Yates v. City of Birmingham
MEMORANDUM OPINION. Signed by Judge R David Proctor on 3/3/2016. (AVC)
2016 Mar-03 PM 01:53
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CITY OF BIRMINGHAM,
Case No.: 2:14-CV-582-RDP
This matter is before the court on Defendant’s Motion for Summary Judgment. (Doc. #
18). The Motion has been fully briefed. (Docs. # 19, 23, and 26). Also before the court is
Defendant’s Motion to Strike (Doc. # 27), which has also been fully briefed. (Docs. # 30 and
Summary of Relevant Facts
If facts are in dispute, they are stated in the manner most favorable to the non-movant,
and all reasonable doubts about the facts have been resolved in favor of the non-movant. See
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993); Info. Sys. & Networks Corp. v.
City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). These are the “facts” for summary
judgment purposes only. They may not be the actual facts that could be established through live
testimony at trial. See Cox. v. Adm’r U.S. Steel & Carnegie, 17 F.3d 1386, 1400 (11th Cir.
Asserted “facts” that are not facts at all will be disregarded. Carter v. Three Springs Residential
Treatment, 132 F.3d 635, 642 (11th Cir. 1998) (conclusory allegations without specific supporting facts have no
probative value). For example, Plaintiff presents the following as an “undisputed fact” in his brief: “Beginning in
February 2010, Yates, a Caucasian, was subjected to racial discrimination by the City’s final policy makers …”
Defendant, the City of Birmingham is a municipal government under the laws of the
State of Alabama. (Doc. # 1 ¶ 21). The City has an Equal Employment Opportunity policy, and
supervisors are trained on the policy. (Doc. # 20-1 at 25-26, 43-44; Doc. # 20-2 ¶ 3, Attach. 1).
Plaintiff Charles Yates is a Caucasian who is employed by the City as the Building
Facilities Manager at the Birmingham Museum of Art. (Doc. # 1 ¶¶ 4, 56; Doc. # 20-3 at 27, 3334). Yates began his employment with the City in 1997 holding various positions including
Facilities Manager. (Doc. # 1 ¶ 25, Doc. # 20-3 at 28-29).
In 2008, Plaintiff was appointed by former Mayor Larry Langford to a Deputy Director
of Public Works – Facilities position. (Doc. # 1 ¶ 25, Doc. # 20-3 at 49, 52, 61, Ex. 3).
Plaintiff’s supervisor was Ricky Kennedy, the Director of Public Works, and there were five
other Public Works Deputy Directors. (Doc. # 20-3 at 47, 58, 61). All of these Deputy Directors
were political appointments and, as appointed personnel, served at the discretion of the Mayor.
(Doc. # 20-3 at 49-52; Doc. # 20-4 at 13; Doc. # 20-5 at 33-34). Although Plaintiff was a
Deputy Director over the City’s various facilities, under Mayor Langford, he was frequently at
City Hall. (Doc. # 20-3 at 65-66).
On or about January 26, 2010, William A. Bell, Sr. became the Mayor. (Doc. # 20-4 at
10). Shortly thereafter, Jarvis Patton was appointed as the Chief of Operations for Mayor Bell.
(Doc. # 20-5 at 22, 28). Mayor Bell also replaced Ricky Kennedy (black male) as the Director of
Public Works with Adlai Trone (black male). (Doc. # 20-4 at 34; Doc. # 20-7 at 11).
(Doc. # 23 at 6). It frankly strains credulity for Plaintiff to suggest this “fact” is undisputed. Conclusory allegations
of this type will be disregarded for summary judgment purposes.
The Events in Question
In their briefs, the parties have discussed a number of events that bear upon Plaintiffs’
claims. There is no easy way to present those in the narrative of this opinion. The court
discusses these events in as coherent a manner as possible.
On or about February 12, 2010, Trone told Plaintiff that he stayed at City Hall too much.
(Doc. # 20-7 at 32-33, 39-41). Trone believed Plaintiff needed to be at other facilities to perform
his job. (Doc. # 20-7 at 32-33, 39-41). Under Mayor Langford Plaintiff had direct access to
approve requisitions; consequently, when he was at City Hall people frequently asked him to
order or purchase things. Trone explained that he believed this would occur less often if Plaintiff
was not seen at City Hall as much - “out of sight out of mind.” (Doc. # 20-7 at 32-33, 39-41).
“It was a financial thing.” (Doc. # 20-7 at 41).
Plaintiff contends that Trone told him that Mayor Bell and Patton did not want to see his
“white face” in City Hall and that he had to use the stairs rather than the elevator in City Hall.
(Doc. # 1 ¶ 26, Doc. # 20-3 at 95-97; Doc. # 20-1 Ex. 4). Thereafter, Plaintiff asked Trone’s
permission when he wanted to go to City Hall. (Doc. # 20-3 at 155-56). Although Trone did not
tell Plaintiff he was required to do so, Plaintiff believed he had to obtain permission every time
he wanted to go to City Hall and routinely asked permission from Trone to enter City Hall.
(Doc. # 23-16 at ¶13 &17; Doc. # 23-13 at ¶16).
Trone testified that he told Plaintiff to use his discretion when he needed to go to City
Hall. (Doc. # 20-7 43-45, 58). Plaintiff testified that, when he asked to go to City Hall, Trone
told him to “get in and get out” using the service elevator or stairwell. (Doc. # 23-16 at ¶13 &17;
Doc. # 23-13 at ¶16). Plaintiff testified that, on one occasion when he asked permission to visit
City Hall, Trone said, “I am going to get you.” (Doc. # 23-13 at ¶17).
Prior to being told he was at City Hall too much, Plaintiff attended all meetings as the
representative from Public Works concerning the operation and management of all City facilities
and equipment. (Doc. # 23-18 at ¶7; Doc. # 23-16 at ¶13-14 and Resume at p. 2; Doc. # 23-20 at
6-9; Doc. # 20-3 at 61). As of October 22, 2010, Plaintiff no longer sought permission to enter
City Hall, but instead simply used the stairwell or service elevator. (Doc. # 20-7 at 52; Doc. # 203 at 103, 156-158; Doc. # 20-1 at 65).
Plaintiff told Peggy Polk, while she was the Deputy Director of the City Personnel
Department, that Mayor Bell and Patton had barred him from City Hall because of his race.
(Doc. # 20-3 at 78-79, 103, 108-109, 111, 114-117; Doc. # 23-16 at ¶16; Doc. # 20-1 at 65).
Polk denies that Plaintiff told her this was because of his race, but she called Trone and Patton to
explain they could not bar Plaintiff from City Hall. (Doc. # 20-1 at 56-57, 65).
On February 18, 2010, Trone notified Plaintiff (and copied the Mayor’s office staff) that
his right to enter and approve requisitions had been terminated, and that the clerical employee
who had previously entered requisitions for Plaintiff would have to have requisitions approved
by her supervisor, Naomi Owens. (Doc. # 20-7 at 23, 63 and Ex. 4; Doc. # 23-23 at ¶5-6, 1315). Normally, requisitions are entered by administrative and accounting staff, not Deputy
Directors or Directors. (Doc. # 20-6 at 67). Trone believed that no Deputy Director or Facility
Manager should have the right to go into the system and enter a requisition himself and approve
it himself. None of the other Deputy Directors had that authority, nor did they have clerks
assisting them. (Doc. # 20-7 at 34-36). Trone also retrieved Plaintiff’s City phone, radio, and
car keys. (Doc. # 23-13 at ¶15; Doc. # 20-6 at 55-58, Ex. 9 at 1; Doc. # 23-23 at ¶14). Sometime
later, Plaintiff asserts that a fellow Deputy Director, Al Hickman took possession of Yates’ work
and vendor files. (Doc. # 23-13 at ¶15). Department Directors are permitted to reassign duties
among Deputy Directors and reassign staff. (Doc. # 20-3 115; Doc. # 20-1 at 74-75, 89).
After Mayor Bell took office, all of the Deputy Directors in Public Works were
concerned they would lose their jobs because the City Council had questioned the need for the
existing number of Deputy Directors. (Doc. # 20-7 53-54). Trone told Plaintiff that if any of the
Deputy Directors had to be rolled back into their old jobs, it would be Plaintiff and another
Deputy Director, Reginald Servant, because they were the newest Deputy Directors. (Doc. # 207 at 65).
Plaintiff spoke with Peggy Polk about his concerns of remaining a Deputy Director. Polk
told Plaintiff that, if anything happened, he had the right to roll back to his former position.
(Doc. # 20-1 at 63, 68, 75-77). On February 22, 2010, Plaintiff requested that he be allowed to
roll back to his former position when it became vacant, and Polk told him his request would be
honored. (Doc. # 20-1 Ex. 5). If Plaintiff had been terminated as Deputy Director before his
position became vacant, the City would have created another Facility Services Manager position
for him to roll back into. (Doc. # 20-1 at 84-88). To the contrary, Plaintiff claims that Trone
told him that the Personnel Board would not allow Plaintiff roll-back because he had not
completed his probationary period as Facilities Manager prior to being promoted to Deputy
Director in 2008. (Doc. # 20-3 at 146; Doc. # 20-1 Ex. 8; Doc. # 23-13 at 23).
On May 13, 2010, Mayor Bell sent letters to all appointed personnel, including Plaintiff,
informing them that their employment with the City was terminated but that they could request
reappointment if they did so by June 4, 2010. The letter also stated that employees who failed to
request reappointment by that date were assumed to not be interested in retaining their appointed
position. (Doc. # 20-3 at 119-22, Ex. 5; Doc. # 20-1 at 93; Doc. # 20-4 at 14-16; Doc. # 20-5 at
29, 32-33, Ex. 3; Doc. # 20-7 at 70).
On June 4, 2010, Plaintiff submitted his written request for re-appointment by having
three copies hand delivered to the Mayor, Chief of Staff Faush, and Patton. (Doc. # 20-3 at 123124; Doc. # 23-23 at ¶¶ 8, 9; Doc. # 23-13 at ¶18). On or about June 18, 2010, Patton telephoned
Plaintiff to inform him he was terminated because he had failed to request re-appointment, but
when Plaintiff informed Patton that he had turned in a request for reappointment, Patton told him
he would look into it. (Doc. # 20-3 at 127-28, 139; Doc. # 20-5 at 79-80).
Thereafter, Mayor Bell offered Plaintiff reappointment as a Deputy Director. (Doc. # 203 at 125, 130, Ex. 7; Doc. # 20-4 at 15; Doc. # 20-5 Ex. 2). On June 25, 2010, however, Plaintiff
sent an official request to roll back into his former position which was to become vacant on July
2, 2010. (Doc. # 20-3 at 149, Ex. 9; Doc. # 20-1 at 101, Exs. 6, 10). On July 1, 2010, Patton met
with Plaintiff to discuss his reappointment, but Plaintiff told Patton he was going to decline the
position and that he had requested a rollback to his prior position. (Doc. # 20-3 at 130-32, 13738, 140-41, 144, Ex. 8).
Polk delayed Plaintiff’s rollback during June and July because she knew Patton was
going to meet with Plaintiff about reappointment and she hoped he would accept; however, Polk
told Plaintiff that he would not be harmed by that delay. (Doc. # 20-1 at 107, Ex. 12). Plaintiff
did not change his mind about the reappointment, and effective July 30, 2010, Plaintiff rolled
back to Facilities Manager. (Doc. # 20-3 at 144, 151-52, Ex. 10). Plaintiff’s decision to roll
back to his old position resulted in a $22,000 annual pay reduction. (Doc. # 20-3 at 30-31 & Ex.
10; Doc. # 20-6 at 8; Doc. # 23-13 at ¶24).
Kevin Moore, an African-American, was appointed to replace Plaintiff as a Deputy
Director and became Plaintiff’s supervisor. (Doc. # 20-8 at 14, 16-19, 20-22, 68-69 Ex. 5 at p 2).
Moore was not trained in any skilled trade. Instead, he had experience in accounting and as a
budget analyst, and had supervised accounting staff. (Doc. # 20-8 at 16-23, 73; Doc. # 23-13 at
On August 11, 2010, Plaintiff discovered that his radio, telephone, and computer did not
work. He called Josh Goggins with Information Management System (IMS), who explained it
appeared Plaintiff had been set for termination that day. (Doc. # 20-3 at 174-175). Goggins told
Plaintiff he would turn his services back on. (Doc. # 20-3 at 75). Patton denies that he ever
terminated Plaintiff and further denies that he had the authority to do so. (Doc. # 20-5 at 80).
On a couple of occasions in December 2010, Moore e-mailed Plaintiff and other City
Hall staff member about a lack of paper towels and other supplies in the bathrooms at City Hall.
(Doc. # 20-8 at 91-100 Ex. 13-16; Doc. # 20-3 at 180-182). Plaintiff testified that Moore called
him in for questioning about the alleged paper and soap shortage in the presence of an
Administrative Assistant who took notes. (Doc. # 20-3 at 183-185; Doc. # 23-13 at ¶28).
Neither Trone nor Moore took any formal disciplinary actions against Plaintiff for this or any
other issue. (Doc. # 20-7 at 86; Doc. # 20-8 at 90).
A few months after the April 27, 2011 Tornado, Trone had the idea for the City’s Public
Works department to adopt a house and conduct some repairs in a manner similar to Habitat for
Humanity. (Doc. # 20-7 at 100-01). Materials were gathered, and Public Works employees took
them to the home. However, before any work was completed, the City’s legal department
determined the work project was not permissible. (Doc. # 20-7 at 100-07). No work was ever
performed by City employees on the home. (Doc. # 20-7 at 108).
In July 2011, Plaintiff reported to Moore that both he and Paint Supervisor Lee Campbell
(a Caucasian) suspected biased hiring based on their suspicion that an applicant, Steve
McGlothin (an African American), had prior knowledge of interview questions and answers.
Apparently, McGlothin also announced on his Facebook page that he was getting the painter
position before the selection took place. (Doc. # 23-19 at ¶4-12; Doc. # 23-13 at ¶30-31; Doc. #
20-6 at Ex. 10). After making this complaint, Plaintiff and Campbell were no longer involved in
interviewing candidates. (Doc. # 23-13 at ¶31).
On or about February 24, 2012, Moore, who was then the Interim Director of the
Crossplex and Deputy Director of Public Works, was asked by one of his supervisors to dispatch
(and actually dispatched) certain Public Works carpenters to evaluate a chandelier and perform
some other work at the Medical Forum Building, a private commercial building in Birmingham.
(Doc. # 20-8 at 115-121). The City often has events at different facilities around the City and
City employees sometimes work on those facilities. (Doc. # 20-8 118). Upon learning of this
project, Plaintiff went on site, and immediately curtailed the operation. Plaintiff was concerned
it would have resulted in disciplinary action against him and his subordinates. (Doc. # 20-6 at 98
Ex. 12; Doc. # 20-8 at 115-121 Ex. 19: Doc. # 20-3 at 185-189).
Later in 2012, a Caucasian carpenter at City Hall complained that two Caucasian
carpenters were receiving a disproportionate share of overtime. (Doc. # 20-6 at 109-11). There
were similar issues which Plaintiff raised about the amount of overtime African American
workers at the Crossplex were reporting. (Doc. # 23-13 at 9). An African American and a
Caucasian electrician had complained that another African American electrician received a
disproportionate share of overtime. (Doc. # 20-6 at 110-115). At this time, the Crossplex was
no longer under the direction of Public Works. (Doc. # 20-6 at 114-116, 119-122; Doc. # 23-16
On or about January 22, 2013, Plaintiff was called to a meeting with Patton, Hickman,
and newly appointed Director Stephen Fancher. (Doc. # 20-3 at 197-199; Doc. # 23-16 at ¶20;
Doc. # 20-5 at 96-7). Hickman believed the meeting was to address something he had done.
(Doc. # 20-6 at 99). Shortly before this meeting, a female employee at the Crossplex informed
Patton that Plaintiff had inquired whether Patton ever said anything to her that made her
uncomfortable. (Doc. # 20-5 at 100-01). At the meeting, Patton questioned Plaintiff about why
he was “investigating” Patton and said that he did not appreciate Plaintiff trying to dig up
information on him. (Doc. # 20-5 at 98; Doc. # 23-13 at 9).
This meeting occurred shortly after Virginia Spidle filed a discrimination lawsuit against
the City. (Doc. # 23-13 at 9). Plaintiff claims that Patton also questioned him in the meeting
about allegations in the Spidle complaint that related to Plaintiff, and repeatedly asked Plaintiff
to concede that he had been allowed to “roll-back” into his prior job. (Doc. # 20-3 at 197-201;
Doc. # 23-16 at ¶20). When Plaintiff refused to concede that Patton had treated him “right,”
Patton stated that he was “not afraid” and noted that he had worked as an investigator for the
EEOC for ten years. (Doc. # 20-3 at 200-03). Plaintiff claims that Patton further stated he knew
how to deal with “people like you” and instructed Plaintiff to tell his “little buddy” what he said.
(Doc. # 20-3 at 200-203; Doc. # 23-16 at ¶20; Doc. # 20-6 at 103-105).
After this meeting with Patton, Plaintiff testified that he was afraid for his job and
experienced shortness of breath and chest pain. The following day, Plaintiff sought medical
treatment and was placed on medication for the first time in his life. (Doc. # 20-3 at 203-206;
Doc. # 23-16 at ¶20; Doc. # 20-6 at 101).
On or about January 28, 2013, Plaintiff was in a meeting with the City’s Public
Information Officer, April Odom. Patton saw Plaintiff there and went in to speak with him.
(Doc. # 20-3 at 215; Doc. # 20-5 at 106-07). During this meeting, Patton again asked Plaintiff to
agree that Patton had been more than fair to him by allowing him to roll back into his former
position. (Doc. # 20-5 at 107-08). Plaintiff informed Patton that Trone had told him (Plaintiff)
that Patton and Mayor Bell did not want to see his white face in City Hall. (Doc. # 23-13 at 1011; Doc. # 20-5 at 106-08). Patton assured Plaintiff that he had said no such thing, and told
Plaintiff he could have his Deputy Director job back. (Doc. # 23-13 at 10-11; Doc. # 20-5 at 10608).
Odom tried to convince Plaintiff to accept reappointment to a Deputy Director position.
(Doc. # 20-3 at 217-218; Doc. # 23-13 at ¶37; Doc. # 20-5 at 106-110). Plaintiff stated that he
had concerns about discrimination and retaliation and was reluctant to accept Patton’s offer, and
he began to cry. Patton then arranged for Plaintiff to meet with Mayor Bell and escorted him to
the Mayor’s office. (Doc. # 20-3 at 211-222; Doc. # 20-5 at 109-110). Mayor Bell repeated the
offer to reappoint Plaintiff to his former Deputy Director position and instructed Plaintiff to meet
with Polk to complete his reappointment papers. (Doc. # 20-3 at 222-23; Doc. # 23-13 at ¶39;
Doc. # 20-5 at 110). Plaintiff responded that he needed to think about the offer and talk to his
wife. (Doc. # 20-3 at 216-19) Plaintiff also informed Patton that he had retained an attorney
regarding his employment. (Doc. # 20-3 at 219-220).
Rather than follow up with Mayor Bell or Patton, or have his attorney speak with the City
about the offer of reappointment, Plaintiff’s attorney contacted the attorney representing the City
in the Spidle litigation about the offer of reappointment to the Deputy Director position. (Doc. #
23-13 at 11). Neither Mayor Bell nor Patton followed up with Plaintiff about the offer of
reappointment, despite Plaintiff’s request through counsel to discuss the offer. (Doc. # 20-3 at
222-224; Doc. # 23-13 at ¶39-40).
After Plaintiff’s meeting with the Mayor when he was offered the reappointment, two
new Deputy Director positions were created in Public Works, bringing the number of Deputy
Directors to six. Plaintiff did not receive either position. (Doc. # 23-13 at ¶41).
In March 2013, Plaintiff took a week off from work, and on April 11, 2013, he was
overcome by stress and suffered pain in his arm and chest. He was taken by ambulance to UAB
Highlands Hospital. (Doc. # 20-3 at 19-23; Doc. # 23-13 at ¶42).
On April 16, 2013, Hickman conducted a performance evaluation of Plaintiff. This was
the first review of Plaintiff’s performance since 2005. Plaintiff had not received evaluations
because his pay was “topped out” and, therefore, he was no longer eligible for merit raises.
(Doc. # 20-6 at 133 Ex. 14; Doc. # 20-3 at 229-233 and Ex. 10; Doc. # 23-16 at ¶7; Doc. # 20-3
at 232-233; Doc. # 23-13 at ¶43). In this evaluation, Plaintiff was given two needs improvement
ratings because he was responsible for the overtime issues with the carpenters at the Crossplex,
which was a contract violation. Hickman did not perform the evaluation related to the supervisor
responsible for assigning the City Hall electricians’ overtime. (Doc. # 20-6 at 126-128 and Ex.
13, 14; Doc. # 20-3 at 229-233; Doc. # 23-16 at ¶2, 7).
Yates disputed his 2013 evaluation. (Doc. # 20-6 Ex. 13). Under the City’s progressive
discipline policy, he believed he risked further lowered evaluations. (Doc. # 20-3 at 229-230;
Doc. # 23-16 at ¶7). However, he has received no further discipline because of the evaluation.
(Doc. # 20-3 at 232).
In May 2013, Plaintiff was offered a newly created Facilities Manager position at the
Birmingham Museum of Art, which he accepted when the City offered to maintain his salary.
(Doc. # 23-13. at ¶44). At this time, Plaintiff was also given a retroactive pay adjustment for pay
he did not receive because the City did not properly credit him with his two (2) years of service
as a Deputy Director. (Doc. # 20-6 50-51 Ex. 8; Doc. # 23-13 at ¶24).
On or about July 10, 2013, Plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission. (Doc. 1-1 at 2). He attached to his charge a ten page
statement of particulars related to his claims. (Id. at 3-12).
Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The party asking for summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and identifying those portions of the pleadings or
filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477
U.S. at 323. Once the moving party has met its burden, the Rule requires the non-moving party
to go beyond the pleadings and -- by pointing to affidavits, or depositions, answers to
interrogatories, and/or admissions on file -- designate specific facts showing that there is a
genuine issue for trial. See id. at 324.
The substantive law will identify which facts are material and which are irrelevant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts
and all justifiable inferences are resolved in favor of the non-movant. 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, 477 U.S. at 248.
When faced with a “properly supported motion for summary judgment, [the non-moving
party] must come forward with specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson v.
Liberty Lobby, Inc. teaches, Rule 56(c) “does not allow the plaintiff to simply rest on his
allegations made in the complaint; instead, as the party bearing the burden of proof of trial, he
must come forward with at least some evidence to support each element essential to his case at
trial.” Anderson, 477 U.S. at 252. “Mere allegations” made by a plaintiff are insufficient. Id.
Summary judgment is mandated “against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “Summary judgment may be
granted if the non-moving party’s evidence is merely colorable or is not significantly probative.”
Sawyer v. Southwest Airlines Co., 243 F. Supp.2d 1257, 1262 (D.Kan. 2003) (citing Anderson,
477 U.S. at 250-51).
“[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents a
sufficient disagreement to require submission to the jury or whether it is so onesided that one
party must prevail as a matter of law.’” Sawyer, 243 F. Supp.2d at 1262 (quoting Anderson, 477
U.S. at 251-52); see also LaRoche v. Denny’s, Inc., 62 F. Supp.2d 1366, 1371 (S.D. Fla. 1999)
(“The law is clear … that suspicion, perception, opinion, and belief cannot be used to defeat a
motion for summary judgment.”).
Plaintiff’s Complaint asserts three claims: (1) race discrimination under Title VII and
Section 1981, brought through 42 U.S.C. § 1983, asserting a hostile environment claim and a
discriminatory lowered evaluation claim (Doc. # 1 at pp. 33-34); (2) retaliation under Title VII
and Section 1981, brought through 42 U.S.C. § 1983, asserting no specific adverse action (Doc.
# 1 at pp. 35-36); and (3) a claim that Plaintiff’s “demotion” in 2010 was unconstitutional and/or
retaliatory (Doc. # 1 at 36-37).
Where a plaintiff seeks vindication of rights secured by Section 1981 against a state
actor, § 1983 provides the exclusive remedy for obtaining relief. Butts v. Cnty. of Volusia, 222
F.3d 891, 893 (11th Cir. 2000) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 731-32
(1989)). Furthermore, ‘[w]here, as here, a plaintiff’s claims under Title VII are based on the
same set of facts as his claims under § 1983, the analysis under Title VII is identical to the
analysis under § 1983.  Thus, the same elements for discrimination and retaliation under
[Plaintiff’s] Title VII claims apply to [Plaintiff’s] § 1983 claims.” King v. Butts County, 576
Fed. App’x. 923, 931 (11th Cir. 2014) (citing Abel v. Dubberly, 210 F.3d 1334, 1338 & n.3 (11th
Plaintiff’s Hostile Environment Claim
To establish a hostile environment claim, Plaintiff must show that:
(1) he belongs to a protected group; (2) he was subjected to unwelcome
harassment; (3) the harassment was based on his membership in the protected
group; (4) it was severe or pervasive enough to alter the terms and conditions of
employment and create a hostile or abusive working environment; and (5) the
employer is responsible for that environment under a theory of either vicarious or
Of course, for Plaintiff’s Title VII claims, “a plaintiff must file a timely charge of discrimination with the
EEOC within 180 days of the last discriminatory act.” H & R Block E. Enterprises, Inc. v. Morris, 606 F.3d 1285,
1295 (11th Cir. 2010) (internal citation omitted). Plaintiff filed his EEOC Charge on July 10, 2013. (Doc. # 1-1).
Thus, any Title VII claim regarding any discrete employment action occurring before January 2013 is time-barred.
Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012) (quotation marks omitted).
The first and second elements of a hostile environment are not at issue here. In its summary
judgment brief, Defendant focuses on the third and fourth elements.
When a court addresses the third element of a hostile environment claim, a “bedrock
principle [is] that not all objectionable conduct or language amounts to discrimination under
Title VII.” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 809 (11th Cir. 2010) (en
banc). Therefore, only conduct that is “based on” a protected category, such as race, may be
considered in a hostile work environment analysis. See Gupta v. Florida Bd. of Regents, 212
F.3d 571, 584 (11th Cir. 2000), abrogated on other grounds by Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53 (2006). ‘Innocuous statements or conduct, or boorish ones that do not
relate to the [race] of the actor or the offended party (the plaintiff), are not counted.’” Jones, 683
F.3d at 1297 (quoting Gupta, 212 F.3d at 583) (internal citations omitted).
Here, Plaintiff complains of numerous examples of conduct to which he took offense.
However, he has only identified one comment which was in any way related to his race — his
assertion that Trone told Plaintiff that Mayor Bell and Patton did not want to see his “white face”
in City Hall and to use the stairs rather than the elevator while in City Hall. Other purportedly
offensive conduct which is unrelated to race is not “based on his membership in the protected
group.” Jones, 683 F.3d at 1292.
To draw the conclusion that any of the other alleged offensive conduct was based on race
requires reliance on Plaintiff’s rank speculation and conjecture about the intent Plaintiff ascribes
to other people. But “unsubstantiated assertions alone are not enough to withstand a motion
for summary judgment.” Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987); see
also Carter v. Three Springs Residential Treatment, 132 F.3d 635, 642 (11th Cir. 1998)
(conclusory allegations without specific supporting facts have no probative value); Broadway v.
City of Montgomery, Ala., 530 F.2d 657, 660 (5th Cir. 1976) (conclusory statements,
unsubstantiated by facts in the record, will normally be insufficient to defeat a motion
for summary judgment).
Neither Title VII, nor Section 1981, makes the unexplained treatment of someone per se
illegal, nor does either statue make inconsistent or even irrational employment practices illegal.
“The law does not require, nor could it ever realistically require, employers to treat all of their
employees all of the time in all matters with absolute, antiseptic, hindsight equality. What the
law does require is that an employer not discriminate against an employee on the basis of the
employee’s protected class characteristics.” E.E.O.C. v. Flasher Co., Inc., 986 F.2d 1312, 1319
(10th Cir. 1992). Plaintiff has simply failed to show that he was subjected to any conduct other
than one comment (already described) because of his race. Therefore, he has failed to satisfy the
third element of his hostile environment claim.
With regard to the fourth element, Plaintiff must show that the harassment which was
based on his race was so severe or pervasive as to alter the terms and conditions of employment
and create a hostile or abusive working environment. This determination includes both a
subjective and objective component. Jones, 683 F.3d at 1299. “The burden is on [Plaintiff] to
demonstrate that he perceived, and that a reasonable person would perceive, the working
environment to be hostile or abusive.” Id. (emphasis added).
Examining first the objective component, in determining whether a reasonable person
would perceive the working environment as hostile or abusive, the court must look at the totality
of circumstances and consider such matters as “(1) the frequency of the conduct, (2) the severity
of the conduct, (3) whether the conduct is physically threatening or humiliating, or a mere
offensive utterance, and (4) whether the conduct unreasonably interferes with the employee’s job
performance.” Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1250-51 (11th Cir. 2014)
(quoting Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999)) (quotation marks
omitted). Conduct is objectively severe when the workplace is permeated with intimidation,
ridicule, and insult. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276–77 (11th Cir.
2002). Applying those factors here, regardless of Plaintiff’s subjective perception regarding
Trone’s comment that Mayor Bell and Patton did not want to see Plaintiff’s “white face” in City
Hall, that one isolated comment simply does not objectively rise to the level of actionable hostile
Because Plaintiff has failed to establish the third and fourth element of an actionable
hostile environment, that claim fails as a matter of law.
Plaintiff’s Discrimination Claim
Plaintiff’s Complaint is not a model of clarity regarding the claims which are being
asserted by Plaintiff. But the only employment action specified in Count One of the Complaint
is a “lowered performance evaluation.” (Doc. # 1 at p. 33). The court addresses that claim
May 2013 Lowered Performance Evaluation
As an initial matter, under the McDonnell Douglas burden-shifting framework, a plaintiff
must establish a prima facie case of discrimination. Where a plaintiff alleges a discriminatory
employment decision, he may establish a prima facie case by showing that (1) he is a member of
a protected class, (2) he was qualified for his position, (3) he was subject to an adverse
employment action, and (4) his employer treated similarly situated employees outside his
protected class more favorably. Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). “If a
plaintiff fails to show the existence of a similarly situated employee, summary judgment is
appropriate where no other evidence of discrimination is present.” Holifield v. Reno, 115 F.3d
1555, 1562 (11th Cir. 1997).
If the plaintiff establishes a prima facie case of discrimination, “the burden shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for its actions.” Chapter 7 Tr. v.
Gate Gourmet, Inc., 683 F.3d 1249, 1255 (11th Cir. 2012). If the defendant proffers a
nondiscriminatory reason, the burden returns to the plaintiff, who must show that the proffered
reason is pretextual. Id. The plaintiff can demonstrate pretext by exposing “weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions” in the defendant’s reasoning.
Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1348 (11th Cir. 2007).
Plaintiff Did Not Suffer an Actionable Adverse Employment Action
As a threshold matter, Defendant questions whether Plaintiff has identified an actionable
adverse employment action relating to his “lowered performance evaluation.” This is important
because, as the Eleventh Circuit has noted, the definition of adverse employment action in the
context of a retaliation claim is much broader than that applicable to a discrimination claim.
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); Crawford v. Carroll, 529
F.3d 961, 974 (11th Cir. 2008). “An employment action is considered sufficiently ‘adverse’ to
be actionable under federal discrimination statutes ‘only if it results in some tangible, negative
effect on the plaintiff’s employment.’” Andazola v. Logan’s Roadhouse Inc., 871 F.Supp.2d
1186, 1206-7 (N.D. Ala. 2012) (quoting Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1261
(11th Cir. 2001) (addressing an ADA retaliation claim) (emphasis supplied). A retaliation claim
is analyzed differently. In the retaliation context, a materially adverse action “means it well
might have dissuaded a reasonable worker from making or supporting a charge of
discrimination” or “a reasonable employee would have found the challenged action materially
adverse.” Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68; Crawford, 529 F.3d at 974.
Addressing Plaintiff’s discrimination claim, the court notes that the Eleventh Circuit has
held that “memoranda of reprimand or counseling that amount to no more than a mere scolding,
without any following disciplinary action, do not rise to the level of adverse employment actions
sufficient to satisfy the requirements of Title VII.” Davis v. Town of Lake Park, 245 F.3d 1232,
1236 (11th Cir. 2001) (quotation and alteration omitted). The negative evaluation must actually
lead to a material change in the terms or conditions of employment, such as “an evaluation that
directly disentitles an employee to a raise of any significance.” Gillis v. Georgia Dept. of Corr.,
400 F.3d 883, 888 (11th Cir. 2005). Although proof of direct economic consequences is not
required in all cases, “the asserted impact cannot be speculative and must at least have a tangible
adverse effect on the plaintiff’s employment.” Davis, 245 F.3d at 1239.
Plaintiff argues that he believed that the “lowered” performance evaluation was part of
Defendant building a “case” to fire him. However, he has presented no evidence at all to support
his subjective belief. Simply stated, Plaintiff has failed to establish his prima facie case of
discrimination because he has not come forward with substantial evidence showing that the
performance evaluation at issue actually led to any tangible effect on his employment. After all,
Title VII “focuses on the effects of the action on the employee rather than the motivation of the
employer.” Smith v. City of Jackson, 544 U.S. 228, 235-36 (2005).
Inferences based on
speculation and conjecture are not reasonable. Avenue CLO Fund, Ltd. v. Bank of Am., NA, 723
F.3d 1287, 1294 (11th Cir. 2013). Plaintiff’s “lowered” performance evaluation had no tangible
impact on his employment; therefore, it was not an actionable adverse employment action.3
To the extent that Plaintiff asserts that either his 2010 roll back to his former position, or his transfer to
the museum (events mentioned only in Count 1 of Plaintiff’s Complaint), were discriminatory, neither of these
Plaintiff Has Not Identified an Appropriate Comparator
Even if Plaintiff could show that a lowered evaluation was an actionable adverse
employment action (and, to be clear, he cannot), Plaintiff has not presented any evidence (much
less substantial evidence) that the way he was evaluated was due to his race. 4 For example, he
has not identified that he was treated less favorably than a similarly situated employee outside of
his protected category. A proper comparator is an employee outside of the plaintiff’s protected
category who is “similarly situated in all relevant respects.” Holifield, 115 F.3d at 1562; accord
Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1280 (11th Cir. 2008). “In order to be considered
‘similarly situated,’ the compared employees must have been ‘involved in or accused of the same
or similar conduct,’ yet ‘disciplined in different ways’ for that conduct.” Smith v. LockheedMartin Corp., 644 F.3d 1321, 1326 n.17 (11th Cir. 2011) (citing Holifield, 115 F.3d at 1562); see
also Maniccia, 171 F.3d at 1364 (“The most important factors in the disciplinary context are the
nature of the offenses committed and the nature of the punishments imposed.”). The Eleventh
Circuit has interpreted this standard to “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.” Maniccia, 171 F.3d at 1368.
Plaintiff was given a lowered performance evaluation by Hickman because, after a
(white) carpenter complained about other (white) carpenters receiving favorable projects,
decisions are actionable adverse employment actions because even Plaintiff concedes they were voluntary decisions
which he himself made. “A transfer that is found to be ‘purely voluntary’ cannot be considered adverse.” Allen v.
U.S. Postmaster Gen., 158 F. App’x 240, 243 (11th Cir. 2005) (quoting Doe v. Dekalb County School Dist., 145
F.3d 1441, 1454 (11th Cir. 1998)); see also Hammon v. DHL Airways, Inc., 165 F.3d 441, 447–50 (6th Cir.1999)
(An effective resignation does not constitute an adverse action. “Plaintiff failed to establish that he suffered an
adverse employment decision because he voluntarily resigned.”).
Trone’s comment that Bell and Patton did not want to see Plaintiff’s “white face” in City Hall is not
relevant to show that Hickman had a discriminatory intent in conducting his evaluation of Plaintiff. Hickman was
not identified as someone who did not want to see Plaintiff’s “white face.” See Evans v. McClain of Ga. Inc., 131
F.3d 957, 962 (11th Cir. 1997) (holding that stray remarks made by a non-decision maker is not sufficient for
showing discriminatory intent).
Hickman investigated the matter and found the complaint to be justified and to be a violation of
the LIU agreement. Hickman considered this contract violation when evaluating Plaintiff and
giving him two “needs improvement” ratings.
Plaintiff asserts that supervisors responsible for rotating the electricians’ overtime at the
Crossplex did not receive similar lowered performance evaluations. However, those supervisors
were assigned to the Crossplex, not Public Works, and, in any event, Hickman did not perform
their evaluations. (Doc. # 20-6 at 126-128 and Ex. 13 &14; Doc. # 20-3 at 229-233; Doc. # 23-16
at ¶2, 7).
The fact that different supervisors made the disciplinary recommendations “is not
dispositive itself,” but “it does serve to  distinguish their situations.” Moore v. Alabama
Department of Corrections, 137 F. App’x 235, 239 (11th Cir. 2005). The existence of a common
decision maker is a factor a court considers in determining whether a plaintiff and a comparator
were similarly situated. See Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253, 1261 n.5 (11th Cir.
2001) (recognizing that “differences in treatment by different supervisors or decision makers can
seldom be the basis for a viable claim of discrimination”).
At bottom, even if Plaintiff had suffered an actionable adverse employment action (which
he did not), he simply has not shown that there is a similarly situated employee who was treated
differently than him. Because Plaintiff has failed to establish either the third or fourth element of
a disparate treatment claim related to his “lowered” evaluation, that claim fails as a matter of
Plaintiff’s Retaliation Claim
Count Two of Plaintiff’s Complaint asserts a retaliation claim. Interestingly, however,
nowhere in that Count does Plaintiff identify with any particularity any employment decision
that Plaintiff challenges as being retaliatory. As noted above, a Title VII claim based upon
Plaintiff’s July 2013 EEOC charge and directed at any discrete employment action occurring
before January 2013 is time-barred. The longest possible statute of limitations applicable to
Plaintiff’s Section 1981 claims is four years. Baker v. Birmingham Bd. of Educ., 531 F.3d 1336,
1339 (11th Cir. 2008). Plaintiff’s Complaint was filed on March 28, 2014. Therefore, any
employment actions taking place before March 28, 2010 are time-barred.5
To establish a prima facie case of retaliation, a plaintiff must show that: (1) he
participated in a protected activity; (2) he suffered a materially adverse employment action; and
(3) there was a causal connection between the plaintiff’s participation in the protected activity
and the adverse employment action. Goldsmith v. City of Atmore, 996 F.2d 1155, 1162-63 (11th
Cir. 1993) (Title VII, Section 1981); CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457 (2008)
(Section 1981); Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (Section 1983).
As noted above, an “adverse employment action” in the retaliation context does not carry
the restrictive definition that it does in the discrimination setting. Burlington N. & Santa Fe Ry,
548 U.S. at 64. In evaluating a retaliation claim, the test is whether “a reasonable employee
would have found the challenged action materially adverse, which in this context means it well
might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Id. at 68 (quotations omitted). Further, “the significance of any given act of
retaliation will often depend upon the particular circumstances. Context matters.” Id. at 69.
“The anti-retaliation provision [of Title VII] protects an individual not from all retaliation, but
from retaliation that produces an injury or harm.” Id. at 67. The Supreme Court has stated that
“material adversity” is distinguishable from mere “trivial harms.” Id. at 68.
The conversation in which Trone allegedly told Plaintiff that Mayor Bell and Patton did not want to see
his “white face” in City Hall occurred on or about February 12, 2010. (Doc. # 20-7 at 32-33, 39-41; Doc. # 1 ¶ 26,
Doc. # 20-3 at 95-97; Doc. # 20-1 Ex. 4). Plaintiff’s ability to right to enter and approve requisitions was terminated
on February 18, 2010. (Doc. # 20-7 at 23, 63 and Ex. 4; Doc. # 23-23 at ¶5-6, 13-15). Any claim as to these events
is time barred.
Plaintiff’s 2010 Roll Back to His Former Position
Plaintiff turned down reappointment to the Deputy Director position in the summer of
2010. The evidence shows that, although there was some confusion over whether Plaintiff had
submitted his letter requesting reappointment, he was offered reappointment to that position. But
in the end, it was Plaintiff’s decision to roll back to his former position. Plaintiff’s alleged fears
about taking the position are not sufficient to establish a constructive demotion. Courts evaluate
the nature of the allegedly unbearable conditions under an objective standard, and do not take the
“subjective feelings” of the plaintiff into account. Giles v. BellSouth Telecommunications, Inc.,
542 F. App’x 756, 761 (11th Cir. 2013) (citing Doe v. Dekalb Cnty. Sch. Dist., 145 F.3d 1441,
1450 (11th Cir.1998).
Because it is undisputed that the roll back was voluntary, it cannot constitute an
actionable adverse employment decision. “A transfer that is found to be ‘purely voluntary’
cannot be considered adverse.” Allen v. U.S. Postmaster Gen., 158 F. App’x 240, 243 (11th Cir.
2005) (quoting Doe v. Dekalb County School Dist., 145 F.3d 1441, 1454 (11th Cir.1998).
Moreover, the voluntary nature of the decision to roll back necessarily precludes Plaintiff’s
ability to satisfy the causation element of his prima facie case.
Because Plaintiff cannot establish either the second or the third element of his retaliation
claim related to his roll back, that claim fails as a matter of law.
Plaintiff’s 2013 Transfer to the Museum
The analysis applicable to Plaintiff’s 2010 roll back also applies to Plaintiff’s 2013
transfer to the Art Museum.
The move to the Museum does not constitute an adverse
employment decision because Plaintiff voluntarily made the move. Nor does it constitute a
constructive demotion through any objective lens. Plaintiff was called by the Museum Director
and told that the job at the Museum was open if he wanted it. He initially declined and suggested
another employee. Later, however, he asked for the job and requested that the City match his
current pay. The City agreed to do so.
Plaintiff claims the move to the Museum was a constructive demotion because he
supervises fewer people. However, diminished responsibilities and reassignment of staff do not
qualify as a constructive demotion.6 Rawls v. Ala. Dep’t of Human Res., 2012 WL 1319495, at
*8 (M.D. Ala. Apr. 17, 2012), aff’d, 507 F. App’x 895 (11th Cir. 2013).
In any event, Plaintiff voluntarily chose to move to the Museum. He cannot establish that
this move was an adverse decision by Defendant, and he certainly cannot show that it was
motivated by any retaliatory intent. Therefore, Plaintiff cannot establish either the second or
third element of a prima facie case of retaliation, and Defendant is entitled to summary judgment
on Plaintiff’s retaliation claim.
Plaintiff’s Section 1983 Claim
Although the Supreme Court has held that local government entities are “persons” within
the scope of Section 1983, and subject to liability, Plaintiff cannot rely upon the theory of
respondeat superior to hold Defendant liable under Section 1983. See Monell v. Dept. of Soc.
Servs., 436 U.S. 658, 692 (1978) (finding that Section 1983 “cannot be easily read to impose
liability vicariously on governing bodies solely on the basis of the existence of an employeremployee relationship with a tortfeasor”); Pembaur v. Cincinatti, 475 U.S. 469, 479 (1986). “It is
only when the ‘execution of the government’s policy or custom ... inflicts the injury’ that the
municipality may be held liable.” City of Canton v. Harris, 489 U.S. 378, 385 (1989). A city
does not incur Section 1983 liability for alleged injuries caused solely by its employees. Monell,
Although the court does not moor its dismissal of Plaintiff’s 2013 transfer claim on this point, it could be
observed that Plaintiff is doing essentially the same duties as he did in his Facility Manager job, but on a smaller
scale; he is doing less work for more (i.e., the same) money. (Doc. # 20-3 at 43-45).
436 U.S. at 694. Nor does the fact that a plaintiff has suffered a deprivation of federal rights at
the hands of a municipal employee infer municipal culpability and causation. Bd. of County
Com’rs v. Brown, 520 U.S. 397, 403 (1997). Instead, to impose Section 1983 liability on a
municipality, a plaintiff must show: (1) that his constitutional rights were violated; (2) that the
municipality had a custom or policy that constituted deliberate indifference to that constitutional
right; and (3) that the policy or custom caused the violation. See Canton, 489 U.S. at 388.
Count Three of Plaintiff’s Complaint alleges that his “demotion” in 2010 was a
constitutional violation. As discussed above, however, Plaintiff has failed to establish a prima
facie case of discrimination or retaliation with regard to the 2010 roll back to his former position.
Mayor Bell offered Plaintiff reappointment as a Deputy Director, but on June 25, 2010, Plaintiff
sent an official request to roll back into his former position. On July 1, 2010, Patton met with
Plaintiff to discuss his reappointment, but Plaintiff told Patton he was declining the position and
that he requested a rollback to his prior position. Under these facts, even if Plaintiff could show
that the City had a custom or policy that constituted deliberate indifference to that constitutional
right (and, to be sure, he has not made any such showing), he cannot establish that the policy or
custom caused his “demotion.” The demotion was a direct result of Plaintiff’s voluntary election
to roll back to his former position. Therefore, he cannot satisfy the elements of his prima facie
case on his Section 1983 claim and Defendant is entitled to summary judgment on this claim.
Defendant’s Motion to Strike
In his Motion to Strike, Defendant argues that certain information contained in various
affidavits and interrogatory responses filed in opposition to Defendant’s Motion for Summary
Judgement is inadmissible. The court is capable of evaluating what evidence in the summary
judgment record is (1) relevant to the issues before it, (2) based on personal knowledge, and (3)
could be admissible at trial. The Motion is due to be denied.
For the foregoing reasons, the court concludes that there are no genuine issues of material
fact and Defendant is entitled to judgment as a matter of law on all of the claims set forth in
Plaintiff’s Complaint. A separate order will be entered.
DONE and ORDERED this March 3, 2016.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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