Romine v. Anniston, Alabama, City of et al
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 10/2/2014. (JLC)
2014 Oct-02 PM 03:43
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ERVINE ROMINE, d/b/a Romine’s
Cane Creek Grill,
) Case No.: No. 1:12-3787-VEH
CITY OF ANNISTON, ALABAMA, )
Plaintiff Ervine Romine (“Mr. Romine”) initiated this civil rights lawsuit
against Defendants City of Anniston (the “City”), Mayor Gene Robinson (“Mayor
Robinson”), in his individual capacity, and City Manager Don A. Hoyt (“City
Manager Hoyt”), in his individual capacity, on November 2, 2012, arising out of his
loss of a lease to run the Cane Creek Grill located on the Cane Creek Golf Course in
Anniston, Alabama. (Doc. 1 at 1; id. at 3 ¶ 2). Mr. Romine’s complaint contains three
Count One is for race discrimination under 42 U.S.C. § 1981 by and through
§ 1983. (Id. at 10-12 ¶¶ 39-49). Count Two is for equal protection and due process
violations under the Fourteenth Amendment. (Id. at 12-14 ¶¶ 50-63). Finally, Count
Three is for breach of contract under Alabama law. (Id. at 14-15 ¶¶ 64-70).
Pending before the court is Defendants’ Motion for Summary Judgment (Doc.
26) (the “Rule 56 Motion”) filed on March 24, 2014. The parties have briefed the
Rule 56 Motion and it is now fully under submission. (Docs. 27, 34-36, 41).
Also pending is Mr. Romine’s Motion To Strike (Doc. 37) (the “Strike
Motion”) filed on May 7, 2014. Defendants opposed (Doc. 41) the Strike Motion on
May 28, 2014, and no reply from Mr. Romine was filed.
For the reasons explained below, Defendants’ Rule 56 Motion is due to be
granted. Mr. Romine’s Strike Motion is due to be termed as moot.
Facts Leading Up To The Clubhouse Restaurant Lease
Between Mr. Romine And The COA
Mr. Romine has been a business owner in the COA for over twenty-five years,
having operated the Annistonian Restaurant as well as other restaurants and stores.
Keeping in mind that when deciding a motion for summary judgment the court must view
the evidence and all factual inferences in the light most favorable to the party opposing the motion,
the court provides the following statement of facts. See Optimum Techs., Inc. v. Henkel Consumer
Adhesives, Inc., 496 F.3d 1231, 1241 (11th Cir. 2007) (observing that, in connection with summary
judgment, a court must review all facts and inferences in a light most favorable to the non-moving
party).This statement does not represent actual findings of fact. See In re Celotex Corp., 487 F.3d
1320, 1328 (11th Cir. 2007). Instead, the court has provided this statement simply to place the
court’s legal analysis in the context of this particular case or controversy.
AF No. 1.2 Long before the key events of this lawsuit, the COA purchased the Cane
Creek Golf Course, which facility included a clubhouse with a separate space for a
restaurant. AF No. 2. On February 8, 2007, the COA contracted with Mark Spaulding
(“Mr. Spaulding”) to lease and operate a restaurant at the Cane Creek Golf Course.
AF No. 3. Mr. Spaulding voluntarily terminated this lease in November 2009. Id.
After Mr. Spaulding’s departure, the COA managed the golf course and
restaurant by and through its Parks and Recreation Manager, Steven Folks (“Mr.
Folks”). AF No. 4. In December of 2009, the COA publicized notice of its intention
to accept requests for qualifications (“RFQs”) from applicants who desired to bid on
operation of the restaurant facility and potentially become a new lessee. AF No. 6.
The designation “AF” stands for admitted fact and indicates a fact offered by Defendants
that Mr. Romine has admitted in his written submissions on summary judgment, in his deposition
testimony, or by virtue of any other evidence offered in support of his case. Under appendix II of the
court's uniform initial order (Doc. 10) entered on December 13, 2012, “[a]ll statements of fact must
be supported by specific reference to evidentiary submissions.” (Id. at 16). For Mr. Romine, more
specifically, this means that “[a]ny statements of fact that are disputed by the non-moving party must
be followed by a specific reference to those portions of the evidentiary record upon which the dispute
is based.” (Id. at 17). Consequently, whenever Mr. Romine has inadequately asserted a dispute over
a fact that Defendants have otherwise substantiated with an evidentiary citation, the court has
reviewed the cited evidence and, if it in fact fairly supports Defendants’ factual assertion, has
accepted Defendants’ fact. On the other hand, whenever Mr. Romine has adequately disputed a fact
offered by Defendants, the court has reviewed the evidence cited by Mr. Romine and, if it in fact
fairly supports Mr. Romine’s factual assertion, has accepted Mr. Romine’s version. The court’s
numbering of admitted facts (e.g., AF No. 1) corresponds to the numbering of Defendants’ statement
of undisputed facts as set forth in Doc. 27 and responded to by Mr. Romine in Doc. 35. A number
following a decimal point corresponds to the particular sentence within the numbered statement of
facts. For example, (AF No. 19.2) would indicate the second sentence of paragraph 19 of
Defendants’ statement of facts is the subject of the court’s citation to the record. Any other facts
referenced by the parties that require further clarification are dealt with later in the court’s opinion.
Although four or five people initially indicated that they were interested in
running the restaurant through their attendance at a pre-bid meeting, Mr. Romine,
who is African American, submitted the only bid in February of 2010. AF No. 7;
(Doc. 34-6 at 1 ¶¶ 2, 3). The City Council for the COA had Mr. Romine’s bid on the
agenda for many meetings, including one on March 9, 2010, March 23, 2010, April
27, 2010, and May 25, 2010. (Doc. 34-6 at 1¶ 4). At the meeting held on June 22,
2010, the City Council authorized City Manager Hoyt to negotiate a lease agreement
with Mr. Romine for the operation of the restaurant. (Doc. 34-6 at 1¶ 4).
Execution And Terms Of The Clubhouse Restaurant Lease
Between Mr. Romine And The COA
On August 24, 2010, Mr. Romine signed a three year lease with the COA. City
Manager Hoyt signed the lease on behalf of COA. The term of the lease was
scheduled to begin on September 1, 2010, and end on August 30, 2013.
The lease required Mr. Romine to pay quarterly installments towards the annual
rent of $6,600.00, with the first $1,650.00 payment due on September 1, 2010. (Doc.
26-7 at 3 ¶ 3).3 The lease’s default provision further permitted the COA to declare
default for the nonpayment of rent. (Id. at 3, 15 ¶¶ 3, 17).
Another part of the lease provided that “[e]xcept for the prior written
All page references to Doc. 26-7 correspond with the court’s CM/ECF numbering system.
permission of the [City], through its City Manager, the [Plaintiff] shall at all times
during the lease term, have the premises open, staffed, and available for food and
beverage service,” and that “failure to do so shall constitute a ground of default under
the terms of this lease agreement.” (Doc. 26-7 at 5 ¶ 5). However, Mr. Romine
testified that City Manager Hoyt knew that this provision was unreasonable given the
short duration of time (i.e., only one week) between the parties’ execution of the lease
on August 24, 2010, and the beginning of the term on September 1, 2010. (Doc. 26-3
at 20 at 75-76).4
Additionally, the lease mandated Mr. Romine to have commercial liability,
property, and liquor liability insurance and that “[c]ertified copies of all such policies
shall be made available to the City of Anniston upon entering into this lease
agreement.” (Doc. 26-7 at 11 ¶7).
The lease further obligated Mr. Romine to “at all times” have and maintain all
required liquor licenses. (Doc. 26-7 at 5 ¶ 4). During his deposition, Mr. Romine
questioned the feasibility of this particular requirement by pointing out that the COA
did not approve his liquor license until September 28, 2010. (Doc. 26-3 at 20 at 76).
The lease provided that any “[f]ailure by [the City] to enforce any provision of
The first set of page references to Doc. 26-3 corresponds with the court’s CM/ECF
this lease shall not work as a forfeiture of [the City’s] right to enforce any provision
of this lease at any time.” AF No. 16; (Doc. 26-7 at 15 ¶17). Finally, the lease stated
that “[i]t is understood and agreed that this instrument constitutes the entire
agreement between the parties hereto and that any changes or alterations hereunder
must be made in writing, duly executed by and parties hereto, and attached to this
instrument.” AF No. 17; (Doc. 26-7 at 16 ¶ 20).
Facts Post-Dating The Execution Of The Clubhouse Restaurant Lease
Between Mr. Romine And The COA
On August 27, 2010, City Manager Hoyt informed the City Council in an email
message that Mr. Romine had experienced problems acquiring the required insurance
coverages and licenses, but that Mr. Romine had assured him that he would have all
these items in place when the term of the lease began on September 1, 2010. (Doc.
26-1 at 17, 18, 61-62, 66).5 City Manager Hoyt did not share with the City Council
in this electronic communication that the lease had only just been signed 3 days
earlier. (Doc. 34-2 at 78).6
Mr. Romine did not pay the first quarterly payment of $1,650.00 due on
September 1, 2010. AF No. 19.1; (see Doc. 26-3 at 12 at 43 (“I agree that it was, you
The first set of page references to Doc. 26-1 corresponds with the court’s CM/ECF
All page references to Doc. 34-2 correspond with the court’s CM/ECF numbering system.
know, September 1st, but when I asked him [i.e., City Manager Hoyt] about that, it
was after the 1st.”)). However, Mr. Romine testified that City Manager Hoyt told him
that he could postpone making the first installment payment until he had gotten into
the building. (Doc. 26-3 at 12 at 43-44).
Mr. Romine also had neither obtained the necessary policies of commercial
liability, property, and liquor liability insurance, nor a liquor license by September
1, 2010. AF No. 19.2. However, Mr. Romine testified that he was not able to acquire
the various insurance policies until after he had received a copy of the executed lease.
(Doc. 26-3 at 20 at 76).
As for the delay in obtaining his license to sell alcohol, Mr. Romine pointed
out during his deposition that it was the COA which did not approve his application
for forwarding to the ABC Board until the end of September 2010. (Doc. 26-3 at 20
at 76; see also Doc. 34-6 at 4 ¶ 11 (“I made application for my Liquor License on
September 16, 2010 and the city did not approve my application and forward it to the
ABC Board until September 29, 2010.”)).
Mr. Folks continued to operate the restaurant on behalf of COA during this
interim time period. (Doc. 26-4 at 3-4; Doc. 26-6 at 5-6 ¶ 14). Mr. Romine testified
that he did not get cooperation from COA personnel in securing maintenance records
(Doc. 26-3 at 66 at 18), that he was treated with disrespect, and that he was ignored
when he needed something for the building. (Doc. 34-7 at 17-18).7
After signing the lease on August 24, 2010, Mr. Folks indicated that all Mr.
Romine did with respect to getting the restaurant ready “was having a warming buffet
table delivered, having an electrical contractor to install one 220 volt wall socket, and
. . . [having] someone to remove carpet and replace [that] very small area of the
restaurant [with tile.]” (Doc. 26-4 at 4).
Mr. Romine counters that Mr. Folks’s recollection is an understatement as he
proceeded to obtain: (i) commercial property coverage effective September 30, 2010,
to September 30, 2011; (ii) liquor liability coverage effective September 10, 2010, to
September 10, 2011; and (iii) an Alcohol Beverage License from the Alcohol
Beverage Control Board, which became effective on October 25, 2010. (Doc. 34-6
at 3-4 ¶¶ 12, 14). Mr. Romine also met with the Health Department and made
necessary upgrades to the restaurant. (Doc. 34-7 at 7). Mr. Romine further had menus
printed up and paid for grand opening advertising. (Doc. 26-3 at 19 at 70; id. at 20 at
City Manager Hoyt testified about a document dated October 21, 2010, which
attempted to modify certain portions of the restaurant lease while it left other
provisions unchanged. (Doc. 26-1 at 15-16 at 55-60). City Manager Hoyt indicated
All page references to Doc. 34-7 correspond with the court’s CM/ECF numbering system.
that he could not “recall the exact differences[,]” but thought that the “food sales” and
“minimum menu may have been changed.” (Doc. 26-1 at 16 at 57, 58). No underlying
document, such as, for example, a copy of the City Council’s minutes, confirms that
it voted to have City Manager Hoyt modify the terms of the previously executed
lease. Instead, City Manager Hoyt indicated that he understood that he had this
authority from the City Council’s original vote and that he did not “see that as a
barrier to making minor changes [to the original lease].” (Id. at 16 at 59). Mr. Romine
did not ever sign this amended lease. AF No. 26.3.
On November 4, 2010, City Manager Hoyt reported to the City Council in a
written memorandum that Mr. Romine “has been out of compliance with his lease
since the day it was signed.” (Doc. 26-8 at 2).8 City Manager Hoyt made it clear in
this communication to the City Council that the lease had not been executed until
August 24, 2010. (Id. at 3). City Manager Hoyt further indicated in this
correspondence that “unless somebody has a better idea, I’m going to hand deliver
a default notice to Mr. Romine tomorrow.” (Id. at 3). The City Council never formally
voted to default Mr. Romine under the lease and never consulted with the City
Attorney, Cleo Thomas, about Mr. Romine’s defaulted status. (Doc. 35 at 12 ¶¶ 3132).
All page references to Doc. 26-8 correspond with the court’s CM/ECF numbering system.
On or about November 5, 2010, the COA, through City Manager Hoyt,
delivered Mr. Romine a default notice dated November 4, 2010. AF No. 30; (Doc. 269 at 2). This notice identifies 7 terms of the restaurant lease in which the COA
contends Mr. Romine has “been out of compliance . . . since September 1, 2010, the
day you were supposed to open for business.” (Doc. 26-9 at 2). The listed provisions
include: (i) being open for business; (ii) acquiring and maintaining all necessary
licenses and permits; (iii) holding a Restaurant Liquor License; (iv) operating a fully
supplied beverage cart on the golf course; (v) maintaining a public liability insurance
policy; (vi) providing certified copies of all such policies to the COA upon entering
into the lease agreement; and (vii) paying rent in quarterly installments. Id. The notice
also indicates that “the Council may entertain a reasonable monetary settlement for
the expenses that [Mr. Romine] incurred in [his] attempts to comply with the
agreement.” Id. Finally, the notice invites Mr. Romine to make a subsequent bid. Id.
Mr. Romine disputes the legitimacy of grounds relied upon by the COA for
issuing the default notice and offers several explanations for his inability to meet the
referenced terms of the lease by September 1, 2010. (See, e.g., Doc. 35 at 23 (pointing
out that lease was not finally executed until August 24, 2010, and that by “November
4, 2010, [Mr. Romine] had all the necessary insurance, had provided the [COA] with
proof thereof in October of 2010, and had his liquor license”)).
Neither Mayor Robinson nor the City Council ever took steps to rescind this
termination notice delivered to Mr. Romine by City Manager Hoyt. Mr. Romine did
not submit any requests for reimbursement from the COA immediately after his lease
was terminated. However, as of November 3, 2011, the COA (through its insurance
carrier) acknowledged Mr. Romine’s race discrimination claim relating to the ending
of his lease. (Doc. 34-9 at 2).9
On June 29, 2011, the COA, once again, requested bids to operate a restaurant
on the golf course property. AF No. 36. Mr. Romine did not submit a bid, but three
other people did. Id. The COA selected Rocco Gomez (“Mr. Gomez”) (a MexicanAmerican) and executed a lease with him on September 29, 2011. AF No. 37. At
some point in 2013, Mr. Gomez’s lease was, with the COA’s consent, assigned to
Chandler Wilborn (a white male) (“Mr. Wilborn”) and Hunter LeCroy (a white male)
(“Mr. LeCroy”). (See Doc. 34-10 at 2 ¶ 3 (“In the late Summer or early Fall of 2013,
I approached Steven Folks, the Director of Parks and Recreation for the City of
Anniston, and asked him whether the City would allow me to assign the [restaurant]
lease to a qualified applicant.”)).10
All page references to Doc. 34-9 correspond with the court’s CM/ECF numbering system.
All page references to Doc. 34-10 correspond with the court’s CM/ECF numbering system.
Also, while Doc. 34-10 (Mr. Gomez’s affidavit executed on March 31, 2014) references two
attachments (Doc. 34-10 at 3 ¶ 6), including a copy of the Assignment, Assumption, and
Modification Agreement, neither appears electronically on CM/ECF, which is the official court file.
Summary judgment is proper only when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R . Civ. P.
56(c). All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). “Once the moving party
has properly supported its motion for summary judgment, the burden shifts to the
nonmoving party to ‘come forward with specific facts showing that there is a genuine
issue for trial.’” International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270,
1274 (11th Cir. 2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)).
Finally “[i]f the movant bears the burden of proof on an issue, because, as a
defendant, it is asserting an affirmative defense, it must establish that there is no
genuine issue of material fact as to any element of that defense.” International Stamp,
456 F.3d at 1274 (citing Martin v. Alamo Community College Dist., 353 F.3d 409,
412 (5th Cir. 2003)).
Both individual defendants assert that qualified immunity bars Mr. Romine’s
§ 1983 claims brought against them in their personal capacities in Counts One and
Two. (Doc. 27 at 19-20).11 “The defense of qualified immunity completely protects
government officials performing discretionary functions from suit in their individual
capacities unless their conduct violates ‘clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Cottone v. Jenne, 326 F.3d
1352, 1357 (11th Cir. 2003) (internal quotation marks omitted) (quoting Gonzalez v.
Reno, 325 F.3d 1228, 1233 (11th Cir. 2003)). “To receive qualified immunity, a
government official first must prove that he was acting within his discretionary
This is a two-part test. Under the first step, “the defendant must [prove that he
or she was] performing a function that, but for the alleged constitutional infirmity,
would have fallen within his legitimate job description.” Holloman ex rel. Holloman
v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). Next, the defendant must prove
that he or she was “executing that job-related function.” Id. at 1267. “Once a
defendant establishes that he was acting within his discretionary authority, the burden
shifts to the plaintiff to show that the defendant is not entitled to qualified immunity.”
All page references to Doc. 27 correspond with the court’s CM/ECF numbering system.
Cottone, 326 F.3d at 1358.12
Until 2009, the Supreme Court had required a two-part inquiry to determine the
applicability of qualified immunity, as established by Saucier v. Katz, 533 U.S. 194,
201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). Under the Saucier test, “[t]he
threshold inquiry a court must undertake in a qualified immunity analysis is whether
[the] plaintiff’s allegations, if true, establish a constitutional violation.” Hope v.
Pelzer, 536 U.S. 730, 736, 122 S. Ct. 2508, 2513,153 L. Ed. 2d 666 (2002).
If, under the plaintiff’s allegations, the individual defendants would have
violated a constitutional right, “the next, sequential step is to ask whether the right
was clearly established.” Cottone, 326 F.3d at 1358 (quoting Saucier, 533 U.S. at
201, 121 S. Ct. at 2156). The “clearly established” requirement is designed to assure
that officers have fair notice of the conduct which is proscribed. Hope, 536 U.S. at
739, 122 S. Ct. at 2515. This second inquiry ensures “that before they are subjected
to suit, officers are on notice their conduct is unlawful.” Saucier, 533 U.S. at 206, 121
S. Ct. at 2158.
The “unlawfulness must be apparent” under preexisting law.13 Anderson v.
Here, there is no dispute over whether the individual defendants were all acting within the
scope of their discretionary authority. (See Doc. 35 at 20 (absence of any contention by Mr. Romine
that either Mayor Robinson or City Manager Hoyt acted without discretionary powers)).
Only Supreme Court, Eleventh Circuit, and Alabama Supreme Court cases can “clearly
establish” the law in this litigation. See Thomas v. Roberts, 323 F.3d 950, 953 (11th Cir. 2003) (“In
Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987) (citing
Malley v. Briggs, 475 U.S. 335, 344-45, 106 S. Ct. 1092, 1097-98, 89 L. Ed. 2d 271
(1986)). Therefore, a temporal requirement exists related to this inquiry. More
particularly, a plaintiff must show that a reasonable public official would not have
believed her actions to be lawful in light of law that was clearly established at the
time of the purported violation. See Anderson, 483 U.S. at 639,107 S. Ct. at 3038
(“[W]hether an official protected by qualified immunity may be held personally liable
for an allegedly unlawful official action generally turns on the ‘objective legal
reasonableness’ of the action[,] assessed in light of the legal rules that were ‘clearly
established’ at the time it was taken[.]”) (emphasis added) (citation omitted);
Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 599, 160 L. Ed. 2d 583
(2004) (“If the law at that time did not clearly establish that the officer’s conduct
would violate the Constitution, the officer should not be subject to liability or, indeed,
even the burdens of litigation.”) (emphasis added); Brosseau, 543 U.S. at 198, 125
S. Ct. at 599 (“Because the focus is on whether the officer had fair notice that her
conduct was unlawful, reasonableness is judged against the backdrop of the law at the
time of the conduct.”) (emphasis added); see also Johnson v. Clifton, 74 F.3d 1087,
this circuit, rights are ‘clearly established’ by decisions of the Supreme Court, this court, or the
highest court of the state in which the case arose.” (citing Hamilton v. Cannon, 80 F.3d 1525, 1532
n.7 (11th Cir. 1996))).
1093 (11th Cir. 1996) (“We know of no [preexisting] case which might have clearly
told Clifton that he could not take the disciplinary action indicated by an investigation
which was initiated before he even knew about the allegedly protected speech, and
in circumstances where the public concern implication was doubtful.”).
However, the Saucier framework was made non-mandatory by the Supreme
Court in Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818, 172 L. Ed. 2d
565 (2009), in which the Court concluded that, “while the sequence set forth [in
Saucier] is often appropriate, it should no longer be regarded as mandatory.” Thus,
“judges of the district courts and the courts of appeals should be permitted to exercise
their sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case
at hand.” Id.
Despite the Supreme Court’s modification of Saucier’s analytical process, the
substantive analysis remains unchanged; an officer is entitled to qualified immunity
protection as long as he “could have believed” his conduct was lawful. Hunter v.
Bryan, 502 U.S. 224, 227, 112 S. Ct. 534, 536, 116 L. Ed. 2d 589 (1991).Therefore,
to deny immunity, a plaintiff must affirmatively demonstrate that “no reasonable
competent officer would have” acted as the public official did. Malley v. Briggs, 475
U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986).
“All evidentiary decisions are reviewed under an abuse-of-discretion standard.”
See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S. Ct. 512, 517, 139 L.
Ed. 2d 508 (1997). “An abuse of discretion can occur where the district court applies
the wrong law, follows the wrong procedure, bases its decision on clearly erroneous
facts, or commits a clear error in judgment.” United States v. Estelan, 156 F. App’x
185, 196 (11th Cir. 2005) (citing United States v. Brown, 415 F.3d 1257, 1266 (11th
Moreover, as the Eleventh Circuit has made clear, not every incorrect
evidentiary ruling constitutes reversible error:
Auto-Owners’ second argument is that it is entitled to a new trial
on the basis of what it describes as a number of erroneous evidentiary
rulings by the district court. Evidentiary rulings are also reviewed under
an abuse of discretion standard. Finch v. City of Vernon, 877 F.2d 1497,
1504 (11th Cir. 1989). Moreover, even if Auto-Owners can show that
certain errors were committed, the errors must have affected “substantial
rights” in order to provide the basis for a new trial. See Fed. R. Evid.
103(a). “Error in the admission or exclusion of evidence is harmless if
it does not affect the substantial rights of the parties.” Perry, 734 F.2d
at 1446. See also Allstate Insurance Co. v. James, 845 F.2d 315, 319
(11th Cir. 1988).
Haygood v. Auto-Owners Ins. Co., 995 F.2d 1512, 1515 (11th Cir. 1993). Therefore,
even the existence of many evidentiary errors does not guarantee the party appealing
a new trial. Instead, such erroneous rulings by a district court must “affect the
substantial rights of the parties” for reversible error to occur.
Defendants’ Rule 56 Motion
Mr. Romine’s Federal Claims
Federal Claims Asserted Against Mayor
Robinson and City Manager Hoyt In Their
A § 1983 claim against a person in his official capacity seeks to impose
liability on the entity which he represents, and not on him personally. See, e.g., Welch
v. Laney, 57 F.3d 1004, 1008 (11th Cir. 1995) (“Welch’s action against the Sheriff
and Chief Deputy Sheriff in their official capacities imposes liability on the entity
they represent, and not on them as individuals.” (citing Brandon v. Holt, 469 U.S.
464, 471-72, 105 S. Ct. 873, 877-78, 83 L. Ed. 2d 878 (1985))). As the Eleventh
Circuit has explained the distinctions between these two capacities in more detail:
“Personal-capacity suits seek to impose personal liability upon a
government official for actions he takes under color of state law.
Official-capacity suits, in contrast, ‘generally represent only another way
of pleading an action against an entity of which an officer is an agent.’”
Id. at 165-66, 105 S. Ct. at 3105 (citations omitted) (quoting Monell v.
Department of Social Services, 436 U.S. 658, 690 n.55, 98 S. Ct. 2018,
2035 n.55, 56 L. Ed. 2d 611 (1978)). In other words, a plaintiff in an
action against a government official in his personal capacity can recover
only against the official’s personal assets. The assets of the
governmental entity are not accessible. The reverse is true in an official
capacity lawsuit. Furthermore, “to establish personal liability in a § 1983
action, it is enough to show that the official, acting under color of state
law, caused the deprivation of a federal right.... [I]n an official-capacity
suit the entity’s ‘policy or custom’ must have played a part in the
violation of federal law.” Id. 473 U.S. at 166, 105 S. Ct. at 3105
Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1060 (11th Cir. 1992) (emphasis
Therefore, any official capacity claims that Mr. Romine seeks to assert against
Mayor Robinson and City Manager Hoyt are duplicative of his federal claims brought
against the COA. Accordingly, the Rule 56 Motion is due to granted as to all official
capacity federal claims asserted against Mayor Robinson and City Manager Hoyt.
Federal Claims Asserted Against Mayor
Robinson and City Manager Hoyt In Their
Race Discrimination Under § 1981
“Section 1981 prohibits intentional race discrimination in the making and
enforcement of public and private contracts, including employment contracts.” Ferrill
v. Parker Group, Inc., 168 F.3d 468, 472 (11th Cir. 1999).
The elements of a cause of action under § 1981 are: “(1) that the
plaintiff is a member of a racial minority; (2) that the defendant intended
to discriminate on the basis of race; and (3) that the discrimination
concerned one or more of the activities enumerated in the statute.”
Kinnon v. Arcoub, Gopman & Assocs., Inc., 490 F.3d 886, 891 (11th Cir.
2007) (internal quotation marks omitted) (quoting Jackson v. BellSouth
Telecomms., 372 F.3d 1250, 1270 (11th Cir. 2004)).
Lopez v. Target Corp., 676 F.3d 1230, 1233 (11th Cir. 2012).
There Is No Direct Evidence of Race Discrimination.
As a threshold matter, a plaintiff can establish the element of intentional
discrimination through either direct, circumstantial, or statistical evidence.14 Jackson
v. BellSouth Telecomms., 372 F.3d 1250, 1270 (11th Cir. 2004). Turning first to the
category of direct evidence, Mr. Romine argues that he has presented one and, in
doing so, relies upon the testimony of a former City Council member, Benjamin Little
(“Mr. Little”). According to Mr. Little, “it’s not unusual, but when it comes to black
folk, we just go through extra hoops ….” (Doc. 26-2 at 16 at 59).15 Mr. Little further
testified that he “said on the council repeatedly, I said now, I said today and I said
tomorrow, Anniston has a problem with black folks.” Id. Mr. Little also indicated that
the City Council’s discussions about what type of food Mr. Romine would be serving
at his restaurant “reminded him of discriminatory comments made about the fare to
be served at the Masters [the year] after Tiger Woods[’s] [first] victory [there].”
(Doc. 35 at 18 (citing Doc. 26-2 at 7 at 22)).
Mr. Romine contends that Mr. Little’s statements constitute direct evidence of
the discriminatory treatment of him. The court disagrees. As the Eleventh Circuit has
Statistical proof is not an issue in this case.
The first set of page references to Doc. 26-2 corresponds with the court’s CM/ECF
explained, “only the most blatant remarks, whose intent could be nothing other than
to discriminate on the basis of [race], . . . constitute direct evidence of
discrimination.” Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989) (citing
Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 610-11 (11th Cir. 1987)).
Based upon this stringent standard and in the absence of any invidiouslycharged utterances tied directly to the decision to terminate Mr. Romine’s lease and
which are attributable to those persons who played a role in that process (i.e., City
Manager Hoyt, Mayor Robinson, or any other then sitting City Council members),
Mr. Romine’s case is, at best, purely a circumstantial evidence one. A fortiori, there
can be no direct evidence case of discrimination against Mayor Robinson or City
Manager Hoyt individually in the absence of proof showing decision-related racial
bias directly attributable to each one of them.
Circumstantial Evidence Fails To Show Race Discrimination.
The court, as a threshold matter, assumes without deciding, that Mr. Romine
is able to utilize Title VII’s (less demanding) McDonnell Douglas disparate treatment
structure in an effort to establish his § 1981 race discrimination claim even though
his case arises outside of the employment context. (See Doc. 27 at 13 (Defendants’
suggesting that question of whether Title VII framework is applicable in a
non-employment lawsuit arising under § 1981 is still undecided within the Eleventh
Circuit, but still analyzing Mr. Romine’s race claims under both formats)); see Brown
v. American Honda Motor Co., 939 F.2d 946, 494 (11th Cir. 1991) (embracing use
of Title VII circumstantial evidence model “for a federal race discrimination claim
by a non-employee against a private company . . . under 42 U.S.C. § 1981” (emphasis
added) (citing § 1981 employment decision in Patterson v. McLean Credit Union,
491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989))); see also id. (“The
Supreme Court has held that the test for intentional discrimination in suits under §
1981 is the same as the formulation used in Title VII discriminatory treatment
causes.” (citing Patterson, 491 U.S. at 185-87, 109 S. Ct. at 2377-78)); cf. Lincoln v.
Board of Regents of University System of Georgia, 697 F.2d 928, 935 n.6 (11th Cir.
1983) (“When, as in this case, the plaintiff predicates liability under Title VII on
disparate treatment, the legal elements of the claim are identical to those of a claim
under § 1981.”).
The Eleventh Circuit has fashioned the Title VII test for a discriminatory
discharge claim when a plaintiff, such as Mr. Romine, is relying primarily upon
comparator evidence as follows:
To establish a prima facie case of disparate treatment, Appellant
must show: (1) she is a member of a protected class; (2) she was
subjected to adverse employment action; (3) her employer treated
similarly situated male employees more favorably; and (4) she was
qualified to do the job. See, e.g., Holifield v. Reno, 115 F.3d 1555, 1562
(11th Cir. 1997); Nix v. WLCY Radio/Rahall Communications, 738 F.2d
1181, 1185 (11th Cir. 1984); see also McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 804, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668
(1973). . . .
“In determining whether employees are similarly situated for
purposes of establishing a prima facie case, it is necessary to consider
whether the employees are involved in or accused of the same or similar
conduct and are disciplined in different ways.” Jones v. Bessemer
Carraway Med. Ctr., 137 F.3d 1306, 1311 (11th Cir.), opinion modified
by 151 F.3d 1321 (1998) (quoting Holifield v. Reno, 115 F.3d 1555,
1562 (11th Cir. 1997)). “The most important factors in the disciplinary
context are the nature of the offenses committed and the nature of the
punishments imposed.” Id. (internal quotations and citations omitted).
We require that the quantity and quality of the comparator’s misconduct
be nearly identical to prevent courts from second-guessing employers’
reasonable decisions and confusing apples with oranges. See Dartmouth
Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir.1989) (“Exact
correlation is neither likely nor necessary, but the cases must be fair
congeners. In other words, apples should be compared to apples.”).
Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11th Cir. 1999).16
Here, the focus of the parties’ prima facie dispute is over satisfaction of the
similarly situated prong. Mayor Robinson and City Manager Hoyt also maintain that
Mr. Romine cannot demonstrate pretext. (Doc. 27 at 14-16).
As for purported comparator evidence, Mr. Romine contends that Mr. Gomez
was not “required to provide any of the documents and qualifications as [he did].”
The court acknowledges that Mr. Romine (without any explanation, much less citation
to any on-point persuasive authority) has proposed that the court follow a denial of contract model
like the one used in Brown v. Honda, supra. (Doc. 35 at 19-20). However, because Mr. Romine was
awarded the restaurant lease and subsequently lost it on account of contractual misconduct (i.e.,
falling into default), the court finds that the Maniccia provides a much more appropriate framework.
(Doc. 35 at 23). However, Mr. Romine offers no proof to corroborate this point (much
less to tie Mayor Robinson or City Manager Hoyt to this allegation) and, as the
former Fifth Circuit has made clear, “[s]tatements by counsel in briefs are not
evidence.” Skyline Corp. v. N.L.R.B., 613 F.2d 1328, 1337 (5th Cir. 1980).17
Further, the relevant comparator issue in this lawsuit is not disparate treatment
in the awarding of a contract, but rather, in the ending of one due to a failure to meet
certain contractual obligations as the lessee. As the Eleventh Circuit has explained
regarding comparator evidence “[i]n determining whether employees are similarly
situated for purposes of establishing a prima facie case, it is necessary to consider
whether the employees are involved in or accused of the same or similar conduct and
are disciplined in different ways.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.
1997) (emphasis added). Here, Mr. Gomez’s lease was never involuntarily terminated
because he was in default; instead, the record confirms that his lease was voluntarily
assigned to Mr. LeCroy and Mr. Wilborn with the consent of the COA.
Mr. Romine further contrasts his qualifications with the two white purported
comparators, Mr. LeCroy and Mr. Wilborn, who ran the restaurant in 2013,
subsequent to Mr. Gomez’s operation of it. Mr. Romine contends that because of his
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
superior qualifications in running a restaurant as compared to that of Mr. LeCroy and
Mr. Wilborn, a jury may infer a racially-driven animus in how he was treated by the
COA in ending his lease in 2010. (Doc. 35 at 23-24). However, Mr. Romine’s
reliance upon Messrs. LeCroy and Wilborn as comparators misses the mark on
account of a substantial remoteness in time. As pointed out above, Mr. Gomez, a
Mexican American, was the person who directly replaced Mr. Romine under the
restaurant lease, and he remained the lessee for approximately two years. Importantly,
Mr. Romine offers no binding authority (and this court is not independently aware of
any) that, when utilizing comparator evidence to circumstantially show race
discrimination, a plaintiff may appropriately skip over his proximate-in-time
comparator (Mr. Gomez) and instead rely upon comparators who are more remote in
time (Messrs. LeCroy and Wilborn, the contractors to whom the lease was assigned
to by Mr. Gomez approximately two years after the COA terminated Mr. Romine’s
Additionally, as it pertains to Mayor Robinson and City Manager Hoyt
individually, the record does not even confirm that they were part of the decisionmaking group who recommended and/or approved the assignment of Mr. Gomez’s
lease to Messrs. LeCroy and Wilborn in 2013. Cf. Silvera v. Orange County School
Bd., 244 F.3d 1253, 1261 n.5 (11th Cir. 2001) (“[D]ifferences in treatment by
different supervisors or decision makers can seldom be the basis for a viable claim
of discrimination.” (citing Jones v. Gerwens, 874 F.2d 1534, 1541 (11th Cir. 1989)).
Finally, Mr. Romine, once again, mistakenly focuses upon the unfamiliarity of
Messrs. LeCroy and Wilborn with working in the restaurant industry (and, therefore,
urges that they are inadequate assignees under the lease as opposed to him), instead
of the relevant comparator inquiry–have Messrs. LeCroy and Wilborn ever been in
default under the assigned lease and, if so, how were they treated by Mayor Robinson
and/or City Manager Hoyt under those similar circumstances?
Further, in the absence of pointing to a similarly-situated defaulted contractor,
Mr. Romine has the burden of demonstrating that other pieces of proof can
circumstantially show that race played a role in the termination of his contract. In an
effort to do this, Mr. Romine points to the City Council’s numerous delays in
approving his contract (Doc. 35 at 20) as well as the absence of a formal vote by the
City Council to end his lease. Mr. Romine additionally sets forth examples of how he
attempted in good faith to meet all the September 1, 2010, deadlines included in the
lease and faults City Manager Hoyt for not dealing with him fairly. (Id. at 21-22).
Mr. Romine also relies upon City Manager Hoyt’s creation of what Mr.
Romine calls a fraudulent amended lease (Doc. 34-2 at 62-77) that was purportedly
executed on October 21, 2010 (but which Mr. Romine testified he did not sign) and
cites to City Manager Hoyt’s deposition testimony in which he was unable to recall
if Mr. Romine was present when it was signed. (Id. at 22-23; see also Doc. 26-1 at 59
(“Q. (BY MS. LYONS:) Were you present when the plaintiff signed that? A. I don’t
recall.”)). Although Mr. Romine disputes the authenticity of his signature on this
amended lease (and Defendants have stated in their facts that Mr. Romine did not sign
it), Mr. Romine does not link this irregularity to his race or to the decision to end the
original lease (which he concedes he signed).
Regarding Mr. Romine’s reliance upon evidence tied to City Manager Hoyt
generally, reading the record in a light most favorable to the plaintiff, Mr. Romine has
raised several issues which cast doubt upon City Manager Hoyt’s willingness to fully
cooperate with him or always deal with him reasonably under the lease. However, Mr.
Romine has not sufficiently connected that questionable treatment to his race. Cf.
Hawkins v. Ceco Corp., 883 F.2d 977, 986 (11th Cir. 1989) (“Hawkins presented
evidence that Rascoe did not like him, but a dislike alone is not evidence of racial
Furthermore, Mr. Romine’s other evidence to sustain an inference of
discrimination is not nearly as compelling as that in cases in which the Eleventh
Circuit found “other evidence” sufficient. In Rioux v. City of Atlanta, 520 F.3d 1269
(11th Cir. 2008), the plaintiff, a white male deputy fire chief, was demoted. Although
he lacked a suitable comparator, the Eleventh Circuit found that the plaintiff
nevertheless still established a prima facie case of race discrimination in light of the
plethora of other race-related circumstances that he faced.
In Rioux’s view, the district court improperly discounted the
following evidence from which an inference of discrimination could be
found: (1) Rubin tried to maintain a racial balance at the AFD,
maintaining a race tracking spreadsheet of personnel decisions,
including Rioux’s, that he regularly presented to his political superiors;
(2) Rubin had discussions with Atlanta City Councilman, Ivory Lee
Young, Jr. (“Councilman Young”), in which Rubin reviewed the
spreadsheet and expressed his desire to achieve a particular racial
balance of 50/50 black/white among the AFD discretionary ranks; (3)
Rubin’s “short list” of candidates to replace Rioux contained three black
firefighters, and Rubin attempted to recruit a black officer-Williams-to
replace Rioux; (4) Rubin felt pressure from the AFD black power
structure to harshly discipline Rioux, amidst allegations from the
Brothers Combined that Rubin would favor Rioux following earlier and
harsh treatment Rubin had given to Grissom, a black chief accused of
taking bribes (treatment the Brothers Combined had been critical of); (5)
Rioux’s aggressive response to the AFD’s delayed arrival at the May 2,
2004 fire was prompted by Rubin himself, who had told Rioux the Fire
Investigation Unit needed to respond more quickly to fires; (6) an
inference could be drawn that Austin was goaded into filing the
grievance against Rioux by members of the Brothers Combined; (7) the
differences in manner and degree of investigating the Rioux incident as
compared to the incident involving proposed comparator Dunham [an
African American male]; and (8) evidence showing Dunham was a
discretionary officer subject to the same rules and supervisor-Rubin-as
Rioux, who committed a similar offense to Rioux’s but who was treated
differently with respect to the investigation of the incident and
disciplinary action taken thereafter.
The foregoing categories of evidence, combined with Rioux
satisfying the Sturniolo and Hinson prima facie test for discriminatory
demotion, lead us to conclude that Rioux satisfied his prima facie
showing under McDonnell Douglas.
Rioux, 520 F.3d at 1277 (emphasis added).18
In another published decision, subsequent to and expressly relying upon Rioux,
the Eleventh Circuit again found that the absence of a similarly situated supervisory
comparator was not a fatal
defect in the context of a workplace
misconduct/discriminatory discharge claim brought by a white supervisor,
The foregoing circumstantial facts preclude summary judgment
in this case as a jury reasonably could infer that Lockheed only fired
Mitten because he is white. The evidence yields this inference because
it: (1) suggests that Lockheed’s justification for firing Mitten is a pretext
for racial animus; (2) shows that Lockheed had a substantial incentive
As the Eleventh Circuit explained the other prima facie models discussed in Rioux:
Another formulation of a prima facie case, however, has been articulated in
cases raising claims of discrimination where a plaintiff is demoted, and it is this other
formulation that the district court applied and that Appellant asserts he satisfied. The
district court applied the prima facie test for discriminatory demotion from Sturniolo
v. Sheaffer, Eaton, Inc., which differs from the test articulated by Appellants in that
it requires the plaintiff to demonstrate that: (1) he is a member of a protected class;
(2) he was qualified for the job; (3) he was demoted; and (4) following the demotion
he was replaced by someone outside his protected class. 15 F.3d 1023, 1025 (11th
Cir. 1994); see also Hinson v. Clinch County, Georgia Bd. of Educ., 231 F.3d 821,
828 (11th Cir. 2000) (applying same standard in case involving teacher claiming
discriminatory demotion). In Sturniolo and Hinson, the demotions were unrelated to
any claimed discipline or discipline more severe than that received by others
similarly situated. In Sturniolo and Hinson, unlike in the present case, there was no
claim that a similarly situated employee had committed a similar violation of work
rules, but had been treated more favorably than the plaintiffs.
Rioux, 520 F.3d at 1276 (emphasis added).
to discipline white employees more harshly than black employees in the
summer of 2005; and (3) indicates clearly that Lockheed consciously
injected race considerations into its discipline decision making [by way
of a matrix] without an adequate explanation for doing so.
Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1341 (11th Cir. 2011).
In contrast to Rioux and Smith, the race-related pieces of evidence relied upon
by Mr. Romine (other than his non-black replacement under the lease, Mr. Gomez)19
are more substantially distant from the decision-making process and are limited to:
(i) the generalized comments made by Mr. Little concerning his perception that the
City Council had a problem with black people when he was a member; (ii) Mr.
Little’s observation that the current City Council’s discussions about what food Mr.
Romine would be serving at the restaurant reminded him of the Tiger Woods/Masters
An alternative way for an employment discrimination plaintiff to prima facially show
discriminatory discharge within the Eleventh Circuit is:
(1) he is a member of a protected class; (2) he was qualified for the position; (3) he
suffered an adverse employment action; and (4) he was replaced by a person outside
his protected class or was treated less favorably than a similarly-situated individual
outside his protected class.
Maynard v. Bd. of Regents of Div. of Univ. of Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir.
2003) (emphasis added); see also Lee v. Russell County Bd. of Educ., 684 F.2d 769, 773 (11th Cir.
1982) (“If plaintiff proves by a preponderance of the evidence that he or she is a member of a
protected class, was qualified for the position held, and was discharged and replaced by a person
outside of the protected class or was discharged while a person outside of the class with equal or
lesser qualifications was retained, then plaintiff has established a ‘prima facie case’ of
discrimination.”). Mr. Romine meets the “replaced by a person outside his protected class” element.
To the extent that Maynard and Lee mean that Rioux is inapplicable to the court’s prima facie
assessment, summary judgment in favor of Mayor Robinson and City Manager Hoyt in their
individual capacities is still appropriate for several other independent reasons (i.e., the absence of
adequate pretext and the defense of qualified immunity) that are addressed infra.
controversy; and (iii) Mr. Romine’s indication, in his brief, that “he was informed of
several racist remarks made by City Council members.” (Doc. 35 at 8 ¶ 39).
Concerning Mr. Little’s testimony, his statements amount to stray comments
as they were not uttered by or otherwise attributable to a relevant decisionmaker and
because the record lacks any evidence that Mr. Little influenced the decisionmaking
process which impacted Mr. Romine. As recently reasoned by the Eleventh Circuit
in an unpublished opinion:
Barsorian’s only remaining argument concerns Buckner’s remark
about refreshing the IT department and Mr. Roth’s alleged statement
that firing Barsorian was not his call. This argument is flawed. First, as
Barsorian conceded, he has no evidence that Buckner's statement about
the need to “refresh the IT department” referred to the IT department's
lone employee, Barsorian, or an update to the technology itself. In light
of the technological problems that Grossman Roth was having,
Buckner's statement could have referred to the technology and not to
Barsorian. Second, even if Buckner’s statement meant that the IT
department's personnel needed to be refreshed, his use of the word
refresh does not in itself suggest an age-based animus. See Ransom v.
CSC Consulting, Inc., 217 F.3d 467, 469–70 (7th Cir. 2000) (concluding
that the statement “refresh the officer pool” did not suggest a preference
for younger employees but instead referred to corporate behavior).
[Further], Barsorian has presented no evidence that Buckner was
the one who made the decision to fire him or influenced it. To the
contrary, Mr. Roth testified that Buckner had no influence on the
decision to fire Barsorian, and even Barsorian admitted that Mr. Roth,
as managing partner, had final decisionmaking power over him. Thus,
even if Buckner’s comment related to Barsorian’s age, it would not be
enough to create a genuine issue of fact precluding summary judgment.
See Alvarez v. Royal Atlantic Developers, 610 F.3d 1253, 1267–68 (11th
Cir. 2010) (holding that a single stray remark from a non-decisionmaker
that “Cubans are dumb” was not enough to raise a genuine fact issue);
Standard, 161 F.3d at 1329–30 (statement that “older people have more
go wrong” did not raise a genuine issue of fact because the statement
was too vague and because it was uttered by someone who was not
involved in the decision to terminate the plaintiff); Mauter v. Hardy
Corp., 825 F.2d 1554, 1558 (11th Cir.1987) (vice president’s statement
that the corporation was “going to weed out the old ones” did not
preclude summary judgment where the vice president played no part in
the decision to fire the plaintiff). Because there is no evidence that
Buckner influenced the decision to fire Barsorian, Buckner’s statement
does not create a genuine issue of fact requiring trial.
Barsorian v. Grossman Roth, P.A., No. 13–14156, 2014 WL 3608511, at *6 (11th
Cir. July 23, 2014) (emphasis added).
Barsorian, in conjunction with the published Eleventh Circuit authorities upon
which it relies, firmly establish that Mr. Little’s testimony does not salvage Mr.
Romine’s prima facie case against Mayor Robinson or City Manager Hoyt under the
type of prima facie variation permitted in Rioux or the no reliance upon McDonnell
Douglas option in Smith. See Smith, 644 F.3d at 1328 (“Here, Mitten did not need to
rely on the McDonnell Douglas presumption to establish a case for the jury. . . .
[because] the record contained sufficient evidence to allow a jury to infer that
Lockheed fired Mitten because he is white.”).
Similarly, Mr. Romine’s testimony about a white friend named James Howard
who told him that “we’re not going to let no niggers come out there and run the
business” (Doc. 26-3 at 24 at 89) is unconnected to Mayor Robinson, City Manager
Hoyt, or to anyone working for the COA for that matter. (Id. at 90 (“Q. -- does James
Howard work for the City of Anniston? A. No, sir.”)).20 Consequently, that evidence
is also unavailing as “other evidence” to show the existence of a prima facie case of
race discrimination against Mayor Robinson or City Manager Hoyt under the Rioux
model or to overcome any need to rely upon the McDonnell Douglas presumption
under the Smith formulation.
The Evidence Also Fails To Show Pretext.
Alternatively, assuming further that it is appropriate to evaluate Mr. Romine’s
prima facie case under the less exacting test applicable to employment discrimination
claims as set out in Maynard and Lee (referenced in n.19, supra), his claim
nevertheless still fails due to his insufficient proof of pretext–the absence of sufficient
evidence which supports a reasonable inference that race played a role in Mayor
Mr. Romine also mentions that a girl “in the back” overheard “Mr. Spain” stating that
“we’ll let y’all blacks come out here - - we’ll let them blacks come out here and work” but he had
a problem with blacks “coming out here and running this place.” (Doc. 26-3 at 23-24 at 88-89). The
undersigned takes judicial notice of the fact that in November 2008 John Spain was elected as a
member of COA’s City Council and was still on the City Council when Mr. Romine’s lease ended.
Consequently, it appears to the court that this racially-charged excerpt from Mr. Romine’s deposition
testimony does pertain to a member of the City Council who (through its inaction) ratified City
Manager Hoyt’s decision to terminate Mr. Romine’s lease. Nevertheless, assuming the admissibility
of this testimony, a racist statement attributable Mr. Spain about the restaurant lease does not create
a triable issue regarding the individual liability of either Mayor Robinson or City Manager Hoyt
under § 1981.
Robinson and/or City Manager Hoyt’s adverse treatment of Mr. Romine under the
lease. See, e.g.,Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 771 (11th Cir. 2005)
(“[E]vidence [of pretext] must reveal such weaknesses, implausibilities,
inconsistencies, incoherencies or contradictions in the employer’s proffered
legitimate reasons for its actions that a reasonable factfinder could find them
unworthy of credence.”).
As the Supreme Court has clarified, “[a]lthough intermediate evidentiary
burdens shift back and forth under th[e] [McDonnell Douglas] framework, ‘[t]he
ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.’” Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 2106, 147
L. Ed. 2d 105 (2000) (emphasis added) (quoting Texas Dept. of Community Affairs
v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981))); Nix
v. WLCY Radio/Rahall Comms., 738 F.2d 1181, 1184 (11th Cir. 1984) (“A Title VII
disparate treatment plaintiff must prove that the defendant acted with discriminatory
purpose.” (citing Clark v. Huntsville City Board of Education, 717 F.2d 525, 529
(11th Cir. 1983))).
In particular, the Supreme Court observed in Reeves that evaluating the triable
nature of a race discrimination claim will oftentimes be a factor-intensive inquiry:
Thus, a plaintiff’s prima facie case, combined with sufficient evidence
to find that the employer’s asserted justification is false, may permit the
trier of fact to conclude that the employer unlawfully discriminated.
This is not to say that such a showing by the plaintiff will always
be adequate to sustain a jury’s finding of liability. Certainly there will
be instances where, although the plaintiff has established a prima facie
case and set forth sufficient evidence to reject the defendant's
explanation, no rational factfinder could conclude that the action was
discriminatory. For instance, an employer would be entitled to judgment
as a matter of law if the record conclusively revealed some other,
nondiscriminatory reason for the employer’s decision, or if the plaintiff
created only a weak issue of fact as to whether the employer’s reason
was untrue and there was abundant and uncontroverted independent
evidence that no discrimination had occurred. See Aka v. Washington
Hospital Center, 156 F.3d, at 1291–1292; see also Fisher v. Vassar
College, 114 F.3d, at 1338 (“[I]f the circumstances show that the
defendant gave the false explanation to conceal something other than
discrimination, the inference of discrimination will be weak or
nonexistent”). To hold otherwise would be effectively to insulate an
entire category of employment discrimination cases from review under
Rule 50, and we have reiterated that trial courts should not “‘treat
discrimination differently from other ultimate questions of fact.’” St.
Mary’s Honor Center, supra, at 524, 113 S. Ct. 2742 (quoting Aikens,
460 U.S., at 716, 103 S. Ct. 1478).
Whether judgment as a matter of law is appropriate in any
particular case will depend on a number of factors. Those include the
strength of the plaintiff’s prima facie case, the probative value of the
proof that the employer’s explanation is false, and any other evidence
that supports the employer’s case and that properly may be considered
on a motion for judgment as a matter of law.
Reeves, 530 U.S. at 148-49, 120 S. Ct. at 2109 (emphasis by underlining added).
Here, Mayor Robinson and City Manager Hoyt have articulated a legitimate,
non-discriminatory reason for terminating the restaurant lease–Mr. Romine’s
noncompliance with multiple provisions of the contract which he entered into with
the COA voluntarily. While Mr. Romine has offered some excuses for why he was
not in compliance with some of the lease’s terms or why it took him longer than
expected to comply with some of the lease’s terms, he has not refuted the explanation
for ending the restaurant lease because of his defaulted status, as of September 1,
2010, head-on. See, e.g., Crawford v. City of Fairburn, 482 F.3d 1305, 1308 (11th
Cir. 2007) (“The plaintiff must meet the reason proffered head on and rebut it.”)
(emphasis added). Instead, Mr. Romine’s tenuous position seems to be that Mayor
Robinson and City Manager Hoyt had an ongoing obligation to accept his contractual
excuses indefinitely, and that their unwillingness to do so constitutes a pretext for
Additionally, “[i]f the plaintiff does not proffer sufficient evidence to create a
genuine issue of material fact regarding whether each of the defendant employer’s
articulated reasons is pretextual, the employer is entitled to summary judgment on the
plaintiff’s claim.”Chapman v. AI Transport, 229 F.3d 1012, 1024-25 (11th Cir. 2000)
(emphasis added) (citing Combs v. Plantation Patterns, 106 F.3d 1519, 1529 (11th
Cir. 1997)). Here, summary judgment is appropriate because Mr. Romine has failed
to create a genuine material fact over defaulting him on November 4, 2010, when he
had already been given over 30 days from the execution of the lease to come into
compliance with all of its voluntarily-agreed-to terms, including the deadline of
September 1, 2010.21
Mr. Romine also has not alternatively shown that Mayor Robinson and/or City
Manager Hoyt treated other similarly situated non-black contractors more favorably,
even though they, like him, fell into default under their contracts with the COA (e.g.,
Mayor Robinson and/or City Manager Hoyt accepted those comparators’ excuses for
being in breach and retained them as contractors for the COA). Because Mr. Romine
has insufficient comparator evidence and the overall strength of his prima facie case
and other proof of pretext is so weak, the record, with respect to his § 1981 race
discrimination claim against Mayor Robinson and City Manager Hoyt, lacks
“‘evidence of such quality and weight that reasonable and fairminded men in the
exercise of impartial judgment might reach different conclusions’” MacPherson v.
University of Montevallo, 922 F.2d 766, 776 (11th Cir. 1991) (quoting Verbraeken
v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1998)); cf. Smith, 644
F.3d at 1328 (“A triable issue of fact exists if the record, viewed in a light most
favorable to the plaintiff, presents ‘a convincing mosaic of circumstantial evidence
To the extent that Mr. Romine has complained that he did not have access to the building
and that he received little cooperation for COA workers, he has only arguably linked this problem
to his non-compliance with one of the lease’s provisions (i.e., being open for business).
that would allow a jury to infer intentional discrimination by the decision maker.’”
(footnote omitted) (quoting Silverman v. Bd. of Educ., 637 F.3d 729, 734 (7th Cir.
2011))). Thus, summary judgment in favor of Mayor Robinson and City Manager
Hoyt in their individual capacities is independently appropriate when evaluating the
Equal Protection Claim
As the Eleventh Circuit has summarized the scope of protections afforded by
the Equal Protection Clause:
[T]he Equal Protection Clause requires government entities to treat
similarly situated people alike. Equal protection claims are not limited
to individuals discriminated against based on their membership in a
vulnerable class. Rather, we have recognized any individual’s right to
be free from intentional discrimination at the hands of government
Campbell v. Rainbow City, 434 F.3d 1306, 1313 (11th Cir. 2006) (citing E&T Realty
v. Strickland, 830 F.2d 1107, 1112 (11th Cir. 1987)). Procedurally, an equal
protection claim is brought through § 1983. See Bush v. Houston County Com’n, 414
F. App’x 264, 266 (11th Cir. 2011) (“Section 1983 is a vehicle for bringing civil
lawsuits that ‘provides every person with the right to sue those acting under color of
state law for violations of federal constitutional and statutory provisions.’” (quoting
Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1299 (11th Cir.
Here, Mr. Romine contends that Mayor Robinson and City Manager Hoyt have
violated the Equal Protection Clause because the decision to end his restaurant lease
was motivated by his race. To support his Equal Protection Clause claim, Mr. Romine
relies upon the same body of evidence and arguments which he contends are
sufficient to establish the triable nature of his § 1981 race claim. Because Mr.
Romine’s Equal Protection Clause claim resembles his § 1981 one, summary
judgment in favor of Mayor Robinson and City Manager Hoyt is appropriate for all
those reasons explained in section IV.A.2.a. above. Cf. Bush, 414 F. App’x at 266
(“In the employment context, §§ 1981 and 1983 claims require the same elements of
proof and involve the same analytical framework as Title VII claims.” (citing
Rice–Lamar v. City of Ft. Lauderdale, 232 F.3d 836, 843 n.11 (11th Cir. 2000))).
Procedural Due Process
In opposing summary judgment, Mr. Romine describes the nature of his
procedural due process claim:
Plaintiff was denied the right to perform the contract with the City of
Anniston. Despite his being ready to perform and having a contract in
place, the City deprived him if his right to perform the contract.
(Doc. 35 at 27). Here the court determines that Mr. Romine at least arguably had a
property interest in the restaurant lease because the contract lacks a “without cause”
termination provision. Cf. Economic Development Corp. of Dade County, Inc. v.
Stierheim, 782 F.2d 952, 954 (11th Cir. 1986) (“Under this simple test EDCO did not
possess a property interest in its contract with the county. EDCO admits that the
contract allowed the county to terminate the agreement at its convenience, i.e.,
Even so, Mr. Romine cannot maintain a procedural due process violation
because he has not alleged, nor can he show, that Alabama law leaves him without
an adequate remedy in state court. As the Eleventh Circuit explained in McKinney v.
Pate, 20 F.3d 1550 (11th Cir. 1994):
[D]ue process is satisfied when the challenger has an opportunity to
present his allegations and to demonstrate the alleged bias. A
demonstration that the decisionmaker was biased, however, is not
tantamount to a demonstration that there has been a denial of procedural
due process. As we mention above, unlike substantive due process
violations, procedural due process violations do not become complete
“unless and until the state refuses to provide due process.” Zinermon,
494 U.S. at 123, 110 S. Ct. at 983. More specifically, in the case of an
employment termination case, “due process [does not] require the state
to provide an impartial decisionmaker at the pre-termination hearing.
The state is obligated only to make available ‘the means by which [the
employee] can receive redress for the deprivations.’” Schaper v. City of
Huntsville, 813 F.2d 709, 715–16 (5th Cir. 1987) (quoting Parratt v.
Taylor, 451 U.S. 527, 543, 101 S. Ct. 1908, 1917, 68 L. Ed. 2d 420
(1981)) (footnote omitted).
In Parratt (and its progeny, Hudson v. Palmer, 468 U.S. 517, 104
S. Ct. 3194, 82 L. Ed. 2d 393 (1984)), the Supreme Court held that due
process did not require pre-deprivation hearings where the holding of
such a hearing would be impracticable, that is, where the deprivation is
the result of either a negligent or an intentional deprivation of property.
All that due process requires, the Court said, is a post-deprivation
“means of redress for property deprivations satisfy[ing] the requirements
of procedural due process.” Parratt, 451 U.S. at 537, 101 S. Ct. at 1914;
accord Hudson, 468 U.S. at 533, 104 S. Ct. at 3204.
The precedent established by Parratt is unambiguous: even if
McKinney suffered a procedural deprivation at the hands of a biased
Board at his termination hearing, he has not suffered a violation of his
procedural due process rights unless and until the State of Florida
refuses to make available a means to remedy the deprivation. As any
bias on the part of the Board was not sanctioned by the state and was the
product of the intentional acts of the commissioners, under Parratt, only
the state’s refusal to provide a means to correct any error resulting from
the bias would engender a procedural due process violation. It is to an
examination of this state remedy—and a determination of whether it
satisfies due process—that we now turn.
In this case, McKinney failed to take advantage of any state
remedies, opting instead to pursue his claim in federal court. In his en
banc brief, McKinney asserts that the state remedy—review by Florida
courts—is insufficient, largely because the statute of limitations for
certiorari petitions of termination cases is significantly shorter than that
for torts. McKinney also states that the state court procedure is deficient
because the Florida courts’ power to review is limited to the record
before the Board. We disagree with McKinney’s conclusion that
Florida’s process is inadequate.
McKinney, 20 F.3d at 1562-63 (footnote omitted) (emphasis added).
While McKinney involves a plaintiff challenging an employment termination,
no reason exists for dealing with a non-employment contract termination differently.
See Stierheim, 782 F.2d at 953 (referencing district court’s holding under Parratt that
“there had been no denial of due process because Florida law provided EDCO with
an adequate remedy in state court” to address contractual interest, but ultimately
upholding decision on different grounds).
Additionally, as the Eleventh Circuit has observed:
The McKinney rule is not micro in its focus, but macro. It does not
look to the actual involvement of state courts or whether they were
asked to provide a remedy in the specific case now before the federal
court. Instead, the McKinney rule looks to the existence of an
opportunity-to whether the state courts, if asked, generally would
provide an adequate remedy for the procedural deprivation the federal
court plaintiff claims to have suffered. If state courts would, then there
is no federal procedural due process violation regardless of whether the
plaintiff has taken advantage of the state remedy or attempted to do so.
If state courts generally would not provide an adequate remedy for that
type of procedural deprivation, then the federal court determines
whether the Fourteenth Amendment Due Process Clause requires such
a remedy, and if it does, the federal court remedies the violation. Either
way, the federal court decides the federal procedural due process claim;
that claim is not sent back to state court.
Horton v. Board of County Com’rs of Flagler County, 202 F.3d 1297, 1300 (11th Cir.
2000) (emphasis added).
Therefore, akin to McKinney and Horton, Mr. Romine has no viable procedural
due process claim because he has not asserted (much less shown) that Alabama
“refuses to make available a means to remedy the deprivation.” McKinney, 20 F.3d
at 1563; see also id. at 1557 (“In other words, the state may cure a procedural
deprivation by providing a later procedural remedy; only when the state refuses to
provide a process sufficient to remedy the procedural deprivation does a
constitutional violation actionable under section 1983 arise.”).
Alternatively, qualified immunity protects Mayor Robinson and City Manager
Hoyt to the extent that Mr. Romine has established any triable constitutional issues
against them in their individual capacities. Mr. Romine’s lawsuit undoubtedly
challenges Mayor Robinson and City Manager Hoyt’s discretionary authority as
public officials, which marks the first level of the qualified immunity analysis.
Turning to the next inquiry, Mr. Romine has not carried his burden of
demonstrating how either one of them has violated clearly established law in carrying
out their discretionary functions. See Santamorena v. Georgia Military College, 147
F.3d 1337, 1340 (11th Cir. 1998) (“To overcome this immunity, Plaintiff has the
burden of pointing to case law which ‘pre-date[s] the offic[ial]’s alleged improper
conduct, involve[s] materially similar facts, and ‘truly compel[s]’ the conclusion that
the plaintiff had a right under federal law.’” (quoting Ensley v. Soper, 142 F.3d 1402,
1406 (11th Cir. 1998))).
In particular, Mr. Romine makes no effort to address each one of his federal
claims and has not offered any binding authority which concretely establishes the
unlawfulness of Mayor Robinson and City Manager Hoyt’s actions prior to when they
occurred. Instead, Mr. Romine merely nominally addresses qualified immunity, citing
only to Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982),
and Anderson, supra, for general propositions pertaining to the defense.
Concerning race discrimination, while this court is aware that “[i]t is beyond
doubt that the principal right allegedly violated by [Mayor Robinson and City
Manager Hoyt]—the equal protection right to be free from intentional racial
discrimination—was clearly established at the time [Mr. Romine’s lease was ended,]”
see Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1478 (11th Cir. 1991), the
Eleventh Circuit has also made it equally clear that public officials “can be motivated,
in part, by a dislike or hostility toward a certain protected class to which a citizen
belongs and still act lawfully . . . .” Rioux, 520 F.3d at 1283 (internal quotation marks
omitted) (emphasis added) (quoting Foy v. Holston, 94 F.3d 1528, 1534 (11th Cir.
More specifically, under Foy, “state officials act lawfully despite having
discriminatory intent, where the record shows they would have acted as they, in fact,
did act even if they had lacked discriminatory intent.” 94 F.3d at 1534. Because
Mayor Robinson and City Manager Hoyt had adequate lawful reasons for terminating
Mr. Romine’s lease unrelated to his race and the record does not plainly show that the
illegal criterion of race motivated their conduct, they are entitled to qualified
immunity on Mr. Romine’s race-related claims pursuant to Foy. See Foy, 94 F.3d at
1534 (“Unless it, as a legal matter, is plain under the specific facts and circumstances
of the case that the defendant’s conduct-despite his having adequate lawful reasons
to support the act-was the result of his unlawful motive, the defendant is entitled to
Furthermore, as it pertains to Mayor Robinson, Mr. Romine faces an additional
qualified immunity hurdle. Mr. Romine has failed to factually develop any specific
wrongdoing on his part other than to simply state that he “was aware of Hoyt’s
actions in relation to the contract” and that he “did nothing to re[s]cind Hoyt’s
actions” (Doc. 35 at 29), much less to meet his requisite legal burden in opposing the
invocation of a qualified immunity defense. Thus, it appears to the court that Mr.
Romine theorizes that Mayor Robinson is potentially liable to him in his capacity as
City Manager Hoyt’s supervisor.
As the Eleventh Circuit has made clear regarding qualified immunity in the
context of supervisory liability under § 1983:
Johnston’s liability under § 1983 as Carroll’s supervisor must be
based on something more than the theory of respondeat superior.
Braddy v. Florida Dep’t. of Labor and Employment Security, 133 F.3d
797, 801 (11th Cir. 1998). In Brown v. Crawford, 906 F.2d 667, 671
(11th Cir. 1990), we observed that
Supervisor liability occurs either when the supervisor
personally participates in the alleged constitutional
violation or when there is a causal connection between
actions of the supervising official and the alleged
constitutional deprivation. The causal connection can be
established when a history of widespread abuse puts the
responsible supervisor on notice of the need to correct the
alleged deprivation, and he fails to do so. The deprivations
that constitute widespread abuse sufficient to notify the
supervising official must be obvious, flagrant, rampant, and
of continued duration, rather than isolated occurrences.
906 F.2d at 671 (citations omitted)
Crawford v. Carroll, 529 F.3d 961, 978 (11th Cir. 2008). Mr. Romine has made no
effort to meet this supervisory standard or to otherwise advance another applicable
theory that would entitle him to pursue Mayor Robinson individually and, as a result,
has abandoned his opposition to Mayor Robinson’s qualified immunity defense. See,
e.g., Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995)
(“[T]he onus is upon the parties to formulate arguments; grounds alleged in the
complaint but not relied upon in summary judgment are deemed abandoned.” (citing
Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563,
1568 (11th Cir. 1994))); Coalition for the Abolition of Marijuana Prohibition v. City
of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000) (failure to brief and argue issue at
the district court is sufficient to find the issue has been abandoned); Wilkerson v.
Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir. 2001) (finding claim abandoned when
argument not presented in initial response to motion for summary judgment).
Finally, the far from extreme nature of Mr. Romine’s federal claims means that
this dispute does not fall within that extraordinary class of so-called “obvious clarity”
cases in which no preexisting binding authority is necessary to provide a public
official with fair warning of his unconstitutional behavior. See Santamorena, 147
F.3d at 1340 n.6 (“[T]hese exceptional cases rarely arise.”) (emphasis added); cf.
Rodriguez v. Farrell, 280 F.3d 1341, 1350 n.18 (11th Cir. 2002) (“We very
occasionally encounter the exceptional case in which a defendant officer’s acts are
so egregious that preexisting, fact-specific precedent was not necessary to give clear
warning to every reasonable . . . officer that what the defendant officer was doing
must be ‘unreasonable’ within the meaning of the Fourth Amendment.”) (emphasis
While Mr. Romine contends that his case does properly belong within this
highly uncommon category (Doc. 35 at 29), he does so perfunctorily and without
offering any on-point support. See Flanigan’s Enters., Inc. v. Fulton County, Ga., 242
F.3d 976, 987 n.16 (11th Cir. 2001) (holding that a party waives an argument if the
party “fail[s] to elaborate or provide any citation of authority in support” of the
argument); Ordower v. Feldman, 826 F.2d 1569, 1576 (7th Cir. 1987) (stating that
an argument made without citation to authority is insufficient to raise an issue before
the court). Thus, for these numerous reasons, qualified immunity, provides an
independent basis for granting summary judgment in favor of Mayor Robinson and
City Manager Hoyt on Mr. Romine’s federal claims brought against them
Mr. Romine’s Federal Claims Against COA
As set forth in Defendants’ Rule 56 Motion, Mr. Romine’s federal claims
brought under § 1983 against the COA are governed by the rules established by the
Supreme Court in Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct.
2018, 56 L. Ed. 2d 611 (1978). In order for the COA to be subjected to § 1983
liability, Monell requires that Mr. Romine prove, at a minimum: (1) that the
individual defendants’ actions were unconstitutional; and (2) that a municipal
“policy” or “custom” of the COA caused these violations to occur. Id. at 694-95, 98
S. Ct. 2037-38.
Based upon the Monell doctrine, summary judgment in favor of the COA on
Mr. Romine’s federal claims is appropriate because as analyzed above, Mr. Romine
has no viable cause of action under § 1981, the Equal Protection Clause, or the Due
Process Clause against either Mayor Robinson or City Manager Hoyt. Alternatively,
to the extent that Mr. Romine has established a triable federal claim, the COA is still
entitled to summary judgment because Mr. Romine has not causally connected the
federal violation to municipal action.
As Mr. Romine recognizes in his opposition brief,
Proof of a single incident of unconstitutional activity is not sufficient to
impose liability under Monell, unless proof of the incident includes
proof that it was caused by an existing, unconstitutional municipal
policy, which policy can be attributed to a municipal policymaker.
Otherwise the existence of the unconstitutional policy, and its origin,
must be separately proved. But where the policy relied upon is not itself
unconstitutional, considerably more proof than the single incident will
be necessary in every case to establish both the requisite fault on the part
of the municipality, and the causal connection between the “policy” and
the constitutional deprivation.
City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S. Ct. 2427, 2436, 85 L.
Ed. 2d 791 (1985) (footnote omitted) (emphasis added).
Here, there is no evidence of an official COA policy or custom embracing race
discrimination or due process violations in the handling of public contracts. Further,
the only proof that Mr. Romine points to in an effort to show that his situation is not
an isolated one is the vague testimony from former City Council member, Mr. Little,
that “Anniston has a problem with black folks,” that the COA has been involved in
other litigation over “botched” contracts with black contractors, and that black
citizens are forced to “go through extra hoops” in their dealings with the COA. (Doc.
35 at 28). Assuming the admissibility of this evidence, these sweeping, non-specific
opinions offered by Mr. Little are simply inadequate proof for a reasonable jury to
conclude that the COA has a policy or custom to such a degree that appropriately
exposes it to liability for the (assumed in the alternative) unconstitutional conduct
committed by its public officials.
Mr. Romine’s State Law Count
Count Three of Mr. Romine’s complaint for breach of contract is also subject
to dismissal on summary judgment. As Mr. Romine correctly recognizes in his
opposition brief, an ordinary breach of contract claim arising under Alabama law
requires proof of the following elements:
(1) the existence of a valid contract binding the parties in the action, (2)
his own performance under the contract, (3) the defendant’s
nonperformance, and (4) damages.
Southern Medical Health Systems, Inc. v. Vaughan, 669 So.2d 98, 99 (Ala. 1995)
(citing McGinney v. Jackson, 575 So.2d 1070, 1071-72 (Ala. 1991)).
In seeking summary judgment on Count Three, Defendants raise several viable
grounds including: (1) the non-binding nature of the lease on Mayor Robinson and
City Manager Hoyt as individuals (Doc. 27 at 20-21); (2) Mr. Romine’s admitted
defaulted status (i.e., his own non-performance) under the contract despite receiving
additional time in which to come into compliance with its terms (id. at 21-25); and
(3) the COA’s right to terminate the lease given Mr. Romine’s material breach. (Id.
Mr. Romine makes no attempt to refute Defendants’ evidence or arguments
which all solidly demonstrate their entitlement to summary judgment on this claim.
Instead, Mr. Romine minimally and ineffectually asserts:
A lease/contract was signed on August 24, 2010. Plaintiff did everything
he was instructed to do in preparation of performance. The Defendant
defaulted Plaintiff despite his being ready to perform and Plaintiff has
been denied the opportunity to operate the business and make a profit
since 2010. Defendants[’] summary judgment [motion] is due to be
(Doc. 35 at 30).
Mr. Romine’s woefully underdeveloped response essentially constitutes an
abandonment of his breach of contract claim. More importantly, his attempted
opposition creates no triable contractual issue. Therefore, the court will enter an order
that also dismisses Count Three of Mr. Romine’s complaint with prejudice.
Mr. Romine’s Strike Motion
Mr. Romine’s Strike Motion challenges Defendants’ reliance upon a memo
from Mr. Folks to the Mayor and City Council dated August 17, 2011, indicating that
Mr. Gomez (and Debra Gomez) were “awarded the opportunity to lease the Cane
Creek Restaurant.” (Doc. 26-10 at 2). Because summary judgment is appropriate on
all of Mr. Romine’s claims with or without consideration of this memo, the Strike
Motion is due to be termed as moot.
For the reasons stated above, Defendants’ Rule 56 Motion is due to be granted,
and Mr. Romine’s complaint is due to be dismissed with prejudice. Further, Mr.
Romine’s Strike Motion is due to be termed as moot. Finally, the court will enter a
separate order consistent with this memorandum opinion.
DONE and ORDERED this 2nd day of October, 2014.
VIRGINIA EMERSON HOPKINS
United States District Judge
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