Minnifield v. City of Birmingham Department of Police et al

Filing 70

MEMORANDUM OPINION AND ORDER - For the reasons discussed above, the Court DENIES the defendants motion to strike. (Doc. 65). Additionally, the Court GRANTS IN PART and DENIES IN PART the defendants motion for summary judgment. (Doc. 41). The Court strikes Mr. Minnifields demand for punitive damages from the City. Signed by Judge Madeline Hughes Haikala on 3/30/2018. (KEK)

FILED
2018 Mar-30 AM 11:51
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

MONTAGUE MINNIFIELD,
Plaintiff,
v.
CITY OF BIRMINGHAM, et al.,
Defendants.

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Case No.: 2:16-CV-00196-MHH

MEMORANDUM OPINION AND ORDER
Montague Minnifield worked as a police officer for the Birmingham Police
Department. According to Mr. Minnifield, the City of Birmingham and Sergeant
Heath Boackle, the defendants in this case, discriminated against him because he is
African-American, and they retaliated against him for filing multiple internal
grievances and charges of discrimination with the EEOC. Mr. Minnifield brings
Title VII claims of disparate treatment, retaliation, and hostile work environment
against the City. Mr. Minnifield brings § 1983 claims of disparate treatment and
retaliation in violation of § 1981 against the City and Sgt. Boackle in his individual
capacity.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, the defendants
ask the Court to enter judgment in their favor on all of Mr. Minnifield’s claims
against them. (Doc. 41). The defendants also ask the Court to strike all or part of

six affidavits which Mr. Minnifield submitted in response to the motion for
summary judgment. (Doc. 65). For the reasons explained below, the Court denies
the defendants’ motion to strike, and the Court grants in part and denies in part the
defendants’ motion for summary judgment.
I.

SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). To demonstrate that there is a genuine
dispute as to a material fact that precludes summary judgment, a party opposing a
motion for summary judgment must cite “to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ.
P. 56(c)(1)(A). “The court need consider only the cited materials, but it may
consider other materials in the record.”

Fed. R. Civ. P. 56(c)(3).

When

considering a summary judgment motion, the Court must view the evidence in the
record in the light most favorable to the non-moving party and draw reasonable
inferences in favor of the non-moving party. White v. Beltram Edge Tool Supply,
Inc., 789 F.3d 1188, 1191 (11th Cir. 2015). The Court describes the evidence in
the summary judgment record accordingly.
2

II.

FACTUAL BACKGROUND
A.

Mr. Minnifield’s Employment History with the City and his First
Grievances, EEOC Charge, and Lawsuit

Mr. Minnifield started working as a police officer for the Birmingham Police
Department (BPD) in 1997. (Doc. 57-1, p. 11). In 2009, Mr. Minnifield applied
for transfer to the Tactical Unit within BPD. (Doc. 57-1, pp. 12-13). The Tactical
Unit is “comprised of Solo Motorscouts, Mounted Patrol, Freeway Patrol, Hit and
Run, Patrol K-9 Teams, Airport (TSA) K-9 Teams, and Warrant Details.” (Doc.
57-11, p. 1). Because the City denied him a position in the Tactical Unit, Mr.
Minnifield filed a grievance with the Personnel Board of Jefferson County. (Doc.
57-1, p. 13; Doc. 58-13, p. 1).
On October 26, 2009, the City transferred Mr. Minnifield to the Tactical
Unit. (Doc. 57-1, p. 32; Doc. 48, p. 26). As a member of the Tactical Unit, Mr.
Minnifield tried repeatedly to obtain particular assignments within the unit. This
lawsuit pertains to his efforts in 2013, but a brief review of Mr. Minnifield’s
previous efforts helps set the stage for the events in 2013.
In 2009, Mr. Minnifield selected the TSA K-9 Unit as his first choice and
the Motorscout Unit as his second choice for assignment in the Tactical Unit.
(Doc. 57-1, p. 33). The City assigned him to the Freeway Unit instead. (Doc. 571, p. 33). On August 13, 2010, BPD certified that Mr. Minnifield completed a
course in basic police motorscout school, but BPD did not honor the certification.
3

(Doc. 57-1, p. 34; Doc. 58-11). On August 11, 2011, based on his inability to
obtain an assignment in the motorscout section or the K-9 section of the Tactical
Unit, Mr. Minnifield filed a second grievance with the Personnel Board. (Doc. 571, p. 34).
Just before Mr. Minnifield filed his second grievance, the Commander of the
Tactical Unit announced a vacancy in the TSA K-9 Unit. (Doc. 58-13, p. 2). On
December 8, 2011, Sgt. Heath Boackle sent Mr. Minnifield a memo which stated
that BPD placed Mr. Minnifield on a list of eligible candidates and was
considering him for the TSA K-9 position. (Doc. 59-19).1 On December 26, 2011,
the City awarded Officer Larry Phillips, who is white, the TSA K-9 position.
(Doc. 58-12, p. 1).
Mr. Minnifield filed an EEOC charge of race discrimination and retaliation
based on the City’s promotion of Officer Phillips to the TSA K-9 position and the
City’s failure to honor Mr. Minnifield’s motorscout certification. (Doc. 58-12, p.
1). In 2014, after the EEOC sent Mr. Minnifield a right to sue letter, he brought a
lawsuit in which he asserted Title VII and § 1983 claims of racial discrimination
and retaliation against the City. Minnifield v. City of Birmingham, Case No. 2:141

The parties dispute Sgt. Boackle’s race. Sgt. Boackle and Chief A.C. Roper, the Chief
of Police for the City of Birmingham, state that Sgt. Boackle is Arabic-American, and his skin is
brown. (Doc. 58-5, pp. 105-06; Doc. 59-23, p. 154). Mr. Minnifield argues that Sgt. Boackle’s
birth certificate (Doc. 57-5), a police officer applicant summary sheet (Doc. 57-6), an applicant
information form (Doc. 57-14), and a photograph of Sgt. Boackle (Doc. 57-7) demonstrate that
Sgt. Boackle is white. (Doc. 56, p. 5, ¶ 20). Sgt. Boackle contests Mr. Minnifield’s
interpretation of each piece of evidence. (Doc. 66, p. 3, ¶ 20).
4

cv-789-KOB.

The presiding judge entered judgment for the City on Mr.

Minnifield’s § 1983 and Title VII disparate treatment claims and denied summary
judgment on Mr. Minnifield’s Title VII retaliation claim regarding the City’s
failure to give Mr. Minnifield a motorscout position. (Doc. 65-1, pp. 1, 22).
The parties reached a settlement agreement in which Mr. Minnifield released
“[a]ny and all claims which were made or which could have been made in [the
lawsuit].” (Doc. 14-2, p. 3, ¶ 6.a). Pursuant to the settlement agreement, Mr.
Minnifield reserved “the right to pursue claims and/or file suit for any acts and
omissions, and any related consequences and/or damages, for all acts or omissions
not alleged in [the lawsuit].” (Doc. 14-2, p. 1, ¶ 2).
B.

Mr. Minnifield’s Subsequent Efforts to Receive a K-9 Assignment

After Mr. Minnifield lost the available TSA K-9 position to Officer Phillips
in December 2011, Mr. Minnifield pursued another K-9 position. (Doc. 57-1, p.
37). On January 5, 2012, Mr. Minnifield met with Chief Roper and Captain Henry
Irby and complained because he had been waiting two years in the Tactical Unit
for a TSA K-9 position. (Doc. 57-13, p. 1). On January 6, 2012, Mr. Minnifield
met with Captain Richard Davis and Sgt. Boackle. (Doc. 57-13, p. 1). At the
meeting, Capt. Davis and Sgt. Boackle offered Mr. Minnifield a dual purpose K-9,
meaning a dog trained in both apprehension and explosives detection. (Doc. 5713, p. 1). Ordinarily, police dogs are trained either for patrol to apprehend and bite
5

suspects, (Doc. 58-5, p. 126), or for explosives detection, (Doc. 58-5, p. 124). In
theory, the dual purpose K-9 position would provide a 5% pay increase for Mr.
Minnifield because every officer who handles an explosives dog receives a 5%
raise. (Doc. 57-13, p. 1; Doc. 58-5, pp. 143-44).
The dual purpose K-9 position was hypothetical. (Doc. 57-1, pp. 142, 175).
In January 2012, no dog in the K-9 unit could work both patrol and detect
explosives. (Doc. 58-5, p. 126). Though it is possible to train a patrol K-9 to
detect explosives, no dog in the K-9 unit served both purposes under Sgt.
Boackle’s supervision because of liability concerns. (Doc. 58-5, p. 126). BPD did
not post a vacancy announcement for a dual purpose K-9, and Chief Roper did not
approve a dual purpose K-9. (Doc. 57-1, p. 142).
Mr. Minnifield rejected the offer for the dual purpose K-9 because he was
not interested in handling a patrol K-9.

(Doc. 57-13, p. 1). 2

Instead, Mr.

Minnifield wanted the TSA K-9 position the City had promised him but gave to
Larry Phillips. (Doc. 57-1, pp. 142-43; Doc. 57-13, p. 1). Mr. Minnifield felt that
the TSA K-9 was his “rightful position” because he had been waiting two years for
the position.

(Doc. 57-13, p. 1).

Mr. Minnifield asked that BPD give the

hypothetical dual purpose K-9 position to Larry Phillips and give him (Mr.
Minnifield) the TSA K-9 position. (Doc. 57-1, pp. 176-77; Doc. 57-13, p. 1).
2

Sgt. Boackle testified that Mr. Minnifield rejected the offer because Mr. Minnifield did
not want a “biting dog.” (Doc. 58-5, p. 121).
6

Capt. Davis refused Mr. Minnifield’s request and ordered him to report to the K-9
unit’s abbreviated handler’s course on January 9, 2012. (Doc. 57-1, p. 176; 57-13,
p. 1).
In an email sent to Chief Roper on January 8, 2012, Mr. Minnifield
described the meeting with Capt. Davis and Sgt. Boackle:
Hello Chief Roper. This is an update from the meeting I had with
Capt. Richard Davis and Sgt. Heath Boackle on 01/06/2012 at
1200hrs. Capt. Richard Davis stated that this meeting was in
reference to the meeting between you and me on 1/05/2012 at 1130hrs
in the presence of Capt. Henry Irby. In the meeting with Capt.
Richard Davis and Sgt. Heath Boackle I was given two options for a
K-9 position[:] (A) Sgt. Heath Boackle would try to get me into the
same TSA K-9 school with Officer Larry Phillips, but if that fails I
would have to wait on the next TSA school and would also have to
wait on a 6th TSA position to be created whenever the airport does an
expansion at an unknown date or possibly never. (B) To take a dual
purpose dog (Patrol and Bomb capable) with the 5% pay increase for
the bomb distinction and attend a TSA handler class for the TSA
certification, but not actually work the airport. I was also informed
that I would have to attend and pass an abbreviated handler class
conducted by Sgt. Heath Boackle which is not a requirement for the
TSA Handler position. I informed Capt. Richard Davis and Sgt.
Heath Boackle that both options were unacceptable and at the present
time I have no interest in handling a patrol K-9 at this time, and
advised the two that they should assign Officer Larry Phillips the dual
purpose K-9 and allow me to assume my rightful position as a TSA
K-9 Handler which I have awaited assignment to for over 2 years in
the Tactical Swat Unit. Sgt. Heath Boackle stated that you had
informed him that you would attempt to add a 6th TSA slot
immediately by contacting TSA and making the request. At this time
I was given an order by Capt. Richard Davis to report to the K-9 unit
at the range on 01/09/2012, for a change in assignment to the K-9 Unit
to begin the abbreviated K-9 Handler class instructed by Sgt. Heath
Boackle.
7

(Doc. 57-13, p. 1). As it turns out, there was no formal dog training that week.
(Doc. 58-5, p. 112). Instead, Mr. Minnifield trained with the K-9 Unit on at least
two occasions for approximately four hours. (Doc. 58-5, pp. 111-12). After
working with Sgt. Boackle’s K-9 unit for approximately one week, Mr. Minnifield
returned to the freeway unit. (Doc. 57-1, pp. 51, 97).
C.

2012 Patrol K-9 Vacancies

In the fall of 2012, Sgt. Boackle posted to all Tactical Unit members an
announcement of a vacant patrol K-9 position. (Doc. 57-2). The announcement
stated that eligible candidates must be assigned to the Tactical Unit. (Doc. 57-2).
The announcement did not state that eligible candidates must train with the K-9
unit. (Doc. 57-2). Mr. Minnifield applied for the position. (Doc. 57-1, p. 156;
Doc. 58-5, p. 152). Sgt. Boackle left the position vacant through the end of 2012.
(Doc. 58-5, p. 175).
In February 2013, Lieutenant James Blanton, the commander of the Tactical
Unit, posted to all commands an announcement of vacancies within the Tactical
Unit. (Doc. 57-9, p. 1). The announcement included TSA K-9 and Patrol K-9
positions. (Doc. 57-9, p. 1). The announcement stated that eligible candidates
“[m]ust be able to complete the Tactical Unit’s physical assessment . . .” and
“[m]ust be able to successfully pass the Birmingham Tactical Unit’s Basic SWAT
school.” (Doc. 57-9, p. 1). In March 2013, Lt. Blanton posted to all commands a
8

nearly identical announcement of vacancies that listed the same eligibility criteria.
(Doc. 57-10, p. 1).3
At some point before March 1, 2013, Sgt. Boackle sent a memo to Chief
Roper in which he recommended Officers Justin Rosomme, Charles Hayes, Terry
Davis, Jonathan Evans, and Metz Davis, all of whom are white, for patrol K-9
positions. (Doc. 57-22, p. 2; Doc. 58-5 pp. 193-94).4 In June or July 2013, Chief
Roper, who made the ultimate hiring decisions for BPD, selected Officers Charles
Hayes, Justin Rosomme, and Metz Davis for the available patrol K-9 position.
(Doc. 50, p. 4). None of the three officers passed a Birmingham SWAT school.
(Doc. 57-25, p. 10; Doc. 58-1, p. 20; Doc. 58-2, p. 31). None of the three officers
passed the Tactical Unit’s physical assessment. (Doc. 57-25, p. 10; Doc. 58-1, p.
20; Doc. 58-2, p. 28). 5

3

Sgt. Boackle testified that he was not aware of either 2013 vacancy announcement.
(Doc. 58-5, p. 182).
4

In the memo, Sgt. Boackle stated that the five officers he recommended “continuously
showed up for training over the past six months.” (Doc. 57-22, p. 2). The memo passed up
through the chain of command before Chief Roper filled any positions. (Doc. 58-5, p. 250).
Each officer in the chain of command is African-American. (Doc. 58-5, pp. 250-51).
5

In 2012 and 2013, the K-9 unit was under the umbrella of the Tactical Unit. (Doc. 43,
p. 4, ¶ 9; Doc. 56, p. 24, ¶ 138; (Doc. 58-5, pp. 79, 82). R&R 117-33, one of the Rules &
Regulations that the Chief of Police issues for the BPD, states that the Tactical Unit is comprised
of seven different units, including Patrol K-9 Teams and Airport (TSA) K-9 Teams. (Doc. 57-3,
p. 1, ¶ I; Doc. 59-23, p. 31). According to R&R 117-33, all Tactical Unit officers must have
three years of service with BPD, successfully complete the Tactical Unit’s physical assessment,
and pass a Birmingham Police SWAT school. (Doc. 57-3, p. 1, ¶¶ A.1 & 3). Mr. Minnifield
contends that because the City placed the K-9 unit within the Tactical Unit, officers in the K-9
unit had to comply with the Tactical Unit rules. (Doc. 57-1, pp. 115-16, 153; Doc. 59-13, pp. 129

D.

Mr. Minnifield’s EEOC Charge Regarding the 2013 Patrol K-9
Position

On December 19, 2013, Mr. Minnifield filed a charge of discrimination with
the EEOC. (Doc. 15-1, p. 2). In this charge, Mr. Minnifield alleged that the City
discriminated against him based on his race by failing to promote him to a patrol
K-9 position and by promoting three white males to patrol K-9 positions. (Doc.
15-1, p. 3). In addition, Mr. Minnifield alleged that the City failed to promote him
to a patrol K-9 position in retaliation for his previously filed grievances, EEOC
charges, and “federal complaints for race discrimination and retaliation.” (Doc.
15-1, p. 3).
E.

The 2015 TSA K-9 Position

While his EEOC charge was pending, in January 2014, Mr. Minnifield
suffered injuries from a motorcycle accident.

(Doc. 57-1, p. 20).

After the

accident, Mr. Minnifield could not work as a motorscout or “go out in the field.”
(Doc. 57-1, p. 21). The City placed Mr. Minnifield on limited duty because he
could perform only administrative functions as a desk officer. (Doc. 57-1, p. 21).
Mr. Minnifield remained disabled until he retired from BPD on July 9, 2015.
14). Therefore, to become a member of the K-9 unit, an officer had to complete the Tactical
Unit’s physical assessment and pass a Birmingham SWAT school. (Doc. 57-1, p. 116; Doc. 573, p. 1, ¶¶ A.1 & 3; Doc. 58-3, pp. 14-15; Doc. 58-23, pp. 18, 40). The defendants argue that
under the K-9 Unit’s own rules and regulations, K-9 handlers did not have to pass the Tactical
Unit’s physical assessment or SWAT school. (Doc. 43, pp. 4-6, ¶¶ 12-15; Doc. 50, p. 14; Doc.
58-5, p. 273; Doc. 59-23, pp. 134-35, 139).

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(Doc. 57-1, p. 22).
On January 12, 2015, the K-9 unit separated from the Tactical Unit. (Doc.
57-1, p. 148; Doc. 58-5, pp. 78, 208). In April 2015, Sgt. Boackle selected Officer
Larry McGhee, who is white, for a vacant TSA K-9 position. (Doc. 57-1, p. 139;
Doc. 58-5, pp. 206-07). No vacancy announcement for a 2015 TSA K-9 position
appears on the record, though Sgt. Boackle posted a vacancy announcement for a
separate patrol K-9 position in 2015. (Doc. 48, p. 107).6
F.

Mr. Minnifield’s Present Lawsuit

On November 4, 2015, following his retirement, the EEOC sent Mr.
Minnifield a right to sue letter regarding his 2013 charge. (Doc. 15-2, p. 2). Mr.
Minnifield filed this lawsuit on February 2, 2016. (Doc. 1). Mr. Minnifield
amended his complaint on June 3, 2016. (Doc. 15). He asserts claims related to
both the 2013 K-9 openings and the 2015 TSA K-9 opening. Following discovery,
the defendants filed their motion for summary judgment.

(Doc. 41).

Mr.

Minnifield filed his brief in opposition to the motion for summary judgment. (Doc.
56). The defendants filed a motion to strike exhibits attached to Mr. Minnifield’s
opposition brief (Doc. 65). The defendants’ motion for summary judgment and
their motion to strike are ripe for disposition.

6

Sgt. Boackle testified that he selected Officer McGhee because Officer McGhee had
served as a K-9 handler for 12 or 13 years, and his patrol dog had to retire. (Doc. 58-5, pp. 20607).
11

III.

ANALYSIS
A.

The Defendants’ Motion to Strike

The defendants ask the Court to strike all or part of six affidavits which Mr.
Minnifield submitted in support of his opposition to the defendants’ motion for
summary judgment. (Doc. 65, p. 1). The defendants should have raised their
objections in their reply brief. 7 The Court construes the defendants’ motion to
strike as an objection under Rule 56(c)(2). See Taylor v. City of Gadsden, 958 F.
Supp. 2d 1287, 1291 (N.D. Ala. 2013), aff’d, 767 F.3d 1124 (11th Cir. 2014)
(treating motion to strike as an objection).
Objections under Rule 56(c)(2) function like trial objections adjusted for the
pretrial setting, and “[t]he burden is on the proponent to show that the material is
admissible as presented or to explain the admissible form that is anticipated.” Fed.
R. Civ. P. 56(c)(2) advisory committee’s note (2010 amendments). Rule 56(c)(2)
enables a party to submit evidence that ultimately will be admissible at trial in an
inadmissible form at the summary judgment stage. Under the Rule, a district court
7

Effective December 1, 2010, motions to strike summary judgment evidence no longer
are appropriate. See Fed. R. Civ. P. 56(c)(2) advisory committee’s note (2010 amendments)
(“There is no need to make a separate motion to strike.”); Campbell v. Shinseki, 546 Fed. Appx.
874, 879 (11th Cir. 2013) (“The plain meaning of [amended Rule 56(c)(2)] show[s] that
objecting to the admissibility of evidence supporting a summary judgment motion is now a part
of summary judgment procedure, rather than a separate motion to be handled preliminarily . . .
.”). Pursuant to Federal Rule of Civil Procedure 56(c)(2), at the summary judgment stage, “[a]
party may object that the material cited to support or dispute a fact cannot be presented in a form
that would be admissible in evidence.” Accordingly, objections to evidence supporting or
opposing a motion for summary judgment should be made in the objecting party’s responsive
brief.
12

may for example “consider a hearsay statement in passing on a motion for
summary judgment if the statement could be reduced to admissible evidence at
trial or reduced to admissible form.” Jones v. UPS Ground Freight, 683 F.3d
1283, 1293-94 (11th Cir. 2012) (quoting Macuba v. Deboer, 193 F.3d 1316, 1322
(11th Cir. 1999)).

A district court has broad discretion to determine at the

summary judgment stage what evidence it will consider pursuant to Rule 56(c)(2).
See Green v. City of Northport, 2014 WL 1338106, at *1 (N.D. Ala. March 31,
2014).
1.

Affidavits of Ron Jennings and Alex Thomas (Doc. 58-9)

The defendants object to the identical affidavits of Officers Ron Jennings
(Doc. 58-9, p. 1) and Alex Thomas (Doc. 58-9, p. 2) on the grounds that the
affidavits are inadmissible hearsay and irrelevant. (Doc. 65, p. 4, ¶ 3). In the
affidavits, Officer Jennings and Officer Thomas state that on November 21, 2011,
they heard Chief Roper tell Mr. Minnifield that he should have a TSA K-9 position
when the position is open if “they” told him he could have it. (Doc. 58-9, pp. 1-2).
Mr. Minnifield may avoid a hearsay objection at trial by calling Officer
Jennings, Officer Thomas, or Chief Roper as witnesses. Moreover, the statements
from Chief Roper may be admissible at trial as an opposing party’s statements or
on cross-examination as prior statements.

See Fed. R. Evid. 801(d).

The

statements could demonstrate Mr. Minnifield’s standing to receive a position in the
13

K-9 Unit relative to other candidates and could thus make a material “fact more or
less probable than it would be without the evidence . . . .” Fed. R. Evid. 401.
Therefore, the Court overrules the defendants’ objections to the affidavits of Ron
Jennings and Alex Thomas.
2.

Affidavit of James Lyons (Doc. 58-18)

Next, the defendants object to the affidavit of Officer James Lyons (Doc. 5818) on the grounds that statements in the affidavit are inadmissible hearsay,
irrelevant, and pertain to a previous lawsuit. (Doc. 65, pp. 4-7, ¶¶ 1-14). In the
affidavit, Officer Lyons states that he heard supervisors discuss Mr. Minnifield’s
potential assignment to the K-9 Unit, how they needed to control the amount of
grievances filed, and the administrative standing of the K-9 Unit. (Doc. 58-18, pp.
1-3, ¶¶ 3-6, 9-14). Officer Lyons states that he heard Officer Metz Davis discuss
his inability to pass SWAT school. (Doc. 58-18, p. 3, ¶ 15). Officer Lyons states
that he heard Officer Laquinte Louis discuss training with the K-9 Unit. (Doc. 5818, pp. 3-4, ¶ 16).
Mr. Minnifield may avoid a hearsay objection at trial by calling Officer
Lyons, Officer Davis, Officer Louis, or any of the supervisors mentioned in Officer
Lyons’s affidavit as witnesses. Moreover, the statements made by the supervisors
may be admissible at trial as an opposing party’s statements or on crossexamination as prior statements. See Fed. R. Evid. 801(d). While Officer Lyons’s
14

affidavit could have constituted evidence in Mr. Minnifield’s prior lawsuit, the
affidavit could provide background information about the supervisors’ knowledge
of Mr. Minnifield’s grievances, a material issue. Officer Davis’s and Officer
Louis’s statements are relevant to their qualifications, a material issue. Therefore,
the Court overrules the defendants’ objections to the affidavit of James Lyons.
3.

Affidavit of Ronald Jennings (Doc. 58-19)

Next, the defendants argue that paragraphs 3, 5, 6, 11, 12, and 13 of Officer
Ronald Jennings’s affidavit (Doc. 58-19) are identical to paragraphs in James
Lyons’s affidavit (Doc. 58-18) and should thus be stricken. (Doc. 65, p. 7, ¶ 1).
Because the Court overruled the defendants’ objections to James Lyons’s affidavit,
the Court overrules the defendants’ objections to the same paragraphs in Officer
Jennings’s affidavit.
The defendants argue that the remaining statements in Officer Jennings’s
affidavit are irrelevant and inadmissible hearsay. (Doc. 65, pp. 7-8, ¶¶ 2-4). In his
affidavit, Officer Jennings states that he heard Sgt. John Callahan ask for Mr.
Minnifield’s location and thereafter swapped positions with Mr. Minnifield. (Doc.
58-19, p. 1, ¶ 4). Officer Jennings states that he heard Deputy Chief Moody Duff
tell Mr. Minnifield that no movement would take place on the motorscout position
because of Mr. Minnifield’s grievances. (Doc. 58-19, p. 2, ¶ 7). Officer Jennings
states that he heard Lt. James Blanton say that he would control the amount of
15

grievances filed. (Doc. 58-19, p. 2, ¶ 10). Mr. Minnifield may avoid a hearsay
objection at trial by calling Ronald Jennings, Deputy Chief Duff, or Lt. Blanton as
witnesses. Moreover, the statements made by the supervisors may be admissible at
trial as an opposing party’s statements or on cross-examination as prior statements.
See Fed. R. Evid. 801(d). The statements are relevant to Mr. Minnifield’s standing
in the Tactical Unit and his supervisors’ knowledge of his grievances. Therefore,
the Court overrules the defendants’ objections to the affidavit of Ronald Jennings.
4.

The Affidavits of Kimball Karmondi and Timothy Edwards
(Doc. 58-20; Doc. 58-21)

Finally, the defendants object to the affidavits of Officers Kimball Karmondi
(Doc. 58-20) and Timothy Edwards (Doc. 58-21) on the grounds that the affidavits
are inadmissible hearsay and irrelevant. (Doc. 65, pp. 8-10). The statements in
both affidavits are either identical to or describe the same events as the other
affidavits. Because the Court overruled the defendants’ objections to the other
affidavits, the Court overrules the defendants’ objections to the affidavits of
Kimball Karmondi and Timothy Edwards.
Based on the foregoing reasons, the Court denies the defendants’ motion to
strike.
B.

The Defendants’ Timeliness Arguments

The defendants argue that the Court should enter judgment in their favor on
Mr. Minnifield’s Title VII claims related to the 2015 TSA K-9 position against the
16

City because Mr. Minnifield did not timely bring those claims. (Doc. 43, pp. 2122). Before bringing suit under Title VII, a plaintiff must file a charge with the
EEOC “within one hundred and eighty days after the alleged unlawful employment
practice occurred.” 42 U.S.C. § 2000e-5(e)(1). Mr. Minnifield filed a charge of
discrimination with the EEOC within 180 days after the City denied him a 2013
patrol K-9 position. (Doc. 15-1, p. 2). He did not file a charge with the EEOC
following any other alleged discriminatory practice.
Mr. Minnifield’s Title VII claim for race discrimination against the City
rests on Mr. Minnifield’s allegations that the City failed to promote him to a patrol
K-9 position in 2013, promoted three unqualified white officers to patrol K-9
positions, and disciplined him for conduct that white officers engaged in without
consequences. (Doc. 15, p. 8). Mr. Minnifield did not assert in his EEOC charge
that the City improperly disciplined him. Therefore, the Court will not consider
Mr. Minnifield’s Title VII claim concerning disparate discipline. The remainder of
Mr. Minnifield’s Title VII disparate treatment claim against the City is timely. 8
So are Mr. Minnifield’s § 1983 claims against the City and Sgt. Boackle. In
Count V, Mr. Minnifield brings a § 1983 claim against the City and Sgt. Boackle

8

To the extent that Mr. Minnifield attempts to assert a Title VII race discrimination claim
against the City concerning the 2015 TSA K-9 position, his claim is untimely.
17

in his individual capacity. (Doc. 15, p. 11, ¶ 70).9 In Count II, Mr. Minnifield
asserts a § 1981 disparate treatment claim against the City and Sgt. Boackle. (Doc.
15, p. 12, ¶ 72). “Section 1981 does not provide a cause of action against state
actors; instead, claims against state actors or allegations of § 1981 violations must
be brought pursuant to § 1983.” Baker v. Birmingham Bd. of Educ., 531 F.3d
1336, 1337 (11th Cir. 2008) (citing Butts v. Cty. Of Volusia, 222 F.3d 891, 892-94
(11th Cir. 2000)). Therefore, the Court construes Count II and Count V of Mr.
Minnifield’s amended complaint as § 1983 claims for disparate treatment in
violation of § 1981 against the City and Sgt. Boackle in his individual capacity.
The four-year “catch-all” statute of limitations in 28 U.S.C. § 1658 applies
to a § 1981 disparate treatment claim brought pursuant to § 1983. See Baker, 531
F.3d at 1338-39. Each discrete act of disparate treatment alleged in this case
occurred within four years before Mr. Minnifield filed this lawsuit. Therefore, Mr.
Minnifield’s § 1983 claims for disparate treatment in violation of § 1981 are
timely.
Mr. Minnifield’s Title VII retaliation claim against the City is not timely to
the extent the claim is based on events following the failure to promote Mr.
9

Mr. Minnifield brings a § 1983 claim against Sgt. Boackle in his official capacity as
well, but Mr. Minnifield “agrees the claim against [Sgt.] Boackle in his official capacity is
basically a claim against the City. However, the claim against [Sgt.] Boackle individually is due
to remain.” (Doc. 56, p. 48). A § 1983 claim brought against a city officer in his official
capacity is redundant when the city also is named as a defendant. See Busby v. City of Orlando,
931 F.2d 764, 776 (11th Cir. 1991). Accordingly, the Court will enter judgment in favor of Sgt.
Boackle on Mr. Minnifield’s § 1983 claims against Sgt. Boackle in his official capacity.
18

Minnifield to a 2013 patrol K-9 position because Mr. Minnifield did not amend or
file a new charge with the EEOC after 2013. (Doc. 15, pp. 9-10).
In Count III of his amended complaint, Mr. Minnifield brings a § 1981
retaliation claim against the City based on the same facts as his Title VII retaliation
claim. (Doc. 15, pp. 9-10). Like Mr. Minnifield’s § 1981 disparate treatment
claim, the Court construes Mr. Minnifield’s § 1981 retaliation claim as a claim
brought pursuant to § 1983 against the City and Sgt. Boackle in his individual
capacity. A four-year statute of limitations applies to a § 1981 retaliation claim
brought pursuant to § 1983. See Baker, 531 F.3d at 1338-39. Each discrete act of
retaliation that Mr. Minnifield alleges in this case occurred within four years before
Mr. Minnifield filed this lawsuit. Therefore, Mr. Minnifield’s § 1983 claims for
retaliation in violation of § 1981 are timely.
In Count IV of his amended complaint, Mr. Minnifield alleges that the City
created a hostile work environment in violation of Title VII when the City denied
him a TSA K-9 position, failed to post the TSA K-9 position, reposted the patrol
K-9 position, unlawfully disciplined him after his complaints, chose not to send K9 officers to calls in which he was involved, and covered up records in efforts to
defend against Mr. Minnifield’s claims. (Doc. 10, p. 10, ¶ 66). Although these
events allegedly occurred after Mr. Minnifield filed his 2013 EEOC charge, the
City’s failure to promote Mr. Minnifield to a patrol K-9 position as alleged in his
19

2013 EEOC charge forms part of the alleged hostile work environment. (Doc. 15,
p. 10, ¶ 66; Doc. 15-1, pp. 3-4). For a Title VII hostile work environment claim to
be timely, “the employee need only file a charge within 180 or 300 days of any act
that is part of the hostile work environment.” Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 118 (2002). Therefore, Mr. Minnifield’s Title VII hostile
work environment claim is timely.
C.

Punitive Damages

The defendants ask the Court to eliminate Mr. Minnifield’s claims for
punitive damages against the City. (Doc. 15, p. 14, ¶ 1; Doc. 43, pp. 52-53). Mr.
Minnifield concedes the point. (Doc. 56, p. 52); see also Ala. Code § 6-11-26
(1975) (“Punitive damages may not be awarded against the State of Alabama or
any county or municipality thereof . . . .”). Therefore, the Court strikes from Mr.
Minnifield’s amended complaint his demand for punitive damages from the City.
The defendants have not asked the Court to strike Mr. Minnifield’s demand
for punitive damages as it pertains to his § 1983 claims against Sgt. Boackle in Sgt.
Boackle’s individual capacity. A jury may assess punitive damages in a § 1983
action when the plaintiff proves that the defendant’s conduct was “motivated by
evil motive or intent, or when [the defendant’s conduct] involves reckless or
callous indifference to the federally protected rights of others.” Smith v. Wade,
461 U.S. 30, 51 (1983). Accordingly, the Court’s order with respect to punitive
20

damages applies only to Mr. Minnifield’s demand against the City.
D.

Title VII Disparate Treatment Claim Against the City

The City asks the Court to enter judgment in its favor on Mr. Minnifield’s
disparate treatment claims against it. When, as here, there is no direct or statistical
evidence of discrimination, a plaintiff may identify circumstantial evidence to
overcome summary judgment. A plaintiff may use the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) to establish a disparate
treatment claim. Under McDonnell Douglas, a plaintiff first must establish a prima
facie case by presenting evidence that (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 treated less favorably than a similarly-situated individual outside of
his protected class. Maynard v. Bd. of Regents of Div. of Fla. Dept. of Educ., 342
F.3d 1281, 1289 (11th Cir. 2003) (citing McDonnell Douglas, 411 U.S. at 802).
“The successful assertion of a prima facie case then creates a rebuttable
presumption that the employer unlawfully discriminated against the plaintiff.”
Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1275 (11th Cir. 2008) (internal
quotation marks and citations omitted).
If the plaintiff establishes a prima facie case, then the burden shifts to the
employer to produce evidence of a legitimate, non-discriminatory reason for the
21

challenged action. Rioux, 520 F.3d at 1275. The employer’s burden is very light.
Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 769 (11th Cir. 2005).
If the employer satisfies its burden, then the burden shifts back to the
plaintiff to prove that the employer’s “proffered reason really is a pretext for
unlawful discrimination.” Rioux, 520 F.3d at 1275 (internal quotation marks and
citations omitted). “A plaintiff can do so directly, by persuading the court that a
discriminatory reason more likely than not motivated the employer, or indirectly,
by showing ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of credence.’” Paschal v. United
Parcel Serv., 573 Fed. Appx. 823, 825 (11th Cir. 2014) (quoting Alvarez v. Royal
Atl. Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010)).
As the Eleventh Circuit has explained, the McDonnell Douglas framework is
not “the only way to use circumstantial evidence to survive a motion for summary
judgment.” Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1255 (11th
Cir. 2012). “If a plaintiff ‘presents circumstantial evidence that creates a triable
issue concerning the employer’s discriminatory intent,’ she ‘will always survive
summary judgment.’” Id. (quoting Smith v. Lockheed-Martin, 644 F.3d 1321,
1328 (11th Cir. 2011)). A convincing mosaic of circumstantial evidence may be
sufficient to allow a jury to infer that discriminatory intent motivated an
22

employment decision. Lockheed-Martin Corp., 644 F.3d at 1328.
1.

Mr. Minnifield’s Prima Facie Case

As an African-American, Mr. Minnifield is a member of a protected class.
See 42 U.S.C. 2000e-2(a).

The City challenges Mr. Minnifield’s ability to

establish the other three elements of his prima facie case.
Because Mr. Minnifield is asserting a discrimination claim based on a failure
to promote, he must establish that he applied for and was qualified for the position
at issue. See Kidd v. Mando American Corp., 731 F.3d 1196, 1204 (11th Cir.
2013) (citing Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1174 (11th Cir.
2010)). The parties do not dispute that Mr. Minnifield applied for a patrol K-9
position in 2013. (Doc. 57-1, p. 156; Doc. 57-19, p. 2; Doc. 58-5, pp. 152, 158;
Doc. 59-20).
The parties offer different descriptions of the qualifications for the patrol K9 position. Mr. Minnifield argues that pursuant to R&R 117-33, the 2012 vacancy
announcement, and the two 2013 vacancy announcements, an eligible candidate
for the K-9 unit had to pass the Tactical Unit’s minimum standards, which
included a physical assessment, and a Birmingham SWAT school. (Doc. 56, p. 35;
see Doc. 57-2, p. 1; Doc. 57-3, p. 1; Doc. 57-9, p. 1; Doc. 57-10, p. 1). The
defendants disagree and argue that pursuant to R&R 117-42 and Sgt. Boackle’s
and Chief Roper’s testimony, an eligible candidate had to voluntarily train with the
23

K-9 unit. (Doc. 43, p. 5, ¶¶ 14-15, p. 8, ¶ 25; see Doc. 50, p. 23; Doc. 58-5, pp.
219-21, 242-46; Doc. 59-23, pp. 134-35).
Either way, viewed in the light most favorable to Mr. Minnifield, the
evidence indicates that he was qualified for the K-9 Unit. In fact, under Mr.
Minnifield’s version of the qualifications, he was the only qualified applicant. (See
Doc. 58-11; Doc. 59-14). Under the defendants’ version, Mr. Minnifield was at
least minimally qualified because he voluntarily trained with the K-9 Unit on at
least two occasions.

(See Doc. 58-5, p. 112).

The defendants have not

demonstrated that an eligible candidate had to voluntarily train for more hours than
Mr. Minnifield trained. Moreover, Sgt. Boackle represented that Mr. Minnifield
was qualified for the K-9 unit in 2011. (Doc. 58-24, pp. 1-2). Accordingly, the
City has not established as a matter of law that Mr. Minnifield was not qualified to
be a K-9 handler.
The City also has not established as a matter of law that Mr. Minnifield did
not suffer an adverse employment action.

“‘An adverse employment action is

an ultimate employment decision, such as discharge or failure to hire, or other
conduct that alters the employee’s compensation, terms, conditions, or privileges
of employment, deprives him or her of employment opportunities, or adversely
affects his or her status as an employee.’” Van Voorhis v. Hillsborough Cnty. Bd.
of Cnty. Comm’rs, 512 F.3d 1296, 1300 (11th Cir. 2008) (quoting Gupta v.
24

Florida. Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000)) (internal quotation
marks omitted). The employment action “must be materially adverse as viewed by
a reasonable person in the circumstances.” Trask v. Sec’y, Dep’t of Veterans
Affairs, 822 F.3d 1179, 1195 (11th Cir. 2016) (internal quotation marks omitted).
“Evidence of ‘direct economic consequences’ is not always required” to establish
an adverse employment action. Grimsley v. Marshalls of MA, Inc., 284 Fed. Appx.
604, 608 (11th Cir. 2008) (quoting Davis v. Town of Lake Park, 245 F.3d 1232,
1239 (11th Cir. 2001)).
The City’s failure to promote Mr. Minnifield to the K-9 unit had an adverse
effect on Mr. Minnifield’s status as an employee and deprived Mr. Minnifield of
employment opportunities. Sgt. Boackle stated that the duties of a K-9 handler
differ substantially from those of a motorscout. (See Doc. 57-22, p. 1; Doc. 58-5,
pp. 126, 143). A K-9 handler works with a dog that apprehends and bites suspects
or searches for explosives. (Doc. 58-5, p. 126). A motorscout rides a motorcycle
and performs patrol duties for funeral processions, parades, traffic accidents, and
other activities. (Doc. 57-1, p. 19; Doc. 58-5, p. 252).
A K-9 handler position seems to be exclusive, prestigious, and competitive.
In a memo sent to Chief Roper in 2013, Sgt. Boackle stated that because the K-9
unit had only four K-9 handlers, he could assign only one K-9 handler to each

25

precinct. (Doc. 57-22, p. 1).10 Sgt. Boackle stated that the K-9 unit “[i]ntels
building/residence searches, [tracks] fleeing felons,” and “is used to assist Patrol
and Detective Bureau with high crime areas in hopes to detour or apprehend part 1
offenders.” (Doc. 57-22, p. 1). Sgt. Boackle testified that handling a K-9 is “the
most liab[le] thing a police department especially here in Birmingham, Alabama
has to offer.” (Doc. 58-5, p. 129).
The City argues that failing to promote Mr. Minnifield was not adverse
because the patrol K-9 position did not come with a 5% increase in pay. (Doc. 66,
p. 17; see Doc. 57-1, pp. 60-61). Be that as it may, the City denied Mr. Minnifield
the opportunity to work in an exclusive position that rarely posted vacancies. (See
Doc. 58-5, pp. 206-07; Doc. 48, p. 107). Viewing the evidence in the light most
favorable to Mr. Minnifield, the K-9 position was a coveted promotion in all
respects except for salary. Mr. Minnifield has presented disputed evidence from
which jurors could determine that he suffered an adverse employment action when
the City failed to promote him to a K-9 position.
Finally, to establish his prima facie case of racial discrimination, Mr.
Minnifield must show that the City treated him less favorably than similarly10

Apparently one of the four K-9 handlers was African-American. Sgt. Boackle testified
that Terrence McKee, an African-American officer, became a K-9 handler before Sgt. Boackle
came to the K-9 Unit and that Officer McKee was still in the K-9 Unit as of 2015. (Doc. 58-5,
pp. 83, 228-29). Sgt. Boackle also testified that Gregory Porter, an African-American officer,
worked as a K-9 handler, but Sgt. Boackle did not know when Officer Porter arrived at or left the
K-9 Unit. (Doc. 58-5, pp. 82-83).
26

situated non-minority employees. In the context of his failure to promote claim,
Mr. Minnifield may satisfy this burden by showing “that other equally or less
qualified employees who were not members of the protected class were promoted.”
Combs v. Plantation Patterns, 106 F.3d 1519, 1539 n.11 (11th Cir. 1997).
The City promoted three white officers to the K-9 unit in 2013, none of
whom passed the Tactical Unit’s minimum standards. (Doc. 58-5, pp. 193-94,
245). Viewing the evidence in the light most favorable to Mr. Minnifiled, those
Caucasian officers were not qualified to handle dogs because they could not pass
the necessary physical, and they did not attend SWAT school. The City disputes
Mr. Minnifield’s characterization of the qualifications for a K-9 handler; a jury
must resolve the dispute.
Therefore, Mr. Minnifield has established a prima facie claim against the
City for discriminatory failure to promote in 2013.
2.

The City’s Proffered Legitimate Non-Discriminatory Reason

The defendants contend that Sgt. Boackle did not recommend Mr.
Minnifield for one of the 2013 patrol K-9 positions because Mr. Minnifield
rejected an offer for a dual purpose K-9 that would have been trained to apprehend
and bite suspects. (Doc. 43, p. 10, ¶ 36, pp. 36-37; see Doc. 50, pp. 4-5). In
addition, Sgt. Boackle explained that he recommended the three white officers over
Mr. Minnfield because Mr. Minnifield was not qualified for the position, and the
27

other officers voluntarily trained with the K-9 Unit more than Mr. Minnifield.
(Doc. 50, pp. 4-5; see Doc. 43, p. 43). Finally, Sgt. Boackle points out that he
preferred Laquinte Louis and Dennis Gibson, two African-American officers, for
the patrol K-9 position, so that race was not a factor in his evaluations. (Doc. 58-5,
pp. 247-48). The City may rely on this evidence to satisfy its exceedingly low
burden.
3.

Mr. Minnifield’s Evidence of Pretext

Mr. Minnifield argues that the City’s proffered reasons for selecting the
three white officers are pretext for the City’s actual discriminatory intent. (Doc.
56, p. 38). Mr. Minnifield contends that the offer for the dual purpose K-9 was
illusory, that the three white officers selected for the Patrol K-9 position were not
qualified, and that voluntarily training with the dogs was not a requirement for the
K-9 unit.

(Doc. 56, pp. 38-41).

Moreover, Mr. Minnifield argues that Sgt.

Boackle did not offer the patrol K-9 position to an African-American officer.
(Doc. 56, p. 41).
Mr. Minnifield has presented evidence that indicates that the offer for the
dual purpose K-9 was not as the defendants portray it. Sgt. Boackle admitted that
the City did not have a dog trained in both apprehension and explosives detection.
(Doc. 58-5, p. 120). Sgt. Boackle only “assumed” that the authority had been
obtained to train a dual purpose dog, and he had refused to have dogs trained for
28

both patrol and explosives detection on his watch because of liability concerns.
(Doc. 58-5, pp. 131-32). With respect to the fictitious dual purpose dog, although
Mr. Minnifield may have stated with respect to that dog in January 2012 that he
did not want a biting dog, he ultimately indicated that he wanted a patrol dog, i.e. a
biting dog, by applying for one in September 2012. Accordingly, Mr. Minnifield
has established a genuine issue of material fact concerning pretext.
Next, although the three white officers who received patrol K-9 positions in
2012 may have had more dog training than Mr. Minnifield, Mr. Minnifield has
presented evidence which indicates that an eligible candidate had to pass the
Tactical Unit’s minimum standards, and none of the white officers did. The 2012
vacancy announcement states that an eligible candidate must be assigned to the
Tactical Unit. (Doc. 57-2, p. 1). Both 2013 vacancy announcements state that the
patrol K-9 position is within the Tactical Unit. (Doc. 57-9, p. 1; Doc. 57-10, p. 1).
Under a section labelled “Special Requirements for Tactical Applications,” both
2013 announcements list for the available K-9 positions required completion of
“the Tactical Unit’s physical assessment” and “Basic SWAT School.” (Doc. 57-9,
p. 1; Doc. 57-10, p. 1). R&R 117-33 states that “Patrol K-9 Teams” are within the
Tactical Unit, and, under the heading “Tactical Unit Selection,” that officers
“[m]ust pass physical test that has been approved by the Chief of Police.” (Doc.
57-11, p. 1). This evidence raises a genuine issue of material fact regarding the
29

City’s contention that Mr. Minnifield was not qualified for a Patrol K-9 position.11
The evidence also suggests that the City’s departure from its established hiring
procedure created leeway for and favored Caucasian candidates over Mr.
Minnifield. Hurlbert v. St. Mary’s Health Care System, Inc., 439 F.3d 1286 (11th
Cir. 2006) (“[A]n employer’s deviation from its own standard procedures may
serve as evidence of pretext.”).
The evidence, viewed the light most favorable to Mr. Minnifield
demonstrates that the City offered him a non-existent “dual K-9” position,
instructed him to attend non-existent training for that position, demanded that he
have training for a patrol K-9 position that BPD’s rules and regulations did not
require, and refused to recognize him as qualified for the 2013 patrol K-9 position
even though the City, in 2011, implicitly recognized that Mr. Minnifield was
qualified to handle K-9s because the City offered Mr. Minnifield a dual K-9. The
three Caucasian officers whom the City promoted to patrol K-9 positions in 2013
did not have the Tactical Unit training that BPD’s rules and regulations required.

11

On the other hand, R&R 117-42 establishes the operating rules for “Canine
Operations.” (Doc. 50, p. 14). R&R 117-42 states that “[o]nly officers who volunteer for the K9 Unit will be considered for the unit.” (Doc. 50, p. 23, ¶ VI.C). Sgt. Boackle and Chief Roper
testified that even though the K-9 Unit follows R&R 117-33, R&R 117-42 governs the
operations and selections of officers for the K-9 Unit. (Doc. 58-5, p. 273; Doc. 59-23, p. 135).
Sgt. Boackle and Chief Roper testified that a K-9 handler does not need to pass the tactical
standards. (Doc. 58-5, p. 245; Doc. 59-23, pp. 134-35, 139). Sgt. Boackle testified that he never
saw the 2013 vacancy announcements. (Doc. 58-5, p. 182). This evidence regarding the
qualifications for K-9 handlers clearly is disputed.
30

Accordingly, Mr. Minnifield has established “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions” in the defendants’ proffered
legitimate reasons such that “a reasonable fact finder could find them unworthy of
credence.”

Alvarez, 610 F.3d at 1265 (internal quotation marks omitted).12

Therefore, the Court denies the defendants’ motion for summary judgment on Mr.
Minnifield’s Title VII disparate treatment claim against the City based on the
failure to promote him to a 2013 Patrol K-9 position.
E.

§ 1983 Claim for Disparate Treatment in Violation of § 1981
Against the City

Neither a municipality nor its employees may incur liability under § 1983
for the acts of city employees under a theory of respondeat superior. Monell v.
Dep’t of Social Serv’s, 436 U.S. 658, 691 (1978); McDowell v. Brown, 392 F.3d
1283, 1289 (11th Cir. 2004). For a municipality to be held liable under § 1983 for
actions taken by a city employee, the employee’s execution of a city policy or
custom must inflict the injury, or the employee must have final policymaking
authority with respect to the action taken.

McDowell, 392 F.3d at 1289-91

(quoting City of Canton v. Harris, 489 U.S. 378, 385 (1989)). “[F]or a plaintiff to
demonstrate a policy or custom, it is ‘generally necessary to show a persistent and

12

Mr. Minnifield has offered other circumstantial evidence of racial discrimination that he may
attempt to introduce at trial, but the evidence that the Court has discussed here is sufficient to
overcome the City’s motion for summary judgment on Mr. Minnifield’s Title VII race
discrimination claim.
31

wide-spread practice.’” McDowell, 392 F.3d at 1290 (quoting Wayne v. Jarvis,
197 F.3d 1098, 1105 (11th Cir. 1999)).
Mr. Minnifield has not demonstrated that the City has a policy or custom of
denying promotions to African-American officers. Sgt. Boackle recommended
Dennis Gibson, who is African-American, for a K-9 handler position. (Doc. 50,
pp. 2-3). At least one K-9 handler, Terrence McKee, is African-American. (Doc.
58-5, pp. 83, 229; Doc. 59-12, p. 123). At some time, Gregory Porter, who is
African-American, worked as a K-9 handler. (Doc. 58-5, pp. 82-83). The officers
in the chain of command for Sgt. Boackle’s hiring recommendations -- Lt. Smith,
Capt. Davis, Deputy Chief Duff, and Chief Roper -- all are African-American.
(Doc. 58-5, pp. 249-51). Chief Roper testified that the City has a policy that
prohibits racial discrimination and retaliation, that BPD regularly trains supervisors
to respect the civil rights of officers, that Sgt. Boackle received this training, and
that BPD officers exceed the required number of annual training hours. (Doc. 5923, pp. 43-44, 60-63).
In addition, Sgt. Boackle did not have final policymaking authority. Mr.
Minnifield concedes that Chief Roper is the final decision maker. (Doc. 56, p. 36).
Mr. Minnifield argues that Chief Roper “is a cat’s paw in this situation.” (Doc. 56,
p. 36).

Mr. Minnifield contends that by relying on Sgt. Boackle’s

recommendations, Chief Roper “actively endorsed and approved Boackle’s
32

conduct.” (Doc. 56, p. 50). The Court has found no evidence to support this
conclusory allegation.
In addition, no evidence supports Mr. Minnifield’s allegations that the City
“negligently supervises its hiring officials,” “was actually aware of the preferential
placement of white officers,” “failed or refused to properly train or supervise its
decisionmakers, and allowed a pervasive atmosphere of racial discrimination to
exist within the police department.” (Doc. 15, pp. 12-13, ¶¶ 74-76).
Because Mr. Minnifield has not established a basis for subjecting the City to
§ 1983 liability, the Court enters judgment for the City on Mr. Minnifield’s § 1983
disparate treatment claim.
F.

Section 1983 Claim for Disparate Treatment in Violation of §
1981 Against Sgt. Boackle in his Individual Capacity

Section 1983 provides a cause of action against any person who, “acting
under color of state law, committed acts that deprived [a plaintiff] of some right
[or] privilege [] protected by the Constitution or laws of the United States.” Easley
v. Dept. of Corrections, 590 Fed. Appx. 860, 868 (11th Cir. 2014) (per curiam)
(citing 42 U.S.C. § 1983). “Title VII and § 1983 claims have the same elements
where the claims are based on the same set of facts, and in such cases, the claims
are subject to the same legal analysis.” Quigg v. Thomas Cnty. School Dist., 814
F.3d 1227, 1235 (11th Cir. 2016) (citing Rioux, 520 F.3d at 1275 n.5).
1.

Mr. Minnifield’s 1983 case – 2013 Patrol K-9
33

Mr. Minnifield based his Title VII disparate treatment claim against the City
on Sgt. Boackle’s conduct.

Mr. Minnifield established sufficient evidence to

survive a motion for summary judgment on his Title VII disparate treatment claim.
Because the analytical frameworks of Title VII and § 1983 disparate treatment
claims are the same, the Court denies summary judgment on Mr. Minnifield’s §
1983 disparate treatment claim against Sgt. Boackle in his individual capacity
based on the failure to promote Mr. Minnifield to a 2013 Patrol K-9 position.
2.

Mr. Minnifield’s 1983 case – 2015 TSA K-9

Mr. Minnifield alleges that Sgt. Boackle discriminated against him when
Sgt. Boackle removed the K-9 unit from the Tactical Unit in 2015, failed to post a
vacancy announcement for the 2015 TSA K-9 position, and gave the 2015 TSA K9 position to Larry McGhee, a white officer. (Doc. 15, p. 9, ¶ 59).
Mr. Minnifield did not suffer an adverse employment action when Sgt.
Boackle selected Officer McGhee for the 2015 TSA K-9 position because Mr.
Minnifield was not qualified for the position. Because of injuries he sustained in a
motorcycle accident on January 3, 2014, as of 2015, Mr. Minnifield could perform
only administrative functions as a desk officer; he could not work as a K-9 handler.
(Doc. 57-1, pp. 20-21). Therefore, the Court enters judgment for Sgt. Boackle on
Mr. Minnifield’s § 1983 disparate treatment claim as it relates to the 2015 TSA K9 position.
34

G.

Title VII Retaliation Claims Against the City

Title VII prohibits employers from retaliating against an employee “because
he has opposed any practice made an unlawful employment practice by [Title VII],
or because he has made a charge . . . under [Title VII].” 42 U.S.C. § 2000e-3(a).
The McDonnell Douglas burden-shifting analysis applies to retaliation claims
based on circumstantial evidence. Furcron v. Mail Centers Plus, LLC, 843 F.3d
1295, 1310 (11th Cir. 2016) (citations omitted). “To establish a prima facie case of
retaliation under Title VII, ‘the plaintiff must show (1) that she engaged in
statutorily protected expression; (2) that she suffered an adverse employment
action; and (3) that there is some causal relation between the two events.” Thomas
v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007) (quoting Meeks v.
Computer Assocs. Int’l, 15 F.3d 1013, 1021 (11th Cir. 1994)). Like discrimination
claims under Title VII, the McDonnell Douglas framework is not the only way that
a plaintiff may establish a retaliation claim. A convincing mosaic of circumstantial
evidence may be sufficient to allow a jury to infer that retaliatory intent motivated
an employment decision. Lockheed-Martin Corp., 644 F.3d at 1328; see also
Calvert v. Doe, 648 Fed. Appx. 925, 929 (11th. Cir. 2016) (applying the
“convincing mosaic” standard to a Title VII retaliation claim). 13

13

Calvert is not binding authority, but the Court cites the decision for its persuasive value. See
United States v. Rodrigues-Lopez, 363 F.3d 1134, 1138 n.4 (11th Cir. 2004) (“While
unpublished opinions are not binding on this court, they may nonetheless be cited as persuasive
35

“Once a plaintiff establishes a prima facie case of retaliation, the burden of
production shifts to the defendant to rebut the presumption by articulating a
legitimate, non-discriminatory reason for the adverse employment action.” Bryant
v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009). “After the defendant makes this
showing, the plaintiff has a full and fair opportunity to demonstrate that the
defendant’s proffered reason was merely a pretext to mask discriminatory actions.”
Id.
1.

Mr. Minnifield’s prima facie case – 2013 Patrol K-9

Title VII protects employees who file a charge of discrimination with the
EEOC or use their employer’s internal grievance procedures. Shannon v. Bellsouth
Telecom., Inc., 292 F.3d 712, 715 n.2 (11th Cir. 2002); Johnson v. Booker T.
Washington Broadcasting Service, Inc., 234 F.3d 501, 507 (11th Cir. 2000).
Mr. Minnifield filed a charge of discrimination with the EEOC on December
27, 2011. (Doc. 58-12, p. 1). Mr. Minnifield filed multiple internal grievances of
racial discrimination before and after filing his first EEOC charge.14 Therefore,

authority.”); see also 11th Cir. Rule 36-2 (“Unpublished opinions are not considered binding
precedent, but they may be cited as persuasive authority.”).
14

The record does not clearly indicate how many grievances Mr. Minnifield filed, and
Mr. Minnifield did not provide copies of each grievance he allegedly filed. The defendants do
not dispute that Mr. Minnifield filed any particular grievance. According to Fraternal Order of
Police meeting notes, Mr. Minnifield filed at least four grievances before March 6, 2012. (Doc.
59-18, p. 3). In his January 26, 2012 grievance, Mr. Minnifield referred to three grievances.
(Doc. 58-13, p. 1, 3). In his deposition, Mr. Minnifield referred to grievances filed on October
12, 2009 and August 11, 2011. (Doc. 57-1, pp. 13, 34).
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Mr. Minnifield engaged in statutorily protected activity. As previously discussed,
the City’s failure to promote Mr. Minnifield was an adverse employment action.
“To establish a causal connection, a plaintiff must show that the decisionmakers were aware of the protected conduct, and that the protected activity and the
adverse action were not wholly unrelated.” Gupta, 213 F.3d at 590. “‘Generally, a
plaintiff can show the two events are not wholly unrelated if the plaintiff shows
that the decision maker was aware of the protected conduct at the time of the
adverse employment action.’” Jones v. Gulf Coast Health Care of Delaware, LLC,
854 F.3d 1261, 1271 (11th Cir. 2017) (quoting Krutzig v. Pulte Home Corp., 602
F.3d 1231, 1234 (11th Cir. 2010)). A plaintiff must proffer evidence “that the
desire to retaliate was the but-for cause of the challenged employment action.”
Univ. of Texas Southwestern Med. Center v. Nassar, 570 U.S. 338, 352 (2013); see
also Trask v. Secretary, Dep’t of Veterans Affairs, 822 F.3d 1179, 1194 (11th Cir.
2016).
Here, Mr. Minnifield has offered a mosaic of circumstantial evidence from
which a jury could infer a causal connection between his protected activity and the
City’s failure to promote him. Sgt. Boackle testified that he did not know about
Mr. Minnifield’s grievances or EEOC charge before 2014. (Doc. 58-5, p. 61). But
the defendants acknowledge that Sgt. Boackle attended a March 6, 2012 Fraternal
Order of Police (FOP) meeting that Mr. Minnifield attended to answer questions
37

about Mr. Minnifield’s requests for the FOP to pay the filing fees for four of his
grievances. (Doc. 66, p. 7, ¶ 62; Doc. 59-18, pp. 1, 3). Sgt. Boackle attended a
June 5, 2012 FOP meeting that Mr. Minnifield attended to discuss the lawyer fees
incurred by Mr. Minnifield for his grievances. (Doc. 59-18, pp. 10, 13). This
evidence, viewed in the light most favorable to Mr. Minnifield, creates a triable
issue of fact concerning Sgt. Boackle’s awareness in 2013 of Mr. Minnifield’s
complaints.
Moreover, in a deposition he gave on November 20, 2014 for Mr.
Minnifield’s 2014 lawsuit, Sgt. Boackle was asked if Mr. Minnifield remained
qualified for a TSA K-9 position after Sgt. Boackle selected Larry Phillips for the
2011 TSA K-9 position. (Doc. 58-7, p. 70). Sgt. Boackle responded, “he so
quickly filed complaints because he wasn’t chosen and even after I was ordered to
have a dog given to him and he refused it, at that point I didn’t feel he would be an
asset to my unit.” (Doc. 58-7, p. 70). Accordingly, a genuine issue of material fact
exists as to whether Mr. Minnifield’s complaints and the City’s failure to promote
him to a 2013 Patrol K-9 position are related.

Therefore, the City has not

established that it is entitled to summary judgment based on Mr. Minnifield’s
alleged failure to establish a prima facie case of retaliation.
2.

The City’s Proffered Legitimate Non-Discriminatory Reason
and Pretext

As previously discussed in the context of Mr. Minnifield’s Title VII
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disparate treatment claim, the City satisfied its light burden of offering a legitimate
non-retaliatory reason for failing to promote Mr. Minnifield to a 2013 patrol K-9
position. Mr. Minnifield raised a genuine issue of material fact as to whether the
City’s proffered reasons are pretext. See pp. 28-32, above. Therefore, the Court
denies the defendants’ motion for summary judgment on Mr. Minnifield’s Title
VII retaliation claim against the City based on the failure to promote him to a 2013
patrol K-9 position.
Given the “but for” standard for retaliation claims, at trial, Mr.Minnifield
will not be able to establish liability under both his Title VII racial discrimination
claim against the City and his Title VII retaliation claim against the City.
H.

Section 1983 Claim for Retaliation in Violation of § 1981 Against
the City

To subject the City to § 1983 liability, Mr. Minnifield must demonstrate that
Sgt. Boackle executed a municipal policy of retaliating against employees for
filing grievances or that Sgt. Boackle had final policymaking authority.

See

McDowell, 392 F.3d at 1289-91.
To support his argument that the City implemented a policy of retaliating
against employees, Mr. Minnifield cites to Sgt. Boackle’s deposition given in Mr.
Minnifield’s prior lawsuit, the affidavit of Officer Ronald Jennings, and the
affidavit of Officer James Lyons. (Doc. 56, pp. 37, 47). Sgt. Boackle testified,
“[Mr. Minnifield] so quickly filed complaints because he wasn’t chosen and even
39

after I was ordered to have a dog given to him and he refused it, at that point I
didn’t feel he would be an asset to my unit.” (Doc. 58-7, p. 71). Officer Jennings
stated that at a meeting on January 18, 2012, he heard Deputy Chief Duff tell Mr.
Minnifield that “because you all filed a Grievance and EEOC complaint, that no
movement would take place on the Motorscout position.” (Doc. 58-19, p. 2).
Officer Lyons stated that he heard officers inform Mr. Minnifield that he “would
never be assigned to the K-9 Unit” and heard Lt. James Blanton say “[t]his new
administration ain’t scared of no Grievances or EEOC complaint and believe me
they are going to deal with anyone who breaks the Chain of Command.” (Doc. 5818, p. 3, ¶ 12).
None of the evidence raises a triable issue of fact concerning a City policy of
retaliation. Viewed in the light most favorable to Mr. Minnifield, Sgt. Boackle’s
testimony indicates his personal motivation for not recommending Mr. Minnifield.
Mr. Minnifield did not explain how the “no movement would take place on the
Motorscourt position” statement implicates a City policy. As previously discussed,
Sgt. Boackle did not have final policymaking authority. Sgt. Boackle’s alleged
retaliation did not affect Chief Roper’s selections, and Chief Roper did not
condone retaliation by selecting three officers from the list of recommended
officers.
Because Mr. Minnifield has not established a basis for holding the City
40

liable under § 1983, the Court enters judgment for the City on Mr. Minnifield’s §
1983 retaliation claim.
I.

Section 1983 Claim for Retaliation in Violation of § 1981 Against
Sgt. Boackle in his Individual Capacity

A § 1983 retaliation claim has the same elements as a Title VII retaliation
claim where the claim is based on the same set of facts. See Goldsmith v. Bagby
Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008). Mr. Minnifield’s § 1983
retaliation claim against Sgt. Boackle rests on the same factual allegations as Mr.
Minnifield’s Title VII retaliation claim.

Because the Court denied summary

judgment on Mr. Minnifield’s Title VII retaliation claim, the Court also denies the
motion for summary judgment on Mr. Minnifield’s § 1983 retaliation claim against
Sgt. Boackle in his individual capacity.
J.

Hostile Work Environment Claim Against the City

To establish a hostile work environment claim under Title VII, Mr.
Minnifield “must show that ‘the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working
environment.’” Gowski v. Peake, 682 F.3d 1299, 1311 (11th Cir. 2012) (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). To state a prima facie case of
hostile work environment, Mr. Minnifield must show that: “(1) [he] belonged to a
protected group, (2) [he] was subjected to unwelcome harassment, (3) the
41

harassment was based on a protected characteristic, (4) the harassment was
sufficiently severe or pervasive to alter the terms and conditions of [his]
employment and create an abusive working environment, and (5) a basis exists for
holding the employer liable.” Trask, 822 F.3d at 1195.
According to Mr. Minnifield, “the entire department and all of his
supervisors” talked about Mr. Minnifield’s inability to obtain a K-9 position;
because of Mr. Minnifield’s complaints, Sgt. Boackle created “new hurdles to
ensure [Mr.] Minnifield did not obtain his requested TSA K-9 position;” Sgt.
Boackle refused to require his unit to assist on calls in which Mr. Minnifield was
involved; and superior officers singled out Mr. Minnifield in roll call on multiple
occasions. (Doc. 56, pp. 55-56).
Mr. Minnifield has not presented evidence of the entire department talking
about his inability to obtain a K-9 position. Mr. Minnifield has not explained how
he was removed from the entry team and called out in roll call. Therefore, no
genuine issue of material fact exists as to the severity and pervasiveness of the
alleged hostile work environment. The Court enters judgment for the City on Mr.
Minnifield’s Title VII hostile work environment claim.
IV.

CONCLUSION
For the reasons discussed above, the Court DENIES the defendants’ motion

to strike. (Doc. 65).
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Additionally, the Court GRANTS IN PART and DENIES IN PART the
defendants’ motion for summary judgment. (Doc. 41). The Court enters summary
judgment on the following claims:
(1)

the Title VII disparate treatment claim against the City, but only to the
extent the claim is based on the City’s discipline of Mr. Minnifield for
conduct that white officers engaged in without consequences;

(2)

the Title VII retaliation claim against the City, but only to the extent
the claim is based on events following the failure to promote Mr.
Minnifield to a 2013 Patrol K-9 position;

(3)

the Title VII hostile work environment claim against the City;

(4)

all § 1983 claims against the City;

(5)

the § 1983 claims for disparate treatment and retaliation in violation
of § 1981 against Sgt. Boackle in his individual capacity, but only to
the extent the claims are based on events following the failure to
promote Mr. Minnifield to a 2013 Patrol K-9 position; and

(6)

all § 1983 claims against Sgt. Boackle in his official capacity.

Those claims are DISMISSED WITH PREJUDICE.
The Court denies the motion for summary judgment with respect to the
following claims:
(1)

the Title VII disparate treatment claim against the City, to the extent
the claim is based on the failure to promote Mr. Minnifield to a 2013
Patrol K-9 position;

(2)

the Title VII retaliation claim against the City, to the extent the claim
is based on the failure to promote Mr. Minnifield to a 2013 Patrol K-9
position; and

(3)

the § 1983 claims for disparate treatment and retaliation in violation
43

of § 1981 against Sgt. Boackle in his individual capacity, to the extent
the claims are based on the failure to promote Mr. Minnifield to a
2013 Patrol K-9 position.
The Court strikes Mr. Minnifield’s demand for punitive damages from the
City.
DONE and ORDERED this March 30, 2018.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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