Cheatwood v. Vestavia Hills, City of et al

Filing 65

MEMORANDUM OPINION - For the foregoing reasons, by separate order, the Court will enter judgment for the City on Officer Cheatwood's claims. Signed by Judge Madeline Hughes Haikala on 9/22/2021. (KEK)

FILED
2021 Sep-22 PM 03:35
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RICHARD CHEATWOOD,
Plaintiff,
v.
CITY OF VESTAVIA HILLS,
Defendant.

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Case No.: 2:17-cv-00984-MHH

MEMORANDUM OPINION
In this action brought under the Age Discrimination in Employment Act,
Richard Cheatwood, a former police officer for the City of Vestavia Hills, alleges
that the City denied him a promotion to Patrol Corporal because of his age and then
terminated him because he filed this action. Officer Cheatwood asserts claims
against the City for age discrimination and retaliation. The City has asked the Court
to enter judgment in its favor on Officer Cheatwood’s claims. (Doc. 53). This
opinion resolves the City’s motion.
I.

Summary Judgment Standard
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a district 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
1

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,
a district court must view the evidence in the record and draw reasonable inferences
from the evidence in the light most favorable to the non-moving party. Asalde v.
First Class Parking Sys. LLC, 898 F.3d 1136, 1138 (11th Cir. 2018). Accordingly,
in this opinion, the Court views the evidence in the light most favorable to Officer
Cheatwood.
II.

Summary Judgment Evidence
The City of Vestavia Hills hired Richard Cheatwood as a patrol officer in

1998. (Doc. 53-1, p. 4, tp. 14; Doc. 60, p. 2, ¶ 1).1 The circumstances that give rise
to this action began to unfold when Officer Cheatwood publicly criticized the City
in a January 2016 Facebook post. He wrote: “Amazing, a couple of people burned
to death in an apartment fire. Last night night [sic] awards were given to those who

Doc. 60 is Officer Cheatwood’s response to the City’s summary judgment motion. In his
response, Officer Cheatwood admitted facts that appear in the discussion of summary judgment
evidence that follows. Unless otherwise noted, cites to Doc. 60 indicate that a fact is undisputed .
1

2

allowed 2 people to burn to death.” (Doc. 53-1, pp. 6–7, tpp. 24–25; Doc. 53-2, p.
10). According to Officer Cheatwood, two fellow officers stopped their patrol cars
and blocked the path of a fire truck attempting to respond to an apartment fire in
which two people died. (Doc. 53-1, p. 7, tp. 26).2
On January 21, 2016, Officer Cheatwood’s supervisor, Sergeant Sean
Richardson, gave Officer Cheatwood an informal verbal counseling about his
attitude and documented the counseling in a memorandum. (Doc. 53-2, pp. 11–12;
Doc. 60, p. 2, ¶ 4). The memorandum states that Sgt. Richardson had “no issue with
[Officer Cheatwood’s] work product,” but he was concerned with Officer
Cheatwood’s attitude.

(Doc. 53-2, p. 11).

Sgt. Richardson wrote to Officer

Cheatwood: “I have a deep and sincere respect for you and your ability as a Police
Officer. Your knowledge and ability to perform this job at the highest level is not
in question. I know you are capable. The question is, Are you willing?” (Doc. 532, p. 12).
According to Sgt. Richardson, during his conversation with Officer
Cheatwood, Officer Cheatwood was so angry about the way he felt he was being

In his response to the City’s motion for summary judgment, Officer Cheatwood moved to strike
evidence regarding the January 2016 fire and his related Facebook post because they were “not
relevant to this case” and because he “was not denied a promotion or terminated as a result. . . .”
(Doc. 60, p. 2, ¶¶ 2–3). As will become apparent, the Facebook post set in motion a series of
events that bear upon Officer Cheatwood’s effort to obtain a promotion to Patrol Corporal.
Consequently, evidence regarding the Facebook post is relevant and properly appears in the
summary judgment record.
2

3

treated in the police department that he was near tears. (Doc. 53-2, p. 11). Sgt.
Richardson commented: “You harbor deep personal resentments against some
people in this Department. Some of your resentments are genuine,” but “[y]ou have
told me that you are not capable of overcoming the resentment that you feel.” (Doc.
53-2, p. 12). Sgt. Richardson offered Officer Cheatwood counseling and advised
that a good attitude was “critical to the function of the shift as it operates as a
team. . . . There are life and death consequences involved with this profession. Team
Work is essential.” (Doc. 53-2, p. 11). Sgt. Richardson indicated that Officer
Cheatwood requested a transfer to nightshift, and he responded:

“I feel that

requesting a transfer to another shift, simply because I am asking you to not display
a negative attitude at work is an over-reaction to a reasonable request.” (Doc. 53-2,
p. 11). Officer Cheatwood had difficulty recalling the meeting; he denied discussing
his negative attitude, the ability to receive counseling, or his request to transfer.
(Doc. 53-1, pp. 13–14, tpp. 49, 52–53).
Sgt. Richardson held a formal verbal counseling session with Officer
Cheatwood on January 26, 2016. (Doc. 53-2, pp. 13–15; Doc. 60, p. 2, ¶ 5).
Corporal Brad Vincent and Corporal Doug Layton attended. (Doc. 53-2, pp. 13, 14).
Sgt. Richardson discussed Officer Cheatwood’s “[o]ver reaction” to criticism, stress
and its effects, attitude, and “[m]ood swings, unreasonable resentments, and not
taking responsibility of ones [sic] own actions,” and the way in which these issues
4

“effect [sic] Officer Cheatwood and his co-workers.” (Doc. 53-2, p. 13). Officer
Cheatwood mentioned that his mother and father had died within the previous five
years and that his wife had not worked for two years. (Doc. 53-2, p. 15). Sgt.
Richardson attributed some of Officer Cheatwood’s behavior to the stress from those
circumstances. (Doc. 53-2, p. 15). Sgt. Richardson also believed that Officer
Cheatwood experienced stress because he harbored resentments. Officer Cheatwood
“stated that he was very resentful of the department because through his career he
had been promised positions that he was never given.”

(Doc. 53-2, p. 14).

According to Sgt. Richardson, Officer Cheatwood remarked that “he stays up all
night thinking about things and that he’[d] had ‘About 15 years of Fucking hell.’”
(Doc. 53-2, p. 15). Sgt. Richardson gave Officer Cheatwood information about
employee assistance through American Behavioral EAP. (Doc. 53-2, pp. 13, 15).
Officer Cheatwood remembers being read a memo and receiving the American
Behavioral EAP brochure. (Doc. 53-1, p. 16, tpp. 62–63).
By letter dated January 27, 2016, Chief of Police Danny Rary ordered Officer
Cheatwood to report to American Behavioral Employee Assistance Programs for a
counseling interview the following day. (Doc. 53-2, p. 16; Doc. 60, p. 2, ¶ 6).
Lieutenant Harding also ordered Officer Cheatwood verbally to attend the session.
(Doc. 53-2, p. 17). Chief Rary provided the address for the interview and two contact

5

numbers. (Doc. 53-2, p. 16). Officer Cheatwood attended his interview. (Doc. 531, p. 18, tp. 72).
According to a memorandum dated January 28, 2016 and signed by Cpl.
Layton, when Officer Cheatwood returned from the American Behavioral interview,
he asked for a City Policy Manual. (Doc. 53-2, p. 17). Later that day, he returned
and accused Lt. Harding of violating city policy “by not telling him why he had to
attend a mandatory counseling session with Employee Assistance.” (Doc. 53-2, p.
17). The memorandum states that Officer Cheatwood also suggested to Cpl. Layton
that the City should pay him to not talk about his accusation that two people died in
an apartment fire because police vehicles blocked firefighters’ access to the building.
(Doc. 53-2, p. 17). At his deposition, Officer Cheatwood denied the statements and
did not recall a conversation with Cpl. Layton like the one reflected in the January
28 memo. (Doc. 53-1, pp. 19–21, tpp. 74–82).
At the end of Officer Cheatwood’s shift on February 1, 2016, he had a
conversation in Sgt. Richardson’s office. (Doc. 53-1, pp. 21–22, tpp. 84–86; Doc.
53-2, p. 19). Several officers were present. (Doc. 53-1, p. 22, tp. 85; Doc. 53-2, p.
19). Officer Cheatwood testified that during this conversation, he was laughing and
joked: “[Y]’all don’t get in trouble [in Liberty Park] because I won’t be able to find
you.” (Doc. 53-1, p. 22, tp. 85). Liberty Park is an area of Vestavia Hills Officer
Cheatwood had not patrolled since 2002; Officer Cheatwood testified that he was
6

joking that he would get lost. (Doc. 53-1, p. 22, tp. 85; see also Doc. 53-2, p. 38).
According to a memorandum dated February 2, 2016 and signed by Corporal Jared
Freeman, the issue arose because, at the end of his shift, Officer Cheatwood reported
that he had no back-ups for the day. Cpl. Freeman told Officer Cheatwood that he
should have backed up Officer Giles during three traffic stops because he (Officer
Cheatwood) and Officer Giles were the only two officers “working on the east side.”
Officer Cheatwood “stated something to the effect of ‘Ya’ll [sic] better not get into
anything serious because I’m not backing anyone up when I’m over there.’” (Doc.
53-2, p. 19). Cpl. Freeman wrote that Officer Cheatwood’s remark concerned “an
issue of officer safety.” (Doc. 53-2, p. 19). At his deposition, Officer Cheatwood
denied Cpl. Freeman’s version of the statement. (Doc. 53-1, pp. 21–22, tpp. 84–85).
On February 2, 2016, Officer Cheatwood missed a mandatory counseling
session because he arrived too late for his appointment. (Doc. 53-2, p. 20; Doc. 60,
p. 3, ¶ 10).

Officer Cheatwood explained that he did not mean to miss the

appointment. (Doc. 53-1, p. 24, tp. 96; Doc. 60, p. 3, ¶ 10).
On February 4, 2016, the Internal Affairs Division of VHPD opened an
official investigation to explore complaints against Officer Cheatwood. (Doc. 60, p.
4, ¶ 11). Chief Rary reported that Officer Cheatwood may have “violated several
departmental policies including (1) conduct unbecoming a Police Officer, (2)
insubordination or disrespect toward a supervisor, (3) speaking critically or
7

derogatorily to or about other officers, [and] (4) violating policy concerning social
networking web sites.” (Doc. 53-2, p. 21). VHPD notified Officer Cheatwood of
the investigation on February 9, 2016. (Doc. 53-2, p. 25; Doc. 60, p. 4, ¶ 12).
As part of the investigation, Internal Affairs interviewed Officer Cheatwood
on February 16, 2016. According to a memorandum documenting the interview,
Officer Cheatwood admitted to telling Cpl. Layton that he hated the VHPD, saying
in jest that he would not back up fellow officers, and posting on his Facebook
account his understanding of the events surrounding the apartment fire in which two
people died. (Doc. 53-2, p. 38). Officer Cheatwood allegedly acknowledged stating
that one of his superiors was a lieutenant “because he kisses ass . . . .” (Doc. 53-2,
p. 38). In his deposition, Officer Cheatwood acknowledged the Facebook post but
denied making the other admissions during the interview. (Doc. 53-1, pp. 35–36,
tpp. 140–144).
In an email dated February 18, 2016, VHPD solicited applications for the
positions of Patrol Corporal and Field Training Officer. (Doc. 53-2, p. 23; Doc. 60,
p. 4, ¶ 13). The email stated: “To be considered for either position, you must . . . be
in good standing with the Department.” (Doc. 53-2, p. 23). Under Jefferson County
Personnel Board rules, which apply to City of Vestavia Hills police officers, “Good
Standing” means not subject to “ongoing discipline, or suspension, or investigation
into alleged misconduct.” (Doc. 53-2, p. 35; Doc. 60, p. 4, ¶ 14). Officer Cheatwood
8

applied for the Patrol Corporal position on February 23, 2016, (Doc. 53-2, p. 23;
Doc. 60, p. 4, ¶ 15), a few days before Internal Affairs completed its investigation
of Chief Rary’s complaint against him on February 26, 2016, (Doc. 53-2, p. 40).
Officer Cheatwood was 45 years old when VPHD made several of his fellow officers
Patrol Corporals. (Doc. 54, p. 1, ¶ 4; Doc. 60, p. 4, ¶ 17).
Officer Cheatwood did not receive the promotion, and he was the only
applicant who did not receive an interview. (Doc. 61, p. 9, tp. 33). The interviews
took place in March of 2016. (Doc. 53-2, p. 23). On April 4, 2016, VHPD promoted
three officers to Patrol Corporal: Richard Wilcox, Ralph McCall, and Mark Gibbs.
(Doc. 54, p. 1, ¶ 2). On October 1, 2016, VHPD promoted another officer, Matthew
Peoples, to Patrol Corporal. (Doc. 54, p. 1, ¶ 3). At the time of the promotions,
Officer Peoples was 31 years old; Officer Wilcox was 35 years old; Officer McCall
was 43 years old; and Officer Gibbs was 52 years old. (Doc. 54, p. 1, ¶¶ 2–3; Doc.
60, p. 4, ¶ 17). Each officer that VPHD elevated to Patrol Corporal was qualified
for the position. (Doc. 60, p. 5, ¶ 20). Each officer that VHPD promoted to Patrol
Corporal had fewer years of experience with the VHPD than Officer Cheatwood.
(Doc. 61, p. 15, tpp. 58–59).
Following the Internal Affairs investigation of Officer Cheatwood, VHPD
charged him with conduct unbecoming a police officer, insubordination, speaking
critically or derogatorily about other officers, and neglect of duty. (Doc. 53-2, p.
9

40). On February 26, 2016, VPHD gave Officer Cheatwood written notice of a predetermination hearing on March 4, 2016 concerning the charges. (Doc. 53-2, p. 40).
After the hearing, Chief Rary found Officer Cheatwood guilty of conduct
unbecoming a police officer under the Jefferson County Personnel Board Rules and
Regulations. (Doc. 53-2, p. 42; Doc. 60, p. 5, ¶ 22). Based on Chief Rary’s findings
and recommendation, Vestavia Hills City Manager Jeffrey Downes, who had the
authority to hire and fire police officers, suspended Officer Cheatwood for 15 days
without pay, effective March 18, 2016. (Doc. 53-2, p. 43; Doc. 60, pp. 5, 10, ¶¶ 22,
41).3
When Officer Cheatwood returned to work from his suspension, VHPD
reassigned him from patrol to the jail. (Doc. 55, p. 44; Doc. 60, p. 5, ¶ 23). His
duties at the jail included taking walk-in reports and assisting the jail desk officers
in booking, fingerprinting, and releasing prisoners. (Doc. 55, pp. 44–45). Chief
Rary informed Officer Cheatwood that VHPD would find another position for him
if he worked at the jail for one year. (Doc. 53-2, p. 44; Doc. 56, p. 141–42).
On September 11, 2016, Officer Cheatwood filed an EEOC charge of
discrimination. (Doc. 1-1; Doc. 60, p. 5, ¶ 25). In it, he asserted that the City
discriminated against him because of his age when the City denied him a promotion

3

The Jefferson County Personnel Board upheld the 15-day suspension on August 16, 2016. (Doc.
58).
10

to Patrol Corporal in April and September of 2016. (Doc. 1-1, p. 1). On November
6, 2016, Officer Cheatwood sent a nine-page email to the Vestavia Hills mayor-elect
in which he (Officer Cheatwood) asserted that members of the VHPD had committed
perjury regarding his February 2016 Internal Affairs investigation. (Doc. 53-1, pp.
53–54, tpp. 211–16; Doc. 60, p. 5, ¶ 26).
On December 7, 2016, Officer Cheatwood asked to speak with Captain Kevin
York. (Doc. 53-1, p. 61, tp. 243; Doc. 53-2, p. 44). Earlier that day, Captain York
had spoken to Sergeant Watts, the lead desk sergeant working in the jail, and
indicated concern after hearing over the radio that officers were being called off
patrol to handle reports and fingerprints in the jail, duties assigned to Officer
Cheatwood. (Doc. 53-2, p. 44; Doc. 55, pp. 34–35). Officer Cheatwood suspected
that other officers had complained about him not doing his job. (Doc. 53-2, p. 44).
Though no officer had complained, Sgt. Watts implemented a new procedure to
produce a record of Officer Cheatwood’s availability for calls. (Doc. 53-2, p. 45;
Doc. 60, p. 6, ¶ 28). Officer Cheatwood believes that the underlying cause of the
incident was his EEOC complaint of age discrimination. (Doc. 53-1, p. 61, tpp. 243–
44). A few days later, Officer Cheatwood revised his EEOC charge and added an
allegation of retaliation. (Doc. 53, p. 15, ¶ 29; Doc. 60, p. 6, ¶ 29).4

The Court has not located a copy of Officer Cheatwood’s second EEOC charge in the record.
The City indicated that the charge is Exhibit 21 to Officer Cheatwood’s deposition, (Doc. 53, p.
4

11

Several months later, on April 24, 2017, Officer Cheatwood’s supervisor at
the jail, Sergeant Jared Freeman, instructed him to complete a motor vehicle accident
report for a walk-in citizen. (Doc. 53-2, p. 46; Doc. 55, pp. 115–16). At his
deposition, Officer Cheatwood testified that he responded to Sgt. Freeman that desk
sergeants usually have a traffic officer complete an accident report and that if he
(Officer Cheatwood) were to complete the accident report like a traffic officer, he
wanted the five percent increase in pay that traffic officers received. (Doc. 53-1, p.
64, tp. 254; see also Doc. 53-2, p. 46). Sgt. Freeman testified that he considered the
incident insubordinate, and he had to ask Officer Cheatwood twice to complete the
report. (Doc. 55, pp. 116–17). Officer Cheatwood did complete the accident report.
(Doc. 53-2, p. 46; Doc. 55, p. 116; Doc. 57, p. 52).
The following day, April 25, 2017, while Officer Cheatwood was
fingerprinting a citizen, (Doc. 53-1, p. 64, tp. 256), Sgt. Freeman accused him of not
processing an inmate, (Doc. 53-1, p. 64, tp. 256). Officer Cheatwood testified that
Sgt. Freeman incorrectly believed that he was on booking duty; he actually was
assigned to fingerprinting duty. (Doc. 53-1, p. 65, tp. 257). Sgt. Freeman believed
that Officer Cheatwood was insubordinate that day for initially refusing to process
out an inmate as instructed, telling Sgt. Freeman to not talk to him, and informing

15, ¶ 29), but the Court does not see Exhibit 21 in the record, (Doc. 53-2) (containing the
Cheatwood deposition exhibits).
12

Sgt. Freeman that he (Officer Cheatwood) had filed an EEOC complaint against him.
(Doc. 55, pp. 119–20; see also Doc. 53-2, p. 46). Officer Cheatwood processed out
the inmate as instructed. (Doc. 53-2, p. 46; Doc. 55, p. 120; Doc. 57, p. 53). Officer
Cheatwood feels that both accusations of insubordination were retaliation for his
EEOC charge. (Doc. 53-1, p. 65, tp. 260).
Chief Rary testified: “After the April 2017 incident, it became quite apparent
to me that [Officer Cheatwood] was becoming a severe distraction to the efficient
operation of the police department in the jail area.” (Doc. 57, p. 3). In a June 2,
2017 letter requesting a fitness-for-duty examination of Officer Cheatwood, Chief
Rary listed more than two dozen reasons that he believed Officer Cheatwood may
not be psychologically fit for duty. (Doc. 53-2, pp. 51–53). Included in the list was
the fact that Officer Cheatwood levied “baseless, and highly inflammatory charges
and complaints about ‘high ranking members of the [VHPD’s] illegal and unethical
practices and behaviors’” and the fact that Officer Cheatwood “accus[ed] a multitude
of high ranking city and police officials of lying under oath . . . .” (Doc. 53-2, p. 52.
By letter dated June 5, 2017, Chief Rary ordered Officer Cheatwood to appear for a
“mandatory fitness for duty exam” on June 6, 2017. (Doc. 53-2, p. 55). Officer
Cheatwood attended the evaluation, but the meeting was discontinued before a
finding could be made. (Doc. 53-1, pp. 70, 71, tpp. 277-78, 283).

13

Two days later, on June 8, 2017, Officer Cheatwood filed his complaint in this
action. (Doc. 1). On June 12, 2017, in the booking area of the VHPD, Captain Brian
Gilham delivered to Officer Cheatwood a letter from Mr. Downes ordering him to
appear for a second fitness for duty evaluation scheduled for June 14, 2017. (Doc.
53-1, p. 71, tpp. 281–83; Doc. 53-2, p. 56). Officer Cheatwood testified that he
became agitated when he received the letter because he was not given a reason for
another evaluation, and he did not think that a second evaluation was necessary.
(Doc. 53-1, p. 71, tp. 282).5 Officer Cheatwood asked to see Mr. Downes to ask
why he was being sent to a second evaluation. (Doc. 53-1, p. 71, tpp. 283–84; Doc.
53-2, p. 56).

Officer Cheatwood testified that he called his wife and stated:

“[T]hey’re sending me back to this thing and, you know, I’ve asked to go to the City
to speak with Jeff Downes and they refused.” (Doc. 53-1, p. 72, tp. 285).6
Corporal James Prine walked past Officer Cheatwood while he was on the
phone speaking with his wife about the upcoming assessment. (Doc. 60, p. 24). Cpl.

5

According to Sergeant J. Dease, when Officer Cheatwood left the June 12 meeting with Captain
Gilham, Officer Cheatwood seemed very agitated. Sgt. Dease asked Officer Cheatwood if he was
planning to file a retaliation lawsuit. According to Sgt. Dease, Officer Cheatwood replied: “oh
yea, I am going to get mine.” (Doc. 53-2, p. 58). Sgt. Dease reported that Officer Cheatwood
stated that he was not going to take a cognitive test “‘until they get that 62-year-old mother-fucker
to take one.’” (Doc. 53-2, p. 58). When questioned, Officer Cheatwood allegedly told Sgt. Dease
that he was referring to Chief Rary. (Doc. 53-2, p. 58). In his deposition testimony, Officer
Cheatwood denied speaking to Sgt. Dease. (Doc. 53-1, p. 74, tp. 294).
The VHPD has video evidence of Officer Cheatwood speaking on the phone in the parking lot of
the police station. (Doc. 53-2, p. 67; Doc. 60, p. 24).
6

14

Prine reported to Chief Rary that Officer Cheatwood was screaming obscenities and
that he stated that he had an AK-47 and threatened to attend the upcoming Vestavia
Hills City Council meeting. (Doc. 53-2, p. 57). In his deposition, Cpl. Prine testified
that, though he could not remember the exact words, he heard Officer Cheatwood
“talk[] about whenever he left he would -- he said, before I go to the City Council
meeting, I’ll be sure to take my AK-47.” (Doc. 56, pp. 32–34). Chief Rary ordered
that Officer Cheatwood not be allowed back into the police station until he had the
second assessment. (Doc. 53-2, p. 57; Doc. 56, p. 109). In his deposition, Officer
Cheatwood denied that he threatened to bring an AK-47 to a City Council meeting
and testified that he had never owned an AK-47. (Doc. 53-1, p. 72, tp. 285). Officer
Cheatwood testified that Cpl. Prine lied about the AK-47 statement because he was
offered a promotion in exchange for the lie, and Cpl. Prine was promoted. (Doc. 531, p. 72, tpp. 286–87).
According to Officer Cheatwood, when he ended the phone call with his wife,
he walked back into the police station. Captain Gilham and Captain Kevin York met
him at the door and instructed him to leave. (Doc. 53-1, p. 74, tpp. 294–96). Officer
Cheatwood asked for permission to go to the City Council meeting to talk to Mr.
Downes there. (Doc. 53-1, p. 74, tp. 296). Captain Gilham and Captain York
ordered Officer Cheatwood to not attend the City Council meeting and to not return
to the police station. (Doc. 53-1, p. 75, tp. 297). Officer Cheatwood complied; he
15

did not go to the meeting. (Doc. 53-1, p. 75, tp. 298). Following these events, VHPD
increased security at City Council meetings. (Doc. 56, pp. 114–15).7
Two days later, on June 14, 2017, Chief Rary withdrew Officer Cheatwood’s
police powers, and Mr. Downes placed Officer Cheatwood on administrative leave
with pay. (Doc. 53-1, pp. 77–80, tpp. 308–18; Doc. 53-2, pp. 60–61; Doc. 60, p. 12,
¶ 47).
Chief Rary charged Officer Cheatwood with conduct unbecoming a police
officer, disobedience to law, insubordination, and threatening violence. (Doc. 53-2,
pp. 62–63). On June 16, 2017, Chief Rary conducted a pre-determination hearing.
Officer Cheatwood appeared and answered several questions. (Doc. 53-1, p. 82, tpp.
325–27). Officer Cheatwood denied making the AK-47 statement. (Doc. 53-2, p.
67).
On June 19, 2017, Chief Rary issued a report in which he found Officer
Cheatwood guilty of all charges. (Doc. 53-2, pp. 64–67; Doc. 60, p. 13, ¶ 49). Chief
Rary recommended that City Manager Downes terminate Officer Cheatwood’s
employment with the City of Vestavia and advised Officer Cheatwood of his right
to appeal to Mr. Downes within three days. (Doc. 53-2, pp. 64–67). Chief Rary
stated that the AK-47 statement; the April 2017 statements made at the jail, including

7

In addition, out of concern for his staff, Dr. Anderson canceled his appointment with Officer
Cheatwood after Chief Rary reported the events of June 12. (Doc. 53-2, p. 59).
16

statements concerning an EEOC complaint for retaliation; and the November 2016
email to the mayor-elect supported the charges. (Doc. 53-2, pp. 64–67).
Officer Cheatwood appealed Chief Rary’s decision. (Doc. 53-1, p. 83, tpp.
330–31). On June 26, 2017, Mr. Downes held a hearing on Officer Cheatwood’s
appeal. (Doc. 53-2, p. 68). Officer Cheatwood was represented by an attorney at
the hearing. (Doc. 53-2, p. 69). Officer Cheatwood, his wife, Chief Rary, Cpl. Prine,
and others testified at the hearing. (Doc. 53-1, p. 83, tpp. 331–32; Doc. 53-2, p. 68).
On June 28, 2017, Mr. Downes upheld Chief Rary’s recommendation and terminated
Officer Cheatwood’s employment effective June 29, 2017. (Doc. 53-2, pp. 68–69).
On July 31, 2017, Officer Cheatwood filed another charge of discrimination
with the EEOC. (Doc. 14-1). In it, he asserted that the City terminated his
employment in retaliation for his EEOC charge concerning age discrimination.
(Doc. 14-1, p. 2).
In count one of his third amended complaint, Officer Cheatwood alleges that
the City discriminated against him because of his age when it failed to promote him
to Patrol Corporal on April 4, 2016. (Doc. 40, p. 4, ¶ 26). In count two, Officer
Cheatwood alleges that the City discriminated against him because of his age when
it failed to promote him to Patrol Corporal in the fall of 2016. (Doc. 40, p. 5, ¶ 32).
In count three, Officer Cheatwood alleges that the City retaliated against him for
engaging in activity protected under the ADEA by subjecting him to increased
17

discipline in 2016 and 2017. (Doc. 40, pp. 5–6, ¶¶ 34–41). And, in count four,
Officer Cheatwood alleges that the City retaliated against him for engaging in
activity protected under the ADEA by terminating his employment. (Doc. 40, p. 7,
¶ 47).
III.

Analysis
A.

ADEA Discrimination

The ADEA prohibits employers from discriminating against employees who
are 40 years of age or more because of their age. 29 U.S.C. §§ 623(a), 631(a). When,
as here, a plaintiff relies on circumstantial evidence to defeat a motion for summary
judgment on his ADEA discrimination claim, the plaintiff may employ the burdenshifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Sims v. MVM, Inc., 704 F.3d 1327, 1333 (11th Cir. 2013). To establish a
prima facie case of age discrimination for failure to promote, an employee must
demonstrate that: (1) he “is over forty years old . . . ; (2) he was qualified for the
position sought; (3) despite his qualifications, he was rejected for the position; and
(4) after his rejection, the employer filled the position with another person who is
not a part of the protected class and who was equally or less qualified for
the promotion than the plaintiff.” Cotton v. Enmarket Inc., 809 Fed. Appx. 723, 725
(11th Cir. 2020).

18

If the plaintiff establishes a prima facie case, then the burden shifts to the
employer to articulate a legitimate nondiscriminatory reason for failing to promote
the plaintiff. Sims, 704 F.3d at 1332–33. The employer only must state a reason for
the employment action; the employer does not have to establish that the articulated
reason was the actual reason for the adverse action. Sims, 704 F.3d at 1332–33. The
employer’s burden at this stage is “‘exceedingly light.’” Cotton v. Enmarket Inc.,
809 Fed. Appx. at 725 (quoting Smith v. Horner, 839 F.3d 1530, 1537 (11th Cir.
1988)).
If the employer carries its burden, then the burden returns to the employee to
demonstrate that the employer’s proffered reason is pretext for unlawful age
discrimination. Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326 (11th Cir.
2011). A plaintiff may show pretext “either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing
that the employer’s proffered explanation is unworthy of credence.” Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). A genuine issue of fact
concerning pretext exists if reasonable jurors could find “weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions” in the employer’s
stated nondiscriminatory reason for the employment action. Brooks v. Cty. Comm’n
of Jefferson Cty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006) (quotation omitted).

19

Because the McDonnell Douglas framework “is not, and never was intended
to be, the sine qua non for a plaintiff to survive a summary judgment motion in an
employment discrimination case,” a plaintiff does not have to use the framework to
survive a summary judgment motion. Smith, 644 F.3d at 1328 (reversing summary
judgment for employer because sufficient circumstantial evidence of discrimination
existed apart from the district court’s McDonnell Douglas analysis). Instead, a
plaintiff “will always survive summary judgment if he presents circumstantial
evidence that creates a triable issue concerning the employer’s discriminatory
intent.” Smith, 644 F.3d at 1328. For instance, a plaintiff “will always survive
summary judgment if he presents . . . a convincing mosaic of circumstantial evidence
that would allow a jury to infer intentional discrimination.” Lewis v. City of Union
City, Georgia, 934 F.3d 1169, 1185 (11th Cir. 2019) (quotations omitted). A
plaintiff may assemble a convincing mosaic with “evidence that demonstrates,
among other things, (1) ‘suspicious timing, ambiguous statements . . . , and other
bits and pieces from which an inference of discriminatory intent might be drawn,’
(2) systematically better treatment of similarly situated employees, and (3) that the
employer’s justification is pretextual.” Lewis, 934 F.3d at 1185 (quoting Silverman
v. Bd. of Educ. of City of Chi., 637 F.3d 729, 733–34 (7th Cir. 2011)). No matter the
form of circumstantial evidence, “so long as the circumstantial evidence raises a

20

reasonable inference that the employer discriminated against the plaintiff, summary
judgment is improper.” Smith, 644 F.3d at 1328.
In this case, Officer Cheatwood has not established a prima facie case of age
discrimination under McDonnell Douglas because he has not demonstrated that he
was qualified for a Patrol Corporal promotion in April of 2016 or in October of 2016.
It is undisputed that qualified applicants for the Patrol Corporal position had to be in
good standing with the VHPD, and “Good Standing” meant “[n]ot subject to any
ongoing discipline, or suspension, or investigation into alleged misconduct” under
Personnel Board rules. (Doc. 60, p. 4, ¶ 14; see also Doc. 53-2, p. 35). It is
undisputed that, when Officer Cheatwood applied for the Patrol Corporal promotion
in February of 2016, the VHPD Internal Affairs Department was investigating him
for alleged misconduct. (Doc. 53-2, p. 23; Doc. 60, p. 4, ¶ 15). Based on the
information developed in the investigation, City Manager Downes suspended
Officer Cheatwood for 15 days without pay effective March 18, 2016, more than
midway through the interview process for the Patrol Corporal position. (Doc. 53-2,
pp. 23, 43; Doc. 60, p. 5, 10, ¶¶ 22, 41). Thus, Officer Cheatwood was not qualified
for a promotion in April 2016 when VHPD promoted three of Officer Cheatwood’s
fellow officers to Patrol Corporal.
When VHPD elevated a fourth officer to the position of Patrol Corporal in
October of 2016, the department did not reopen the application process but instead
21

selected an officer from the February 2016 batch of applicants for the position. (Doc.
61, pp. 8, 14, tpp. 30–31, 54–55). That hiring list was effective for about a year, and
the administration “tried to test for it once a year.” (Doc. 61, p. 14, tp. 55).
Additionally, Officer Cheatwood was not a patrol officer in October of 2016. VPHD
had reassigned him from patrol to the Vestavia Hills municipal jail when he returned
from his 15-day suspension at the end of March 2016, and Chief Rary had told
Officer Cheatwood that “if he gave [them] one good year in the jail he could return
to the street.” (Doc. 53-2, p. 44; Doc. 55, p. 44; Doc. 60, p. 5, ¶ 23). Thus, Officer
Cheatwood was not qualified for a promotion to Patrol Corporal in October 2016.
Beyond the McDonnell Douglas framework, Officer Cheatwood lacks
sufficient circumstantial evidence of ageism to create a convincing mosaic from
which a jury could conclude that the City failed to promote him because of his age.
To be sure, if a jury were to accept Officer Cheatwood’s testimony, he could
establish that Chief Rary and many of his superior officers manufactured stories that
ultimately prompted the Internal Affairs’ investigation of him. For example, at his
deposition, Officer Cheatwood denied that he told Cpl. Layton that the City should
pay him to keep quiet about the police officers who responded to the apartment fire.
(Doc. 53-1, pp. 19–21, tpp. 74–82). He also denied that he indicated that he would
not back up fellow officers and testified that he only joked about getting lost in
Liberty Park. (Doc. 53-1, pp. 21–22, tpp. 84–85).
22

Jurors also could conclude from the evidence that VPHD waited to solicit
applications for the Patrol Corporal and Field Training Officer positions until after
Officer Cheatwood’s supervising officers persuaded Internal Affairs to launch its
investigation so that the investigation would derail Officer Cheatwood’s ability to
pursue a promotion. Internal Affairs opened its investigation concerning Officer
Cheatwood on February 4, 2016. (Doc. 53-2, p. 21). VHPD solicited applications
for Patrol Corporal from February 18 to February 26, 2016. (Doc. 53-2, p. 23).
Internal Affairs concluded its investigation on February 26, 2016, (Doc. 53-2, p. 40),
and the investigation results prompted Officer Cheatwood’s 15-day suspension and
reassignment to the Vestavia Hills jail in March of 2016, rendering Officer
Cheatwood ineligible for promotion while Patrol Corporal positions were available.
(See Doc. 60, pp. 16–17).
And jurors could conclude that the Internal Affairs investigation and the series
of clashes between Officer Cheatwood and his superior officers could have been
avoided if Sgt. Richardson had granted Officer Cheatwood’s January 2016 request
for a transfer to nightshift. (Doc. 53-2, p. 11; see also Doc. 53-1, pp. 13–14, tpp.
52–53). The officers with whom Officer Cheatwood clashed seemed to be on the
day shift.
Even so, Officer Cheatwood has offered no evidence that ties this favorable
view of the evidence to age discrimination. The record of Officer Cheatwood’s
23

interview with Internal Affairs indicates that he reported “that he hates the
department because he feels he does not get enough consideration for advancement
or special assignment.” (Doc. 53-2, p. 37). In his deposition, Officer Cheatwood
acknowledged this statement. (Doc. 53-1, p. 35, tp. 138). Sgt. Richardson’s notes
of a January 2016 conversation indicate that Officer Cheatwood reported that
“through his career he had been promised positions that he was never given.” (Doc.
53-2, p. 14). It is undisputed that VHPD hired Officer Cheatwood as a patrol officer
in 1998, and he remained a patrol officer until 2016, so he was not promoted over
the course of a nearly 20-year career with the VHPD. (Doc. 1-1, p. 1) (September
2016 EEOC charge in which Officer Cheatwood asserted that VHPD hired him in
1998, his rank at the time was “Patrol Officer[,] and he ha[d] been in that position
ever since he hired on”). In his deposition, Officer Cheatwood stated that he did not
get a motorcycle scout position that he applied for some time before October 2015.
The officer who VHPD selected to fill the position is older than Officer Cheatwood.
(Doc. 53-1, pp. 46–47, tpp. 184–88). Two of the four officers who VHPD promoted
to Patrol Corporal in 2016 were more than 40 years old, making them members of
the ADEA’s protected class. One of the officers who the VHPD promoted, Officer
Gibbs, is seven years older than Officer Cheatwood. Another, Officer McCall, is
two years younger than Officer Cheatwood. (Doc. 54, p. 1, ¶¶ 2, 4).

24

Thus, even if Officer Cheatwood can prove that VHPD manufactured reports
of conduct that ultimately made him ineligible for the Patrol Corporal positions that
the VHPD filled in April and October of 2016, there is no evidence that Officer
Cheatwood’s age motivated his superiors to stymie him from qualifying for the
position. Officer Cheatwood was not promoted as a younger officer, and when he
reached the age of 40, officers older than him were promoted to positions that he
pursued. Absent evidence that Officer Cheatwood’s age motivated the VHPD’s
conduct toward him, his ADEA discrimination claim fails as a matter of law.
B.

ADEA Retaliation

The ADEA’s anti-retaliation provision prohibits an employer from
“discriminat[ing] against any of his employees . . . because such individual . . . has
opposed any practice made unlawful by this section, or because such individual . . .
has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or litigation under [the ADEA].” 29 U.S.C. § 623(d). The
McDonnell Douglas burden-shifting framework applies to ADEA retaliation claims.
Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 919 (11th Cir. 1993). A prima
facie case of retaliation requires proof of three elements.

A plaintiff must

demonstrate that he engaged in statutorily protected conduct, that he suffered an
adverse employment action, and that the adverse employment action was causally

25

connected to the statutorily protected conduct. Trask v. Sec’y, Dep’t of Veterans
Affairs, 822 F.3d 1179, 1193–94 (11th Cir. 2016).
If a plaintiff carries his initial burden, then the burden shifts to the employer
to articulate a legitimate non-retaliatory reason for the challenged employment
action. Trask, 822 F.3d at 1194. A plaintiff bears the ultimate burden of proving
that his employer’s proffered legitimate reason is pretext for unlawful retaliation.
Trask, 822 F.3d at 1194.
The McDonnell Douglas burden-shifting framework is not the only way a
plaintiff may use circumstantial evidence to defeat a motion for summary judgment
on an ADEA retaliation claim. See Mathis v. Leggett & Platt, 263 Fed. Appx. 9, 12
(11th Cir. 2008) (noting that plaintiffs “ordinarily” use McDonnell Douglas to
establish retaliatory intent with circumstantial evidence) (citing Holifield v. Reno,
115 F.3d 1555, 1561–62 (11th Cir. 1997)). Rather, if any evidence shows “a genuine
issue of material fact as to whether his employer acted with . . . retaliatory intent,”
then the plaintiff will survive summary judgment. Mathis, 263 Fed. Appx. at 12
(citing Hawkins v. Ceco Corp., 883 F.2d 977, 980–81 (11th Cir. 1989)).
Here, Officer Cheatwood has satisfied the first element of his prima facie case
of retaliation under McDonnell Douglas because he engaged in activity protected by
the ADEA when he filed charges of discrimination on September 13, 2016 and
December 12, 2016 and when he filed this lawsuit on June 8, 2017. See 29 U.S.C.
26

§ 623(d). Officer Cheatwood’s termination is an adverse employment action. But,
Officer Cheatwood has not established a prima facie case under McDonnell Douglas
because he lacks proof of a causal connection between his protected activity—either
this lawsuit or his EEOC charges—and his termination.
The process that led to Officer Cheatwood’s termination unfolded over the
course of approximately two weeks. Chief Rary sent Officer Cheatwood home on
June 12, 2017. On June 14, 2017, Chief Rary revoked Officer Cheatwood’s police
powers, and Mr. Downes placed Officer Cheatwood on administrative leave. Chief
Rary conducted a pre-determination hearing on the charges against Officer
Cheatwood on June 16, 2017. Chief Rary found Officer Cheatwood guilty of all
charges on June 19, 2017. Mr. Downes conducted Officer Cheatwood’s due process
hearing on June 26, 2017. And Mr. Downes finally terminated Officer Cheatwood’s
employment effective June 29, 2017. (See Doc. 53-2, pp. 60–69).
Though the two-week process began shortly after Officer Cheatwood filed
this lawsuit on June 8, 2017, there is no evidence that the decisionmakers involved
in his termination were aware that he had filed his federal lawsuit against the City.
Although Officer Cheatwood named Chief Rary in his initial complaint in this
action, (Docs. 1, 2), the Court did not issue a summons for Chief Rary until July 10,

27

2017. (Doc. 7).8 The City received the complaint in this matter by certified mail on
July 12, 2017. (Doc. 8).9 Therefore, there is no evidence of a causal connection
between Officer Cheatwood’s June 8, 2017 complaint and his June 29, 2017
termination.
Officer Cheatwood’s EEOC charges clearly played a role in the events leading
to his termination. Chief Rary testified that he ordered Captain York to document
the December 2016 conversation with Officer Cheatwood because Chief Rary was
notified that Officer Cheatwood modified his EEOC complaint to include a
retaliation charge. (Doc. 56, pp. 143–44; Doc. 57, pp. 60–61). Chief Rary became
aware of the April 2017 incidents after Sgt. Freeman filed preliminary charges of
insubordination against Officer Cheatwood with Internal Affairs.

Chief Rary

testified:
Due to the ongoing EEOC complaint against the City, after [the April
2017 Internal Affairs investigation] was concluded, I had them give me
the findings . . . I put the internal affairs packet with the rest of [Officer
Cheatwood’s] packet concerning the EEOC suit. I had met with Mr.
Downes, the City manager. And [the packet] was placed in storage
pending the lawsuit as well as us attempting to go forward with trying
to get a mental evaluation of Mr. Cheatwood’s ability to perform his
duties.

Chief Rary testified that, on June 12, 2017, the day he set Officer Cheatwood’s termination in
motion, he did not know that Officer Cheatwood had filed a lawsuit. (Doc. 57, pp. 53–54). There
is no evidence in the record that contradicts Chief Rary’s testimony.
8

Officer Cheatwood’s attorney did not request service on the defendants by certified mail until
July 7, 2017. (Docs. 4, 5).
9

28

(Doc. 56, pp. 144–46). Clearly, Chief Rary was aware of Officer Cheatwood’s
EEOC charges as early as December 2016, and the EEOC charges influenced his
decision-making in response to Officer Cheatwood’s actions. The EEOC charges
partially motivated the documentation of certain incidents for Officer Cheatwood’s
personnel file.10 And the EEOC charges may have played a role in the decision to
order Officer Cheatwood to attend a mental health evaluation.
In his June 19, 2017 findings against Officer Cheatwood, Chief Rary stated
that Officer Cheatwood had displayed insubordination and disrespect to Sgt.
Freeman on April 25, 2017 when Officer Cheatwood said to Sgt. Freeman: “‘Don’t
talk to me, I filed an E.E.O.C. complaint against you yesterday for retaliation.’”

In his deposition, Officer Cheatwood stated that there is “a lot of manufacturing [of documents]
that goes on” when the administration is “trying to – trying to fire somebody or discipline
somebody.” (Doc. 53-1, p. 20, tp. 78). He stated that the document created after the April 2017
incidents was part of the administration “building a case” against him. (Doc. 53-1, p. 66, tp. 262).
10

Although Sgt. Dease testified that “any time anything out of the ordinary occurs, it’s natural to
write a statement,” (Doc. 56, p. 66), Captain York’s report of the December 7 incident was not
written until December 20, and only then at Chief Rary’s instruction, (Doc. 53-2, p. 44; Doc. 55,
p. 40). Sgt. Watts testified that he prepared reports for both the December 2016 and April 2017
incidents at the direction of superior officers. (Doc. 55, pp. 65, 71). He stated that the April 2017
reports “came after Sergeant Freeman went to the captain. And [he (Sgt. Watts)] was told to
document what occurred. [He] documented what occurred . . . [He] didn’t document everything.”
(Doc. 55, pp. 102–03). The Court has not located statements from Sgt. Watts in the summary
judgment record, but the evidence demonstrates that Officer Cheatwood’s EEOC charges led to
increased documentation of his actions. Reasonable jurors could conclude that at least some of
the documents in the summary judgment record were created—if not in retaliation for the EEOC
charges—with the aim of bolstering the City’s position an EEOC investigation or employment
discrimination lawsuit. For these reasons, the Court has not accepted as true the City’s version of
many of the events leading to the letter from Mr. Downes ordering Mr. Cheatwood to appear for a
second fitness for duty evaluation on June 14, 2017 and has carefully considered Officer
Cheatwood’s deposition testimony.
29

(Doc. 53-2, p. 65). Sgt. Freeman reported the statement on April 25, 2017. (Doc.
53-2, p. 46). According to Chief Rary, Officer Cheatwood acknowledged the
statement in his pre-determination hearing. (Doc. 53-2, p. 65).11 Thus, Officer
Cheatwood’s remark about an EEOC charge factored into Chief Rary’s finding that
Officer Cheatwood had been insubordinate.
But Chief Rary also found that Officer Cheatwood had violated Alabama law
prohibiting terrorist threats when Officer Cheatwood allegedly threatened to get his
AK-47 and attend a Vestavia Hills City Council meeting and that Officer Cheatwood
had engaged in conduct unbecoming of a police officer when he accused fellow
officers of perjury in an email to the mayor-elect. (Doc. 53-2, pp. 64–67). Chief
Rary testified that Officer Cheatwood would not have been terminated were it not
for the AK-47 threat. (Doc. 57, p. 377; Doc. 60, p. 6, ¶ 26). City Manager Downes
made the final decision to terminate Officer Cheatwood and did so following an
evidentiary hearing. (Doc. 53-2, pp. 68–69). Mr. Downes based his decision on “a
continued series of disruptive activities to the effective and efficient operation of the
Vestavia Hills Police Department prior employment record considered.” (Doc. 532, p. 68).

Officer Cheatwood’s statement was false; he filed his pre-termination EEOC charges in
September and December of 2016.
11

30

The Hearing Officer who reviewed the termination decision found: “Without
a doubt, the most critical charge and evidence presented relates to Cheatwood’s
threat to bring an AK-47 to the City Council meeting.” (Doc. 58-1, p. 7). The
Hearing Officer continued: “While Cheatwood denies this event ever took place,
the credible evidence lends itself to support the City’s contentions.” (Doc. 58-1, p.
7). The Hearing Officer found:
Because the evidence was so credible and persuasive that Cheatwood
made the statement referencing bringing an AK-47 to a City Council
meeting, the termination of Cheatwood should properly be sustained,
and whether or not Cheatwood should be terminated based on his
alleged violations of policies and procedures during his tenure at the
City Jail otherwise, and whether or not the letter written to the MayorElect amounted to insubordinate conduct, is actually peripheral at best
and not necessary to adjudicate in this instance. Absent the allegations
and conduct of Cheatwood while working at the City Jail, Cheatwood’s
termination should still be held proper and affirmed based solely on his
threat to carry an AK-47 to a City Council meeting.

(Doc. 58-1, p. 8). A Three Judge Review Panel of the Circuit Court of Jefferson
County, Alabama affirmed the Hearing Officer’s decision. (Doc. 58-2).
On this record, Officer Cheatwood cannot carry his initial burden of proving
that his protected conduct before the EEOC, rather than the alleged AK-47 threat,
caused his termination. There is no evidence that the hearing officer who reviewed
the City’s decision or the three judges who reviewed the hearing officer’s decision
were influenced by Officer Cheatwood’s protected activity.

31

Even if this were not the case, Officer Cheatwood has not offered sufficient
circumstantial evidence to establish that the City’s reasons for firing him were
pretext for retaliatory intent. Even if Officer Cheatwood did not say that he was
planning to get an AK-47 and bring it to a City Council meeting, Chief Rary
believed, based on the information provided to him, that Officer Cheatwood made
the statement during a telephone call in the parking lot of the police station. “[A]n
employer’s honest belief that an employee violated its policies can constitute a
legitimate reason for termination even if the employer’s belief may have been
mistaken or wrong.” Connelly v. WellStar Health Sys., Inc., 758 Fed. Appx. 825,
829 (11th Cir. 2019) (citing Smith v. PAPP Clinic, P.A., 808 F.2d 1449, 1452–53
(11th Cir. 1987)). Surveillance footage confirmed that Officer Cheatwood was on
the phone at the time and place reported by Cpl. Prine. (See Doc. 53-2, p. 67; Doc.
60, p. 12, ¶ 42).12 In addition, the City’s objective response to Officer Cheatwood’s
alleged threat on June 12, 2017 indicates that the City honestly believed that Officer

Officer Cheatwood contends that the surveillance footage discredits Cpl. Prine’s report. (See
Doc. 60, pp. 10–12, 23–24). According to Officer Cheatwood, on the video, he “appears to be
very calm and sedate as Officer Prine walked by him. [Officer] Cheatwood does not appear to be
‘yelling’, ‘screaming’, ‘going crazy’, ‘walking in circles’, or ‘throwing his hands.’ There is
absolutely no indication that [Officer] Cheatwood said or did anything to alarm Officer Prine,
neighbors, or anyone else in the vicinity.” (Doc. 60, pp. 12, 24). The surveillance footage is not
in the record, so the Court has not had an opportunity to review it. Chief Rary relied on the
surveillance footage to confirm that Officer Cheatwood was on the phone at the time and place
reported by Cpl. Prine; Officer Cheatwood does not dispute that the footage corroborates that
information. (See Doc. 53-2, p. 67; Doc. 60, pp. 12, 24).
12

32

Cheatwood had threatened to bring an AK-47 to a City Council meeting. After the
report of the AK-47 threat, Chief Rary ordered Officer Cheatwood to leave the
premises immediately, deactivated Officer Cheatwood’s access card to the building,
added security to the City Council meeting that evening, and increased security at
City Council meetings and work sessions for the next couple of months. (Doc. 57,
pp. 10–13). There would be no reason to expend such effort if Chief Rary did not
believe that Officer Cheatwood made the alleged threat.
Therefore, the Court will enter judgment for the City of Vestavia on Officer
Cheatwood’s ADEA retaliation claims.13
IV.

Conclusion
For the foregoing reasons, by separate order, the Court will enter judgment

for the City on Officer Cheatwood’s claims.
DONE and ORDERED this September 22, 2021.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
In his brief in opposition to the City’s summary judgment motion, Officer Cheatwood did not
respond to the City’s arguments regarding his claim for retaliatory pre-termination discipline.
Therefore, the City is entitled to judgment in its favor on count three of Officer Cheatwood’s
amended complaint. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.
1995) (“In opposing a motion for summary judgment, ‘a party may not rely on his pleadings to
avoid judgment against him.’ . . . grounds alleged in the complaint but not relied upon in summary
judgment are deemed abandoned.” (quoting Ryan v. Int’l Union of Operating Eng’rs, Local 675,
794 F.2d 641, 643 (11th Cir. 1986) and citing Road Sprinkler Fitters Local Union No. 669 v. Indep.
Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994)); see also B & D Nutritional Ingredients,
Inc. v. Unique Bio Ingredients, LLC, 758 Fed. Appx. 785, 790-91 (11th Cir. 2018).
13

33