “harassment.”

they

by

his

legitimate,

contend,

retaliatory

and

by

therefore,

Gray

can

be

But whether the city in fact

was motivated by legitimate reasons, or discriminatory
or retaliatory reasons--or perhaps a mix of both or
all--remains in dispute.

As such, it is now a question

of fact for the jury.
While
cause

of

retaliatory
retaliation

intent

must

be

to

maintain

the
an

“but-for”
individual

retaliation claim, see Univ. of Texas Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517 (2013), the Eleventh Circuit
has held that a retaliatory hostile environment can
50

survive on a mixed-motive theory.

See Gowski v. Peake,

682 F.3d 1299, 1313 (11th Cir. 2012) (“[T]he jury here
found that the discrete acts were motivated in part by
retaliatory animus.

Although that may be sufficient

under the same-decision defense to preclude liability
for each of the acts individually, it is not enough to
eliminate liability for the hostile environment caused
by

the

retaliatory

animus

when

the

discrete

and

non-discrete acts are taken collectively.”).

As the

appellate

but-for

court

explained

in

Gowski,

“the

causation that matters in a retaliatory hostile work
environment

claim”

is

“the

severe

and

pervasive

accumulation of actions that would not have occurred
but-for the retaliatory reason,
alone was justifiable.”

Id.

even if each action

(emphasis added).

In other words, there are two relevant questions
here.

First, but for the city’s underlying retaliatory

intent,
hostile?

would

Gray’s

environment

have

been

made

Second, if so, did the city’s retaliatory
51

animus cause an accumulation of actions--independently
legitimate

or

not--that

was

sufficiently

severe

or

pervasive to alter the terms or conditions of Gray’s
employment?
The
evidence

court
to

finds

reach

that
the

Gray

jury

on

has

presented

this

enough

claim.

Even

discounting the weight of the discrete acts, Gray’s
allegations

of

retaliatory

harassment,

based

on

Parrish’s supervision and the alleged “witch hunt,” is
arguably sufficient to meet his prima-facie burden.
First, Gray has established a genuine dispute of
material fact about the city’s retaliatory intent and
the cause of the hostile environment.

Gray’s evidence

of retaliatory animus is the increasing escalation of
adverse actions taken against him and harassing conduct
directed at him after his repeated complaints, and the
close temporal proximity between his EEOC charge and
the “witch hunt” that led to his termination.
argues,

in

response,

that,
52

because

Gray

The city
complained

about race discrimination throughout his employment yet
rose in the ranks regardless, it is not believable that
his

more

recent

complaints

“suddenly”

caused

a

retaliatory hostile environment.
The city misses the mark.

Whether a retaliatory

work environment had previously existed as a result of
Gray’s past complaints, and whether Gray could advance
in his career despite a hostile environment, has no
bearing

on

whether

retaliatory

animus

of

his

supervisors and colleagues in response to these more
recent complaints created a hostile environment that is
actionable now.

And it certainly does not make it less

believable

Gray’s

that

more

recent

complaints

could

have been the last straw.
Gray also shows a causal connection by looking to
the close temporal proximity between his EEOC charge
and the initiation of the investigation that sparked
his termination.

Gray was placed on administrative

leave three weeks after he filed his EEOC charge, and
53

terminated

four

proximity,

without

demonstrate
Inc.,

506

weeks

after

more,

causation.
F.3d

1361,

that.

must

be

Thomas
1364

‘very

v.

(11th

“Mere

close’”

Cooper

Cir.

temporal
to

Lighting,

2007)

(citing

Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001)) (holding that three to four months between the
statutorily

protected

employment

action

causality).

expression

is

While

and

insufficient

Gray’s

evidence

an

adverse

to

suggest

of

temporal

proximity does not stand alone as his only causation
evidence, the court finds that this span of time is
close enough to “very close” to present a question to
the jury.

Cf. Farley v. Nationwide Mut. Ins. Co., 197

F.3d 1322, 1337 (11th Cir. 1999) (seven weeks between
filing of EEOC charge and termination is “sufficiently
proximate

to

create

a

causal

nexus

for

purposes

of

establishing a prima facie case.”).
The city responds that it could not control the
date of the assault at the Outcast clubhouse and that
54

its suspension and termination ultimately were based
only on information it did not learn about until after
he had filed his charge.

But it is difficult to get

around the fact that shortly after Gray filed his EEOC
charge,

the

department

investigating

Gray’s

took

a

new

motorcycle-club

interest

in

affiliations,

despite longstanding knowledge of his involvement with
the Bama Boyz.

Indeed, the city had even accepted

money from the group in the past.

Moreover, the city’s

reliance on case law holding that an intervening event
can break the causal chain is inapposite: Gray did not
fail to meet performance standards or engage in any
intervening act of misconduct between filing his charge
and his termination.

Cf. Fleming v. Boeing, Co., 120

F.3d

Cir.

242,

Airways,
2007).

248

Inc.,

(11th
237

F.

1997);

App’x

513,

Hankins
520-21

v.

AirTran

(11th

Cir.

Rather, the city chose to investigate Gray’s

longstanding

involvement

with

area

motorcycle

clubs,

and determined that his social affiliations were in
55

conflict with his police duties, after he filed his
charge.
Second,

the

actions

that

Gray

alleges

to

be

retaliatory were sufficiently severe or pervasive to
alter the terms and conditions of Gray’s employment.
The severe or pervasive requirement contains both an
objective

and

actionable,

a

this

subjective
behavior

component;

must

result

in

“to

be

both

an

environment that a reasonable person would find hostile
or

abusive

and

an

environment

that

subjective perceives to be abusive.”
at 1312.
or

the

victim

Gowski, 682 F.3d

To determine if conduct is objectively severe

pervasive,

courts

circumstances,

look

analyzing

to
“the

the

totality

frequency

of
of

the
the

conduct”; “the severity of the conduct”; “whether the
conduct is physically threatening or humiliating, or a
mere

offensive

utterance”;

unreasonably

interferes

performance.”

Id.

and

with

56

“whether
the

the

conduct

employee’s

job

Here,

discrete

acts

certainly

played

a

role

in

creating an environment of intimidation after Gray’s
more

recent

complaints:

his

direct

supervisory

authority over 60 staff was removed and given to a
lower-ranked white officer; he was suspended; and he
was

ultimately

terminated.

And

the

evidence

also

supports a conclusion that smaller acts of retaliatory
harassment, ridicule and insult altered the terms and
conditions of Gray’s
Gray’s

transfer

to

work environment on their own.
a

less

prestigious

position

was

posted publicly; his supervision over inferior officers
was nitpicked and chastised; and he was interrogated
for hours by armed colleagues during the course of an
internal

affairs

investigation.

Finally,

given

his

statements to the court, there is no question that Gray
subjectively perceived the environment to be abusive.
Therefore, because the court finds that a reasonably
jury could find such an environment to be objectively

57

and subjectively abusive, this claim survives summary
judgment.

B. First Amendment Claim
Gray next alleges that the City violated his First
to

association.11

Amendment

right

free

Amendment

guarantees

associate

both

for

forming

and

preserving

to
the

individuals
purely

The

First

the

freedom

to

private

purpose

of

personal

and

social

relationships, and as a collective means of engaging in
political

expression,

religious

worship,

or

other

activities independently protected by the Constitution.
See Roberts v. United States Jaycees, 468 U.S. 609,
617-18

(1984);

Green

v.

City

of

Montgomery,

792

F.

Supp. 1238, 1252 (M.D. Ala. 1992) (Thompson, J.).

11. Though Gray does not specify the statutory
vehicle through which he pleads his First Amendment
claim, the city interpreted his claim under 42 U.S.C.
§ 1983, and Gray did not object.
As such, the court
assumes, as did the city, that Gray has plead under
§ 1983.
58

“When

a

citizen

enters

government

service,

the

citizen by necessity must accept certain limitations on
his or her freedom,” though “public employees do not
surrender all their First Amendment rights by reason of
their employment.”
418,

417

Garcetti v. Ceballos, 547 U.S. 410,

(2006).

A

governmental

body

“may

not

discharge an employee on a basis that infringes that
employee’s

constitutionally

freedom of speech.”

protected

interest

in

Akins v. Fulton County, Ga., 420

F.3d 1293, 1303 (11th Cir. 2005).

As such, if a public

employee demonstrates that his associational activity
was a substantial or motivating factor for an adverse
employment action, the employer may avoid liability for
a First Amendment violation only by proving either that
the

government’s

efficient

interest

operation

of

the

as

an

employer

workplace

in

the

supports

the

challenged action or that it would have reached the
same

decision

even

the

associational activities.

absence

of

the

employee’s

See Vila v. Padron, 484 F.3d
59

1334,

1339

(11th

Cir.

2007)

(setting

forth

a

four-factor test to determine whether public employee
has been discharged in retaliation for speech protected
under the First Amendment); Hatcher v. Board of Public
Education and Orphanage, 809 F.2d 1546, 1558 (11th Cir.
1987) (holding that employee need not demonstrate that
his speech pertained to a matter of public concern in
the

context

of

a

free-association

Green, 792 F. Supp. at 1252.
city

does

not

dispute

claim);

see

also

In this case, because the

that

Gray’s

motorcycle-club

affiliation was a substantial or motivating factor for
Gray’s termination, the court will begin by analyzing
the government’s interest as an employer.
Gray contends that he was terminated based on his
affiliation with the Bama Boyz.
association

with

constitutional
Pickering

Bama

Boyz

protection

test,

which

He argues that his

should

under

balances

be

the
a

entitled

Supreme

public

to

Court’s

employee’s

right to engage in speech or association against the
60

interest of the employer in “promoting the efficiency
of

the

Board

public
of

services

Education,

it

391

performs.”

U.S.

563

Pickering

(1968);

see

v.

also

Shahar v. Bowers, 114 F.3d 1097 1112-1113 (11th Cir.
1997)

(applying

question

of

the

First

Pickering

Amendment

balancing

right

to

test

to

freedom

of

association).
The city argues, in response, that its termination
was

justified

presents

no

under

Pickering.

evidence

that

Though

the

city

Bama

Boyz

club

Gray’s

identified as an outlaw club or engaged in any criminal
or nefarious activity itself, the city alleges that, as
member and president of Bama Boyz, Gray developed and
maintained

affiliations

with

outlaw

clubs

and

their

members that could bring disrepute to the department
and compromise police work.
Under the reasoning of Shahar, an employer need not
show

actual

disruption

or

make

a

“particularized

showing of interference with the provision of public
61

services” in order to have its concerns regarding an
employee’s association with unpopular groups weighed by
the court.

Id. at 1108; see also Connick, 461 U.S.

138, 152 (1983) (“[W]e do not see the necessity for an
employer to allow events to unfold to the extent that
the disruption of the office and the destruction of
working

relationships

action.”).

Rather,

is

the

manifest

employer

before

need

only

taking
present

evidence that it made a “reasonable prediction[] of
disruption.”

Id.

at

1124.

Moreover,

because

it

recognizes that “in the context of law enforcement,
there is a special need to employ persons who act with
good

judgment

and

avoid

potential

conflicts

of

interest,” Ross v. Clayton County, Georgia, 173 F.3d
1305, 1311 (11th Cir. 1999), the Court of Appeals has
held that a police department may be afforded “more
latitude in responding to the speech of its officers
than other government employers.”

Oladeinde v. City of

Birmingham, 230 F.3d 1275, 1293 (11th Cir. 2000).
62

With

this

law-enforcement-specific

standard

in

mind,

the

court will turn to the scales.
The Pickering balancing test is designed to ensure
that public employees’ exercise of their free-speech
rights as citizens does not substantially impede public
employers from maintaining “efficiency and integrity in
the

discharge

of

official

duties,

and

...

proper

discipline in the public service,” Connick, 461 U.S. at
150–51, (quoting Ex parte Curtis, 106 U.S. 371, 373
(1882)); see also Hartwell v. City of Montgomery, 487
F. Supp. 2d 1313, 1326 (M.D. Ala. 2007).

Under this

standard, a public employer need not accommodate the
free-speech
entails

a

interests
complete

of

an

employee

breakdown

in

if

doing

workplace

so

morale,

substantially inhibits the effective delivery of public
services, or disrupts other important aspects of normal
business operations.

Here, the court concludes that

under the circumstances presented and in light of the
extreme

deference

given

by
63

the

Eleventh

Circuit

to

law-enforcement

agencies

in

restricting

the

associational privileges of their employees, the city’s
interests

as

employer

outweighs

Gray’s

interest

as

citizen.
As discussed above, though Gray contacted leaders
of several outlaw motorcycle clubs to receive their
“blessing” and ensure that his own group could ride
safely

through

claimed

territory,

the

department’s

investigation focused primarily on Gray’s contacts with
Outcast, a known outlaw motorcycle club.

Gray admitted

to attending some events at the Outcast clubhouse; to
being friendly with Outcast club members at various
charity

events;

distribution

among

and
the

to

receiving

Bama

Boyz

Outcast member who had passed away.
the

local

Outcast

chapter

also

in

patches
memory

for

of

an

The president of

stated

that

he

had

conversations with Gray about ongoing Police Department
investigations of his group, though Gray denied this.

64

The

court

finds

that

the

City’s

interest

in

prohibiting its police officers from cultivating and
maintaining such contacts outweighs Gray’s interest in
free association in light of two strands of precedent,
one

within

the

Eleventh

Circuit

dealing

with

the

law-enforcement setting more generally, and one from
other circuits dealing with cases with facts closely
aligned to those at issue here.
First, within the Eleventh Circuit, the appellate
court gives much weight to the interests of a police
department in “avoiding potential conflicts of interest
between loyalty to the law enforcement employer and
loyalty

to

someone

in

an

off-duty,

personal

relationship.”

Ross, 173 F.3d at 1311 (holding that

county

violate

did

not

correctional

officer’s

First

Amendment free-association rights when it demoted him
for “conduct unbecoming an officer” after learning that
he was living with his brother, an active probationer,
without permission); see also McCabe v. Sharrett, 12
65

F.3d 1558, 1572 (11th Cir. 1994) (holding that transfer
of police chief’s secretary based on her marriage to an
officer

under

the

police

chief’s

command

did

not

violate her free-association rights because the police
chief’s concern that the “marriage would undermine her
loyalty

to

him

and

thus

the

confidentiality

of

his

office was reasonable and not merely subjective”).

As

such, to the extent that Gray’s contacts with Outcast
members--whether

socially

capacity--could

or

compromise

police-department

in

a

law-enforcement

his

objectives,

loyalty

Eleventh

to

Circuit

precedent would lead to the conclusion that the city’s
interest

as

an

employer

outweighs

Gray’s

First

Amendment rights.
Several

cases

outside

of

the

Eleventh

Circuit

articulate the various conflicts of interest that might
arise
people

when

law-enforcement

involved

in

outlaw

officers
motorcycle

associate

with

clubs.

For

example, the Second Circuit Court of Appeals has held
66

that

the

discipline

or

termination

of

three

correctional officers for their association as members
or prospects of a one-percenter motorcycle club, the
Outlaws, did not violate their free-association rights.
Piscottano
2007).
the

v.

Murphy,

511

F.3d

247,

276

(2nd

Cir.

In that case, after an internal investigation,

Department

of

Corrections

had

“arrived

at

a

good-faith conclusion that having correctional officers
who are associated with the Outlaws is detrimental and
reflects negatively on [the department].”
511 F.3d at 276.
Amendment
concerns

The Second Circuit found no First

violation,
that,

Piscottano,

crediting

among

other

the

factors:

department’s

the

plaintiffs’

association with the Outlaws could interfere with its
collaboration

with

other

including

gang-activity

department

“has

appearance
conflicts

that
of

an

law

enforcement

task

forces;

interest

its

interest”

in

avoiding

correctional
and
67

that

the

agencies,
that

the

even

officers

the
have

acceptance

of

favors raises the prospect that favors will be returned
and creates an appearance of a potential conflict of
interest; and that various rivalries between different
clubs could give rise to plausible claims of bias.

Id.

at 277 (emphasis added).
Similarly,
Police,

Turner

v.

former

a

in

police

officer

Amendment

free-association

terminated

for

associating

United

States

Capital

asserted

a

after

he

claim
socially

with

First
was

members

of

outlaw motorcycle clubs and other convicted felons.

34

F. Supp. 3d 124 (D.D.C. 2014) (Jackson, J.).

As the

court described, the plaintiff’s termination was based
on his “encounter with a founding member of the Hell’s
Angel’s[, an outlaw motorcycle club], plaintiff’s visit
to

the

clubhouse

of

a

Hell’s

Angels

chapter,

plaintiff’s presence and alleged interactions with the
members of outlaw motorcycle clubs at certain events,
photographs

of

plaintiff

at

outlaw

motorcycle

club

clubhouses and with convicted felons, and plaintiff’s
68

alleged

association

with

at

least

one

white

supremacist,” even though the plaintiff contended that
“some of these alleged incidents were mischaracterized
and others never occurred at all.”

Id. at 131.

The

district court denied his claim, finding that, because
the plaintiff was “not only a sworn law enforcement
officer,
“[h]is

but

also

multiple

a

supervisor

encounters

of

with

other

outlaw

officers,”

organizations

and individuals could reasonably be expected to reflect
poorly
among

on

the

Capital

coworkers,

and

Police
to

and

to

interfere

operation of the enterprise.”

impair

with

the

harmony
regular

Id.

Certainly, the facts against the plaintiff in this
case are not as striking as those in either Piscottano
or Turner.
was

not

Unlike the plaintiffs in Piscottano, Gray
a

member

or

prospect

of

an

outlaw

or

one-percenter club; rather, Gray’s association with any
outlaw

group

attenuated

at

or

its

best.

members
And
69

to

was
the

infrequent
extent

that

and
his

“blessings” created any formal affiliation with outlaw
clubs, he seems to have sought them to avoid conflict
with outlaws, not to ally with them.

Unlike the clubs

at issue in Turner, there is no evidence in the record
that Outcast was engaged in any sophisticated criminal
enterprise, though Gray knew it to be an outlaw group
and

knew

that

it

had

the

potential

for

violence--

indeed, a criminal assault at the clubhouse set off the
investigation at issue here.
But even potential conflicts of interest within a
law-enforcement
Amendment

agency

associational

agency’s

interests

can

cause

rights
in

an

to

officer’s

give

ensuring

way

First

to

loyalty

the
to

law-enforcement goals, because of a “heightened need
for

order,

loyalty,

law-enforcement

morale

officers.

and

harmony”

Oladeinde

v.

among

City

Birmingham, 230 F.3d 1275, 1293 (11th Cir. 2000).

of
And

the law is clear that those conflicts do not need to
manifest into actual disruption before they can weigh
70

into the Pickering analysis.
152.

See Connick, 461 U.S. at

In such a context, the court finds that the

city’s interest outweighs Gray’s.
Therefore, the court will enter summary judgment on
Gray’s First Amendment claim.

C. Consent-Decree Claim
Finally,

Gray

alleges

that

by

discriminating

against him on the basis of race, the city violated the
terms of a longstanding consent decree.
In a 1974 voter-dilution case, after finding that
“there has been and still remains a substantial and
pervasive

racial

discrimination

in

Dothan”;

that

“governmental services have been disproportionately bad
in the black areas”; and that the city had exhibited “a
clear lack of responsiveness to the physical needs of
its

black

citizens,”

this

court

issued

an

order

enjoining the City of Dothan “from operating the City
government

in

a

manner

which
71

denies

to

the

black

citizens of Dothan ... their right to equal treatment
in the provision of governmental services” and imposing
“an

affirmative

duty

to

provide

blacks

with

their

proportionate share of government services ... in order
to

remedy

the

effects

of

past

denial

access to the political process.”

to

blacks

of

See Williams v. City

of Dothan, 818 F.2d 755, 756, 760-61 (11th Cir. 1987)
(discussing and quoting Yelverton v. Driggers, 370 F.
Supp. 612 (M.D. Ala. 1974) (Johnson, J.) and Yelverton
v. Driggers, No. 1305-S (unpublished companion order
issued February 7, 1974) (M.D. Ala. 1974) (Johnson,
J.)).
In

1976,

discriminatory

in

a

employment

separate
practices

case
in

challenging
the

City

of

Dothan, this court incorporated the “affirmative action
plan” developed for the Yelverton case into a consent
decree in the employment case.

Wiggins v. Hollis, No.

75-57-S (M.D. Ala. Feb. 13, 1976) (Johnson, J.).

After

plaintiffs presented evidence that black employees and
72

applicants were being discriminated against by the city
on the basis of race in the city’s recruiting, hiring,
promoting, assigning, and testing practices, the court
permanently enjoined the city from discriminating on
the basis of race against the named plaintiffs and the
members of the class they represent.

Id.

The court

also imposed certain affirmative duties on the city to
remedy discriminatory practices.
City

of

Dothan,

2006

WL

Id.; cf. Matthews v.

3742237

(M.D.

Ala.

2006)

(Watkins, J.) (referencing ongoing consent decree in
Dothan).12
Gray argues that because the city discriminated on
the basis of race against him, it has violated its
continuing
decree.

obligations

under

the

Wiggins

consent

He asks the court to hold the city in contempt

of the court’s decree; to resume court monitoring of
adherence to the consent decree; to enjoin any further

12. Both parties agree that the City of Dothan
remains under the obligation of the Wiggins consent
decree.
73

violations; and to provide other injunctive relief and
damages specific to his circumstances.
Gray attempts to invoke the consent decree simply
for the general proposition that the city should not
violate the law.

The consent decree provides nothing

that is all ready not covered by Title VII.

There is

no need to invoke the consent decree here.
*
Accordingly,

for

the

*

*

above

reasons,

it

is

the

ORDER, JUDGMENT, and DECREE the court as follows:
(1) Defendant City of Dothan’s motions for summary
judgment (doc. nos. 34 & 39) are granted with respect
to following

claims by plaintiff Ivan “Keith” Gray:

First Amendment claim, consent decree claim, Title VII
claim

of

race

discrimination

based

transfer

of

supervisory authority.
(2) Said motions are denied as to all other claims.
DONE, this the 22nd day of June, 2015.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE
74