Allison et al v. Birmingham, City of, The

Filing 32

MEMORANDUM OPINION - The court WILL GRANT the City's motion for summary judgment and WILL ENTER SUMMARY JUDGMENT in favor of the City and against Plaintiffs on all of their claims. The court will enter a separate order and final judgment consistent with this opinion. Signed by Judge Annemarie Carney Axon on 1/8/2021. (KEK)

FILED
2021 Jan-08 PM 12:20
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL ALLISON,
ADAM McCONNELL,

)
)
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Plaintiff,
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v.
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BIRMINGHAM, CITY OF, THE, )
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Defendant.
)

Civil Action No. 2:19-cv-244-ACA

MEMORANDUM OPINION
Before the court is Defendant City of Birmingham’s (“the City”) motion for
summary judgment. (Doc. 23). Plaintiffs Michael Allison and Adam McConnell,
both white police officers, allege that the City discriminated against them by
removing them from their assigned beats and replacing them with African-American
officers. (Doc. 14 at 3 ¶ 15). They assert that the reassignment violated Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(m), and the Equal Protection
Clause of the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983. (Id. at 4).
The court WILL GRANT the City’s motion for summary judgment and
WILL ENTER SUMMARY JUDGMENT in favor of the City and against
Plaintiffs because Plaintiffs have failed to present evidence from which a reasonable
jury could find in their favor.

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I.

BACKGROUND
On a motion for summary judgment, the court “draw[s] all inferences and

review[s] all evidence in the light most favorable to the non-moving party.”
Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012)
(quotation marks omitted).
The City’s North Police Precinct is typically divided into four districts, which
are each divided into several patrol beats. (Doc. 22-1 at 1). The districts are
patrolled by a combination of beat and utility patrol officers. (Id.). Beat officers are
assigned to patrol a specific beat; utility officers patrol various beats within the
precinct during each shift. (Id.). There is no difference in pay, benefits, or job duties
between the two roles. (Doc. 22-1 at 3). At the time relevant to this case, Officers
McConnell and Allison were beat patrol officers assigned to the North Precinct.
(Doc. 29-1 at 2 ¶ 1; Doc. 29-2 at 2 ¶ 1).
In February 2017, when Lieutenant Donald Gary became Unit Commander of
the North Precinct, there were only three sergeants assigned to the precinct, so the
precinct was divided into three districts rather than the usual four. (Doc. 22-1 at
2–3). When Lt. Gary assumed command, he met with each North Precinct officer,
including Officers McConnell and Allison, to communicate his performance
expectations. (Doc. 22-1 at 4). He expected officers to complete monthly reports

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detailing their activity, including the number of traffic stops, citations, and arrests
made by the officer. (Doc. 22-1 at 4).
On June 9, 2017, Officer Allison and another patrol officer, Officer Phillips,
responded to a disturbance call in the Fountain Heights area, a neighborhood within
Officer Allison’s beat. (Doc. 22-1 at 5; Doc. 29-1 at 2 ¶ 9). The call resulted in
Officer Allison and Officer Phillips arresting Bonderia Lyons for disorderly conduct.
(Doc. 22-1 at 5). During her confrontation with the officers, Ms. Lyons complained
that her neighborhood was being treated unfairly by the “white officers” patrolling
it. (Id.). She demanded to speak to the arresting officers’ supervisors. (Id.).
The next day, Ms. Lyons attended a Fountain Heights Neighborhood meeting.
(Doc. 22-1 at 6; Doc. 29-1 at 2 ¶ 14). Lt. Gary, several police supervisors, and
Officer Phillips also attended the meeting. (Doc. 22-1 at 6). During the meeting, an
altercation arose between Officer Phillips and Roderick Foster, a male friend of
Ms. Lyons.

(Id.; Doc. 29-1 at 2 ¶ 15).

Mr. Foster drew a gun during the

confrontation, and Officer Phillips arrested him for attempted murder. (Doc. 22-1
at 6). Officer McConnell responded to the scene as backup, but by the time he
arrived other officers had already secured the scene. (Doc. 22-1 at 6; Doc. 29-1 at 2
¶ 15–16).
After the meeting, but still in the presence of the officers, Ms. Lyons repeated
her complaint that the officers patrolling her neighborhood were treating her and her
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neighbors unfairly because the officers were white, and the neighborhood was
predominantly black. (Doc. 29-1 at 2 ¶ 18–19).
Roughly two weeks after the neighborhood meeting, Lt. Gary reassigned
several officers, including Officers McConnell and Allison. (Doc. 22-1 at 4).
Lt. Gary gives two reasons for his decision to reassign some of the officers under his
command: first, his review of the officers productivity during his first five months
led to the determination that reassignments were “needed to meet the needs of the
community” and “better serve the citizens”; second, the Birmingham Police
Department assigned a new sergeant to the North Precinct, allowing him to reestablish a fourth district. (Doc. 22-1 at 4, 7).
Alleging that Lt. Gary’s decision to reassign them from beat patrol to utility
patrol was racially motivated, Officers McConnell and Allison filed this suit. (Doc.
14 at 4 ¶ 23)
II.

DISCUSSION
In deciding a motion for summary judgment, the court must determine

whether, accepting the evidence in the light most favorable to the non-moving party,
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
see also Hamilton, 680 F.3d at 1318.
Plaintiffs bring two claims of racial discrimination, one under Title VII of the
Civil Rights Act and one under the Equal Protection Clause of the Fourteenth
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Amendment through 42 U.S.C. § 1983. However, even when viewed in the light
most favorable to Plaintiffs, the evidence here is insufficient to survive summary
judgment. Plaintiffs have not established a prima facie case under the McDonnell
Douglas test, and they have also failed to present evidence of a convincing mosaic
of circumstantial evidence. Further, Plaintiffs have failed to show any evidence that
could lead a reasonable jury to find that the City has either an official policy or
unofficial custom of reassigning officers based on race. Accordingly, the court
WILL GRANT summary judgment in favor of the City and against Plaintiffs.
1.

Title VII Claim

Plaintiffs point to Lt. Gary’s decision to reassign them from beat to utility
patrol as the sole discriminatory decision. 1 The City responds by arguing that
Plaintiffs’ Title VII claim fails because (1) reassignment from beat to utility patrol
is not an adverse employment action; (2) Plaintiffs have failed to present evidence
that their reassignment was based on race; and (3) Plaintiffs have failed to present
evidence that the City’s legitimate, non-discriminatory reasons for reassigning
Plaintiffs were pretextual. (Doc. 24 at 11–13, 19; Doc. 31 at 5–6). The court does

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In the complaint, Plaintiffs also allege that the City removed their Field Training Officer
(“FTO”) designation, a title that comes with both increased responsibility and a pay increase.
(Doc. 14 at 3 ¶ 17). On summary judgment, however, Plaintiffs concede that Officer McConnell
was never an FTO, and Officer Allison only became an FTO after his reassignment. (Doc. 29 at
22). Plaintiffs muse that “if McConnell’s designation was denied or Allison’s was delayed as a
part of these events, an adverse employment action would be demonstrated,” but have not offered
any evidence to that effect. (Id. at 23). Accordingly, the court will limit its analysis to Plaintiffs’
claim that their reassignment violated Title VII.
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not need to address whether reassignment from beat to utility patrol is an adverse
employment action because Plaintiffs have not presented enough evidence of
discrimination to survive summary judgment.
Generally, where a plaintiff bases a Title VII claim of race discrimination on
circumstantial evidence, the court applies the McDonnell Douglas framework. See,
e.g., McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008). In this case,
however, Plaintiffs concede that they cannot make the initial showing required under
the McDonnell Douglas test because they have not identified similarly situated
comparators. (Doc. 29 at 22). Instead, they rely on the test set out in Smith v.
Lockheed-Martin Corp., in which the Eleventh Circuit held that a plaintiff may
survive summary judgment if he “presents a convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional discrimination by the
decisionmaker.” 644 F.3d 1321, 1328 (11th Cir. 2011) (quotation marks and
alteration omitted).
Circumstantial evidence of discriminatory intent includes “(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 v.
City of Union City, Ga., 934 F.3d 1169, 1185 (11th Cir. 2019) (quoting Silverman v.
Bd. of Ed. of Chicago, 637 F.3d 729, 733–34 (7th Cir. 2011)) (quotations omitted)
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(alterations accepted). In Smith, the plaintiff offered “compelling evidence” of
race-based discrimination, including “numerous incidents where the discipline of
white employees varied considerably from that of black employees, and a discipline
matrix created by the employer that tracked the discipline and race of employees.”
Connelly v. Metro. Atlanta Rapid Transit Auth., 764 F.3d 1358, 1364 (11th Cir.
2014) (quotations omitted).
Here, the evidence is not compelling. Plaintiffs’ claim relies on statements
made by Ms. Lyons, a private citizen. (Doc. 29-1 at 2 ¶ 18). Plaintiffs argue that
because Lt. Gary did not “correct” Ms. Lyons when she complained about white
officers patrolling her neighborhood, he “tolerated the making of these statements.”
(Id. at 2 ¶ 19). Plaintiffs also allege that the timing of their reassignments, roughly
two weeks after Ms. Lyons’ statements, is “suspicious.” (Doc. 29 at 27–28).
Finally, Plaintiffs argue that a “jury could reasonably infer that Gary felt inclined to
placate Lyons and avoid the potential public relations or lawsuit disaster that she
posed.” (Doc. 29 at 30). But “[a]n inference[ ] is not a suspicion or a guess. It is a
reasoned, logical decision to conclude that a disputed fact exists on the basis of
another fact.” Smith, 644 F.3d at 1328 n.25 (quotation marks and second alteration
omitted). Here, there is insufficient evidence for a reasonable factfinder to conclude
that Plaintiffs have presented a convincing mosaic of circumstantial evidence of
discrimination.
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Moreover, the City presented evidence of legitimate, non-discriminatory
reasons for Plaintiffs’ reassignment, and Plaintiffs offer no evidence of pretext.
Lt. Gary testified that his reassignment decisions were based “on a review of
officers’ productivity and neighborhood involvement” over the course of five
months. (Doc. 22-1 at 4). Lt. Gary “noted multiple times on [Officer McConnell’s]
reports that he needed . . . to do more on his beat.” (Id. at 5, 11–20). Then, when a
new sergeant was assigned to the precinct, Lt. Gary created a fourth district and
made reassignments to cover the new district and “better serve the citizens” of the
North Precinct. (Id. at 4). Because Plaintiffs failed to show that these reasons are
not credible, the City is entitled to summary judgment.
Plaintiffs have failed to provide evidence of discriminatory intent or pretext
and thus have not presented evidence from which a reasonable factfinder could find
in their favor. Accordingly, the court WILL GRANT summary judgment in favor
of the City and against Plaintiffs on their Title VII claim of race discrimination.
2.

Section 1983 Claim

Count two asserts that the City violated the Equal Protection Clause of the
Fourteenth Amendment and is brought pursuant to 42 U.S.C. § 1983. Plaintiffs
allege that the City denied them the “right to be free from intentional racial
discrimination.” (Doc. 14 at 5). Like their Title VII claim, Plaintiffs’ § 1983 claim
cannot survive summary judgment.
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First, for the same reason that their Title VII claim fails, Plaintiffs’ § 1983
claim must also fail. See Abel v. Dubberly, 210 F.3d 1334, 1339 n.3 (11th Cir. 2000)
(holding that the same analysis applies to Title VII and § 1983 claims “when the two
claims arise from the same conduct and constitute parallel remedies”). The same
allegedly discriminatory conduct, Lt. Gary’s reassignment decision, animates both
of Plaintiffs’ claims. (Doc. 14 at 3–4). Plaintiffs have not satisfied the McDonnell
Douglas test and have not presented a convincing mosaic of circumstantial evidence.
Thus, they have failed to produce sufficient evidence of intentional discrimination,
a prerequisite to their equal protection claim.
But even if Lt. Gary reassigned Plaintiffs because of their race, Plaintiffs’
§ 1983 claim must still fail. “The law is clear that a municipality cannot be held
liable for the actions of its employees under § 1983 based on a theory of respondeat
superior.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1307 (11th Cir. 2001).
Instead, to establish a municipality’s liability under § 1983, a plaintiff must “identify
either (1) an officially promulgated . . . policy or (2) an unofficial custom or practice
of the [city] shown through the repeated acts of a final policymaker.” Grech v.
Clayton Cty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003) (en banc).
Here, Plaintiffs have presented no evidence that Lt. Gary was acting in
accordance with a custom or policy of discrimination. It is undisputed that the City
does not have an official policy of discrimination. (Doc. 22-3). And Plaintiffs have
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not presented evidence of an unofficial custom or practice of discrimination because
nothing in Plaintiffs’ affidavits provide evidence of repeated, discriminatory acts by
a final policymaker for the city. (See Docs. 29-1, 29-2).
Plaintiffs argue that “Lt. Gary possessed the final policymaking authority over
deployment of police officers in the North Precinct.” (Doc. 29 at 32). But the
undisputed evidence shows that “[o]nly the Mayor of the City of Birmingham and
the Chief of Police can create and implement policies for the Birmingham Police
Department.” (Doc. 30-1 at 4). Lt. Gary did not have the “final authority to establish
municipal policy,” and “[t]he fact that a particular official . . . has discretion in the
exercise of particular functions does not . . . give rise to municipal liability based on
an exercise of that discretion.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481–82
(1986).

Lt. Gary’s discretionary decision to reassign Plaintiffs cannot impose

liability on the City. Accordingly, the court WILL GRANT summary judgment in
favor of the City and against Plaintiffs on their § 1983 claim.
III.

CONCLUSION
The court WILL GRANT the City’s motion for summary judgment and

WILL ENTER SUMMARY JUDGMENT in favor of the City and against

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Plaintiffs on all of their claims. The court will enter a separate order and final
judgment consistent with this opinion.
DONE and ORDERED this January 8, 2021.

_________________________________
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE

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