Long v. Russell County Commission et al
MEMORANDUM OPINION AND ORDER directing as follows: (1) defs' motions for summary judgment on plfs' 1983 Fourteenth Amendment equal protection race discrimination claims are GRANTED; (2) defs' motions for summary judgment on plfs' 1983 Fourteenth Amendment retaliation claims are GRANTED; and (3) defs' motion for summary judgment on Mr. Long's Title VII claims is GRANTED, as further set out in order. Signed by Honorable William Keith Watkins on 12/27/10. (djy, )
Long v. Russell County Commission et al
IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION J IM M IE LEE LONG, ) ) P la in tif f , ) ) v. ) ) R U S S E L L COUNTY COMMISSION, ) e t al., ) ) D e f e n d a n ts. ) ___________________________________ ) ) H O V E T DIXON, ) ) P la in tif f , ) ) v. ) ) R U S S E L L COUNTY COMMISSION, ) ) D e f e n d a n t. )
C A S E NO. 3:09-CV-90-WKW [WO]
C A S E NO. 3:09-CV-96-WKW [WO]
M E M O R A N D U M OPINION AND ORDER P la in tif f s Jimmie Lee Long and Hovet Dixon, former county employees, bring this c o n s o lid a te d 42 U.S.C. § 1983 action, alleging race discrimination and retaliation under the E q u a l Protection Clause of the Fourteenth Amendment to the United States Constitution. Mr. L o n g also seeks relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"). The Russell County Commission ("the Commission") is a d e f e n d a n t in both actions, and Mr. Long also names Harry Ennis, county engineer, as a
defendant in his individual capacity.1 (Long Compl. (Doc. # 1); Dixon Am. Compl. (Doc. # 26).)2 This cause is before the court on Defendants' Motions for Summary Judgment (L o n g Doc. # 34; Doc. # 60), which have been fully briefed and are ready for adjudication. Upon careful consideration of counsels' arguments, the relevant law, and the record as a w h o le , the court finds that Defendants' motions are due to be granted. I . JURISDICTION AND VENUE S u b je c t matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331 and 1343. The p a rtie s do not contest personal jurisdiction or venue, and the court finds adequate allegations in support of both. II. STANDARD OF REVIEW " S u m m a ry judgment is appropriate `if the pleadings, depositions, answers to in te rro g a to rie s , and admissions on file, together with the affidavits, if any, show there is no g e n u in e issue as to any material fact and that the moving party is entitled to judgment as a m a tte r of law.'" Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2 0 0 7 ) (per curiam) (quoting Fed. R. Civ. P. 56(a)). The party moving for summary judgment " a lw a ys bears the initial responsibility of informing the district court of the basis for its
The Complaint names Mr. Ennis only as a defendant with respect to Mr. Long's § 1983 claims, and appropriately so. See Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991) (holding that individual capacity suits under Title VII are inappropriate: "The relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act."). For convenience, the court will generally cite to documents from Mr. Dixon's case, No. 3:09cv96-WKW. Any citations to documents from Mr. Long's case, No. 3:09cv90-WKW, will be in the following format: (Long Doc. # __).
motion, and identifying those portions of [the record, including pleadings, discovery m a te ria ls and affidavits], which it believes demonstrate the absence of a genuine issue of m a te ria l fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet th is burden by presenting evidence indicating there is no dispute of material fact or by s h o w in g that the nonmoving party has failed to present evidence in support of some element o f its case on which it bears the ultimate burden of proof. Id. at 322-24. If the movant meets its evidentiary burden, the burden shifts to the nonmoving party to establish, with evidence beyond the pleadings, that a genuine issue material to each of its c la im s for relief exists. Celotex Corp., 477 U.S. at 324; Clark v. Coats & Clark, Inc., 929 F .2 d 604, 608 (11th Cir. 1991). What is material is determined by the substantive law a p p lic a b le to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "The m e re existence of some factual dispute will not defeat summary judgment unless that factual d is p u te is material to an issue affecting the outcome of the case." McCormick v. City of Fort L a u d e r d a le , 333 F.3d 1234, 1243 (11th Cir. 2003) (per curiam) (internal quotation marks and c ita tio n omitted). A genuine issue of material fact exists when the nonmoving party produces evidence th a t would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F .3 d at 1263; Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001). However, if the evidence on which the nonmoving party relies "is merely colorable, or is not s ig n if ic a n tly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50
(citations omitted). "A mere `scintilla' of evidence supporting the [nonmovant's] position w ill not suffice; there must be enough of a showing that the [trier of fact] could reasonably f in d for that party," Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990), and the n o n m o v in g party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1 9 8 6 ). Conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine issue of material fact and do not suffice to oppose a motion for summary judgment. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (per curiam). Hence, when a p la in tif f fails to set forth specific facts supported by appropriate evidence sufficient to e s ta b lis h the existence of an element essential to his case and on which the plaintiff will bear th e burden of proof at trial, summary judgment is due to be granted in favor of the moving p a rty. Celotex Corp., 477 U.S. at 323. O n summary judgment, the facts must be viewed in the light most favorable to the n o n -m o v a n t. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). Hence, "`facts, as a c c e p te d at the summary judgment stage of the proceedings, may not be the actual facts of th e case.'" Id. (quoting Priester v. City of Riviera Beach, 208 F.3d 919, 925 n.3 (11th Cir. 2 0 0 0 )). I I I . FACTUAL AND PROCEDURAL BACKGROUND T h e evidence, construed in the light most favorable to Plaintiffs, establishes the f o llo w in g facts:
M r . Long's Employment M r. Long, a black male, accepted a "common labor" position in the Russell County
H ig h w a y Department ("Highway Department") in 1990, at the age of forty.3 (Long Dep. 40 (D o c . # 71, Ex. 1).) His duties initially consisted of digging ditches and laying pipe. (Long D e p . 40.) Using his prior experience as an automobile mechanic and truck driver, Mr. Long q u ic k ly began operating heavy equipment, advancing first to dump truck driver and then to o p e ra to r. (Long Dep. 41.) In 1993, Mr. Long was promoted to Assistant Foreman. In 1994, M r. Long attained the position of Road Foreman. (Sanders Dep. 27 (Doc. # 72, Ex. 8).) In th is role, he supervised a road crew of approximately nine people and continued to operate h e a v y equipment. (Long Dep. 42-45.) B. M r . Dixon's Employment M r. Dixon, a black male known by his colleagues as "Preacher" or "Preach," 4 began w o rk in g as a dump truck driver for the Highway Department in March 1990, at the age of th irty-s ix . (Dixon Dep. 9, 35, 40, 46, 96-97 (Doc. # 71, Ex. 2).) Three years later, in 1993, M r. Dixon obtained his commercial driver's license and began operating heavy equipment. (Dixon Dep. 50-51.) He took advantage of training classes and worked during his breaks to te a c h himself how to operate the equipment, which included excavators, bulldozers, and
Mr. Long was first employed by the Commission in 1969 at the age of nineteen. He worked on a grass crew until he was terminated in 1972 when a County Commissioner found him resting after being stung by a swarm of bees.
Mr. Dixon is a pastor at Mount Hebron Church in Seale, Alabama. (Dixon Dep. 97.)
backhoes. (Dixon Dep. 175-76.) Approximately two years later, around 1995, Mr. Dixon w a s promoted to Road Foreman. (Dixon Dep. 54-58, 79.) In this role, he supervised a road c re w of approximately nine people and continued to operate heavy equipment. (Dixon Dep. 5 6 , 178.) C. D e p a r tm e n t Hierarchy The Department management changed often. According to Mr. Long, at least some o f these changes resulted from a series of anonymous complaints.5 (Long Dep. 229-30.) D u rin g nearly two decades of concurrent employment with the Highway Department, Mr. L o n g and Mr. Dixon worked under several different supervisors. Both men reported directly to the assistant county engineer and/or superintendent, who reported to the county engineer. The county engineers during Mr. Long's tenure were, in this order: James McGill, Cal M a rk e rt, Harry Ennis, Rick Gohde, and Harry Ennis again. (Dixon Dep. 59-63.) Mr. Dixon s e rv e d under the same county engineers, in addition to Larry Kite, who attained the position in 2008. (Dixon Dep. 54-55, 59; Larry Kite Dep. 11 (Doc. # 72, Ex. 7).) Mr. Long's direct s u p e rv is o rs included, in this order: Arthur "Buster" Sanders (superintendent), Ted Talley (s u p e rin te n d e n t), and Norman Priest (superintendent). Mr. Dixon served under the same d ire c t supervisors, in addition to Chris Camp, who was assistant engineer under Rick Gohde,
Plaintiffs contend that these complaints related to racial discrimination; however, those contentions will not be credited because Plaintiffs do not cite any evidence regarding the substance of the complaints. See Fed. R. Civ. P. 56(c).
and Anthony Calhoun, who became superintendent after Mr. Long's termination. (Priest D e p . 25-26 (Doc. # 73, Ex. 15); Calhoun Dep. 26-27 (Doc. # 73, Ex. 17).) D. T r o u b le Within the Department According to Plaintiffs, trouble began in 2000, when the Commission hired Mr. M a rk e rt as the county engineer. (Long Dep. 49-50; Dixon Dep. 75.) Mr. Dixon testified that a f te r Mr. Markert was hired, "certain groups" of employees received preferential treatment re g a rd in g salary and other benefits. (Dixon Dep. 109 ("Like, a certain group over here was g e ttin g what they want, and this group over here was asking but couldn't get it.").) Mr. D ix o n acknowledged that the group receiving preferential treatment was "mixed," consisting o f both black and white employees. (Dixon Dep. 109-10.) Beyond the preferential treatment g iv e n to some "groups," he also noticed that newer employees received better pay and that ra ise s were distributed to some, but not all, employees. (Dixon Dep. 110-17.) He further te s tif ie d that black employees were regularly passed over for promotions for white applicants w ith little experience. (Dixon Dep. 76, 103-04.) According to Mr. Dixon, "everybody" c o m p la in e d about this perceived discrimination against black employees. (Dixon Dep. 1050 6 .) Numerous black employees testified about witnessing or experiencing unequal
tre a tm e n t or harassment on the basis of their race. (See, e.g., Moffet Decl. (stating that d if f e re n t education standards were applied to black employees and that only black employees w e re subject to random drug tests); Hall Decl. (stating that he experienced "intimidation on a t least eight occasions").)
Sometime in late 2003, Buster Sanders retired from his position as superintendent. (Sanders Dep. 9 (Doc. # 72, Attach. 8).) Mr. Long thought that he would be considered for th e position since he was the "next man" in line, but he had also heard "[through] the g ra p e v in e [that] they were going to bring somebody else in . . . ." (Long Dep. 61.) Mr. Long d e c id e d to approach Mr. Markert about the job opening. At first, Mr. Markert refused to in te rv ie w Mr. Long, telling him that he had already found someone to fill the position. (Long D e p . 67.) Mr. Long then sent a letter to the County Commissioners asking "for a chance at [ th e position]." (Long Dep. 68-69.) Soon thereafter, Mr. Markert called Mr. Long into his o f f ic e for the interview. According to Mr. Long, Mr. Markert greeted him with: "[The C o m m is s io n ] told me I need to interview you for this job." (Long Dep. 74.) The interview itself was off-topic. Instead of focusing on the duties of a
s u p e rin te n d e n t, which are to oversee the Road Foremen and their crews (Sanders Dep. 10), Mr. Markert asked Mr. Long a series of questions about bridge inspection (Long Dep. 85). When Mr. Long responded that inspecting bridges was the responsibility of the engineer's o f f ic e , Mr. Markert "started smiling at [him]." (Long Dep. 86.) Mr. Markert tape-recorded M r. Long's interview, contrary to his normal practice, because he "wanted to make sure the tru th was there."6 (Markert Dep. 53 (Long Doc. # 45, Ex. 3).) Mr. Markert also took notes, m a rk in g Mr. Long as having stated during the interview that he, Mr. Markert, was not
Prior to this, Mr. Long had made a remark to Mr. Markert suggesting that the latter was racially biased, infra at 32.
racially biased, a statement which Mr. Long denies having made during the interview.7 (L o n g Dep. 95.) Ultimately, Mr. Long was passed over in favor of an outsider named Ted T a lle y, who was awarded the position. Mr. Talley is a white male who had been working as a supervisor at a cotton mill in the area. Mr. Talley had no experience in road work or c o n s tru c tio n . (Markert Dep. 55-57.) In 2005, the Commission hired Mr. Gohde as the county engineer and Mr. Priest as th e superintendent below him. Mr. Long testified that Mr. Priest stated that "he had been b ro u g h t [t]here to straighten things out." (Long Dep. 236.) After meeting the supervisors (a ll but one of whom was black), Mr. Priest inquired whether all the supervisors were black. (Long Dep. 234-35.) Shortly thereafter, Henry West overheard Mr. Gohde say that "[t]here a re too many black supervisors." (West Decl. Pt. 2 (Doc. # 73, Attach. 9).)8 A c c o rd in g to Mr. Long, he, Mr. Dixon, and four other black employees met with the C o m m is s io n 's Chairman, Assistant Chairman, and County Attorney in July 2007, to discuss th e perceived harassment and discrimination within the Transportation Department. (Long D e p . 257-59.) Race was not mentioned specifically during this meeting; however, Plaintiffs m a in ta in that, given the racial makeup of the employees, it was obvious that race was the u n d e rlyin g issue and the basis for the complaints. (Pls.' Resp. Br. 12 (Doc. # 70).) After this
The tape of the interview would presumably resolve this immaterial dispute, see infra at
IV.D.1.a. Mr. Long testified that someone named "F.O." told Mr. Long that he had overheard Norman Priest say that there were too many black supervisors. (Long Dep. 302-03.)
meeting, the group of black employees were labeled "troublemakers" by Mr. Priest. (Hall D e c l. (Doc. # 73, Attach. 8); Long Dep. 258.) Subsequently, Mr. Priest began documenting incidents between himself and his s u b o rd in a te s , particularly Mr. Long. (Priest Dep. 90.) When asked why he documented on a daily basis, Mr. Priest replied: "Because of the hostilities that I was experiencing with J im m ie Lee [Long] and the anger issues. And he would always go and call Commissioner D u d le y over, and Commissioner Dudley would, you know, come down on us." (Priest Dep. 9 0 .) Mr. Dixon contends that Mr. Priest followed him around and documented his actions in an attempt to write up illicit acts. Mr. Dixon testified that Mr. Priest "constantly stayed o u t there on my job daily." (Dixon Dep. 92; Long Dep. 257 (testifying that "Norman [Priest] c o m e around there and he kept on harass [sic] us so much").) Roysell Moffett, a truck driver f o r the Highway Department, testified that in mid-2007, he saw Mr. Priest following closely b e h in d Mr. Long "just watching and harassing him." (Moffet Decl. (Doc. # 73, Attach. 5).) Frank Hall, a mechanic with the Commission for seven years, testified that Mr. Priest often le f t the shop in the mornings to "`check out'" Mr. Long and Mr. Dixon on their jobs. (Hall D e c l.) In one case, Mr. Priest resorted to photographic "surveillance," taking a picture of Mr. L o n g for not wearing a safety vest while on the road. (Priest Dep. 76.) Mr. Long stated m u ltip le times during his deposition that he refused to sign disciplinary warnings because " th e only thing [they were] trying to do is stack [his] file." (Long Dep. 118, 197.) Mr. Priest increased his "surveillance" of both Mr. Dixon and Mr. Long after he was
informed that his position as superintendent would not be funded the following year. (Priest D e p . 38.) E. M r . Long's Termination M r. Long has a thick personnel file. From June 2001 to March 2005, Mr. Long's P e rs o n n e l File shows several Warnings and Formal Counseling Reports. (Long Personnel F ile Pt. 1, at 33-54 (Long Doc. # 36, Attach. 10).) Mr. Long's purported conduct that led to th e s e reprimands included walking out of meetings with supervisors, not cooperating with s u p e rv is o rs , having a negative attitude, showing disrespect to his immediate supervisor, d e lib e ra te ly misrepresenting statements of supervisors, not following proper procedure for tu rn in g in work orders, and abusive personal conduct. (Long Personnel File Pt. 1, at 33-54.) Mr. Long refused to sign all but one of these reprimands (and contends that he was duped in to signing the other), and testified that the underlying facts that led to all of these re p rim a n d s are simply not true. (Long Dep. 200-201.) Mr. Long steadfastly maintains that th e s e reprimands were an attempt to "stack [his] file." (Long Dep. 197.) In July 2005, Mr. Long was suspended without pay for "[f]lagrant violation of safety p ra c tic e s " and "violation of directions given by a supervisor." (Long Personnel File Pt. I, 142 9 ; Long Dep. 216.) The incident report states that one of Mr. Long's crew members, Jerry P o rte r, discovered a defective tire on the chipper, which was brought to Mr. Long's attention. M r. Long allegedly directed Mr. Porter "to drive it until it blows out." (Long Personnel File P t. I, 15.) Mr. Long was subsequently suspended for two weeks without pay in a suspension
notice signed by Ted Talley. (Long Dep. 216.) Mr. Long refused to sign the suspension n o tic e and denies ordering Mr. Porter to operate the chipper. (Long Dep. 223-24.) Mr. Long re q u e s te d a review board to meet concerning his suspension, but no meeting was held. (Long D e p . 222-23.) Mr. Long eventually brought the matter to the Commission, which,
a p p ro x i m a t e l y one year later, overturned Mr. Long's suspension and awarded him pay for th o s e two weeks. (Long Dep. 222-223.) The incident that led to Mr. Long's termination occurred in September 2007. Mr. P rie s t, conducting surveillance, spotted Mr. Long leaving his work site at 12:30 p.m., around lu n c h tim e . Mr. Long testified that he was running an errand to the Sheriff's Office, at the re q u e s t of one of the county commissioners. (Long Dep. 237.) Mr. Long had ordered his c re w to stop cutting grass and to take lunch, because one of the grass-cutters had no oil in it. (Long Dep. 244.) Mr. Priest waited at the work site approximately thirty minutes for Mr. L o n g to return, and meanwhile had directed Mr. Long's crew to resume working. (Long P e rs o n n e l File Pt. 1, at 9.) When Mr. Long did return around 1:00 p.m., he and Mr. Priest h a d an oral altercation. Mr. Priest was reprimanding Mr. Long for leaving his work site; Mr. L o n g was countering that he was told to go to the Sheriff's Office by a county commissioner. (Long Dep. 241.) It was at this time of high tension that Mr. Priest photographed Mr. Long a n d reprimanded him for not wearing his safety vest in the road. (Priest Dep. 116.) The h e ig h te n e d tension of this particular situation, the constant harassment on the part of Mr. P rie s t, and Mr. Priest's further provocation of Mr. Long by photographing him for a safety
violation as they were arguing about another completely unrelated issue, allegedly caused Mr. L o n g to respond physically. Mr. Priest stated in his report that Mr. Long shoved him against his truck. (Long P e rs o n n e l File Pt. 1, 10.) Later, he claimed in an interview with interim County Engineer H a rry Ennis that Mr. Long told Commissioner Mervin Dudley that he was going to shoot Mr. P rie s t with his gun, which he kept in his truck.9 (Ennis Dep. 25.) Mr. Priest filed a police re p o rt with the Russell County Sheriff's Department a full week after the incident. (Police R e p o rt (Long Doc. # 36, Ex. M).) The police took statements from Mr. Priest and Lee U p s h a w , who was present during the confrontation. Although Mr. Upshaw initially
c o n f irm e d in the police report that he heard Mr. Long tell Commissioner Dudley that he was g o i n g to shoot Mr. Priest, he later testified to having not heard any kind of threat made by M r. Long toward Mr. Priest. (Upshaw Dep. 25-29 (Long Doc. # 45, Ex. 4).) All of the crew m e m b e rs who made statements soon thereafter only referred to Mr. Long "point[ing] his f in g e r in [Mr. Priest's] face" or "pull[ing] up and put[ting] his finger in Norman Priest['s] f a c e and [Mr. Priest] just went back to his truck." (Long Personnel File Pt. 1, at 12-13.) Furthermore, the person to whom Mr. Long allegedly made the comment, Commissioner D u d le y, denies that Mr. Long made any kind of threatening comment directed at Mr. Priest. (Dudley Dep. 35 (Long Doc. # 45, Ex. 1).)
Mr. Long served as an auxiliary deputy sheriff with the Russell County Sheriff's Department. (Long Dep. 254; Ennis Dep. 38.)
Mr. Long was suspended without pay by Defendant Harry Ennis, pending an in v e s tig a tio n . (Long Personnel File Pt. I, 7; Ennis Dep. 41 (Long Doc. # 46, Ex. 2).) Mr. E n n is 's investigation involved reviewing Mr. Long's personnel file and interviewing Mr. P rie s t, Mr. Long, Mr. Upshaw, and possibly Fletcher James. (Ennis Dep. 39, 41.) Beyond th is, Mr. Ennis testified that he took no further action to investigate the incident. (Ennis Dep. 4 5 .) Ultimately, Mr. Long was terminated by Mr. Ennis on October 5, 2007. (Long P e rs o n n e l File Pt. 1, at 7.) Mr. Long requested a hearing before the Russell County P e rs o n n e l Review Board on September 26, 2007. He received a letter on November 2, 2007, d a te d October 11, 2007, stating that his hearing was set for November 8, 2007. (Long Dep. 2 8 4 -8 9 .) Mr. Long immediately retained counsel, who requested additional time to prepare f o r the hearing. His request was denied, and the hearing went forward on November 8, 2007. Mr. Long's witnesses were prevented from entering the hearing chamber, and Mr. Long was p re v e n te d from offering witnesses or cross-examining County witnesses. (Long Dep. 2942 9 6 .) The hearing lasted five minutes, after which the Personnel Review Board voted u n a n im o u s ly to uphold Mr. Long's termination. (Long Personnel File Pt. 1, at 6.) F. M r . Dixon's Termination T h e first time Mr. Dixon was disciplined for work-related conduct occurred in July 2 0 0 7 , shortly after the meeting with the Commissioner. (Dixon Dep. 80.) Mr. Priest and Mr. D ix o n got into an oral altercation about a piece of equipment, during which they both raised th e ir voices. (Dixon Dep. 80-81.) Mr. Dixon received a written warning, signed by Mr.
Priest and Mr. Gohde, for "attitude, misconduct, lack of cooperation, . . . [and] gross in s u b o rd in a tio n ." (Dixon Dep. 89.) The written warning was not shown to or signed by Mr. D ix o n . (Dixon Dep. 88, 132-33, 138 (testifying that "[t]hat's the first I've seen that, ma'am, s in c e Norman Priest wrote that up").) M r. Dixon testified that after the incident for which he was written up, "[Mr. Priest] ju s t started hounding [him] everyday." (Dixon Dep. 94.) He testified that Mr. Priest denied h im necessary equipment, and then complained about the pace of the projects. (Dixon Dep. 9 5 , 98-99, 284-86.) He further testified that Mr. Priest talked to white employees in a more re s p e c tf u l manner. (Dixon Dep. 126.) Mr. Dixon complained to three commissioners that M r. Priest was trying to get him fired. (Dixon Dep. 150-51.) They told him to settle down, a n d that they would look into it. (Dixon Dep. 151, 154-55.) B o th Mr. Priest and Mr. Gohde left the Highway Department in September 2007. (Priest Dep. 129-130, 299.) However, Mr. Dixon did not notice any changes for the better. (Dixon Dep. 137.) He was written up by Mr. Calhoun on two more occasions, once for s e n d in g home an inebriated subordinate employee without receiving proper permission to do s o , and second for sleeping on the job. (Dixon Dep. 163, 211-12, 223-24.) Mr. Dixon c o n te n d s that he only told the subordinate that he could not "go out there on the work project . . . intoxicated like that," and that he followed all proper procedures. (Dixon Dep. 211-16.) He also denies sleeping on the job, a denial corroborated by two of Mr. Dixon's work crew. (Dixon Dep. 229-32; Owens Decl. (Doc. # 73, Attach. 7); Rudd Decl. (Doc. # 73, Attach.
10).) On June 24, 2008, the new County Engineer, Larry Kite, called Mr. Dixon to his o f f ic e and informed him that he was being terminated as a result of his three write-ups. (Dixon Dep. 234-36.) Pursuant to Highway Department policy, three write-ups mandates te rm in a tio n . G. P r o c e d u r a l History M r. Dixon filed suit on February 4, 2009 (Compl. (Doc. # 1)), alleging that the C o m m is s io n violated his Fourteenth Amendment equal protection rights by "ratifi[ng], c o n d o n [ in g ], and adopt[ing] the unlawful harassment, discrimination, and retaliation p e rp e t r a t e d by . . . Priest, Goahde [sic], Ennis, Camp[,] and Kite, thereby elevating such c o n d u c t to an official policy or custom of the County." (Am. Compl. ¶¶ 15-24.) M r. Long filed suit on February 3, 2009 (Compl. (Long Doc. # 1)), alleging similar v io la tio n s of his Fourteenth Amendment equal protection rights by the Commission and Mr. E n n is . Mr. Long also brings claims under Title VII against the Commission, having filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") a n d received a right-to-sue letter. (Long Compl., Ex. B.) M r. Dixon's case and Mr. Long's case were consolidated (Doc. # 44), and Defendants h a v e moved for summary judgment.
IV. DISCUSSION A. S e c tio n 1983 Fourteenth Amendment Racial Discrimination (Equal Protection) 1. G e n e r a lly
S e c tio n 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, o r usage of any State . . . subjects, or causes to be subjected, any citizen of the U n ite d States . . . to the deprivation of any rights, privileges, or immunities s e c u re d by the Constitution and laws, shall be liable to the party injured in an a c tio n at law [or] a suit in equity . . . . 4 2 U.S.C. § 1983. A county can be "liable under section 1983 only for acts for which [the county] is a c tu a lly responsible." Marsh v. Butler Cnty., 268 F.3d 1024, 1027 (11th Cir. 2001) (en b a n c ). Thus, a plaintiff seeking to establish county liability under § 1983 must "identify a [ c o u n ty] `policy' or `custom' that caused [his] injury." Grech v. Clayton Cnty., Ga., 335 F .3 d 1326, 1330 n.6 (11th Cir. 2003) (quoting Gold v. City of Miami, 151 F.3d 1346, 1350 (1 1 th Cir. 1998)); see also Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978) ("[I]t is w h e n execution of a [county's] policy or custom, whether made by its lawmakers or by those w h o s e edicts or acts may fairly be said to represent official policy, inflicts the [constitutional] in ju ry that the [county] as an entity is responsible under § 1983."). To establish a claim under § 1983 against Mr. Ennis in his individual capacity, Mr. L o n g must show: (1) a violation of a constitutional right and (2) that the violation was c o m m itte d by a person acting under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 49-50 (1999). Plaintiffs' claims fail because there is no constitutional violation. Because evidence is lacking of a constitutional violation, Plaintiffs cannot show a basis on w h ic h to establish municipal liability against the County. As a consequence, the issue of q u a lif ie d immunity, raised by Mr. Ennis, need not be reached. A prima facie case for race discrimination under the Fourteenth Amendment's Equal P ro t e c t i o n Clause may be established in two ways: (1) by presenting direct evidence of d is c rim in a tio n or (2) by presenting circumstantial evidence using a variation of the four-part te s t delineated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Bryant v. J o n e s , 575 F.3d 1281, 1296 n.20 (11th Cir. 2009) (noting that § 1983 equal protection claims a n d Title VII discrimination claims are subject to the same standards of proof and the same a n a lytic a l framework); see also Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1 3 5 4 , 1358 (11th Cir. 1999) (noting that prima facie discrimination case can be established d ire c tly or indirectly). Once a plaintiff establishes a prima facie case, the burden shifts to the e m p lo ye r "to `articulate some legitimate, nondiscriminatory reason' for the adverse e m p lo ym e n t action." Crawford v. Carroll, 529 F.3d 961, 976 (11th Cir. 2008) (quoting M c D o n n e ll Douglas, 411 U.S. at 802). If the employer meets its burden, the burden shifts b a c k to the plaintiff to show that the employer's stated reason for the adverse employment a c tio n was "pretext" for discrimination. Id. The pretext inquiry requires a determination, b a s e d upon the totality of the evidence, as to whether the plaintiff "`has cast sufficient doubt o n the defendant's proffered nondiscriminatory reasons to permit a reasonable factfinder to
conclude that the employer's proffered legitimate reasons were not what actually motivated its conduct.'" Id. (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1 9 9 7 )). A plaintiff may meet his or her burden with the evidence used to establish his or her p r im a facie case. Combs, 106 F.3d at 1528. 2. D ir e c t Evidence of Discrimination
D ire c t evidence of discrimination is "`evidence that, if believed, proves the existence o f a fact without inference or presumption.'" Dixon v. Hallmark Companies, Inc., - - - F.3d - -, 2010 WL 4983663 at *3 (11th Cir. Dec. 9, 2010) (quoting Wilson v. B/E Aerospace, Inc., 3 7 6 F.3d 1079, 1086 (11th Cir. 2004). "`[D]irect evidence relates to actions or statements o f an employer reflecting a discriminatory or retaliatory attitude correlating to the d is c rim in a tio n or retaliation complained of by the employee.'" Carter v. Three Springs R e sid e n tia l Treatment, 132 F.3d 635, 639 (11th Cir 1998) (quoting Caban-Wheeler v. Elsea, 9 0 4 F.2d 1549, 1555 (11th Cir. 1990)). The evidence must show "that the complained-of e m p lo ym e n t decision was motivated by the decisionmaker's [racism]." Damon, 196 F.3d at 1 3 5 8 -5 9 . Thus, "`only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of [race]' will constitute direct evidence of discrimination." Dixon, 2010 WL 4983663 at *3 (quoting Wilson, 376 F.3d at 1086). "Remarks by non-decisionmakers or remarks unrelated to the decisionmaking process its e lf are not direct evidence of discrimination." Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1 3 1 8 , 1330 (11th Cir. 1998) (internal quotation marks and citation omitted)). Hence, the
Eleventh Circuit "require[s] that a biased statement by a decisionmaker be made concurrently w ith the adverse employment event, such that no inference is necessary to conclude that the b ia s necessarily motivated the decision." Williamson v. Adventist Health Sys./Sunbelt, Inc., 3 7 2 Fed. App'x. 936, 940 (11th Cir. 2010). Mr. Dixon and Mr. Long contend they have presented direct evidence of d i s c rim in a tio n to satisfy their prima facie burdens. Both Mr. Dixon and Mr. Long rely on M r. West's testimony that he overheard Mr. Gohde say that there were "too many black s u p e r v is o rs ," as well as evidence that Mr. Priest inquired into whether all the supervisors w e re black and later stated that "he had been brought in to straighten things out." 1 0 T h e inquiry into the racial makeup of the supervisors and the statement by Mr. Priest t h a t he was sent to "straighten things out" do not evince an intent to discriminate. On the o th e r hand, the statement by Mr. Gohde regarding "too many black supervisors" does reflect a discriminatory attitude that, if directly correlated to the complained-of discrimination, w o u ld amount to direct evidence of discrimination. To meet their burdens, Mr. Dixon and M r. Long must connect Mr. Gohde's discriminatory statement to the discriminatory conduct
Defendants maintain that this evidence is "so contradictory and speculative that it is unworthy of credence." (Def.'s Reply Br. 3 (Doc. # 78).) Specifically, Defendants point to Mr. Long's testimony that F.O. Hall told Mr. Long that he had overheard Mr. Priest say that there were too many black supervisors (Long Dep. 302-03), and that there are different accounts of when Mr. Priest was overheard saying "he was sent there to straighten things out." (Compare Long Dep. 235-36 (stating that he overheard Priest make the statement at the shop), with Hall Aff. (stating that Mr. Priest made the statement while smoking a cigarette with Mr. Hall and Jeff Willis).) However, viewing the evidence in the light most favorable to Plaintiffs, it is not clear whether these statements are, in fact, contradictory, as it is entirely possible that these statements were made on more than one occasion. Furthermore, Mr. West's affidavit is worthy of credence, as it was based on personal observation and corroborated by Mr. Dixon's testimony. Thus, the court finds Defendants' arguments in this regard unpersuasive.
(i.e., their respective terminations). See Holifield v. Reno, 115 F.3d 1555, 1563-64 (11th Cir. 1 9 9 7 ) ("The biases of one who neither makes nor influences the challenged personnel d e c is io n are not probative in an employment discrimination case.") (internal quotation marks a n d citation omitted). T h e alleged discrimination amounts to a plan, scheme, or conspiracy involving several c o u n ty engineers and mid-level supervisors to terminate Mr. Dixon and Mr. Long on the b a s is of their race. While the evidence of Mr. Gohde's statement regarding "too many black s u p e rv is o rs " is "probative circumstantial evidence of [Mr. Gohde]'s state of mind," Damon, 1 9 6 F.3d at 1359, the comment requires several inferential leaps to reach the conclusion that M r . Gohde's discriminatory state of mind motivated Mr. Priest's and Mr. Calhoun's d e c is io n s to "write up" Mr. Dixon on three separate occasions (one by Mr. Priest, and two b y Mr. Calhoun), which ultimately led to Mr. Kite's decision to terminate him. The same in f e re n tia l leaps would be required to link Mr. Gohde's discriminatory state of mind to Mr. P rie s t's decision to write up Mr. Long on September 18, 2007, which led to Mr. Ennis's d e c is io n to terminate him. Plaintiffs argue that Mr. Gohde and Mr. Priest "engaged in a concerted effort to w ro n g f u lly discharge [them]." (Pls.' Resp. Br. 11.) However, Plaintiffs fail to present any evidence that Mr. Gohde relayed his discriminatory motives to Mr. Priest or that he instructed M r. Priest to find ways to terminate black supervisors for the purpose of opening up positions f o r white supervisors. Rather than presenting evidence that Mr. Priest had any knowledge
of Mr. Gohde's biased intentions, Plaintiffs ask the court to infer this discriminatory plan f ro m Mr. Priest's statement that "he had been brought in to straighten things out" and the fact th a t Mr. Priest seems to have been an unpleasant supervisor. H o w e v e r, even if the court were to find that Mr. Gohde's statement was direct e v id e n c e of a plan between Mr. Gohde and Mr. Priest to terminate black supervisors, this a lle g e d plan led, at most, indirectly to Mr. Dixon's and Mr. Long's eventual terminations. Mr. Gohde did not terminate Mr. Dixon or Mr. Long; his replacements, Mr. Kite and Mr. E n n is , did. There is no evidence that Mr. Gohde communicated his intentions to Mr. Kite o r Mr. Ennis or otherwise notified either of them of the Highway Department's "plan" to te rm in a te black supervisors, and there is no evidence of any discriminatory statements or c o n d u c t on the part of Mr. Kite or Mr. Ennis. Further, with respect to Mr. Dixon, Mr. P rie s t's actions resulted in only one of the three disciplinary write-ups that eventually led to M r. Dixon's termination; Mr. Priest's replacement, Mr. Calhoun, prepared the other two w rite -u p s. There is no evidence that Mr. Priest communicated any improper intentions to Mr. C a lh o u n , or otherwise notified Mr. Calhoun of a plan to terminate black supervisors. In other w o rd s, there is no evidence that the alleged plan between Mr. Gohde and Mr. Priest p e rm e a te d the whole department, or that it guided Mr. Calhoun's or Mr. Kite's actions in any w a y. Moreover, there is no evidence that Mr. Priest's actions, alone, tainted the d e c is io n m a k in g process with respect to Mr. Dixon. According to Mr. Dixon, the
discriminatory plan between Mr. Gohde and Mr. Priest began to take effect when, in July 2 0 0 7 , Mr. Priest wrote up Mr. Dixon for insubordination after a verbal altercation. Because th is first write-up was one of the three write-ups that ultimately led to Mr. Dixon's te rm in a tio n , it is arguable that Mr. Priest's actions played a part in Mr. Dixon's termination: Without Mr. Priest's written disciplinary report, Mr. Dixon would not have had three writeu p s , and without the three write-ups, Mr. Kite would not have been obligated, pursuant to d e p a rtm e n t policy, to terminate Mr. Dixon. Thus, it is particularly significant that Mr. Dixon d o e s not deny that this "loud exchange" occurred, or that the incident constituted a violation o f department policy warranting disciplinary action. Mr. Dixon's concession in this regard s h o w s that the termination was not based on false information provided by Mr. Priest to the d e c is io n m a k e r, Mr. Kite. See Wright v. Southland Corp., 187 F.3d 1287, 1304 n.20 (11th C ir. 1999) ("[T]here is no evidence that [the plaintiff's supervisor's predecessor] m a n ip u la te d the decisionmakers, and thus any discriminatory intent on his part could not be s a id to be the cause of [the plaintiff's] termination."). M r. Long's termination, on the other hand, is directly attributable to Mr. Priest. Mr. L o n g 's altercation with Mr. Priest occurred on September 18, 2007. Mr. Long worked his la s t day on September 24, 2007, and was terminated less than a month after the incident, on O c to b e r 5, 2007. (Long Personnel File Pt. I, 7.) The reason stated for Mr. Long's
te rm in a tio n was "[v]iolation of County standards, on group two offenses." Those group two o f f e n s e s are enumerated in his written warning issued by Mr. Priest. On this record,
however, Mr. Priest's involvement is insufficient to sustain Mr. Long's racial termination c la im . Mr. Priest was not the final decisionmaker; Mr. Ennis was. And there is not evidence o f any improper influence by Mr. Priest in that decision. Although the issue was not raised, it should be noted that a cat's paw theory cannot s a v e Mr. Long's claim. The cat's paw theory applies where an employee demonstrates that " th e decisionmaker followed the biased recommendation [of a non-decisionmaker] without in d e p e n d e n tly investigating the complaint against the employee." Stimpson v. City of T u sc a lo o s a , 186 F.3d 1328, 1332 (11th Cir. 1999). In such an instance, "the recommender is using the decisionmaker as a mere conduit, or `cat's paw' to give effect to the re c o m m e n d e r's discriminatory animus." Id. Causation between the recommender's
d is c rim in a to ry animus and the adverse employment action, however, "must be truly direct." Id. The "discriminatory animus behind the recommendation, and not the underlying
e m p lo ye e misconduct identified in the recommendation, [must be] an actual cause of the o th e r party's decision to terminate the employee." Id. Application of the cat's paw theory in Mr. Long's case is unwarranted for two reasons. First, as discussed, Mr. Long has failed to produce evidence of racial animus on the part of the arguable recommender, Mr. Priest. Second, even if there existed evidence against Mr. Priest, there would not be enough e v id e n c e , on this record, of a causal connection between that discriminatory animus and Mr. E n n is 's ultimate decision to terminate Mr. Long; causation under the cat's paw theory d e p e n d s largely on the action (or inaction) of the final decisionmaker and requires that the
connection "be truly direct." Stimpson, 186 F.3d at 1332. Unlike Mr. Dixon, Mr. Long adamantly disputes virtually everything that found its w a y into Mr. Priest's write-up. (Long Dep. 238-250.) Mr. Ennis, the decisionmaker, relied h e a v ily on Mr. Priest's version of the incident. However, Mr. Ennis did not rely solely on M r. Priest's account. Rather, he conducted an independent investigation, reviewing Mr. L o n g 's personnel file, interviewing Mr. Priest, Mr. Long, Mr. Upshaw, and possibly Fletcher J a m e s , and examining the police report of the incident. (Ennis Dep. 24-50.) Because Mr. E n n is conducted an independent investigation, any argument based upon a cat's paw theory w o u ld have been futile for lack of causation. In spite of Mr. Priest's involvement in the circumstances which led to Mr. Long's te rm in a tio n , Mr. Long has failed to properly link Mr. Gohde's racial animus to Mr. Priest, s u p r a at 20-22, as required to link Mr. Priest's alleged racial animus to Mr. Ennis. For this re a s o n , Mr. Long cannot sustain his direct evidence claim of racial discrimination on a cat's p a w theory. In sum, although Mr. Gohde's statement indicates a racist state of mind, the court m u s t make several inferential leaps which are unsupported by evidence sufficient to raise a g e n u in e issue of material fact that Mr. Gohde's bias "necessarily motivated the decision" to f ire Plaintiffs.1 1 Williamson, 372 Fed. App'x. at 940. Thus, the court finds that the statement
Plaintiffs have neither presented any argument in this regard, nor cited any case law supporting their position. They simply state that "there is substantial direct evidence to racial animus having played a significant role in their terminations," (Pls.' Resp. Br. 23), and assume that the evidence speaks for itself. It does not.
related to "too many black supervisors" does not constitute direct evidence of discrimination s u f f ic ie n t to raise a genuine issue of material fact, and that Mr. Dixon and Mr. Long must p ro v e their discrimination claims circumstantially, using the McDonnell Douglas framework. 3. C ir c u m s ta n tia l Evidence
T o establish a prima facie case of disparate treatment on the basis of race, each P la in tif f must show: (1) he is a member of a protected class; (2) he was qualified for the job; (3 ) he suffered an adverse employment action; and (4) Defendants treated similarly situated e m p lo ye e s outside the protected class more favorably. Maniccia v. Brown, 171 F.3d 1364, 1 3 6 8 (11th Cir. 1999); McDonnell Douglas Corp., 411 U.S. at 802. "Demonstrating a prima f a c ie case is not onerous; it requires only that the plaintiff establish facts adequate to permit a n inference of discrimination." Holifield, 115 F.3d at 1562. Mr. Dixon's and Mr. Long's claims falter on the fourth element. As to this element, P la in tif f s must present evidence that a white employee was "involved in or accused of the s a m e or similar conduct and [was] disciplined in [a] different way[ ]." Holifield, 115 F.3d a t 1562. The white employee must be "similarly situated in all relevant respects." Id. The E le v e n th Circuit has interpreted this standard to "require that the quantity and quality of the c o m p a ra to r's misconduct be nearly identical to prevent courts from second-guessing e m p lo ye rs ' reasonable decisions and confusing apples with oranges." Maniccia, 171 F.3d a t 1368.
Rather than address Defendants' arguments in this regard, Mr. Dixon and Mr. Long s im p ly state that they "can prove a prima facie case of discrimination." (Long Doc. # 43, at 2 5 ; Doc. # 70, at 25.) They do not, however, offer any argument or cite any case law in s u p p o rt of that conclusory contention. Plaintiffs provide twenty pages of facts and a short s ta te m e n t of the law, and then, without applying the facts to the law, conclude that they have m e t their burden in overcoming summary judgment, presumably leaving the court to make th e ir arguments. There, however, "is no burden upon the district court to distill every p o te n tia l argument that could be made based upon the materials before it on summary ju d g m e n t." Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995). The court nonetheless has reviewed the record, and finds that neither Mr. Dixon nor Mr. L o n g has presented sufficient evidence to create a genuine issue of material fact as to the f o u rth element of their respective prima facie cases. Because the claims fail on the fourth e le m e n t, it is unnecessary to apply the McDonnell Douglas analysis. Even if Mr. Dixon or Mr. Long were able to make out a prima facie case, their claims w o u ld still fail for a complete absence of pretext. For example, as to Mr. Long, his lengthy p e rs o n n e l file, which chronicles almost a decade of infractions, offers more than enough e v id e n c e to support Defendants' articulated nondiscriminatory reason for terminating him. (Defs.' Resp. 12, 15-16.) The burden would again be on Mr. Long to prove pretext. To d e m o n s tra te pretext, Mr. Long merely states that any argument by the Commission that it f ire d Mr. Long based on a reasonable belief that he violated policies and procedures of the
Russell County Engineer's Office "rings hollow when compared with the evidence in these c a s e s ." (Long Doc. # 43, at 26.) Mr. Long fails, however, to specifically point to any e v id e n c e of pretext. Mr. Long's repeated statements that his personnel file was stacked (L o n g Dep. 118, 197), without supporting evidence, do not demonstrate pretext. 4. S u m m ary
T h e § 1983 equal protection claims against the Commission and Mr. Ennis, in his in d iv id u a l capacity, alleging racially discriminatory terminations, are not supported by the e v id e n c e . There is no direct evidence of discriminatory intent, and circumstantially, the e v id e n c e is insufficient to raise a genuine issue of material fact that Plaintiffs suffered d is c rim in a tio n because of their race. It is, therefore, unnecessary to inquire into the
C o m m is s io n 's customs or policies pertaining to employment practices, see Garczynski v. B ra d sh a w , 573 F.3d 1158, 1170 (11th Cir. 2009) ("Analysis of a state entity's custom or p o lic y is unnecessary . . . when no constitutional violation has occurred."), or into Mr. Ennis' d e f e n s e of qualified immunity. Accordingly, summary judgment for Defendants is due to e n te re d on the § 1983 claims alleging racial discrimination in violation of the Equal P ro te c tio n Clause of the Fourteenth Amendment. B. T itle VII Race Discrimination Mr. Long also seeks relief under Title VII, which prohibits employment d is c rim in a tio n on the basis of race. Ricci v. DeStefano, 129 S. Ct. 2658, 2672 (2009). A d is p a ra te treatment claim under Title VII "occurs where an employer `has treated [a]
particular person less favorably than others because of' a protected trait." Id. (quoting W a ts o n v. Fort Worth Bank & Trust, 487 U.S. 977, 985-86 (1988)). Proving a violation of § 1983 (equal protection) and Title VII, where the facts for each claim are the same, involves th e same standards and analytical framework. Bryant, 575 F.3d at 1296 n.20; Crawford, 529 F .3 d at 970. Thus, with respect to Mr. Long's Title VII race discrimination claim, the court a d o p ts its analysis and conclusion from its discussion of his § 1983 race discrimination c la im s , see supra pt. A. Therefore, Mr. Long's Title VII race discrimination claim fails. C. R e ta lia tio n Claims and the Fourteenth Amendment's Equal Protection Clause M r. Dixon and Mr. Long purport to bring § 1983 retaliation claims under the Equal P ro te c tio n Clause of the Fourteenth Amendment. (See Dixon Am. Compl. ¶¶ 15-24; Long C o m p l. ¶¶ 14-20.) However, "a pure or generic retaliation claim . . . simply does not im p lic a te the Equal Protection Clause." Watkins v. Bowden, 105 F.3d 1344, 1355 (11th Cir. 1 9 9 7 ) (collecting cases). Mr. Dixon effectively concedes this point in his response brief, a rg u in g only that Mr. Long's retaliation claim was also brought under Title VII, without a d d re s s in g his own Fourteenth Amendment retaliation claim. Accordingly, Defendants' m o tio n s for summary judgment on Plaintiffs' Fourteenth Amendment retaliation claims are d u e to be granted. Mr. Long's Title VII retaliation claim will be taken up below. D. T itle VII Retaliation T itle VII prohibits discrimination against any employee who (1) "has opposed any p ra c tic e made an unlawful employment practice by this subchapter" (opposition clause), or
(2) "has made a charge, testified, assisted, or participated in any manner in an investigation, p ro c e e d in g , or hearing under this subchapter" (participation clause). 42 U.S.C. § 2000e-3(a). "The burden of proof in Title VII retaliation cases is governed by the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." Goldsmith v. City of Atmore, 9 9 6 F.2d 1155, 1162-63 (11th Cir. 1993) (citation altered). A prima facie case of retaliation re q u ire s proof "(1) that [the employee] engaged in statutorily protected expression; (2) that h e suffered an adverse employment action; and (3) that there is some causal relation between th e two events." Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1277 (11th Cir. 2 0 0 8 ) (rhr'g en banc denied). Under the opposition clause, to show engagement in statutorily p ro te c te d expression, the employee must show that he engaged in (1) opposition and (2) "that h e had a good faith, reasonable belief that the employer was engaged in unlawful e m p lo ym e n t practices [under Title VII]." 42 U.S.C. § 2000e-3; Butler v. Ala. Dep't of T r a n s p ., 536 F.3d 1209, 1213 (11th Cir. 2008) (quoting Little, 103 F.3d at 960); see also 42 U .S .C . § 2000e-2(a) (listing race, color, religion, sex, or national origin as protected s ta tu s e s ) . After the plaintiff has established the elements of the prima facie case, the employer h a s the burden of articulating a legitimate non-retaliatory reason for the challenged e m p lo ym e n t action. Goldsmith, 513 F.3d at 1277. Ultimately, the plaintiff bears the burden o f proving retaliation by a preponderance of the evidence and that the reason provided by the e m p lo ye r was pretextual. Id.
To satisfy the burden of production for offering a legitimate, non-retaliatory reason f o r its actions, the employer is not required to persuade the court that the reason was its a c tu a l motivation. Combs, 106 F.3d at 1528 (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 4 5 0 U.S. 248, 254-55 (1981)). The employer only needs admissible evidence that would a llo w the trier of fact to rationally conclude that its actions were not based on a retaliatory m o tiv e . See id. (quoting Burdine, 450 U.S. at 257). When the employer satisfies its burden, the employee has the burden to establish that th e employer's non-retaliatory reason was pretextual. The plaintiff must meet the employer's le g itim a te reason "head on" and not by "simply quarreling with the wisdom of that reason." Chapman v. Al Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc). To meet the e v id e n tia ry burden on pretext, the employee must demonstrate "`such weaknesses, im p la u s ib ilitie s , inconsistencies, incoherencies, or contradictions in the employer's proffered le g itim a te reason for its actions that a reasonable factfinder could find it unworthy of c re d e n c e .'" Combs, 106 F.3d at 1538 (quoting Sheridan v. E.I. DuPont de Nemours & Co., 1 0 0 F.3d 1061, 1071 (3d Cir. 1996) (en banc)). 1. M r . Long's Opposition Retaliation Claims and Prima Facie Case
Mr. Long has four distinct claims of retaliation based on his participation in and o p p o sitio n to unlawful employment practices at the Commission. One is time-barred, two d o not state a prima facie case of retaliation because Mr. Long did not engaged in statutorily
protected expression, and the final claim (a participation claim) lacks the requisite causal c o n n e c tio n . a. C a l Markert Interview
M r. Long's first retaliation claim concerns his interview for the superintendent p o s itio n in late-2003, when Buster Sanders retired from the position. Mr. Long alleges that C o u n ty Engineer Cal Markert retaliated against him by failing to promote him to the position o f superintendent because he had previously confronted Mr. Markert about racial d is c rim in a tio n . T h e merits of this claim need not be addressed, as it is clearly time-barred. The S u p re m e Court of the United States has held that a continuing violation theory is not p e rm itte d for claims arising out of discrete acts of discrimination, such as termination, failure to promote, denial of transfer, or refusal to hire. Nat'l R.R. Passenger Corp. v. Morgan, 536 U .S . 101, 114 (2002). "Each incident of discrimination and each retaliatory adverse
e m p lo ym e n t decision constitutes a separate actionable `unlawful employment practice'" that m a y start a new limitations period for filing a charge. Id. Nearly four years elapsed between a c c ru a l of Mr. Long's failure to promote claim and the date on which he filed an EEOC c h a rg e . Mr. Long's Title VII retaliation claim for failure to promote is time-barred. See 42 U .S .C . § 2000e-5(e)(1) ("A charge under this section shall be filed within one hundred and e ig h ty days after the alleged unlawful employment practice occurred . . . .").
T h e July 2007 Meeting and Mr. Long's Termination and Appeal
S e c o n d and third, Mr. Long maintains that he was terminated and that he was denied a meaningful appeal by the personnel review board in retaliation to a July 2007 meeting at w h ic h he and several other African-American employees complained of discrimination and u n e q u a l treatment. To sustain the first element of his prima facie retaliation case as to these c la im s , Mr. Long must demonstrate that he engaged in statutorily protected expression. To d o so, he must allege that he engaged in (1) opposition, and (2) "that he had a good faith, re a s o n a b le belief that the employer was engaged in unlawful employment practices [under T itle VII]." 42 U.S.C. § 2000e-3; Butler, 536 F.3d 1209, 1213 (quoting Little, 103 F.3d at 9 6 0 ); see also 42 U.S.C. § 2000e-2(a) (listing race, color, religion, sex, or national origin as p ro te c te d statuses). Finding that Mr. Long did not "oppose" within the meaning of the law, th e court truncates the discussion of the other elements of Mr. Long's purported statutorily p ro te c te d expression, and his prima facie case generally. In Crawford v. Metropolitan Government of Nashville and Davidson County, T e n n e ss e e , the Supreme Court recently considered what may constitute opposition in the c o n te x t of a Title VII retaliation claim. 129 S.Ct. 846, 851 (2009). In that case, the Supreme C o u rt held than an employee's speech about sexually harassing behavior in response to an e m p lo ye r's internal investigation constituted opposition under the Title VII retaliation f ra m e w o rk . The Court defined the term "oppose" as follows: "[B]eing left undefined by s ta tu te , [oppose] carries its ordinary meaning, `to resist or antagonize . . ., to contend against;
to confront; to resist; withstand[.]'" Id. (citing Perrin v. United States, 444 U.S. 37, 42 (1979) (q u o tin g Webster's New International Dictionary 1710 (2d ed. 1958)). The Court then found th a t the plaintiff's account of a fellow employee's sexually harassing behavior, a description in c lu d in g crotch grabbing, "put[ting] his crotch up to her window," and "grabb[ing] her head a n d pull[ing] to his crotch," was "an ostensibly disapproving account of sexually obnoxious b e h a v ior toward her by a fellow employee" and therefore "covered by the opposition clause." Id. at 849-50. The Court further held that even though plaintiff's speech came as a response to an employer's question, it still constituted opposition just as "standing pat, say, by refusing to follow a supervisor's order to fire a junior worker for discriminatory reasons" constitutes o p p o sitio n . Id. at 851. M r. Long contends that his opposition occurred during a July 2007 meeting, wherein M r. Long, Mr. Dixon, and four other African-American employees met with LeAnn Horne, th e County Administrator, County Commissioners Mervin Dudley and J.D. Upshaw, and the C o u n ty Attorney to discuss grievances within the Highway Department. (Long Dep. 2575 9 .) County Attorney Kenneth Funderburk confirmed in his deposition that this meeting took p la c e .1 2 (Funderburk Dep. 40-47 (Doc. # 72, Attach. 15).) P la in tif f concedes that race was never mentioned during the meeting. (Pl.'s Br. 111 2 .) Nevertheless, counsel for Mr. Long asserts that "it is undisputed the grievants all c la im e d discrimination and unequal treatment." (Pl.'s Br., 11-12.) This assertion, however,
Mr. Funderburk also confirmed that he unilaterally destroyed the taped recordings made during this meeting, because he believed that the claims were without merit. (Funderburk Dep. 46.)
is not accompanied by a record cite, and "arguments in brief are not evidence." United States v . Cardona, 302 F.3d 494, 497 (5th Cir. 2002). Contrary to counsel's argument that d is c rim in a tio n was explicitly mentioned, the evidence appears to be incongruous with his s ta te m e n t. (Horne Dep. 33 (Doc. # 72, Attach. 14) ("No, they just didn't like their work a s s ig n m e n ts . I don't recall [them saying they were] being discriminated against.");
F u n d e rb u rk Dep. 43 ("[T]here wasn't one single person who had anything to say dealing with d is c rim in a tio n or being treated unfairly . . . ."); Dudley Dep. 100 ("I took the comments as b e in g the type of comments, if you had a staff meeting, suggestions from your employees or c o -e m p lo ye e s , on what we can do to improve the operation of what we're doing, what we're th e re for.").)1 3 Mr. Long did not testify as to the substance of what he said during the m e e tin g , only stating ambiguously that "[i]f you come up with that tape, you're going to c o m e all are on that tape, each one I said,"1 3 and that "[e]ver since [that meeting] we class a s troublemakers." (Long Dep. 258, 262.) Furthermore, Mr. Dixon, the only employee to te s tif y as to what he actually said during that meeting, stated in his deposition that he went to the July 2007 meeting to complain about "the working environment, hostile working e n v iro n m e n t, that we were down there were concerned about the way we were being treated a s employees." (Dixon Dep. 204 (emphasis added).)
Statements or testimony by J.D. Upshaw, the other County Commissioner present, have not been provided. The court can make no sense of this statement. It is recounted simply to highlight the ambiguity of the claim.
"Even after Crawford, to engage in protected actvity, the employee must still, `at the v e ry least, communicate her belief that discrimination is occurring to the employer,' and c a n n o t rely on the employer to `infer that discrimination has occurred.'" Demers v. Adams H o m e s of Nw. Florida, Inc., 321 Fed. App'x. 847, 852 (11th Cir. 2009) (quoting Webb v. R & B Holding Co., Inc., 992 F. Supp. 1382, 1390 (S.D. Fla. 1998); see also Fields v. Locke L o rd Bissell & Liddell, LLP, No. 1:07cv2984, 2009 WL 2341981, at *14 (N.D. Ga. July 28, 2 0 0 9 ). Generalized complaints about working conditions cannot form the basis for a claim o f retaliation. Reynolds v. Golden Corral Corp., 106 F. Supp. 2d 1243, 1253-54 (M.D. Ala. 1 9 9 9 ). The evidence reveals that the employees complained only of working conditions and o f how they were being treated as employees, not as African-American employees. Nevertheless, Mr. Long urges the court to "take judicial notice that when a panel of six black e m p lo ye e s petition[s] a governmental body comprised of four white officials in Russell C o u n ty, Alabama, race is likely a factor motivating the discussion, but may not be a term e ith e r party will readily embrace and verbalize."1 4 (Pl.'s Br. at 12, n.7.) Granted, race m o tiv a te s many a discussion, but an employer is put on notice of discrimination by the c o n te n t of the discussion, not by unspoken motivations. Considering only the setting and p la ye rs , the employer would, under Mr. Long's theory, be required to infer discrimination f ro m generalized complaints. That is a proposition contrary to law and is precisely the type
The Commission was actually 43% African-American at the time of the meeting.
of inference that the Demers court warned against. Accordingly, there are insufficient facts to establish that Mr. Long engaged in statutorily protected expression opposing unlawful e m p lo ym e n t practices at the July 2007 meeting. M r. Long's prima facie case with respect to his termination falls short on another g ro u n d as well. Assuming, arguendo, that Mr. Long can sustain the first element of his p r i m a facie case, that he engaged in statutorily protected expression, he still cannot d e m o n s tra te the required causal link between his opposition and his termination (the third e le m e n t). In other words, even if Mr. Long can show that the July 2007 meeting, wherein several African-American employees complained of working conditions without mentioning d is c rim in a tio n or race, constituted adequate opposition to perceived unlawful employment p ra c tic e s , see Crawford, 129 S. Ct. at 851, and that Mr. Long both subjectively and re a s o n a b ly believed that those practices were, in fact, unlawful, see Butler, 536 F.3d at 12131 2 1 4 , he still cannot tie the two events together to a degree that a causal link can be e s ta b lis h e d . The Eleventh Circuit has explained that the causal element for a claim of retaliation c a n be proved by circumstantial evidence. Goldsmith, 513 F.3d at 1277. We do not construe the `causal link' . . . to be the sort of logical connection th a t would justify a prescription that the protected participation in fact p ro m p te d the adverse action. Such a connection would rise to the level of d i r e c t evidence . . . Rather, we construe the `causal link' element to require m e re ly that the plaintiff establish that the protected activity and the adverse a c tio n were not wholly unrelated. Id. (quoting Simmons v. Camden Cnty. Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir. 1985)). 37
"In order to show the two things were not entirely unrelated, the plaintiff must g e n e ra lly show that the [decisionmaker] was aware of the protected conduct at the time of th e adverse employment action." Id. (quoting Brungart v. BellSouth Telecomms., Inc., 231 F .3 d 791, 799 (11th Cir. 2000) (citing in turn Raney v. Vinson Guard Serv., Inc., 120 F.3d 1 1 9 2 , 1197 (11th Cir. 1997))). In other words, Mr. Long must show that Mr. Ennis was a w a re of the June 2007 meeting at the time of his decision to terminate Mr. Long. Otherwise, the causal connection is severed; the protected expression generally can play no ro le in the adverse employment action if the decisionmaker had no knowledge of the e x p re s s io n . Because Mr. Ennis became County Engineer after the meeting, his knowledge b y no means can be inferred, and Mr. Long does not allege that he had such knowledge. In f a c t, Mr. Ennis unequivocally stated several times during his deposition testimony that he w a s unaware of this meeting. (Ennis Dep. 21-22.) Mr. Long has failed to demonstrate the re q u isite causal link between the June 2007 meeting and his termination and, thus, cannot s u s ta in his prima facie case. M r. Long also asserts that he was denied meaningful review of his termination before th e personnel review boar
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