Frazier v. Gadsden, City of

Filing 24

MEMORANDUM OPINION AND ORDER DENYING 15 MOTION for Summary Judgment, TERMED AS MOOT 23 MOTION to Strike as set out herein. Signed by Judge Virginia Emerson Hopkins on 10/2/2014. (JLC)

FILED
2014 Oct-02 PM 05:19
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
MICHAEL D. FRAZIER,

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) Case No.: 4:13-CV-757-VEH
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Plaintiff,
v.
CITY OF GADSDEN,
Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff Michael D. Frazier (“Mr. Frazier”) initiated this employment dispute
against Defendant City of Gadsden (the “City”) on April 23, 2014. (Doc. 1). Pending
before the court are the City’s Motion for Summary Judgment (Doc. 15) (the “Rule
56 Motion”) filed on May 2, 2014, and the City’s Motion To Strike (Doc. 23) (the
“Strike Motion”) filed on June 6, 2014. For the reasons explained below, both the
City’s Rule 56 Motion and Strike Motion are DENIED. Alternatively, the City’s
Strike Motion is TERMED as MOOT.
City’s Rule 56 Motion
The court has reviewed the parties’ respective supporting and opposing
materials on the Rule 56 Motion. (Docs. 16-19, 21-22). In his complaint, Mr. Frazier,
a white male, has asserted race discrimination arising under Title VII of the Civil

Rights Act of 1964 (“Title VII”) and 42 U.S.C. § 1981, against the City for failing to
hire him for the position of police officer. (Doc. 1 ¶¶ 1, 11).
The record shows that Mr. Frazier has established a prima facie case of his race
discrimination claim under both statutes1 as, during the relevant time frame, the City
hired several non-white applicants (i.e., African-American applicants Montgomery,
Sandridge, and Mostella) for the position that he also sought. See, e.g., E.E.O.C. v.
Joe's Stone Crabs, Inc., 296 F.3d 1265, 1273 (11th Cir. 2002) (“In a traditional
failure-to-hire case, the plaintiff establishes a prima facie case by demonstrating that:
(1) she was a member of a protected class; (2) she applied and was qualified for a
position for which the employer was accepting applications; (3) despite her
qualifications, she was not hired; and (4) the position remained open or was filled by
another person outside of her protected class.” (citing Schoenfeld v. Babbitt, 168 F.3d
1257, 1267 (11th Cir. 1999))); see also Sledge v. Goodyear Dunlop Tires North
America, Ltd., 275 F.3d 1014, 1015 n.1 (11th Cir. 2001) (setting forth prima facie

1

Employment claims asserted under Title VII and § 1981 are analyzed in parallel fashion
within the Eleventh Circuit. See Brown v. American Honda Motor Co., 939 F.2d 946, 494 (11th Cir.
1991) (“The Supreme Court has held that the test for intentional discrimination in suits under § 1981
is the same as the formulation used in Title VII discriminatory treatment causes.” (citing Patterson
v. McLean Credit Union , 491 U.S. 164, 185-87, 109 S. Ct. 2363, 2377-78, 105 L. Ed. 2d 132
(1989))); see also Lincoln v. Board of Regents of University System of Georgia, 697 F.2d 928, 935
n.6 (11th Cir. 1983) (“When, as in this case, the plaintiff predicates liability under Title VII on
disparate treatment, the legal elements of the claim are identical to those of a claim under § 1981.”).
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elements of failure-to-hire claim).
Further, the City offers no reasonable challenge to Mr. Frazier’s establishment
of a prima facie case. The hiring of one white applicant, Tara Bates, occurring around
this same period does not erase the existence of the City’s subsequent non-white
hirees. As the Eleventh Circuit has repeated recognized, “[t]he methods of presenting
a prima facie case are flexible and depend on the particular situation.” Alvarez v.
Royal Atlantic Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010) (citing Wilson
v. B/E Aerospace, Inc., 376 F.3d 1079,1087 (11th Cir. 2004)). Additionally, Mr.
Frazier has adduced sufficient evidence from which a reasonable fact finder could
conclude that in the absence of being subjectively and improperly disqualified (due
to his race) by the City, through its final decisionmaker, Chief John Crane (“Chief
Crane”), Mr. Frazier would have remained on the eligibility roster for up to two years
after he applied to become a police officer.
The City’s strained efforts to render Mr. Frazier unqualified from a prima facie
standpoint due to subjective criteria, while admitting that he was objectively
qualified, flies in the face of binding Eleventh Circuit law and, if followed, would
constitute reversible error. See Vessels v. Atlanta Independent School System, 408
F.3d 763, 769 (11th Cir. 2005) (“Rather, to demonstrate that he was qualified for the
position, a Title VII plaintiff need only show that he or she satisfied an employer’s
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objective qualifications.”); id. (“Specifically, we have made clear that the prima facie
case is designed to include only evidence that is objectively verifiable and either
easily obtainable or within the plaintiff’s possession.” (emphasis in original) (citing
Walker v. Mortham, 158 F.3d 1177, 1192-93 (11th Cir. 1998))); Vessels, 408 F.3d at
769 (“This is particularly important because we have emphasized that subjective
criteria can be a ready vehicle for race-based decisions.” (emphasis added) (citing
Miles v. M.N.C. Corp., 750 F.2d 867, 871 (11th Cir. 1985))).
The City also misguidedly suggests that in order to sustain a prima facie case
Mr. Frazier must show that “equally or less qualified persons outside his class (which
is white) were considered for the position.” (Doc. 16 at 21).2 This is simply wrong.
See Walker, 158 F.3d at 1193 (“In light of our own precedent and the decisions by the
Supreme Court in Burdine and Patterson, we hold that district court in this case erred
in imposing as part of the prima facie case a requirement that each plaintiff establish
that the successful applicant for his or her coveted position was less than or equally
qualified to hold the position.”).
Instead, the City’s briefing focuses primarily upon whether Mr. Frazier has
adduced sufficient evidence of pretext pertaining to its articulated explanation(s) for
not hiring him–Chief Crane found Mr. Frazier to be subjectively unfit for the position
2

All page references to Doc. 16 correspond with the court’s CM/ECF numbering system.
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of police officer based upon his answers to certain questions contained on his job
application.3 Turning to the existence of pretext in the decision not to hire Mr.
Frazier, the court determines that the record contains “‘evidence of such quality and
weight that reasonable and fairminded men in the exercise of impartial judgment
might reach different conclusions.’” See MacPherson v. University of Montevallo,
922 F.2d 766, 776 (11th Cir. 1991) (quoting Verbraeken v. Westinghouse Elec.
Corp., 881 F.2d 1041,1045 (11th Cir. 1998)).
This evidence, taken together and in a light most favorable to Mr. Frazier
which the court is obligated to do on summary judgment, includes, but is not limited
to: (1) the City’s giving a “shifting explanation for its actions[,]” see, e.g., Bechtel
Const. Co. v. Secretary of Labor, 50 F.3d 926, 935 (11th Cir. 1995) (finding pretext
in employer’s termination decision by contrasting position taken at administrative
level with that presented on appeal); and (2) comments made and actions undertaken
by decisionmaker Chief Crane which reveal a racial animus in the hiring of police

3

These subjective reasons, as Chief Crane indicated during his deposition, relate to Mr.
Frazier’s admissions (on his job application) that: (1) he had stolen property (i.e., a street sign) with
a friend when he was a minor; (2) he had taken some money (that was “laying around a relative’s
house”) when he was a minor; (3) he had operated a motor vehicle under the influence of alcohol
within the past 6 months; and (4) he had a record of several felony arrests. (Doc. 18 at 8-9 ¶¶ 19a-c).
Concerning this last category, all charges against Mr. Frazier were eventually dismissed, and no
conviction is on his record. (Doc. 18 at 9 ¶ 19c). Additionally, Lieutenant Michael Garigues testified
that he understood from Chief Crane that a “‘nol prossed’ arrest would not be considered a
disqualifying factor for police applicants.” (Id. at 9 ¶ 19c); (see also Doc. 19-25 at 12 at 48 (“A nol
prossed [arrest] would . . . have been looked over.”)).
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officers.
Concerning the first point, Mr. Frazier has shown that “the alleged subjective
reasons for disqualification [of him] provided by Chief Crane during his 2013
deposition are utterly absent from the [C]ity’s January 2013 EEOC position
statement.” (Doc. 18 at 36);4 (see also Doc. 19-4 at 1-2 (copy of the City’s EEOC
position statement)). Instead, the City’s administrative answer suggests that the hiring
of (non-white) Officer Montgomery, one of Mr. Frazier’s comparators, was handled
differently (i.e., in a more abbreviated manner) because he “was not a new recruit.”
(Doc. 19-4 at 2). In contrast to this particular part of the City’s position statement,
Chief Crane indicated during his deposition that a lateral hire “would have to submit
the same lengthy application as a new recruit and be subject to the same Professional
Standards background review for potential disqualifying reasons as a new recruit.”
(Doc. 18 at 37); (see also Doc. 17-8 at 135 (answering affirmatively to question about
whether a lateral applicant like “Officer Montgomery would have to submit the same
lengthy application”)).
As for the second point, Mr. Frazier provides the following summary of
racially-related comments and actions attributable to final decisionmaker Chief Crane
that are supported by underlying evidence contained in the record:
4

All page references to Doc. 18 correspond with the court’s CM/ECF numbering system.
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In March 2012 Chief Crane told Captain Regina May that he had made
“a commitment” to the civil service board “to hire more women and
blacks” to the Gadsden Police Department. (May Depo. at 26). Soon
thereafter, Crane asked May for the police applicant eligibility roster
which she then obtained from the personnel board. (Id.). The roster sent
by the personnel office listed only the names of the applicants. When
May took this roster to Chief Crane he looked at it and then directed her
“to identify who is black and who is white.” (Id. at 26-27). May had to
call the personnel office to get race information as this information is
not on the eligibility roster the police department receives. (Id. at
111-12). The personnel office verbally provided the race information to
May and May noted the race of each individual on the roster and took
the roster to Crane. (Id.). Crane reviewed the list and made check marks
beside each African-American applicant and directed May to process
those African-American applicants and get them ready. (May Depo. at
28-29, 112). May responded to Chief Crane that the personnel rules
require processing the eligibility roster in the order each applicant is
ranked and that he could not remove someone from the list without good
reason. (Id. at 29). Chief Crane looked at her and said: “You can’t do
that” Or: I can’t do that?” and left her office. Chief Crane removed May
from the personnel board shortly after this. (Id. at 31). Since being
removed from this personnel board position, Chief Crane has also
brought May up on disciplinary charges. (Id. at 38). She was not subject
to disciplinary allegations until after she objected to Chief Crane about
his request to identify only the African-American applicants on the
roster. (Id.). May believes that Tara Bates (White Female) was hired
from that list and then Greg Sandridge (African-American male) was
hired after several applicants ranked higher than him on the list were
skipped. She describes his hire as very unusual. (Id. at 76-77).
(Doc. 18 at 12-13 ¶ 33).
Additionally, Chief Crane responded to a question about minority recruitment
during his interview for the chief position that he “was kind of surprised that Gadsden
is thirty-six percent black and our police department is only nineteen percent. That
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would be one of the things that I would work on.” (Doc. 22 at 3 at 142-43). In this
court’s view, evidence that Chief Crane had, during his own job interview, publicly
made the commitment to hire more black police officers constitutes compelling
circumstantial proof to disbelieve the subjective reasons that Chief Crane indicated
were behind his decision not to hire Mr. Frazier and to believe, instead, that
considerations of race improperly infused the decisionmaking process. Cf. Ross v.
Rhodes Furniture, Inc., 146 F.3d 1286, 1292 (11th Cir. 1998) (“Because Ross’s case
turned on circumstantial evidence, the proper inquiry is whether Sweeney’s ‘Tarzan’
remark and Kirkland’s remark, when read in conjunction with the entire record, are
circumstantial evidence of those decisionmakers’ discriminatory attitude.”); id. (“If
so, the court must then determine whether such circumstantial evidence, along with
other evidence (including Ross’s prima facie case), might lead a reasonable jury to
disbelieve Rhodes’s proffered reason for firing Ross.”).
Indeed, the Eleventh Circuit has made it clear that when evidence of a
discriminatory attitude falls short of meeting the more stringent standard applicable
to establishing direct evidence cases,5 a plaintiff is still, nevertheless, permitted to
rely on the proof to circumstantially show evidence of discrimination. See Vessels,

5

Because the court is denying summary judgment under the McDonnell Douglas model, it
elects not to reach the issue of whether Mr. Frazier has established a direct evidence case of race
discrimination.
8

408 F.3d at 771 (“Vessels’ evidence of pretext includes statements he claims that
AISS officials made regarding the desirability of having black employees in a school
system serving a predominantly black population.”); id. (“Even where such evidence
of race bias proves insufficient to prove an employee’s case through direct evidence,
it can be relevant in the circumstantial framework to show that the employer’s
proffered reasons were pretextual.” (citing Ross, 146 F.3d at 1291)); see also Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095, 67
L. Ed. 2d 207 (1981) (“She may succeed in this 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.”
(emphasis added) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05,
93 S. Ct. 1817, 1825-26, 36 L. Ed. 2d 668 (1973))).
In sum, as it pertains to pretext inquiry, “[t]he evidence presented by plaintiff[]
is sufficient to allow a jury in the exercise of impartial judgment to conclude that [the
City’s] proffered explanations are unworthy of belief.” MacPherson, 922 F.2d at 776;
cf. Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (“A triable
issue of fact exists if the record, viewed in a light most favorable to the plaintiff,
presents ‘a convincing mosaic of circumstantial evidence that would allow a jury to
infer intentional discrimination by the decision maker.’” (footnote omitted) (quoting
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Silverman v. Bd. of Educ., 637 F.3d 729, 734 (7th Cir. 2011))). Alternatively, a
reasonable jury could equally conclude that the City’s articulated reasons for deciding
to hire several non-white applicants over Mr. Frazier are legitimate and not a pretext
for discrimination under Title VII or § 1981.
Therefore, because material factual disputes preclude the entry of summary
judgment, the City’s Rule 56 Motion is DENIED.
City’s Strike Motion
The City’s Strike Motion is a two-page bare-bones document, which seeks to
strike “facts or assertions as constituting inadmissible evidence, and to not consider
them for summary judgment purposes.” (Doc. 23 at 1). The Strike Motion lacks any
citation to legal authorities. The fact that the City refers this court to its reply brief for
more specifics is of no consequence, as the reply brief not only is confusingly drafted,
but also it similarly lacks any case citations or developed arguments to support the
evidentiary relief which the City seeks to obtain from the court.
Accordingly, the City’s Strike Motion is DENIED as underdeveloped and
perfunctorily made. See Flanigan’s Enters., Inc. v. Fulton County, Ga., 242 F.3d 976,
987 n.16 (11th Cir. 2001) (holding that a party waives an argument if the party
“fail[s] to elaborate or provide any citation of authority in support” of the argument);
Ordower v. Feldman, 826 F.2d 1569, 1576 (7th Cir. 1987) (stating that an argument
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made without citation to authority is insufficient to raise an issue before the court).
Alternatively, the City’s Strike Motion is TERMED as MOOT. More
specifically, the overall strength of Mr. Frazier’s case means that the denial of the
City’s Rule 56 Motion is appropriate even without consideration of the facts and
assertions challenged in the Strike Motion, including specifically those portions of
paragraph 33 of Mr. Frazier’s opposition (cited to by the court above), which the City
claims contain inadmissible statements.
An order setting this case for a final pretrial conference will follow.
DONE and ORDERED this the 2nd day of October, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

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