Presley v. Phenix City Police Department

Filing 64

MEMORANDUM OPINION AND ORDER denying 41 Motion for Summary Judgment, as further set out. Signed by Honorable Judge Mark E. Fuller on 3/5/12. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
CHRISTINA PRESLEY,
Plaintiff,
vs.
CITY OF PHENIX CITY,
WILLIAM C. LEWIS, and
RAYMOND J. SMITH,
Defendants.

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Case No. 3:10-cv-821-MEF-TFM
(WO—Do not publish)

MEMORANDUM OPINION AND ORDER
I. I NTRODUCTION
Christina Presley brought suit against her municipal employer under 42 U.S.C. §
1983, claiming violations of both the Fourteenth Amendment and 42 U.S.C. § 1981. She
also tacked on a cause of action for employment discrimination under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e. Presley’s claims arise out of the Phenix City
Police Department’s decision to discipline her for insubordination. This disciplinary
action, in turn, led to her suspension and the loss of her pending promotion to sergeant.
Now the case comes before the Court on the Motion for Summary Judgment (Doc. # 41)
filed by Defendants Phenix City, Lieutenant William Lewis, and Police Chief Raymond
Smith. For the reasons discussed below, the defendants’ Motion for Summary Judgment
is due to be DENIED.

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II. J URISDICTION AND V ENUE
This Court has jurisdiction over Presley’s claims under 28 U.S.C. §§ 1331 (federal
question) and 1343 (civil rights). The parties do not claim that the Court lacks personal
jurisdiction over them, nor do they dispute that venue is proper under 28 U.S.C. §
1391(b), and the Court finds adequate allegations supporting both.
III. T HE R ELEVANT F ACTS
A. Rules, regulations, and policies
The Phenix City Employee Handbook details the City’s policies and procedures as
they relate to employees. (See Doc. # 43-3.) When it comes to personnel decisions, the
handbook specifies that the City’s Merit System governs. (Id. at 4.) This serves a dual
purpose: to make sure politics do not interfere with decision making and to ensure
employment opportunities are based on merit instead of prohibited traits like race, sex,
age, or disability. (Id. at 6.)
The handbook also sets out a code of conduct and a disciplinary system for
punishing employees who run afoul of the applicable rules. (Id. at 12–20.) To this end,
Phenix City has set up a three-tiered approach to discipline. (Id. at 12.) If an employee
commits a Group I offense, he or she receives a written or verbal warning for the first
violation followed by progressively harsher discipline for later violations. (Id.) Group I
offenses include, among others, failing to work overtime, leaving work without
permission, and making careless mistakes. (Id. at 12–14.) For Group II and Group III

2

offenses, where the first infraction subjects an employee to suspension or discharge, the
department has discretion to impose a lesser penalty based on the totality of the
circumstances. (Id. at 12.) Group II offenses typically call for instruction and a twentyfour hour suspension without pay for the first offense, followed by discharge for any
additional violation. (Id. at 14.) Group II offenses include, among others, instigating a
fight on City property, threatening co-workers, and gambling on the job. (Id.)
Group III offenses call for immediate discharge. (Id. at 15.) Conduct falling under
Group III includes, for example, willful neglect in performing assigned duties, lying to
obtain sickness or accident benefits, and, relevant here, insubordination for refusing to
perform an assignment or for defying a supervisor. (Id. at 15–16.) When the City subjects
an employee to disciplinary action, that employee may appeal to the Personnel Review
Board. (Id. at 18.)
The Phenix City Police Department also has a policy setting forth its chain of
command. As it relates to the investigations unit, the chain of command is as follows:
A.
B.
C.
D.
E.
F.
G.

Chief of Police
Assistant Chief of Police
Captain
Lieutenant
Sergeant/Investigator
Corporal/Invesigator
Specialist, I

(Doc. # 57-6.) When an employee has a problem, he or she must “report to the person or
position located above their listed position or rank.” (Id.) The notification procedures go

3

on to state:
If at any time an employee disagrees with an answer or
solution, that employee may appeal that situation to the next
higher rank. If any situation where an employee wants to go to
the next higher rank or position for a resolution or answer, the
employee must make the supervisor aware of that decision.
That supervisor should then contact the next supervisor in the
chain and make them aware that a particular employee will be
contacting them about a problem and that they have been
given permission to do so. A mere phone call will be
considered to be adequate notification. Employees will not
take it upon themselves to notify the next person in the chain.
The supervisor from which the problem is being appealed will
do that. In the absence of the next person in the chain, an
employee may skip that person and proceed to the next higher
position in the chain of command.
(Id.) The policy allows an officer to go outside the chain of command only in emergency
situations, namely when “the answers to the particular problem cannot wait for the proper
procedures to be followed.” (Id.)
Finally, the department has a policy dealing with supervisor accountability for a
subordinate’s acts. (See Doc. # 57-10.) The policy holds supervisory personnel
“accountable for the performance of the subordinate personnel under their immediate
supervision.” (Id.) To this end, the department holds supervisors “responsible for all
incidents or activities that occur while they are in a supervisory capacity over that
particular activity or incident.” (Id.) The policy limits the supervisor’s responsibility for
subordinates by absolving the supervisor of liability for situations where the subordinate
acts outside of the scope of employment, unless the supervisor orders, approves, or

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ratifies the subordinate’s act. (Id.) By the same token, the subordinate incurs liability for
acting outside of the scope of employment unless the supervisor orders, approves, or
ratifies the disputed act.
B. Underlying facts
Christina Presley joined the Phenix City police department as an officer in 1997.
(Doc. # 43-6 at 24.) Ten years later, she became an investigator. (Id. at 48.) And in 2009,
she took the Sergeant Promotional Exam, tying for the highest written score and second
highest overall score. (Id. at 104–07.) Lieutenant William Lewis—one of the
defendants—took notice of her test score and, after a meeting with a six-person
committee, recommended Presley for a promotion. (Doc. # 58-1, Ex. 9.) Police Chief
Raymond Smith, also a defendant, acted on Lewis’s recommendation and promoted
Presley to sergeant. (Id.) This personnel move was to take effect on September 19, 2009.
(Doc. # 43-9 at 194.)
Less than a month before Presley’s promotion was to take effect, she and a number
of Phenix City police officers responded to a report of an alcohol-fueled altercation
between Frank Cobb and Tommy Newsome. (See, e.g., Doc. # 43-6 at 66–74.) Newsome
claimed Cobb had cut him with a knife or a box cutter. Cobb admitted as much, but said
he only did so after Newsome hit him over the head with a metal chair.
Officers Darrell Lassiter and Algery Hall arrived at Cobb’s home first, followed
almost immediately by Officer Trent Kilpatrick. (Doc. # 57-26 at 10–13.) When the

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officers entered the house, they found Cobb, subdued him, and handcuffed him. From
there, Lassiter walked Cobb out to his patrol car while Kilpatrick and Hall looked for a
weapon. As Lassiter sat Cobb down in the patrol car, Cobb said, “yeah, I cut him. He was
trying to take my head off.” (Doc. # 57-26 at 16.) Shortly after Lassiter put Cobb in his
patrol car Presley arrived. (Id. at 16, 18.) She stayed by Lassiter’s car while Lassiter went
in to help Hall and Kilpatrick look for the weapon. (Id. at 18–19.) At some point, Lassiter
had to take another call, so he and Kilpatrick transferred Cobb to Kilpatrick’s car. (Id. at
21.) Lassiter then left the scene. (Id.)
A number of members of the Criminal Investigations Division (CID), the group to
which Presley belonged, also responded. (Doc. # 43-6 at 66.) This group included
Lieutenant Lewis, Sergeant James Langley, and Corporal Jay Brice. (Id.) Upon their
arrival, Lewis and Brice began searching for the weapon used by Cobb while Langley
photographed the scene. (Doc. # 43-8 at 37–40.) Lewis testified during his deposition that
he spoke with Cobb sometime while Cobb was in one of the patrol cars and that Cobb
said, “yeah, I cut him, I tried to cut his damn head off.” (Id. at 41.) But Lewis did not
include this statement by Cobb in his initial report about the incident. In fact, he waited
until three weeks after the incident—well after Presley had been disciplined—to file a
supplemental report describing what Cobb supposedly said to him. (Id. at 84.) During his
deposition, Lewis could not recall whether another officer was near him at the time (id. at
41), and no other deponent corroborated Lewis’s story.

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After he allegedly spoke with Cobb, Lewis, along with Brice, left to speak with
Newsome at the hospital.1 Upon speaking with a very intoxicated Mr. Newsome, they left
to return to the Phenix City police department. (Doc. # 57-2 at 36.) In the meantime,
Presley—whom Lewis had appointed to lead the investigation—stayed at the scene and
spoke with Charles Jackson, a witness to the Cobb/Newsome fight. Jackson told Presley,
“Tommy [Newsome] ran up to Jerome [Cobb] with that chair and swung it at Jerome,
next thing I knew both Jerome and Tommy were on the ground and Tommy started
yelling ‘I’m cut.’” (Doc. # 43-6 at 76.) Eventually Presley left the scene to regroup with
her fellow investigators at headquarters.
When everyone had made their way back to the police department, Lieutenant
Lewis told Presley that “Cobb needs to go to jail,” and Presley knew this order meant that
she had to arrest and detain Cobb. (Doc. # 43-6 at 84, 186, 187.) Still she persisted in her
conversation with Lewis, attempting to tell him about additional information she gained
which suggested that Cobb acted in self defense. (Id. at 187.) But Lewis shut down this
line of conversation and told Presley, Langley, and Brice that Cobb needed to go to jail.
(Id.) He then left without hearing about the facts she gathered while he was questioning
Newsome at the hospital. (Id. at 87, 187.)
Presley, worried that the officers lacked probable cause to keep Cobb in jail, called

1

Lewis testified that he and Brice returned to the police department briefly before going to pay
Newsome a visit in the hospital. No other witness corroborated this version of the events, but either way,
the timing seems insignificant as it relates to the issues now before the Court.

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Sidney Landreau, the Assistant District Attorney. She gave Landreau her version of the
facts, including the statements by Jackson that Lewis refused to hear. Landreau responded
by telling her the case should go to the Grand Jury. (Docs. # 43-6 at 189; # 57-3 at
14–15.) Presley then released Cobb, even though she did not try to call Lewis first and
despite protestations by Langley.2 She testified during her deposition that she did so
because she felt her oath as a police officer imposed upon her an ethical and moral duty to
uphold the law. (Doc. # 43-6 at 83.) Chief Smith, when deposed, testified that an officer
faced with a Catch-22—like a situation where she has to ignore a direct order or commit a
constitutional violation—should uphold the law over the chain of command. (Doc. # 43-9
at 90.) Captain Phyllis Pendleton testified similarly, and department policy makes it an
offense warranting termination to make an knowingly unlawful arrest.
Lewis came back to work on Monday to find out that Presley had released Cobb.
(Doc. # 43-6 at 97.) In a meeting in which both Brice and Langley attended, he asked
Presley what happened to Cobb. (Id.) After she replied that she had decided not to arrest
him, Lewis sent Langley and Brice from the room, shut the door, and told Presley that he
wanted her gun and badge. (Id. at 98.) Lewis assigned Brice as lead investigator on the
Cobb case, and then he went to Chief Smith’s office to inform him of Presley’s
insubordination. (Doc. # 57-3 at 12.)
Chief Smith decided to punish Presley under the department’s Merit System.
2

Langley told Presley that Lewis wanted Cobb arrested, telling her, “if you don’t arrest him
come Monday we will all catch hell.” (Doc. # 43-6 at 92.)

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Presley’s insubordination could have led to her firing, but Smith settled on a forty-hour
suspension, without pay, plus twelve months probation. (See, e.g., Doc. # 43-6 at 98.)
This disciplinary action caused Presley to lose her scheduled promotion to sergeant and
made her ineligible for a promotion for twelve months. (Id.) Chief Smith disciplined
neither Langley nor Brice. Notably, the grand jury that later heard Cobb’s case returned a
no bill, meaning it found insufficient probable cause to indict Cobb, hence confirming the
correctness of Landreau’s advice and Presley’s decision to follow it.
Presley appealed Smith’s disciplinary decision, bringing her claim before the
Personnel Review Board of the City of Phenix City. The board upheld her discipline.
After going through the proper bureaucratic channels, she brought suit against her
current3 employer for sex discrimination.
IV. L EGAL S TANDARD
A motion for summary judgment looks to “pierce the pleadings and to assess the
proof in order to see whether there is a genuine need for trial.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A court should grant summary
judgment when the pleadings and supporting materials show that no genuine issue exists
as to any material fact and that the moving party deserves judgment as a matter of law.
Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
party moving for summary judgment “always bears the initial responsibility of informing
3

Presley still works at the Phenix City Police Department, now as a corporal in the patrol

division.

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the district court of the basis for its motion, and identifying” the relevant documents that
“it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). To shoulder this burden, the moving party can present
evidence to this effect. Id. at 322–23. Or it can show that the nonmoving party has failed
to present evidence in support of some element of its case on which it ultimately bears the
burden of proof. Id.
If the moving party meets its burden, the non-movant must then designate, by
affidavits, depositions, admissions, and answers to interrogatories, specific facts showing
the existence of a genuine issue for trial. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593–94 (11th Cir. 1995). And a genuine issue of material fact exists when the nonmoving
party produces evidence that would allow a reasonable fact-finder to return a verdict in
his or her favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir.
2001). Thus, summary judgment requires the nonmoving party to “do more than simply
show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S.
at 586. Indeed, a plaintiff must present evidence demonstrating that he can establish the
basic elements of his claim, Celotex, 477 U.S. at 322, because “conclusory allegations
without specific supporting facts have no probative value” at the summary judgment
stage. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985).
A court ruling on a motion for summary judgment must believe the non-movant’s
evidence. Anderson, 477 U.S. at 255. It also must draw all justifiable inferences from the

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evidence in the nonmoving party’s favor. Id. After the nonmoving party has responded to
the motion, the court must grant summary judgment if there exists no genuine issue of
material fact and the moving party deserves judgment as a matter of law. See Fed. R. Civ.
P. 56(c).
V. D ISCUSSION
Title VII bars employers from discriminating against an employee in the “terms,
conditions, or privileges of employment” because of the employee’s sex. 42 U.S.C. §
2000e-2(a)(1). To prove such claims without direct evidence,4 a plaintiff must rely on the
burden shifting framework set forth in McDonnell Douglas Corporation v. Green, 411
U.S. 792 (1973). Under the McDonnell Douglas approach, a plaintiff must state a facial
case before the burden shifts to the defendant. 411 U.S. at 802. This initial burden “is not
onerous; it requires only that the [p]laintiff establish facts adequate to permit an inference
of discrimination.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). If the
plaintiff bears her initial burden, a presumption arises that the defendant impermissibly
discriminated, and the defendant then has to articulate a legitimate, non-discriminatory
reason for the challenged employment action. McDonnell Douglas, 411 U.S. at 802. “This
intermediate burden is ‘exceedingly light.’” Holifield, 115 F.3d at 1564 (quoting Turnes

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Direct evidence of discrimination is “defined . . . as evidence which reflects a discriminatory or
retaliatory attitude correlating to the discrimination or retaliation complained of by the employee.”
Damon v. Flemings Supermkts. of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999) (internal quotations
omitted). More simply, direct evidence consists of “only the most blatant remarks, whose intent could be
nothing other than to discriminate.” Id. at 1359. Here, Presley presents no direct evidence of
discrimination.

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v. AmSouth Bank, N.A., 36 F.3d 1057, 1061 (11th Cir. 1994)). If the defendant bears this
burden, it negates the plaintiff’s facial case, and the plaintiff must then come forward
with sufficient evidence for a fact finder to conclude that the employer’s proffered reason
served as pretext to conceal an impermissible motive. McDonnell Douglas, 411 U.S. at
804; Roberts v. Gadsden Mem’l Hosp., 835 F.2d 793, 796 (11th Cir. 1988). So “once the
employer succeeds in carrying its intermediate burden of production, the ultimate
issue . . . becomes whether the plaintiff has proven that the employer intentionally
discriminated against [her] because of” her sex. See Turnes, 36 F.3d at 1061.
A. Presley’s facial case of sex discrimination
A prima facie case of sex discrimination for failure to promote has four elements.
The plaintiff must show that she (1) belongs to a protected class, (2) applied for a
promotion for which she was qualified, (3) was rejected despite her qualifications, and (4)
was passed over in favor of an equally or less-qualified employee outside of her protected
class. Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1174 (11th Cir. 2010). A prima
facie case of sex discrimination for disparate disciplinary action shares the first two
elements of a failure to promote claim. The final two elements, however, require a
plaintiff to show she suffered an adverse employment action and was either replaced by a
male or treated less favorably than a similarly-situated male. Maynard v. Bd. of Regents,
342 F.3d 1281, 1298 (11th Cir. 2003).
Presley brings two claims—one for failure to promote, the other for being

12

disciplined while similarly situated males were not. On both claims, the parties agree that
Presley, a female, belongs to a protected class. On her failure to promote claim, Presley
has shown that she made one of the highest scores on the sergeant’s exam and that she
had above-average performance reviews. Thus she had the requisite qualifications;
indeed, the defendants tentatively promoted her. On the third element, the parties agree
that her promotion never took effect, meaning the department rejected her despite her
qualifications. On the final element, neither party disputes that after the department
rescinded her promotion, they awarded the sergeant position previously reserved for
Presley to Steven Zdanowicz, a male. (Doc. # 43-9 at 189.) Presley has therefore made
out a prima facie case of sex discrimination as it relates to her failure to promote claim.5
On her discipline claim, Presley satisfies the first two elements easily: she belongs
to a protected class (female) and she had the relevant qualifications (high score on the
sergeant’s exam and solid performance reviews). As for the third, she suffered an adverse
employment action when the department suspended her for forty hours and rescinded her
promotion, but not necessarily when they took her off of the Cobb case as lead
investigator.
On the final element, Presley offers up Corporal Jay Brice as a comparator. Presley
points out how Lewis replaced her with Brice as lead investigator on the Cobb

5

The defendants focus their argument almost solely on what they perceive is Presley’s failure to
state a prima facie case. This is largely due to a misunderstanding on their part about how McDonnell
Douglas works as they base most of their arguments on the effect of her insubordination.

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investigation after she released Cobb from custody. And she notes that she was the only
one punished for Cobb’s release even though both Brice and Langley agreed with her
about calling the assistant district attorney and despite both men having heard Lewis tell
Presley that Cobb needed to go to jail.
Presley’s argument that Brice replacing her as lead investigator amounts to an
adverse employment action is unavailing. When it comes to selecting lead investigators,
the Phenix City Police Department picks members of their investigations unit to serve in
that role on a rotating basis. Lead investigators do not get paid more, do not have special
privileges, and do not receive any material benefit from heading up any given
investigation. As a result, the decision to take her out of that role does not amount to an
adverse employment action. Cf. Belt v. Ala. Historical Comm’n, 181 F. App’x 763, 765
(11th Cir. 2006) (“. . . her job title, salary, work hours, and benefits did not change. We
therefore conclude that Belt has suffered no tangible harm through a serious and material
change in the terms, conditions, or privileges of employment.”) (citation omitted).
Because only her suspension and the recision of her promotion meet the adverse
employment action requirement, she needs to use a comparator who received neither
punishment despite being insubordinate or violating a similar work rule.
That leaves Presley with her argument that similarly situated men—namely
Langley and Brice—received more favorable treatment. For other employees to qualify as
comparators, a plaintiff “must show that the ‘employees are similarly situated in all

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relevant aspects.’” Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir.
2003) (per curiam) (quoting Holifield, 115 F.3d at 1562) (emphasis added). “In evaluating
the similarity of the comparators identified by the plaintiff, the most important
variables . . . are the nature of the offenses committed and the nature of the punishments
imposed.” Summers v. City of Dothan, 757 F. Supp. 2d 1184, 1204 (M.D. Ala. 2010)
(citation omitted). Both the quantity and quality of the comparator’s misconduct must be
nearly identical. Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999).
Presley argues that, because both Brice and Langley heard Lewis announce that
Cobb needed to go to jail, and since both men agreed with her decision to call Landreau,
they were treated more favorably when the department decided not to punish them. She
further contends that Sergeant Langley had supervisory authority on the night of the Cobb
incident because he had a higher rank. From there, she notes that the Department’s
Standard Operating Procedures establish that “[a]ll supervisors will be held responsible
for all incidents or activities that occur while they are in a supervisory capacity over that
particular activity or incident.” (Doc. # 57-10.)
Presley’s argument is persuasive. During his deposition, Chief Smith testified:
I have always been instructed that even as a sergeant in CID,
if I were to observe a problem or something that was going to
cause an issue with the department outside of my scope of
responsibility, particularly with a less-ranked person in the
department, then I was obligated to step in and take control of
the situation.
(Doc. # 43-9 at 34.) Based on Smith’s testimony, it is clear that a higher-ranked officer
15

who ratifies or approves a subordinate’s inappropriate conduct shares in the responsibility
for it. Furthermore, the department’s written chain of command for investigations lists
“Sergeant/Investigator” above “Corporal/Investigator.” This suggests that the “lead
investigator” label does not elevate a corporal above a sergeant. So despite Presley’s role
as lead investigator, it appears that Langley had a duty to step in and ensure her
compliance with Lewis’s orders. The Court cannot say that there is no genuine issue of
material fact regarding whether his failure to do so makes him at least as culpable and
therefore as deserving of punishment as Presley. Accordingly, Presley has stated a prima
facie case of discrimination as it relates to her discipline.
B. The defendants’ legitimate, non-discriminatory reason
After the plaintiff makes out a prima facie case, the burden shifts to the defendant
to give a legitimate, non-discriminatory reason for the challenged action. To satisfy the
burden of production, “[t]he defendant need not persuade the court that it was actually
motivated by the proffered reasons. It is sufficient if the defendant’s evidence raises a
genuine issue of fact as to whether it discriminated against the plaintiff.” Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 254–55 (1981). “[T]o satisfy this intermediate
burden, the employer need only produce admissible evidence which would allow the trier
of fact rationally to conclude that the employment decision had not been motivated by
discriminatory animus.” Id. at 257.
Phenix City has put forward ample evidence tending to show it had a legitimate,

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non-discriminatory reason for its actions. For example, Presley testified that Lewis told
her to keep Cobb in custody, and she does not dispute Lewis’s superior position in the
chain of command. Therefore, Presley’s insubordination and failure to follow the chain of
command gave the City a legitimate, non-discriminatory reason for disciplining her and
rescinding her promotion.
C. Pretext
After the employer gives a legitimate, non-discriminatory reason for the
challenged action, “the plaintiff must introduce significantly probative evidence that the
asserted reason is merely a pretext for discrimination.” Brooks v. Cnty. Comm’n of
Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006). A plaintiff may show pretext by
pointing to “weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions” in the employer’s proffered reason, id. at 1163, or by producing other
evidence “which permits the jury to reasonably disbelieve the employer’s proffered
reason,” Steger v. General Elec. Co., 318 F.3d 1066, 1079 (11th Cir. 2003). “Any
believable evidence which demonstrates a genuine issue of material fact regarding the
truth of the employer’s explanation may sustain the employee’s burden of proof.” Steger,
318 F.3d at 1079.
Presley has met her burden. First, the evidence shows that the department
disciplined Presley—but not the two male investigators—for insubordination.6 Yet all
6

Cf. Entrekin v. City of Panama City, 376 F. App’x 987 (11th Cir. 2010) (finding pretext
evidence lacking when facts showed that plaintiff’s punishment for insubordination comported with

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three heard Lewis’s order. Thus, a reasonable jury could look at the policy and conclude
that Langley and Brice deserved punishment too. And even assuming that the lead
investigator’s position shields investigators with the same rank from responsibility, which
would take Brice out of the equation, Langley held a higher rank than Presley and the
department’s policy holds superior officers responsible for the acts of their inferiors. (See
Doc. # 57-10.) This gives the jury another route for inferring pretext.
Furthermore, the defendants’ claim that department policy puts a lower-ranked
lead investigator above a higher-ranked investigator would not preclude a reasonable
juror from finding this argument self-serving and pretextual. Indeed, the department says
it disciplined Presley for sidestepping the chain of command by calling Landreau—yet it
tries to ignore the very same command protocol when justifying its failure to discipline
Langley.7 In addition, Presley testified that Sergeant Langley told her to call the district
attorney’s office (Doc. # 43-6 at 91), which suggests Langley participated in the decision
to cut Cobb loose.8 At a bare minimum, the defendants have admitted that a genuine issue

usual punishment for insubordinate police officers).
7

The defendants argue that the lead investigator answers directly to the lieutenant supervisor.
Chief Smith testified that this is the department’s practice. If accepted as true, this would mean that
Presley had to report to Lewis, not Langley, on the night in question—even after Lewis left and despite
Langley having a higher rank. This is by no means a meritless argument, particularly in light of Chief
Smith’s explanation of department custom. But it is not one that the Court can accept when the
department’s written chain of command contradicts the customary practice.
8

Presley also testified that, after Lewis left, she considered Langley her supervisor on the night
of the Cobb incident. (Doc. # 43-6 at 191.) Langley similarly, if not identically, testified that he
considered himself the “sergeant on the floor” after Lewis departed for the night. (Doc. # 57-4 at 13, 61.)

18

of material fact exists by relying on the chain of command in one situation while ignoring
it in another. Lewis, moreover, testified that he “told Corporal Presley—and probably
Sergeant Langley also—to put Mr. Cobb in the interview room, take his statement, and go
ahead and process him.” (Doc. # 43-8 at 57.) This testimony creates a genuine issue of
material fact, because Lewis’s order that Presley disregarded potentially applied to
Langley as well, thus suggesting that he deserved to be punished alongside Presley.
Second, Chief Smith admitted in his deposition that Presley followed procedure by
calling Landreu for advice. (See Doc. # 43-9 at 99–100.) In fact, Smith stated that he
taught officers to refrain from making unlawful arrests,9 which, as Presley notes,
undermines his rationale for disciplining her and discredits his claim that he punished her
for insubordination. What is more, Chief Smith failed to take disciplinary action against
Lewis or Brice when they failed to arrest Newsome after their trip to interview him at the
hospital. Although neither man had an order from a superior officer to arrest Newsome,
the department’s decision to punish Presley for releasing an innocent man, while not

9

Smith testified during his deposition as follows:
Q.
Now you would agree with me that an officer should not make a
decision to wrongfully arrest somebody?
A.
That’s true.
Q.
Even if their supervisor tells them to—
A.
Yes.
Q.
—they should not wrongfully arrest somebody?
A.
That’s true.
Q.
If the officer has a sincerely-held belief that the arrest is wrong,
they should not make that arrest?
A.
Yes.
(Doc. # 43-9 at 71.)

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addressing Lewis or Brice’s decision to let the aggressor Newsome go, would allow a
reasonable jury to infer that something is amiss about how the department treated Presley.
In other words, the department’s preoccupation with punishing Presley for making the
right decision, combined with its ambivalence regarding the failure to arrest Newsome,
supports an inference of discriminatory animus towards Presley.
Third, Presley produced evidence that Lewis lied about key facts surrounding the
Cobb/Newsome incident. No other officer heard Cobb say “I was trying to cut
[Newsome’s] damn head off.” The timing of Lewis’s decision to supplement his
report—three weeks after the incident occurred and after Presley had received her
punishment—raises further suspicions. According to Presley, Lewis massaged the
statement contained in Lassiter’s report to make it appear that he had more information
than she did when he told her to arrest Cobb. Based on the timing of Lewis’s
supplemental report, his incentive to bolster his justification for disciplining Presley, and
the lack of testimony from other officers about whether Cobb made those statements to, a
reasonable jury could infer pretext by discounting his claim that he punished Presley for
insubordination.
Relatedly, Presley put forth evidence showing that Lewis knew she acted
appropriately by calling Landreau for legal advice. Because Lewis listed Presley’s call to
Landreau as one of the reasons for disciplining her, yet later admitted that she acted
properly, a reasonable person could infer that he used Presley’s supposed infidelity to the

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chain of command as pretext. Cf. Schoenfeld v. Babbitt, 168 F.3d 1257, 1269 (11th Cir.
1999) (“. . . disbelief of the reasons put forward by the defendant (particularly if disbelief
is accompanied by a suspicion of mendacity) may, together with the elements of a prima
facie case, suffice to show intentional discrimination.” (quoting St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 511 (1993))).
Fourth and finally, Captain Phyllis Pendleton testified that she believes the
department disciplined Presley because she did not belong to the “good old boy” network
within the department. (Doc. # 57-5 at 28.) To support this claim, she recounted an
instance where she tried to correct a misstatement made by Lewis. Her attempted
correction caused Lewis to cut her off, and he refused to hear what she had to say before
telling her, “I’m done with the briefing, you can get out on the street.” (Doc. # 57-5 at
44.) After the incident, Pendleton heard that Lewis criticized her for following his
directions based on the erroneous briefing and that he had used the word “bitch” when
referring to her.10 (Id. at 45.) She also related how Lewis used to make frequent and
arguably sexist statements about Frankie Deer, a female and former lieutenant.
Generally speaking, “me too” evidence is admissible to prove discriminatory
intent. Goldsmith v. Bagby Elevator, 513 F.3d 1261, 1286 (11th Cir. 2008). Typically the
evidence has to relate to the same supervisor, see id., and here it does: Pendleton

10

Lewis denied making this statement during his deposition. (Doc. # 43-8 at 114.) Given the
case’s posture—a motion for summary judgment—the Court has to look at all disputes about the facts in
Presley’s favor. So the Court has credited Pendleton’s testimony over Lewis’s.

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complained about Lewis’s bias against women just as Presley has. Indeed, the two women
had similar complaints about Lewis. Presley said that he “shut her down” when she tried
to tell him about the evidence she had supporting Cobb’s self defense claim. And
Pendleton likewise testified that Lewis cut her off and ignored her when she tried to
correct a misstatement he made. The main difference is that Lewis’s decision to ignore
Pendleton had no further consequences for Pendleton whereas it put Presley in a position
where she had to make a wrongful arrest or commit an act of insubordination. Either way,
Pendleton’s testimony has a bearing on Lewis’ motive and credibility—both
considerations properly reserved for the jury—so it too supports the Court’s decision to
deny summary judgment.
At bottom, the comparator evidence put forth by Presley, combined with the
arguable inconsistencies in Smith and Lewis’s words and actions, provide a “mosaic of
circumstantial evidence that would allow a jury to infer intentional discrimination.” Smith
v. Lockheed Martin Corp., 644 F.3d 1321 (11th Cir. 2011). Summary judgment is
therefore inappropriate. Consequently, the defendants’ motion is due to be denied.
VI. C ONCLUSION
It is hereby ORDERED that the defendants’ Motion for Summary Judgment (Doc.
# 41) is DENIED.
th

Done this the 5 day of March, 2012.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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