Minnifield et al v. The City of Birmingham Alabama

Filing 45

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 2/4/15. (SAC )

FILED
2015 Feb-04 PM 02:11
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MERRIMAN BELL,

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Plaintiff,
v.
CITY OF BIRMINGHAM,
ALABAMA,
Defendant.

CASE No.: 2:12-CV-2590-KOB

MEMORANDUM OPINION
Plaintiff Merriman Bell brought this lawsuit against the City of Birmingham under 42 U.S.C.
§ 1983 and Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e et seq. (Doc.
1). Officer Bell alleges that the City of Birmingham discriminated against him on the basis of his
race by denying him a position as a Motor Scout following his successful completion of Motor Scout
School. Officer Bell also alleges that the City of Birmingham retaliated against him for filing
grievances with the Personnel Board of Jefferson County and the Equal Employment Opportunity
Commission (“EEOC”). This matter is before the court on “Defendants’ Motion for Summary
Judgment.” (Doc. 40). For the reasons discussed below, this court concludes that the City’s motion
for summary judgment is due to be GRANTED as to Officer Bell’s § 1983 claim and Title VII
discrimination claim. The City’s motion for summary judgment is due to be DENIED as to Officer
Bell’s Title VII retaliation claim.
I. STANDARD OF REVIEW
Summary judgment is an integral part of the Federal Rules of Civil Procedure. Summary
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judgment allows a trial court to decide cases when no genuine issues of material fact are present
and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56. When a
district court reviews a motion for summary judgment, it must determine two things: (1) whether
any genuine issues of material fact exist; and if not, (2) whether the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c).
The moving party “always bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56). The moving party can meet this burden by offering
evidence showing no dispute of material fact or by showing that the non-moving party’s evidence
fails to prove an essential element of its case on which it bears the ultimate burden of proof.
Celotex, 477 U.S. at 322–23. Rule 56, however, does not require “that the moving party support
its motion with affidavits or other similar materials negating the opponent’s claim.” Id.
Once the moving party meets its burden of showing the district court that no genuine
issues of material fact exist, the burden then shifts to the non-moving party “to demonstrate that
there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Disagreement between the parties is not
significant unless the disagreement presents a “genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). In responding to a motion for summary
judgment, the non-moving party “must do more than simply show that there is some
metaphysical doubt as to the material fact.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
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475 U.S. 574, 586 (1986). The non-moving party must “go beyond the pleadings and by [its]
own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’
designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at
324 (quoting Fed. R. Civ. P. 56(e)) (emphasis added); see also Advisory Committee Note to
1963 Amendment of Fed. R. Civ. P. 56(e) (“The very mission of summary judgment procedure is
to pierce the pleadings and to assess the proof to see whether there is a genuine need for trial.”).
The moving party need not present evidence in a form admissible at trial; “however, he may not
merely rest on [the] pleadings.” Celotex, 477 U.S. at 324. If the evidence is “merely colorable,
or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at
249–50 (citations omitted).
In reviewing the evidence submitted, the court must “view the evidence presented
through the prism of the substantive evidentiary burden,” to determine whether the nonmoving
party presented sufficient evidence on which a jury could reasonably find for the nonmoving
party. Anderson, 477 U.S. at 254; Cottle v. Storer Commc’n, Inc., 849 F.2d 570, 575 (11th Cir.
1988). The court must refrain from weighing the evidence and making credibility
determinations, because these decisions fall to the province of the jury. See Anderson, 477 U.S.
at 255; Stewart v. Booker T. Washington Ins. Co., 232 F.3d 844, 848 (11th Cir. 2000); Graham v.
State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). “Even if a district court
‘believes that the evidence presented by one side is of doubtful veracity, it is not proper to grant
summary judgment on the basis of credibility choices.’” Feliciano v. City of Miami Beach, 707
F.3d 1244, 1252 (11th Cir. 2013) (citing Miller v. Harget, 458 F.3d 1251, 1256 (11th Cir.
2006)). The court should not disregard self-serving statements made in sworn testimony simply
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because they are self-serving at the summary judgment stage, and if the self-serving statements
create a genuine issue of material fact, the court should deny summary judgment on that basis.
Id. at 1253.
Furthermore, all evidence and inferences drawn from the underlying facts must be viewed
in the light most favorable to the non-moving party. Graham, 193 F.3d at 1282. The nonmoving
party “need not be given the benefit of every inference but only of every reasonable inference.”
Id. The evidence of the non-moving party “is to be believed and all justifiable inferences are to
be drawn in [its] favor.” Anderson, 477 U.S. at 255. After both parties have addressed the
motion for summary judgment, the court must grant the motion if no genuine issues of material
fact exist and if the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56.
II. STATEMENT OF FACTS
Officer Merriman Bell, a black male, has been a police officer with the City of
Birmingham Police Department since 1998. In 2009, Officer Bell joined the Police
Department’s Tactical Unit. The Tactical Unit is an elite group of officers with various
specialties and positions, one of which is the Motor Scout position. Motor Scouts are police
officers who are assigned motorcycles and, in addition to performing their normal policing
duties, provide escorts for special events like football games, funerals, and parades. Because of
the dangers associated with the position, Motor Scout are afforded a five-percent hazard pay
increase. Motor Scouts also receive the additional benefit of being permitted to use a police
motorcycle to commute to and from work. To become a Motor Scout, a police officer must
apply for Motor Scout School, pass an entrance exam, and successfully complete the course. The
record is unclear how the Birmingham Police Department decides when to hold a Motor Scout
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School. What is clear, however, is that officers who successfully complete Motor Scout School
are typically assigned a motorcycle within a few months of completing the course.
In 2010, Officer Bell applied to become a Motor Scout and was admitted to Motor Scout
School. After failing on his initial attempt, Officer Bell successfully completed Motor Scout
School in August of 2010. Officers Montague Minnifield, a black male, Alex Thomas, a white
male, and Jason Lawley, a white male, also attended the August 2010 Motor Scout School and
successfully completed the course with Officer Bell. After graduating from the school, the
officers waited to be assigned motorcycles. At some point while the officers were waiting,
Officer Thomas received a text message from a lieutenant in the department informing him that
he was guaranteed a Motor Scout position but Officers Bell and Minnifield would have to
compete for a single position. No one in the record testified to having personally seen this text
message, and no evidence exists as to which lieutenant allegedly sent the text message. The only
evidence of the existence of the text message is Officer Bell’s testimony that Officer Minnifield
told him about the message after seeing it on Officer Thomas’s phone.
After learning about the text message, Officer Bell complained to Sergeant Donald
Webber about what he viewed as the Department’s racially motivated decision to guarantee
Officer Thomas a Motor Scout position. Officer Bell also told Sergeant Webber that he was
considering taking legal action against the Department. The acting police chief during this time
was Moody Duff, a black male. Sergeant Webber told Officer Bell that Chief Duff had
responded to his threat of pursuing legal action by saying “bring it on.” (Doc. 41–1, at 41).
On August 11, 2011, Officers Bell and Minnifield filed employee grievances with the
Personnel Board of Jefferson County. The Board determined that the grievances were not
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eligible to be heard through the grievance procedure and issued a letter to that effect. Officer
Bell then filed a charge of discrimination with the EEOC on November 4, 2011.
In response, Chief Duff stated that because Officer Bell and Officer Minnifield had filed
grievances and EEOC charges, “no movement would be made on the motor scouts.” (Doc. 41–1,
at 33–34). Chief Duff then told Officers Bell, Minnifield, Lawley, and Thomas that they would
all have to retake Motor Scout School before being assigned a Motor Scout position. This
decision marked the first time an officer who successfully completed Motor Scout School was
not assigned a Motor Scout position, and also the first time that a successful Motor Scout School
graduate was ever required to retake the course.
Although the officers protested, Officers Bell, Minnifield, and Thomas eventually chose
to repeat the course. The next Motor Scout School was held in February of 2012, and all three of
the officers once again successfully completed the course. On April 20, 2012, the Birmingham
Police Department assigned Officer Bell a Motor Scout position, and he received the
accompanying five-percent pay increase. Officer Minnifield and Thomas also received Motor
Scout positions shortly after graduating.
On June 6, 2012, the EEOC dismissed Officer Bell’s EEOC charge and issue him a
Notice of Right to Sue. On July 31, 2012, Officer Bell brought the current suit against the City
of Birmingham.

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III. DISCUSSION1
A.

Count 1: The § 1983 Claim
In Count I of his complaint, Officer Bell brings a § 1983 claim for race discrimination

and retaliation in violation of the Fourteenth Amendment. (Doc. 1). As a preliminary matter,
Officer Bell failed to respond to any of the City of Birmingham’s arguments regarding the § 1983
claim. By failing to address the § 1983 claim, Officer Bell abandoned that claim against the City.
See Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 971 n.36 (11th Cir. 2008)
(“[Plaintiff] did not defend the claim on summary judgment, he thus abandoned it.”); Road
Sprinkler Fitters Local Union No. 699 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir.
1994).
Nevertheless, even assuming Officer Bell had not abandoned his § 1983 claim, the City
would still be entitled to summary judgment on the claim. Section 1983 does not create any
substantive rights in itself but only creates a remedy for violation of other federal law. Chapman
v. Houston Welfare Rights Org., 441 U.S. 600, 617–18 (1979). For a municipality to be held
liable under § 1983, a plaintiff must show that he was deprived of a federal right by a person
acting under color of state law. Patrick v. Floyd Med. Ctr., 201 F.3d 1313, 1315 (11th Cir.
2000). Under this color-of-state-law requirement, a municipality can only be held liable under §
1983 when the plaintiff’s injury results from a government policy or custom. See Monell v.
Dep’t of Soc. Servs. of New York, 436 U.S. 658, 694 (1978); Gold v. City of Miami, 151 F.3d

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This case was originally brought jointly by Officer Minnifield and Officer Bell, and contained
four counts, with Counts II and IV pertained solely to Officer Minnifield. On April 29, 2014, this court
severed the claims of Officer Bell and Officer Minnifield. (Doc. 37). Thus, this court will only address
Counts I and III in this opinion.

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1346, 1350 (11th Cir. 1998) (“[A] municipality may be held liable [under § 1983] for the actions
of [an employee] only when municipal ‘official policy’ causes a constitutional violation.”). A
“custom” is a practice “so pervasive and well-settled that it assumes the force of law.” Denno,
218 F.3d at 1276.
In the present case, Officer Bell fails to present any evidence that Chief Duff’s decision to
require Officer Bell to repeat Motor Scout School was pursuant to any policy or custom. The
City of Birmingham adheres to an Equal Employment Opportunity Policy that prohibits race
discrimination in all personnel decisions. Thus, assuming as Officer Bell alleges that Chief
Duff’s decision was racially motivated, the City’s actions could not be pursuant to any official
policy. Likewise, the record is devoid of any evidence that the City’s actions were pursuant to
any “pervasive and well-settled” custom. Accordingly, the City of Birmingham cannot be held
liable on Officer’s Bell claim under § 1983 and is entitled to summary judgment on this claim.
B.

Count III: The Title VII Claims
Title VII prohibits employers from “discriminat[ing] against any individual with respect

to his compensation, terms, conditions or privileges of employment, because of such individual’s
race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a)(1). In Count III, Officer
Bell alleges race discrimination and retaliation based on the Birmingham Police Department’s
failure to place Officer Bell in a Motor Scout position for more than two years despite the fact
that he was qualified for the position.
1. Disparate Treatment Claim
Officer Bell may establish a prima facie case for disparate treatment through either direct
evidence of discrimination or circumstantial evidence using the McDonnell Douglas framework.
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See Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir. 2009). Because Officer Bell does not point
to any direct evidence of racial discrimination, this court must use the McDonnell Douglas
framework to analyze his claim. Under this framework, a plaintiff disparate treatment must first
establish a prima facie case by “show[ing] (1) []he belongs to a protected class; (2) []he was
qualified to do the job; (3) []he was subjected to adverse employment action; and (4) [his]
employer treated similarly situated employees outside [his] class more favorably.” Crawford v.
Carroll, 529 F.3d 961, 970 (11th Cir. 2008). If the plaintiff establishes a prima facie case, the
burden of production shifts to the defendant to articulate some legitimate, non-discriminatory
reason for the adverse employment action. See Goldsmith v. City of Atmore, 996 F.2d 1155,
1163 (11th Cir. 1993); Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2000). If a defendant
meets this burden of production, it rebuts the presumption of discrimination, and the plaintiff
then bears the burden of proving that the defendant’s arguments are “merely pretext to mask
discriminatory actions.” Bryant, 575 F.3d at 1308.
In the present case, the City concedes that Officer Bell satisfies the first two elements of
the prima facie case, but contends that Officer Bell has not made a showing sufficient to meet the
last two elements—that Officer Bell suffered an adverse employment action and that a similarly
situated employee outside of Officer Bell’s protected class was treated more favorably. Because
Officer Bell fails to meet the fourth element, this court will not address whether Officer Bell
suffered an adverse employment action.
Typically, a plaintiff fails to meet the fourth element of his prima facie case because the
comparator he identifies is not actually similarly situated. In this case, however, the issue is not
that Officer Bell’s comparator, Officer Alex Thomas, is not similarly situated; instead, the issue
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is that Officer Thomas did not receive more favorable treatment than Officer Bell. As the City
points out, Officer Thomas successfully completed the same Motor Scout School as Officer Bell
in August of 2010 and, like Officer Bell, was not assigned a position as a Motor Scout. Both
Officer Bell and Officer Thomas were required to retake the Motor Scout School, and both were
assigned positions as Motor Scouts after repeating the school. Thus, the record shows that
Officer Thomas received the same treatment as Officer Bell.
Officer Bell once again fails to offer any response to the City’s argument. Therefore,
Officer Bell has abandoned this claim. However, even if he had not abandoned the claim, the
City of Birmingham would still be entitled to judgment on this claim because Officer Bell failed
to produce evidence that a similarly situated employee outside of his protected class received
more favorable treatment than he did. Because he has not met his burden of establishing a prima
facie case of discrimination, the City of Birmingham is entitled to summary judgment on this
claim.
2.

Retaliation Claim

Title VII prohibits employers from retaliating against an employee “because he has
opposed any practice made an unlawful employment practice by [Title VII]. . . .” 42 U.S.C. §
2000e-3(a). Title VII retaliation claims based on circumstantial evidence are governed by the
McDonnell Dougals framework discussed above. See Brown v. Ala. Dep’t of Transp., 597 F.3d
1160, 1181 (11th Cir. 2010). A plaintiff can establish a prima facie case of retaliation by
showing that “(1) []he engaged in an activity protected under Title VII; (2) []he suffered an
adverse employment action; and (3) there was a causal connection between the protected activity
and the adverse employment action.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).
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Once the plaintiff meets this burden, the employer has an opportunity to articulate a legitimate
non-retaliatory reason for its employment action, which the plaintiff can rebut with evidence of
pretext. Brown, 597 F.3d at 1181–82.
In the present case, the City of Birmingham concedes that Officer Bell engaged in
protected activity when he complained about what he viewed as the Police Department’s racially
motivated decision to guarantee Officer Thomas a Motor Scout position. The City, however,
argues that Officer Bell has not present sufficient evidence to satisfy the final two elements of his
prima facie case—that Officer Bell suffered an adverse employment action and that the action
was causally connected to Officer Bell’s protected activity.
To establish an adverse employment action, a plaintiff must show that the employer’s
action would “dissuade[] a reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal
quotations omitted). Whether an employment action is adverse “depends upon the circumstances
of the particular case, and should be judged from the perspective of a reasonable person in the
plaintiff’s position, considering all the circumstances.” Id. at 70–71. The Eleventh Circuit has
recognized that Supreme Court precedent on this issue “strongly suggests that it is for a jury to
decide whether anything more than the most petty and trivial actions against an employee should
be considered ‘materially adverse’ to him and thus constitute adverse employment actions.”
Crawford, 529 F.3d at 973–74 n.13.
In the present case, Officer Bell alleges that he suffered an adverse employment action
because the Birmingham Police Department denied him a Motor Scout position following his
complaints to the Personnel Board of Jefferson County and the EEOC. Officer Bell points out
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that the Motor Scout position is a prestigious position and includes a five-percent hazardous pay
increase as well as the privilege of using a police motorcycle to commute to and from work.
Based upon this evidence, a reasonable jury could find that the denial of a Motor Scout position
might well be sufficient to dissuade a reasonable worker from making a charge of discrimination.
See Burlington, 548 U.S. at 70–71 (concluding that an employment action was materially adverse
because the plaintiff was assigned more arduous and less prestigious work as a result); Crawford,
529 F.3d at 973 (concluding that an employment action was materially adverse because it denied
the plaintiff a merit pay increase). Accordingly, the motion for summary judgment is due to be
denied to the extent that it is predicated on the argument that the denial of a Motor Scout position
did not constitute an adverse employment action.
To satisfy the causal-relationship element, “a plaintiff merely has to prove that the
protected activity and the [adverse] action are not completely unrelated.” Olmsted v. Taco Bell
Corp., 141 F.3d 1457, 1460 (11th Cir 1998); see also Higdon v. Jackson, 393 F.3d 1211, 1220
(11th Cir. 2004). To do so, a plaintiff must at a minimum show that “the person taking the
adverse action was aware of the protected expression.” Bass v. Bd. of Cnty. Comm’rs, Orange
Cnty., Fla., 256 F.3d 1095, 1119 (11th Cir. 2001), overruled on other ground by Crawford v.
Carroll, 529 F.3d 961 (11th Cir. 2008). Such awareness may be established either by direct
evidence or by circumstantial evidence. See Bechtel Constr. Co. v. Sec’y of Labor, 50 F.3d 926,
934 (11th Cir. 1995); Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th Cir. 1999).
In the present case, Officer Bell establishes through direct evidence that Chief Duff, the
decision maker, was aware that Officer Bell engaged in protected activity and that Chief Duff
took an adverse employment action against Officer Bell because Officer Bell engaged in
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protected activity. In his deposition, Officer Bell testified that “[he] didn’t receive a motorcycle
till later because Deputy Chief Duff said since we filed a grievance and the EEOC complaint[,]
no movement would be made on the motor scouts.” (Doc. 41-1, at 34) (emphasis added).
Accepting this testimony as true and viewing it in a light most favorable for Officer Bell, this
court concludes that this showing is sufficient to meet the causation requirement for the purposes
of a prima facie retaliation case.
Because Officer Bell has proven his prima facie case, the burden now shifts to the City to
articulate a legitimate reason for the adverse employment action. See Sullivan v. Nat’l R.R.
Passenger Corp., 170 F.3d 1056, 1059 (1999). The City, however, fails to offer any explanation
of its decision to require Officer Bell to repeat Motor Scout School prior to becoming a Motor
Scout. As such, the analysis on this claim is complete, and the City is not entitled to summary
judgment.
IV. CONCLUSION
For the reasons discussed above, the court FINDS that Defendant’s motion for summary
judgment is due to be GRANTED as to Plaintiff’s § 1983 claim and Title VII Disparate
Treatment claim. The court FINDS that Defendant’s motion for summary judgment as to
Plaintiff’s Title VII retaliation claim is due to be DENIED. A separate Order to this effect will
be filed simultaneously.
DONE and ORDERED this 4th day of February, 2015.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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