Adams v. The City of Montgomery - Maintenance Department

Filing 236

MEMORANDUM OPINION AND ORDER directing that defendant City of Montgomery's motion for attorney's fees (doc. no. 221 ) is denied, as further set out. Signed by Honorable Judge Myron H. Thompson on 3/4/14. (scn, ) Modified on 3/4/2014 to correct signature date in docket text (scn, ).

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

WILLIE ADAMS,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
THE CITY OF MONTGOMERY,
Defendant.

CIVIL ACTION NO.
2:10cv924-MHT
(WO)

OPINION AND ORDER
Plaintiff

Willie

discrimination

Adams

lawsuit

brought

against

this

defendant

employmentCity

of

Montgomery, Alabama, charging it with race discrimination
and retaliation in violation of Title VII (Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C.
§§ 1981a & 2000e-2000e-17) and § 1981 (the Civil Rights
Act of 1866, 42 U.S.C. § 1981, as enforced through 42
U.S.C. § 1983).

The court granted summary judgment in

favor of the city on some claims, see Adams v. City of
Montgomery, 2012 WL 1414979 (M.D. Ala. Apr. 24, 2012)
(Thompson, J.); Adams v. City of Montgomery, 2012 WL

1952294 (M.D. Ala. May 30, 2012) (Thompson, J.), while
others went to trial twice.

After the first trial

resulted in a mistrial, a second jury found for the city
on all remaining claims.
The case is currently before the court on the city’s
motion for attorneys’ fees.

For the reasons discussed

below, the motion will be denied.

I.

BACKGROUND

Adams, an American of African descent, first came to
work for the city in 2003, but he left in August 2004 to
become

a

returned

long-distance
to

work

for

truck
the

driver.

city.

In

According

2007,
to

he

city

personnel rules, a former employee who returns to work
for the city after more than two years must be hired as
a temporary employee, who is on probation for the first
six months of his employment.
Adams was hired as a Service Maintenance Worker
(“SMW”) I.

He had sought to be hired at a higher level,

2

as an SMW III. He believed that his commercial drivers
license would entitle him to an SMW III position, but he
did not identify any specific policy to that effect.
Primarily, Adams wanted to work as a truck driver,
and, in November 2007, one of the city’s drivers retired,
creating an opening.
Jeremy

Jarrell,

a

He applied for the position, but
white

man,

got

the

job

instead.

Jarrell had also reentered the employment of the city
after a period away but, because he was away for less
than two years, the city rehired him on a permanent
basis.

Unfortunately for Adams, city policy did not

allow a temporary employee to be upgraded to the truckdriver position.

Therefore, while Jarrell’s permanent

employment made him eligible for promotion to driver,
Adams’s temporary status excluded him from eligibility.
On May 28, 2008, Adams’s supervisor, James Ivey,
transferred him from his job repairing the city’s roads
to the lower-status “ditch crew,” which trims weeds and
performs other gardening work.

3

An Employee Counseling

Record dated May 28 alleges that he had not been working
diligently and specifically cited an incident on May 22
during which other workers had to carry his load.
Adams left work early on May 28 to file an internalaffairs

discrimination

complaint

transfer was racially motivated.

alleging

that

the

The next day, he was

accused of taking unauthorized sick leave for the time he
took off to file the complaint.
received
employees

permission

to

frequently

consequences.

Adams

He contended that he had

leave

work

left

and

work

received

a

that

white

early

without

second

Employee

Counseling Record for taking the unauthorized leave.
On August 7, 2008, Adams was reprimanded again, this
time for taking an unapproved absence.
his

third

Employee

Counseling

Record,

Because this was
he

received

a

three-day suspension without pay.
Adams filed two charges with the Equal Employment
Opportunity Commission, on June 18, 2008, and April 9,
2010.

He proceeded to file this lawsuit under Title VII

4

and § 1981 (as enforced by § 1983) on October 29, 2010.
He alleged that many of the city’s personnel decisions
were motivated by race and that the decisions from May 28
onward were also motivated by an intent to retaliate for
his complaints of discrimination.
At the summary-judgment stage, this court dismissed
Adams’s race-discrimination claims arising out of the
August 2007 denial of the SMW III position and the
November 2007 failure to promote him to the truck-driver
position, as well as his retaliation (but not his racediscrimination) claim arising out of his transfer to the
ditch crew.

After the close of the presentation of

evidence at the first trial, the court found as a matter
of law that Adams had failed to show a policy or custom
of discrimination that would support municipal liability
under § 1981, as enforced through § 1983.
Adams’s Title VII claims of racial discrimination and
retaliation went to the jury.

The first jury was unable

to reach a unanimous verdict, resulting in a mistrial.

5

After a second trial, a new jury found for the city on
all remaining claims.

II.

STANDARD FOR ATTORNEY’S FEES FOR A
PREVAILING CIVIL-RIGHTS DEFENDANT

Attorney’s fees may be awarded to the prevailing
party in a lawsuit brought under Title VII (42 U.S.C.
§ 2000e-5(k)) or under §§ 1981 and 1983 (42 U.S.C.
§

1988).

Neither

statute

differentiates

explicitly

between prevailing plaintiffs and defendants, but the
underlying goals and legislative history of the civilrights

statutes

led

the

Supreme

Court

asymmetrical standards for fee awards.

to

establish

Christiansburg

Garment Co. V. E.E.O.C., 434 U.S. 412, 418-22 (1978).
Although a “prevailing plaintiff ordinarily is to be
awarded

attorney’s

fees,”

id.

at

417,

a

prevailing

defendant may be awarded fees only if “a court finds that
[the plaintiff’s] claim was frivolous, unreasonable, or
groundless, or that the plaintiff continued to litigate
after it clearly became so,” id. at 422.

6

Even after such

a finding, the award of fees to a prevailing defendant is
within the court’s discretion. Id. at 421.
There

is

a

three-factor

framework

to

determine

whether a plaintiff’s case is sufficiently frivolous to
justify

awarding

defendant.
plaintiff

attorney’s

fees

to

the

prevailing

The court should consider “whether (1) the
established

a

prima

facie

case;

(2)

the

defendant offered to settle; and (3) the trial court
dismissed the case prior to trial.”

Bonner v. Mobile

Energy Services Co., 246 F.3d 1303, 1304 (11th Cir. 2001)
(per curiam) (citing Sullivan v. School Bd. Of Pinellas
Cty., 773 F.2d 1182, 1189 (11th Cir. 1985)).

However,

the court must still address the question of attorney’s
fees on a “case-by-case basis”; the three factors are
“only general factors to guide the inquiry.” Bonner, 246
F.3d at 1304 n.9.
Finally, if a plaintiff brings a mixture of frivolous
and

non-frivolous

claims,

the

court

may

order

the

plaintiff to pay the defendant’s attorneys fees for the

7

time spent on the frivolous claims. Fox v. Vice, __ U.S.
__, 131 S.Ct. 2205 (2011).

In that circumstance, the

plaintiff may be ordered to pay for only the expenses
that the defendant would not have incurred but-for the
inclusion of the frivolous claims.

Id. at ___, 131 S.Ct.

at 2215.

III.

DISCUSSION

It can be easy, with the benefit of hindsight, to see
all of the faults in a claim and none of its potential
merit.

The

court

must

“resist

the

understandable

temptation to engage in post hoc reasoning by concluding
that, because a plaintiff did not ultimately prevail, his
action

must

have

been

unreasonable

or

without

foundation.” Christianburg, 434 U.S. at 421-22. Although
Adams did not ultimately prevail, his claims were not “so
patently devoid of merit as to be ‘frivolous.’” Sullivan,
773 F.2d at 1189.

8

Adams’s claims fall into three main categories: ( 1)
the Title VII claims arising from disciplinary actions
taken against Adams; (2) the §§ 1981 and 1983 claims
arising from the same actions; and (3) the claims on
which the city received summary judgment, see Adams v.
City of Montgomery, 2012 WL 1414979 (M.D. Ala. Apr. 24,
2012) (Thompson, J.); Adams v. City of Montgomery, 2012
WL 1952294 (M.D. Ala. May 30, 2012) (Thompson, J.).

None

of the three sets of claims was so meritless as to allow
for an award of fees to the city.*

A. Disciplinary Actions--Title VII Claims
Adams

claimed

that

his

three-day

disciplinary

suspension was motivated by racial discrimination and
retaliation and that all of the disciplinary actions that
*In its motion for attorney’s fees, the city also
refers to several claims based on failure to promote
Adams to foreperson.
As the court discussed in an
earlier opinion, those claims were the subject of a
different lawsuit. Adams, 2012 WL 1414979 at *8 n.8; see
Adams v. City of Montgomery, 2013 WL 5441857 (M.D. Ala.
Sept. 27, 2013) (Watkins, C.J.). Therefore, they cannot
be the basis for a fee award to the city in this case.
9

led up to his suspension were in part to retaliate
against him for filing his discrimination complaints.
(The prior disciplinary actions were significant enough
to support a retaliation claim, but did not arise to
adverse-employment actions sufficient to support a racediscrimination claim. Adams, 2012 WL 1414979 at *5-6.)
The court found that Adams presented a prima-facie
case

supporting

these

claims.

In

particular,

Adams

introduced evidence that his supervisor frequently used
racial

slurs

workplace.

and

racially

charged

language

in

the

With regard to the disciplinary actions for

taking unauthorized sick leave, Adams introduced evidence
calling into question whether he had even taken the time
as sick leave and whether the leave policy was applied
similarly

to

other

workers

in

the

department.

Furthermore, each of the supervisors knew of Adams’s
discrimination complaints when they took disciplinary
action, raising the plausibility that the disciplinary
action was for a retaliatory purpose.

10

This

evidence

was

sufficient

to

present

a

circumstantial prima-facie case at the summary-judgment
stage.

Furthermore, the claims went before two separate

juries, the first of which was unable to come to a
decision.

The fact that the first jury hung suggests

that these claims were a tough call, requiring “careful
NationsBank

of

Florida, N.A., 53 F.3d 1548, 1559 (11th Cir. 1995).

To

attention

and

review.”

See

Walker

v.

declare those claims frivolous at this point would be
impermissible “hindsight logic.” Christianburg, 434 U.S.
at 422.

B. Disciplinary Actions--§§ 1981 and 1983 Claims
Adams filed suit under 42 U.S.C. § 1981 in addition
to Title VII.

Generally, Title VII and § 1981 “have the

same requirements of proof and use the same analytical
framework.” Standard v. A.B.E.L. Services, Inc., 161 F.3d
1318, 1330 (11th Cir. 1998).

However, in the Eleventh

Circuit Court of Appeals, § 1981 does not create a right

11

of action for damages against state actors. Jett v.
Dallas Ind. Sch. Dist., 491 U.S. 701, 732-33 (1989);
Butts v. Cty. of Volusia, 222 F.3d 891, 894-95 (11th Cir.
2000) (holding that Jett was not superseded by the Civil
Rights Act of 1991).

But a municipal employee may seek

damages from his employer for violation of his § 1981
rights through a lawsuit pursuant to § 1983. Butts,

222

F.3d

the

at

894-95.

Thus,

the

employee

must

meet

standards for municipal liability under § 1983, standards
that the Supreme Court set forth in Monell v. Dept. of
Soc. Serv., 436 U.S. 658 (1978).

Monell is satisfied if

a plaintiff shows that a city’s discrimination (or other
rights violation) stemmed from a “policy or custom” of
the city. Id. at 694.
The court dismissed Adams’s § 1981 claims during the
first trial after finding that he had not presented
sufficient

evidence

of

a

policy

or

custom

of

race

discrimination or of retaliation against discrimination
complainants.

However, that does not mean that he was

12

unjustified

in

bringing

or

pursuing

§

1981

claims.

Generally, a city will not have an explicit policy that
endorses

racial

retaliation

discrimination

against

in

employment

discrimination

or

complaints.

“Nevertheless, § 1983 liability may be imposed on a
municipality based on ‘governmental “custom” even though
such a custom has not received formal approval through
the body’s official decisionmaking channels.’” Griffin v.
City of Opa-Locka, 261 F.3d 1295, 1308 (11th Cir. 2001)
(quoting Floyd v. Walters, 133 F.3d 786, 795 (11th Cir.
1998)).

In Griffin, the Eleventh Circuit found that a

city had a custom of condoning its city manager’s sexual
harassment.

The city manager frequently “engaged in

vulgar, sexually suggestive, and demeaning conversations”
toward female employees, demanded romantic and sexual
encounters from those employees, and threatened women who
rebuffed his advances. Id. at 1308-09.
“there

[was]

no

question

that

13

the

Furthermore,

Mayor

and

City

Commissioners knew about [the city manager]’s sexual
harassment and misconduct.” Id. at 1309.
In

this

case,

Adams

had

witnessed

Ivey,

his

supervisor, using racial epithets openly, and Ivey had
subjected

Adams

discrimination.

to

what

he

believed

to

be

racial

At the pleading stage, Adams could have

reasonably believed that the city was aware of Ivey’s
statements and that other African-American employees may
have

been

discriminated

against

by

Ivey.

In

fact,

discovery revealed that another African-American employee
had filed an Equal Employment Opportunity Commission
charge against Ivey for both racial discrimination and
retaliation and that Ivey had received a written Employee
Counseling Record as a result.
nearly

as

extreme

or

described in Griffin.

troubling

These facts are not
as

the

circumstances

Nonetheless, it was not entirely

unreasonable or groundless for Adams to believe that the
court

could

find

that

they

established

notice

and

inaction with sufficient evidence to reach a jury or that

14

a jury could infer from the circumstances a custom of
condoning racial discrimination. See Cordoba v. Dillard’s
Inc., 419 F.3d 1169, 1186 (11th Cir. 2005) (holding that
an

argument

which

“lacked

support

in

logic

and

commonsense” was nonetheless non-frivolous when it relied
on an interpretation of Eleventh Circuit case law, albeit
strained).
Furthermore, it would be reasonable to believe that,
if the city had thought that the § 1981 claims were
frivolous,

it

would

dismissed sooner.

have

sought

to

have

had

them

In fact, the city did not bring the

“policy or custom” issue to the court’s attention on
summary judgment.

Cf. Quintana, 414 F.3d at 1307 (“the

presentation of a prima facie case in response to a
motion

for

summary

judgment

means

that

a

necessarily cannot then be considered frivolous”).

claim
The

first time the city specifically addressed the § 1981
claims was the inclusion of a proposed jury instruction
on “policy or custom.”

Moreover, even if the claims had

15

been frivolous, it seems that the city did not invest
significantly more attorney time or resources as a result
of them. Fox v. Vice, 131 S.Ct. at 2215 (“But if the
defendant

would

have

incurred

those

fees

anyway,

to

defend against non-frivolous claims, then a court has no
basis for transferring the expense to the plaintiff.”)

C. Remaining Claims
Finally, Adams pled Title VII and § 1981 claims
arising out of the two employment decisions from soon
after

he

was

rehired

by

the

city:

his

initial

classification as SMW I (rather than SMW III) and the
city’s failure to promote him to a truck-driver position.
The court granted summary judgment to the city on each of
these claims.
Adams was unable to present a prima-facie case of
discrimination for either claim.

With regard to the SMW

III claim, he could not identify either a comparator who
was hired at the SMW III level or circumstantial evidence

16

of discriminatory intent on the part of those who hired
him.

As for the truck-driver claim, Adams was not

qualified for the position under city personnel rules.
As

a

temporary

employee,

he

was

ineligible

for

a

promotion to the truck-driver position.
These claims do satisfy most of the three factors in
the framework discussed above for determining whether a
claim was frivolous.

The court found that Adams had not

presented a prima-facie case of discrimination--the first
factor; the court granted summary judgment to the city,
not allowing the claims to go before a jury--the third
factor; and, as to the settlement-offer factor, the city
noted only that the parties engaged in mediation.

This

last factor does not present the court with any evidence
as to the size of any offer the city made to Adams.
“[T]he amount of the offer is a necessary factor in
evaluating whether a settlement offer militates against
a determination of frivolity.

In the absence of evidence

of an offer of a substantial amount in settlement, this

17

factor does not support either party.” Quintana, 414 F.3d
at 1310 (internal citation removed).
However, as noted above, the three factors are “only
general factors to guide the inquiry.” Bonner, 246 F.3d
at 1304 n.9.

The court cannot find that Adams’s claims

were frivolous.

Employers do not always enforce their

own rules strictly, but Adams could not be certain about
how

flexible

the

rules

were

prior

to

discovery.

Furthermore, Adams experienced a work environment that he
perceived to be racially discriminatory.

In a racially

discriminatory environment, it may be difficult to tease
out which aspects of the employment relationship were
tainted by discrimination and which were not--especially
before the benefit of discovery.

It is to the advantage

of all parties that a plaintiff includes in his initial
complaint all of the actions he has reason to suspect to
be illicit, rather than filing an under-inclusive initial
pleading and coming back to amend the pleadings or file

18

a

separate

suit

after

discovery

reveals

that

the

plaintiff may have additional viable claims.
Finally, like the § 1981 claims, it is not clear that
the

city

invested

significant

resources

in

the

because of Adams’s hiring and promotion claims.

case

If the

court awarded fees to the city on these claims, the
parties would have to disentangle what aspects of the
city’s attorney’s work would not have been necessary butfor these claims.

In all likelihood, the court could

award fees for no more than a small fraction of the 73.75
hours that the city’s attorney spent on Adams’s case
before the claims were resolved at summary judgment.

The

costs of arguing and adjudicating such a de minimis fee
award would overwhelm any benefit to the city.

*

*

19

*

Accordingly, for the above reasons, it is ORDERED
that defendant City of Montgomery’s motion for attorney’s
fees (doc. no. 221) is denied.
DONE, this the 4th day of March, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE