Jackson et al v. Centreville City of et al
MEMORANDUM OPINION. Signed by Chief Judge Sharon Lovelace Blackburn on 9/24/2012. (KAM, )
2012 Sep-24 AM 09:24
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
CITY OF CENTREVILLE; JULIUS
CASE NO. 7:09-CV-2115-SLB
On August 16, 2012, the Magistrate Judge filed his Report and Recommendation,
(doc. 73),1 recommending:
(1) The City’s Motion for Summary Judgment (doc. 46) . . . be granted;
(2) Julius Dalton Murphy’s Motion for Summary Judgment (doc. 47)
. . . be granted in part and denied in part;
(3) The City’s Motion for Summary Judgment (doc. 52) . . . be
(4) Plaintiffs’ Motion to Strike the City’s “Motion for Summary
Judgment (doc. 52)” (doc. 56) . . . be denied; and
(5) Plaintiffs’ Motion to Strike the affidavit of Stephanie Scott (doc.
57) . . . be denied as moot.
(Doc. 73 at 2.)
Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.
Plaintiffs, Roy Jackson and Devie McLaughlin, and defendant, Julius Dalton Murphy,
filed Objections to the Magistrate Judge’s Report and Recommendation regarding the
defendants’ Motions for Summary Judgment, (docs. 76, 77); defendant, City of Centreville,
filed a Response to Plaintiffs’ Objections, (doc. 78). Based upon the court’s consideration
of all the materials in its file, including the Report and Recommendation, the court is of the
opinion that plaintiffs’ Objections, (doc. 76), are due to be overruled; defendant Murphy’s
Objections, (doc. 77), are due to be overruled; and the Magistrate Judge’s Recommendation
is due to be accepted.
I. STANDARD OF REVIEW OF THE REPORT AND RECOMMENDATION
The district court reviews de novo those parts of the Report and Recommendation to
which a party objects. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3)(“The district
judge must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.”).
The court may review the other parts of the Report and
Recommendation for plain error or manifest injustice. United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983)(citing Nettles v. Wainwright, 677 F.2d 404, 410 (11th Cir. 1982)).
“The district judge may accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ.
II. STATEMENT OF FACTS
The parties do not dispute the Magistrate Judge’s determination of the facts.
Therefore, the court ADOPTS the facts, set forth below, from the Magistrate Judge’s Report
This case involves actions by the Mayor of the City of Centreville,
Defendant Murphy, and the City itself that were allegedly racially
discriminatory towards Plaintiffs, two African-American men who worked for
the City’s Street Department. The facts in this case are voluminous. The court
will first begin by discussing the structure of the City. Next, the court will
address Defendant Murphy’s terms as Mayor of the City. Finally, the court
will discuss Plaintiffs’ employment with the City, including the incident that
resulted in Plaintiffs being fired and the events that later led to their
A. The City of Centreville
The City of Centreville is a Class 8 municipality with a Mayor-Council
form of government. [(Doc. 46-4 at 2.)] The council has five elected
members that serve as both legislators and as the check and balance for the
elected Mayor. (Id.) In addition to the City itself, Centreville also has a
separate Water Works and Sewer Board (the Water Board). [(Doc. 62-1 at
1-2.)] The Water Board is a public corporation formed “pursuant to the
provisions of Act No. 175 enacted at the 1951 Regular Session of the
Legislature of Alabama,” which is codified, among other places, at Alabama
Code § 11-50-313. [(Doc. 62-2 at 1.)] Both the City and the Water Board are
housed in the same building. [(Doc. 62-3 at 2.)] However, the Water Board
maintains a separate payroll and has separate employees. [(Doc. 62-1 at 2.)]
During the period at issue in this case, Defendant Murphy served as both the
Mayor of the City and the Supervisor of the Water Board. [(Doc. 48-1 at 4,
13.)] In his deposition, Defendant Murphy noted that “the Council always
appoints the Mayor as Supervisor of the Water Department.” (Id. at 13). As
compensation for these roles, Defendant Murphy received $400 per week from
the City and $500 per month from the Water Board. (Id.) This was paid in
two separate checks. (Id.)
One of the City’s departments is the Street Department. (Id. at 7).
During the relevant time period there were four people employed as laborers
in the Street Department: Plaintiff Jackson, Plaintiff McLaughlin, David
Crews, and Jeremy Kerr. [(Doc. 62-3 at 2-3.)] Jackson, McLaughlin, and
Crews are all African American while Kerr is Caucasian.
When new Street Department employees were hired, City Clerk
Stephanie Scott was responsible for their orientations. [(Doc. 48-10 at 4.)]
During that orientation Ms. Scott went over the benefits package with the
employees and gave employees a copy of the Handbook. (Id. at 4, 22). The
employee handbook includes a provision addressing racial discrimination
The City of Centreville is an equal opportunity employer and all
applications for employment will be selected on the basis of
qualification for the job, without regard to or discriminate on account
of race, religion, color, sex, creed, handicap, age, or national origin.
These principles of non-discrimination will apply to pay, promotion,
and all conditions of employment.
[(Doc. 46-17 at 2.)] While the handbook includes the procedure an employee
should follow to report sexual harassment, there is no such procedure for
suspected race discrimination. (Id. at 4)(“The City of Centreville will not
tolerate sexual harassment of any form. Any employee that has a complaint
should contact the Mayor.”). In fact, the evidence in the Rule 56 record shows
different theories on the proper policy for reporting potential racial
discrimination. [(Compare doc. 46-2 at 11-14 with doc. 54 at 9-10.)]
B. Mayor Murphy
1. Murphy’s Responsibilities as Mayor
Defendant Murphy served as the Mayor of Centreville in two
non-consecutive terms [–] [f]irst from 1992 to 1996 and later from 2004 to
2008. [(Doc. 48-3 at 2.)] As Mayor, Defendant Murphy was responsible for
overseeing the various departments of City Government. (Id.) One such
department was the Street Department. (Id. at 3). As part of that
responsibility, he oversaw employees and made employment recommendations
to the City Council. (Id. at 2-3). Any recommendation Defendant Murphy
made could be denied, accepted, or modified by the City Council. (Id.)
Murphy contends that he had no authority to effectuate a raise or any other
employment decision without final approval by City Council. [(Doc. 49 at 6.)]
However, Plaintiffs contend that Defendant Murphy made employment
decisions without approval of City Council. [(Doc. 54 at 54-55.)]
Specifically, Plaintiffs point to evidence in the record that shows that Murphy
notified the City Council about hiring decisions, but did not necessarily seek
formal approval or those decisions. [(Compare doc. 55-2 and doc. 55-5 with
doc. 55-3 and doc. 55-4.)] For example, on January 5, 2006, the City Clerk
submitted an enrollment form for the Employees’ Retirement System of
Alabama that shows Chris White making $10.00/hour. (Doc. 55-2 at 5). It is
not until almost two weeks later that the City Council Minutes reflect that
“[t]he Mayor told the council that he has hired a new employee for the Street
Department. His name is Chris White and his start date was January 4, 2006.”
(Doc. 55-3 at 3). Notably, there is no record of any discussion concerning
White’s pay before the City Council.
2. Racial Incidents Involving Mayor Murphy
While Defendant Murphy was Mayor, he regularly used racist terms in
the work environment. [(Doc. 48-10 at 11.)] Further, two members of the City
Council reported hearing Murphy both use the “N” word and make reference
to Klu Klux Klan meetings. [(Doc. 48-11 at 16-19; doc. 48-14 at 5, 26.)]
Jackson described an incident when he and his girlfriend, Misty Salter were
putting in a foundation for Murphy’s son’s air conditioning unit and Murphy
told him to “hurry up because he’s got a Klan meeting to go to.” [(Doc. 46-21
at 16; doc. 48-9 at 98.)] Jackson understood Murphy to mean a KKK meeting,
but did not ask for clarification about what Murphy meant. [(Doc. 46-21 at
16-17.)] In a separate incident, Jackson was cleaning up a caboose and a man
came and asked Murphy if he was going to write KKK on the side of it. (Id.)
Jackson testified that Murphy laughed and said “we don’t need to put that on
there right now.” (Id. at 17-18). He also testified to an incident ten to thirteen
years ago when Jackson saw Murphy, prior to when Murphy was mayor,
dressed in a Klan outfit at a local park. (Id. at 18).
With respect to racial incidents directed at Plaintiffs, Murphy called
Plaintiffs and the other African-American employees “boy”, but called the
white employees by their names. [(Id. at 20; doc. 48-5 at 32, 36; doc. 48-11
at 22-23.)] According to Jackson, Murphy has called him boy several times,
including the day he was leaving. [(Doc. 46-21 at 21 (“The day he got out of
the Mayor’s seat, came out to the shop and said, I’ll see y’all boys later. But
I can’t call y’all boys no more.”).)] However, the number of times Murphy
called Jackson boy couldn’t have been more than five times. (Id. at 36).
During the September 2, 2008, City Council meeting, while discussing
the incident related to Plaintiffs’ termination, the minutes reflect the following
The mayor stated that while this topic was being discussed he wanted
to address the situation and ask why it was turned into a racial matter.
Don Mack stated that he never said it was racial. Linda Renn Pierce
admitted she thought it was racial because the Mayor is constantly
making remarks about attending his Ku Klux Klan meetings and using
the “N” word. At this point the Mayor told Linda that maybe he needed
to burn a cross in her yard. Linda Renn Pierce let it be known that she
took that comment as a threat.
[(Doc. 55-13 at 3.)]
C. Roy Jackson and Devie McLaughlin’s Employment in the
City’s Street Department
1. Roy Jackson
Roy Jackson graduated high school in 1989 and went to work for the
City of Centreville that year as a laborer on a garbage truck. [(Doc. 48-4 at
8-9.)] In 2000, garbage collection was privatized and Jackson’s position was
terminated. (Id. at 9). At that time, he began to work for the ball park as a
laborer. (Id.) Around 2005, Defendant Murphy sent two people to ask
Jackson to return to the City to work for the street department. (Id. at 11).
When he returned to work for the City, he was paid “a little more than six
dollars” an hour. (Id. at 10-11). At that time, Jackson worked under Mr.
Avery and Mr. Gleaton (Jackson testified that Mr. Avery handed out the job
assignments). (Id.) Over the next few years, he received several pay raises:
on September 15, 2006, the Mayor increased his pay to $7.00 per hour, on
August 3, 2007, the Mayor increased his pay to $7.50 per hour, on October 16,
2007, he received a cost of living raise to $7.80 per hour, on March 4, 2008,
he received a merit raise to $8.25 per hour, and on November 1, 2008, he
received a cost of living raise to $8.58 per hour. [(Doc. 46-16 at 2.)]
Jackson testified that he has held the role of Street Superintendent.
However, Murphy asserts that when there was a lapse of time between Street
Superintendents, he served as the Street Superintendent and oversaw the work
of the street department laborers. [(Doc. 48-3 at 3.)] Whether Jackson was
ever Street Superintendent is a fact that is highly contested by the parties.
However, at summary judgment the court must take the facts in the light most
favorable to the Plaintiffs. Jackson has offered the following evidence as
support for the fact that he acted as Street Superintendent. Jackson testified
that the mayor told him he was the Street Superintendent. [(Doc. 48-4 at
35-36.)] According to Jackson, he became Street Superintendent after Randy
Hudgins left. (Id. at 46-47). However, Jackson acknowledges there are no
documents that show that Murphy ever made him Street Superintendent.
[(Doc. 46-21 at 62.)] Further, there is testimony from others that Jackson
acted as Street Superintendent. [(Doc. 48-11 at 49-50; doc. 48-15 at 5; doc.
48-10 at 15; doc. 48-9 at 16.)]
In April 2008, there was an incident with Ms. Freeman (a woman who
works at City Hall). [(Doc. 48-4 at 20.)] While Jackson, McLaughlin, and
Crews were working outside of City Hall, Ms. Freeman was sprayed with
water. (Id.) According to Jackson, Ms. Freeman told Murphy that Jackson
had sprayed her. (Id.) After telling Murphy that he had not sprayed Ms.
Freeman, Jackson went to talk to Ms. Freeman. (Id.)(“You know, when I got
ready to go in there to talk to her, but I didn’t go all the way in, I had got so
frustrated. I told her she was wrong, you [are] wrong for telling the Mayor,
that I’m disturbed, on me, about I sprayed you.”). Jackson then went back into
Murphy’s office where Murphy told him that his anger was going to get the
best of him. (Id.) At that time, a police officer came into Murphy’s office and
there was “a little altercation” between Murphy and the police officer. (Id.)
Murphy told Jackson that he could not come back in the City Hall. (Id. at 21).
Ms. Freeman filled out a criminal complaint but Jackson was not charged with
anything and nothing else came of the incident. (Id. at 20-21).
2. Devie McLaughlin
McLaughlin began his employment with the City on May 1, 2007.
[(Doc. 55-7 at 2.)] His job duties were to cut grass and pick up trash piles on
the side of the road. [(Doc. 48-5 at 9.)] McLaughlin also operated the
bush-hog, backhoe, and scag. (Id. at 25). McLaughlin asserts that he was
discriminated against in his termination, discussed below, and in his pay. [(Id.
at 27.)] Specifically, McLaughlin alleges that he gets paid less than Jeremy
Kerr, yet is able to do more on the job. (Id. at 34). McLaughlin asserts that he
is more qualified than Kerr because he can operate the heavy equipment, while
Kerr can only weed-eat. (Id. at 37-38). As a result of this, McLaughlin is
stressed out. . . . Prior to a meeting with the EEOC, McLaughlin thought he
was a full-time employee. (Id. at 35-36). However, at the time of his
termination and subsequent reinstatement he was classified as a part-time
employee. (Id. at 35). Throughout his employment with the City,
McLaughlin’s pay rate has increased from $5.15 per hour to $7.40 per hour.
[(Doc. 55-7 at 2)](on July 24, 2007, he received a minimum wage increase to
$5.85 per hour; on October 16, 2007, he received a cost of living increase to
$6.08 per hour; on July 24, 2008, he received a minimum wage increase to
$6.55 per hour; on November 1, 2008, he received a cost of living increase to
$6.81 per hour; on July 24, 2009, he received a minimum wage increase to
$7.25 per hour; and on October 1, 2010, he received a cost of living raise to
$7.40 per hour).
3. Plaintiffs’ Termination and Subsequent Reinstatement
Plaintiffs’ termination stems from an incident concerning the watering
of 38 flower pots that were hanging from street poles in Centreville, Alabama.
[(Doc. 48-1 at 23-24; doc. 48-4 at 23.)] Murphy had instructed the street crew
to water the flowers every day, which Plaintiffs did, except on July 30, 2008.
(Id.) That morning, the street crew was called to City Hall to meet with
Murphy. [(Doc. 48-5 at 14.)] Once Jackson, McLaughlin, and Crews arrived
at City Hall, Murphy asked Jackson why they had not watered the flowers.
Jackson responded that they did not water the flowers because it had rained the
night before and it would be a waste of money, gas, and water to water the
flowers. [(Doc. 48-4 at 22.)] Murphy then said the “whole crew is fired.”
Jackson left City Hall and went to the shop to gather his things that
were at the shop, but did not get everything because Murphy was sitting there
and said he could not take anything else. [(Id. at 24.)] Jackson came back
later and was told by a Water Department employee that Murphy said that
Jackson could not come back in the gate. (Id.) Jackson, McLaughlin, and
Crews then went to discuss the issue with Ken Cottingham, a member of City
Council. (Id. at 26). Cottingham told them there was nothing he could do
about it. (Id. at 27). After talking to Cottingham, Jackson went to talk to
another City Council member, Linda Renn Pierce. (Id.) During that meeting
Jackson asked how they could go about getting their jobs back. (Id.) Pierce
told him to write a letter to the City Council, which Jackson did two or three
days later. (Id. at 28).
On July 31, 2008, Plaintiffs received their paychecks, which included
compensation for their accumulated vacation and sick time. [(Doc. 46-11 at
On August 5, 2008, at the first meeting of City Council after Plaintiffs’
termination, Cottingham told Plaintiffs to file a written grievance over their
termination if they had concerns. [(Doc. 46-6 at 2)](“David Crews, Roy
Jackson and Devie McLaughlin were present to ask the council why they were
‘fired’ by Mayor Murphy on July 30th. Ken Cottingham instructed the men
that if they have concerns with the way they were terminated they need to file
a written grievance to the council, who will then determine if they will hold a
personnel hearing.”). In that same meeting, Murphy announced that he had
hired Barry McMillan as Street Superintendent. (Id. at 3). Ken Cottingham
stated he thought that the job needed to be advertised. (Id.)
In a letter dated August 6, 2012, Jackson, McLaughlin, and Crews
requested a meeting on why they had been fired. (Doc. 46-22)(“We are
requesting a meeting on why we have been fired, because if we had violated
any rules the mayor of Centreville didn’t warn us of any. There were no write
ups or warnings of any.”). On August 8, 2008, the City Council held a special
meeting to address Plaintiffs’ termination. [(Doc. 46-7.)] At that time, the
Council voted to appoint a three person panel to hold a personnel hearing.
(Id.) The Council also voted to reinstate Crews, Jackson, and McLaughlin to
the status of suspended with pay pending the outcome of the personnel
hearing. (Id.) Finally, the City Council voted to advertise the position of
Street Superintendent. (Id.)
On August 11, 2008, a due process panel held a hearing. [(Doc. 46-8.)]
The panel recommended (1) that Jackson, McLaughlin, and Crews “be
reinstated with pay, retroactive to July 30;” (2) that Jackson receive a
disciplinary writeup in his personnel file for “(a) failing to follow instructions
issued by the mayor, (b) failure to properly maintain City equipment, and (c)
intimidation of fellow City employee;” (3) that McLaughlin and Crews receive
a written disciplinary action for failing to properly maintain City equipment;
(4) that there be no further penalty and no loss of wages for the suspension
period; and (5) that the employee handbook be updated to include a definition
of the due process procedure, grounds for discipline, and grounds for
On August 13, 2008, the City Council held a second special meeting
concerning Plaintiffs’ termination. [(Doc. 46-9.)] At that meeting the City
Council voted to adopt the recommendation of the Due Process Panel and
noted that the “reinstated employees should be instructed that they answer to
Barry McMillan who receives his direction from Mayor Dalton Murphy.” (Id.)
The Council also voted to employ Barry McMillan on a temporary basis
pending the position being posted in the paper for two weeks. [(Id.)] It was
recommended that Plaintiffs report back to work on August 15, 2008. (Id.)
At the next regularly scheduled City Council meeting, on August 19,
2008, two Council members, Pierce and Mack, went on the record to rescind
their votes from the previous meeting in favor of placing a written reprimand
in Plaintiffs’ personnel files. [(Doc. 46-12.)] The City Council minutes reflect
the following discussion:
Don Mack wanted to officially go on record and rescind his motion to
accept the personnel panel’s recommendation. He stated that after
further investigation he feels as though the 3 workers were written up
for no reason. He further stated that the flowers did not die because
they missed being watered for one day. He added that the workers were
reprimanded for not changing oil, but were not allowed to buy oil to do
this with. Mr. Mack said he thought the panel did a tremendous job but
feels they were not provided with all of the facts. Don Mack made the
motion to clear the records of Roy Jackson, Devie McLaughlin and
David Crews. Linda Renn Pierce seconded the motion . . . . Upon a
vote of the members present the motion carried with a majority vote.
It was further clarified to clear their record pertaining to the city and
reserve the item with Roy Jackson and Teressia Freeman to be
considered at a later date.
Plaintiffs returned to work and were paid for the two weeks they [had
not worked]. [(Doc. 48-4 at 30; doc. 48-5 at 22.)] However, Jackson claims
he is humiliated because he has “to go to work every day and see that same guy
that’s in my place, in my spot, making more than me, and just come off the
street and don’t actually know nothing about the job, and I have to teach him,
still teach him.” (Id. at 38). Jackson also testified that people laugh at him
because of the flower incident and what he had to do to get his job back. (Id.)
McLaughlin also testified that people call him “flower boy” due to him getting
fired “about some flowers”, which made him feel bad. [(Doc. 48-5 at 41.)]
(Doc. 73 at 4-17 [footnotes omitted].)
A. CITY’S SECOND MOTION FOR SUMMARY JUDGMENT, (DOC. 52);
PLAINTIFFS’ MOTION TO STRIKE THE CITY’S SECOND MOTION FOR
SUMMARY JUDGMENT, (DOC. 56); AND PLAINTIFFS’ MOTION TO STRIKE
THE AFFIDAVIT OF STEPHANIE SCOTT, (DOC. 57)
The parties do not object to the Magistrate Judge’s Recommendation that (1) the
City’s second Motion for Summary Judgment, (doc. 52), be “administratively terminated;”
(2) plaintiffs’ Motion to Strike doc. 52, (doc. 56), be denied; and (3) plaintiffs’ Motion to
Strike Scott’s Affidavit, (doc. 57), be denied as moot. Therefore, without objection, the court
ACCEPTS the Recommendation of the Magistrate Judge with regard to these three Motions.
An Order denying plaintiffs’ Motions to Strike, (docs. 56 and 57), and denying and
administratively terminating the City’s second Motion for Summary Judgment, (doc. 52), will
be entered contemporaneously with this Memorandum Opinion.
B. PLAINTIFFS’ OBJECTIONS, (DOC. 76).
1. City’s Motion for Summary Judgment
a. Termination Claims
In this case, the Magistrate Judge held, “[T]he court cannot fathom any set of
circumstances, much less the one presented here, where, absent prior knowledge of
constitutional violations, the City would be liable for its failure to train its mayor about
proper employment practices. Because there is no basis to hold the City liable under § 1983,
it is entitled to summary judgment on Counts II and III.” (Doc. 73 at 29.) Plaintiffs object
to the Magistrate Judge’s Recommendation that their “Section 1983 failure to train claim
against the City under 42 U.S.C. § 1981 and the Equal Protection Clause of the Constitution”
be dismissed. (Doc. 76 at 2.) They contend:
3. As set forth in great detail in the Court’s recitation of the facts and
in Plaintiff’s brief in Opposition to Summary Judgment,2 Mayor Murphy’s
In their Memorandum in Support of Their Response in Opposition to Defendants’
Motions for Summary Judgment, (doc. 54), plaintiffs contended, inter alia:
In this case, the City’s policy of failing to respond to the plainly obvious
need [to] train its Mayor and other employees on anti-discrimination practices
is indicative of its deliberate indifference to the rights of its minority
employees, including Plaintiffs. The City was well aware of Murphy’s racist
ideology and did absolutely nothing about it. As noted supra, City Clerk
Stephanie Scott testified that she has heard Mayor Murphy use the word
“nigger” about once a week at work in the presence of her and other
administrative staff. (Scott p. 39-41) Scott nonetheless did not complain
because, among other reasons (including fearing for her job) she was not
aware that there was anyone to whom she could complain. (Scott 48-49,
Councilwoman Linda Renn-Pierce heard Mayor Murphy use the word
“niggers” when he referred to black people, and another council person told
her Murphy referred to Councilman Mack, who is African American, as a
“nigger”. (Pierce p. 12-17) Pierce remembered Mayor Murphy using the term
“nigger to describe black individuals as “damn niggers” who he thought had
stolen from the City shop. (Pierce p. 17-19, 27, 92) Pierce had also heard
Murphy mention going to a Klan rally several times. (Pierce p. 24)
Councilman Mack testified that Pierce had said she was tired of Mayor
Murphy using racial slurs in her presence. (Mack p. 35-36). The prior City
Clerk, Tina Litton, had told councilman Mack that Mayor Murphy “kept using
violation of Plaintiffs’ constitutional rights was a highly predictable
consequence of the City Council’s failure to train, based on the Council’s
actual knowledge that the mayor regularly used the “N-word” to refer to
African-Americans and that he claimed to be a member of the Ku Klux Klan.
The record amply justifies a finding of deliberate indifference in the City’s
failure to train Mayor Murphy once it became obvious that he harbored racial
animus and that he had a pattern of expressing that racial animus in the
workplace through the use of racial slurs and references to his membership in
the Klan. See Board of County Com’rs of Bryan County, Okl. v. Brown, 520
U.S. 397, 398 (1997). Moreover, the record amply justifies a finding that the
City’s failure to train Mayor Murphy emboldened him and ratified his racist
behavior, causing the Constitutional violations Plaintiffs experienced,
including their racially-based termination, disparate pay, and Jackson’s
4. Accordingly, the magistrate judge’s order granting summary
judgment to the City on Plaintiffs’ Equal Protection and Section 1981 claims
against the city should be reversed, and Plaintiffs’ termination, pay
discrimination, and demotion claims against the City should be allowed to
reach the jury.
(Id. ¶¶ 3-4 [footnote added].)
racial slurs, the “N” word, and stuff” at work”. (Mack p. 37) Councilmen
Don Mack and Roger Kinard also knew of and discussed Mayor Murphy’s use
of racial slurs at work. (Mack p. 38, 40-42, 88-89) When a person on the
Waterboard told Councilman Mack that she had heard the Mayor use the “N”
word, Mack said “well, yeah, join the crowd.” (Mack p. 54)
Despite this pervasive awareness of Mayor Murphy’s racial bias, the
City took absolutely no action to prevent Murphy from visiting his racist
ideologies on the employees he supervised, either through training or other
(Doc. 54 at 58-59 [citations to page numbers in plaintiffs’ Memorandum in Support of Their
Response in Opposition to Defendants’ Motions for Summary Judgment, (doc. 54), refer to
page number assigned to the document in the court’s electronic filing system].)
The Supreme Court has held that “[o]nly where a municipality’s failure to train its
employees3 in a relevant respect evidences a ‘deliberate indifference’ to the rights of its
inhabitants can such a shortcoming be properly thought of as a city ‘policy or custom’ that
is actionable under § 1983.” City of Canton v. Harris, 489 U.S. 378, 389 (1989)(footnote
added). “Deliberate indifference is a stringent standard of fault requiring proof that a
municipal actor disregarded a known or obvious consequence of his action.” Connick v.
Thompson, 131 S. Ct. 1350, 1360 (2011)(quotations and citations omitted; emphasis added).
Therefore, to establish a § 1983 against the City based on a policy or custom of inadequate
training, plaintiffs bear “the burden of proving both (1) that [the City Council] was
deliberately indifferent to the need to train the [Mayor] about [employment discrimination
laws] and (2) that the lack of training actually caused the [§ 1981/Equal Protection Clause]
violation[s] in this case.” See id. at 1358.
Ordinarily, deliberate indifference is established by showing “[a] pattern of similar
constitutional violations by untrained employees.” Id. at 1360. “Policymakers’ continued
adherence to an approach that they know or should know has failed to prevent tortious
conduct by employees may establish the conscious disregard for the consequences of their
action — the deliberate indifference — necessary to trigger municipal liability. Without
notice that [the municipality’s chosen course] is deficient in a particular respect,
Because the court finds employment discrimination is not a “known or obvious
consequence” of the City’s failure to train Murphy, the court has assumed that Murphy is a
decisionmakers can hardly be said to have deliberately chosen a [course] that will cause
violations of constitutional rights.” Id.
The Supreme Court has noted “that a plaintiff might succeed in carrying a
failure-to-train claim without showing a pattern of constitutional violations . . . in a narrow
range of circumstances [in which a plaintiff shows that] a violation of federal rights may be
a highly predictable consequence of a failure to equip [employees] with specific tools to
handle recurring situations.” Board of County Com’rs of Bryan County v. Brown, 520 U.S.
397, 409 (1997)(citing City of Canton, 489 U.S. at 390 and n.10). The narrow range of
circumstances that would support a finding that inadequate training “reflected ‘deliberate
indifference’” include cases in which a plaintiff shows a “likelihood that the situation will
recur” and “predictability that an [employee] lacking specific tools to handle that situation
will violate citizens’ rights.” Id. at 409-10. In other words, the violation of citizens’ rights
must be a “known or obvious consequence” of the failure to train. In Connick, the Supreme
[Plaintiff] contends that the [constitutional] violation in his case was the
“obvious” consequence of failing to provide specific . . . training, and that this
showing of “obviousness” can substitute for the pattern of violations ordinarily
necessary to establish municipal culpability.
In Canton, the Court left open the possibility that, “in a narrow range
of circumstances,” a pattern of similar violations might not be necessary to
show deliberate indifference. Bryan Cty., [520 U.S.] at 409. The Court posed
the hypothetical example of a city that arms its police force with firearms and
deploys the armed officers into the public to capture fleeing felons without
training the officers in the constitutional limitation on the use of deadly force.
Canton, [489 U.S.] at 390, n.10. Given the known frequency with which
police attempt to arrest fleeing felons and the “predictability that an officer
lacking specific tools to handle that situation will violate citizens’ rights,” the
Court theorized that a city’s decision not to train the officers about
constitutional limits on the use of deadly force could reflect the city’s
deliberate indifference to the “highly predictable consequence,” namely,
violations of constitutional rights. Bryan Cty., [520 U.S.] at 409. The Court
sought not to foreclose the possibility, however rare, that the unconstitutional
consequences of failing to train could be so patently obvious that a city could
be liable under § 1983 without proof of a pre-existing pattern of violations.
Failure to train prosecutors in their Brady [v. Maryland, 373 U.S. 83
(1963)] obligations does not fall within the narrow range of Canton’s
hypothesized single-incident liability. The obvious need for specific legal
training that was present in the Canton scenario is absent here. Armed police
must sometimes make split-second decisions with life-or-death consequences.
There is no reason to assume that police academy applicants are familiar with
the constitutional constraints on the use of deadly force. And, in the absence
of training, there is no way for novice officers to obtain the legal knowledge
they require. Under those circumstances there is an obvious need for some
form of training.
Connick, 131 S. Ct. at 1360-61(emphasis added; parallel citations omitted). However,
“Where the proper response . . . is obvious to all without training or supervision, then the
failure to train or supervise is generally not ‘so likely’ to produce a wrong decision as to
support an inference of deliberate indifference by city policymakers to the need to train or
supervise.” Sewell v. Town of Lake Hamilton, 117 F.3d 488, 490 (11th Cir. 1997)(quoting
Walker v. City of New York, 974 F.2d 293, 299-300 (2d Cir. 1992), cert. denied, 507 U.S.
972 (1993))(emphasis added).
Plaintiffs have not argued or presented any evidence upon which the court could infer
that Murphy or other City officers and employees are unfamiliar with federal laws prohibiting
racial discrimination in employment or that such individuals, in the absence of training, had
no way to obtain that knowledge.
The law is clearly established that employment discrimination by a municipality
and/or its officers on the basis of race violates Title VII, § 1981, and the Equal Protection
Clause. See Smith v. Lomax, 45 F.3d 402, 407 (11th Cir. 1995)(The Eleventh Circuit held,
“We need not engage in a lengthy discussion of the patently obvious illegality of racial
discrimination in public employment [in 1989].”). The court finds that the “proper response”
– race discrimination is not allowed – is obvious to all without any special training. The
record does not contain evidence that the City had knowledge or notice of other complaints
of race discrimination regarding Murphy’s employment decisions. Although racial animus
may be circumstantial proof of Murphy’s intent to discriminate in the decisions at issue, the
City’s knowledge or notice of Murphy’s racial animus, alone, does not support an inference
that the City knew or should have known that he would likely make employment decisions
based on race or that the City should have predicted that, without training, he would make
employment decisions based on race.
Plaintiffs’ objections to the Magistrate Judge’s finding that the City could not be
liable based on its failure to train Murphy about proper employment practices and his
Recommendation that plaintiffs’ § 1983 claims against the City based on failure to train be
dismissed are OVERRULED.
b. Plaintiff Jackson’s Demotion Claim
Plaintiff Jackson contends that he was demoted by the City when he was reinstated
to the position of Laborer when, at the time of his termination, he was acting as Street
Superintendent. (See doc. 73 at 41.) The Magistrate Judge held:
Assuming that Jackson’s alleged demotion was an adverse employment
decision, Jackson has not offered any evidence that similarly situated
employees outside of his protected class were treated more favorably. To the
extent that he adopts the same evidence as was offered for the termination
claim, that comparator evidence is simply insufficient. First, Jackson does not
point to any other employee outside his protected class that was terminated and
then reinstated into the position he held in fact before. Further, Jackson’s
argument that there is sufficient evidence to infer discriminatory intent, thus
eliminating the need for a comparator, also does not work. The decision to
reinstate Jackson as laborer (thus effectuating his alleged demotion) was made
by the City [Council]. Plaintiff has not offered any evidence showing that
there was any discriminatory intent on behalf of the City [Council] when it
Further, even if Jackson were able to establish a prima facie case with
respect to his demotion, he is unable to establish that there was any pretext.
It is undisputed that the City, not Murphy, was the decision-maker with respect
to Jackson’s reinstatement. Thus, the question is whether the decision by the
City to reinstate Jackson was tainted with racial animus. Plaintiff does not
offer any evidence that there was discriminatory intent on behalf of the City
[Council]. The pretext evidence offered in this case relates solely to
Defendant Murphy, who was not the decision-maker with respect to Jackson’s
demotion. Accordingly, any discrimination claim based on disparate treatment
towards Jackson in his demotion must fail.
(Doc. 73 at 41-42 [footnote omitted].)
Plaintiffs object to the Magistrate Judge’s finding that the City was the decision-maker
with regard to Jackson’s demotion, arguing “that although the City Council decided to
reinstate Jackson, Mayor Murphy, who had already filled Jackson’s former Street
Superintendent position, effectively made the decision to reinstate and demote Jackson into
a Laborer position.” (Doc. 76 at 4.) They argue, “The record additionally supports an
inference that Mayor Murphy, out of discriminatory animus, hid from the City Council the
fact that he had promoted Jackson to Street Superintendent in the first place, preventing the
City Council from returning Plaintiff Jackson to the Superintendent position and resulting
in his demotion.” (Id. at 4-5.) This evidence, they contend, creates a jury question as to
whether “Mayor Murphy acted as the City’s ‘cat’s paw,’ making the City liable for Plaintiff
Jackson’s demotion ‘because one of its agents committed an action based on discriminatory
animus that was intended to cause, and did in fact cause, an adverse employment decision.’”
(Id. at 5 [quoting Staub v. Proctor Hospital, 131 S. Ct. 1186, 1193 (2011)].)
“[A] municipality can be found liable under § 1983 only where the municipality itself
causes the constitutional violation at issue;” “[r]espondeat superior or vicarious liability will
not attach under § 1983.” City of Canton, 489 U.S. at 385(citing Monell v. New York City
Dept. of Social Services, 436 U.S. 658, 694-95 (1978)). Therefore, “the cat’s paw theory
does not apply in the § 1983 context.” Files v. DeKalb County School Dist., 2012 WL
716055, *3-*4 (N.D. Ga. , 2012); see also Waters v. City of Chicago, 580 F.3d 575, 586 n.2
(7th Cir. 2009)(“Imputing a nondecisionmaker’s motive to a municipal employer sounds a
lot like respondeat superior liability. Given that well developed § 1983 municipal liability
law recognizes delegation and ratification, there seems to be little point in trying to
awkwardly fit the cat’s paw concept in this area of civil rights law.”).
[A] local government may not be sued under § 1983 for an injury inflicted
solely by its employees or agents. Instead, it is when execution of a
government’s policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official policy, inflicts the
injury that the government as an entity is responsible under § 1983.
Monell, 436 U.S. at 694-95.
According to the Magistrate Judge’s Report, Murphy told Jackson that Jackson was
the Street Superintendent after the prior Street Superintendent, Randy Hudgins, left. (Doc.
73 at 10.) Thereafter, Jackson performed the duties of Street Superintendent, although he
was never officially given the title of Street Superintendent in his personnel record. (Id. at
10-11.) In personnel documents, he remained classified as a Laborer. (Compare doc. 46-16
[Jackson’s “position and classification” noted as “Street Dept.”] with
[McMillan’s “classification” noted as “Street Supt.”].) After Jackson’s termination, the City
“reinstated [him] with pay;” therefore, he was placed in the position he had at the time he
was terminated, which, according to his personnel records, was Laborer. (See doc. 73 at 1516.) Jackson has not argued that he told the Due Process Panel or the City Council that he
had been terminated from the position of Street Superintendent; he has not presented any
evidence that he applied for the position of Street Superintendent while it was posted
following his reinstatement as a Laborer. Plaintiff cannot show that the City, through the
actions of the City Council, discriminated against him on the basis of his race by reinstating
him to the position of Laborer without some evidence that the City Council knew that
Murphy had promoted Jackson to Street Superintendent and knew that Jackson had held that
position, as opposed to the position of Laborer, at the time of his termination.
Plaintiffs’ objections to the Magistrate Judge’s Recommendation that Jackson’s
demotion claim against the City be dismissed are OVERRULED.
c. Title VII Claims
The Magistrate Judge found that the City was not an employer for purposes of Title
VII. Plaintiffs do not object to this finding. (Doc. 76 at 2.) Therefore, the court ACCEPTS
the Magistrate Judge’s Recommendation that the Motion for Summary Judgment filed by
defendant City be granted and plaintiffs’ Title VII claims be dismissed.
2. Murphy’s Motion for Summary Judgment
Plaintiffs object to the Magistrate Judge’s recommendation that Jackson’s claim of
racial discrimination with regard to his demotion to Laborer against Murphy should be
dismissed on the ground that Murphy was not the “decisionmaker” with regard to Jackson
reinstatement. (Doc. 76 at 4.) They contend, “Contrary to the [Magistrate Judge’s]
reasoning, the facts . . . support a reasonable inference that although the City Council decided
to reinstate Jackson, Mayor Murphy, who had already filled Jackson’s former Street
Superintendent position, effectively made the decision to reinstate and demote Jackson into
a Laborer position, entitling Plaintiff to a jury trial given the ample circumstantial evidence
creating a triable issue concerning Murphy’s discriminatory intent.” (Id. at 4.)
The court finds no reason to sustain plaintiffs’ objections regarding Jackson’s
demotion claim. The adverse decision causing Jackson’s demotion, if any, was Murphy’s
failure to officially promote plaintiff Jackson to the position of Street Superintendent. This
failure to change the official personnel records resulted in Jackson being “reinstated” to the
position of Laborer, a decision made by the City Council without the recommendation of
Murphy or any other input from him. The City Council did not consider Murphy’s decision
to hire a Street Superintendent after he had fired Jackson in deciding whether to reinstate
Jackson to the Laborer position. Jackson was reinstated to a Laborer’s position because that
was the position he held at the time he was terminated according to his personnel records.
His records did not show that Murphy had promoted him to Street Superintendent, and,
apparently, he never told the City Council that he was being reinstated to the wrong position.
Therefore, the court accepts the Magistrate Judge’s findings that (1) “the decision to reinstate
Jackson as [a] laborer (thus effectuating his alleged demotion) was made by the City
Council,” and (2) “[i]t is undisputed that the City, not Murphy, was the decision-maker with
respect to Jackson’s reinstatement.” (Doc. 73 at 42 [emphasis added].)
Plaintiffs’ objections regarding the Magistrate Judge’s Report and Recommendation
that Jackson’s demotion claims against Murphy be dismissed are OVERRULED.
C. DEFENDANT MURPHY’S OBJECTIONS, (DOC. 77).
1. Mayor as “Final Decisionmaker”
Murphy contends that the § 1983 claims against him should be dismissed because he
was not the final decisionmaker with regard to pay or termination decisions. (Doc. 77 at 2.)
In support of his Objection, Murphy quotes Maschmeier v. Scott, 269 Fed. Appx. 941, 94344 (11th Cir. 2008). (Doc. 77 at 3.)
In Maschmeier, the Eleventh Circuit rejected official capacity claims based on the fact
that the decisionmaker was not the final policymaker. Maschmeier, 269 Fed. Appx. at 943
(“Maschmeier filed suit against Scott in his official capacity as Sheriff of Lee County only.”);
id. at 944 (“[W]e find that the sheriff’s termination decisions are subject to meaningful
administrative review, and Scott[, the sheriff,] thus cannot be the final policymaker. Because
Scott was not the final policymaker in regard to Maschmeier’s termination, Maschmeier’s
§ 1983 claims must fail.”).
With regard to claims against decisionmakers in their individual capacity, the
determination of who is a final policymaker is not necessarily relevant. As the Supreme
[O]fficial-capacity suits “‘generally represent only another way of pleading an
action against an entity of which an officer is an agent.’” [Kentucky v.
Graham, 473 U.S. 159, 165 (1985)] (quoting Monell v. New York City Dept.
of Social Services, 436 U.S. 658, 690, n.55 (1978)). Suits against state
officials in their official capacity therefore should be treated as suits against
the State. 473 U.S., at 166. Indeed, when officials sued in this capacity in
federal court die or leave office, their successors automatically assume their
roles in the litigation. See Fed. Rule Civ. Proc. 25(d)(1); Fed. Rule App. Proc.
43(c)(1); this Court’s Rule 35.3. Because the real party in interest in an
official-capacity suit is the governmental entity and not the named official,
“the entity’s ‘policy or custom’ must have played a part in the violation of
federal law.” Graham, supra, at 166 (quoting Monell, supra, 436 U.S., at
694). For the same reason, the only immunities available to the defendant in
an official-capacity action are those that the governmental entity possesses.
473 U.S., at 167.
Personal-capacity suits, on the other hand, seek to impose individual
liability upon a government officer for actions taken under color of state law.
Thus, “[o]n the merits, to establish personal liability in a § 1983 action, it is
enough to show that the official, acting under color of state law, caused the
deprivation of a federal right.” Id., at 166. While the plaintiff in a
personal-capacity suit need not establish a connection to governmental “policy
or custom,” officials sued in their personal capacities, unlike those sued in
their official capacities, may assert personal immunity defenses such as
objectively reasonable reliance on existing law. Id., at 166-167.
Hafer v. Melo, 502 U.S. 21, 25 (1991)(parallel citations omitted). “Municipal liability
attaches only where the decisionmaker possesses final authority to establish municipal policy
with respect to the action ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481
(1986)(emphasis added). No such limitation applies to individual liability; “it is enough to
show that the official, acting under color of state law, caused the deprivation of a federal
right.” Hafer, 502 U.S. at 25 (quoting Graham, 473 U.S. at 166); see also Quinn v. Monroe
County, 330 F.3d 1320, 1326-28 (11th Cir. 2003)(explaining the differences between a
policymaker and a decisionmaker for purposes of establishing individual liability).
In this case, Murphy decided raises and set starting pay for employees of the Street
Department and he decided to terminate them. The decisions were effective immediately;
therefore, he was the decisionmaker. However, the City Council had the power to review
and reverse Murphy’s decisions; therefore, Murphy was not a final policymaker with regard
to employment decisions. Assuming Murphy decided to terminate plaintiff because they
were African-American employees and he decided to pay white employees more than
African-American employees doing the same work, he can be liable in his individual
capacity. However, because he was not the final “policymaker,” his termination and pay
decisions, even if discriminatory, would not be the basis for the City’s liability. He would
be liable for his discriminatory decisions, but the City would not be liable for a practice or
custom of discrimination.
Murphy’s Objections to the Magistrate Judge’s finding that he can be liable in his
individual capacity as a decisionmaker, despite the fact that he was not the final policymaker,
2. Pay Discrimination Claims
Murphy objects to the Magistrate Judge’s finding that plaintiffs’ Amended Complaint
contains a claim of pay discrimination against Murphy in his individual capacity. (Doc. 77
at 7.) In their Amended Complaint, plaintiffs allege:
14. Jackson held the position of Street Superintendent from around
2005 until July 30, 2008, and his salary reached $8.25 an hour in that position.
The payroll records for the time indicate that Hudgins worked for the City in
September 2007 but not in October 2007. (Doc. 46-5 at 9-10.) The Magistrate Judge found
that Jackson started performing the job of Street Superintendent after Hudgins left the
position. (Doc. 73 at 10.) When Jackson began performing the job of Street Superintendent
is not material to this court’s ruling on the parties’ Objections.
18. The day Mayor Murphy fired Jackson, Mayor Murphy hired Barry
McMillan, a white male, as the new Street Superintendent and paid him $10.00
25. McLaughlin’s pay reached $6.08 an hour by the time Mayor
Murphy fired him in July 2008.
27. Upon his return, McLaughlin learned that Defendants paid his
white co-worker, Kerr, who was hired six months after McLaughlin, $7.00 an
32. During their employment, Defendants discriminated against
Plaintiffs because of their African-American race by disciplining them,
discharging them and paying them lower wages than white employees holding
the same position in violation of 42 U.S.C. § 2000e, et seq., as amended.
37. Defendants have discriminated against Plaintiffs on the basis of
their race by denying them the same rights as are enjoyed by white persons in
the making, performance, modification, and termination of their contracts,
specifically in their employment relationship with Defendants and the
enjoyment of all benefits, privileges, terms, and conditions of that relationship,
in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981, as amended.
43. 42 U.S.C. § 1983 provides that any person acting under color of
State law who deprives any other person of rights guaranteed by the
constitution or laws of the United States shall be liable to the injured party in
an action for legal or equitable relief.
44. The discriminatory and retaliatory actions of Defendants described
in this Complaint were taken under color of State law. Defendants' actions, as
stated in this Complaint, constitute purposeful discrimination and retaliation
and are arbitrary and capricious. As such, Defendants have deprived Plaintiffs
of their rights to equal protection under the Fourteenth Amendment to the
United States Constitution.
(Doc. 6 ¶¶ 14, 18, 25, 27, 32, 37, 43-44 [footnote added].)
These allegations state a discriminatory pay claim against Murphy in his individual
capacity. “Notice pleading requires the plaintiff to set forth in his complaint claims for relief,
not causes of action, statutes or legal theories.” Alvarez v. Hill, 518 F.3d 1152, 1157 (9th
Cir. 2008)(citing Fed. R. Civ. P. 8(a)(2))(emphasis in original).
The Federal Rules of Civil Procedure require only that a pleading contain “a
short and plain statement of the claim showing that the pleader is entitled to
relief, and a demand for judgment for the relief the pleader seeks.” Fed. R.
Civ. P. 8(a). “A complaint need not specify in detail the precise theory giving
rise to recovery. All that is required is that the defendant be on notice as to the
claim being asserted against him and the grounds on which it rests.” Sams v.
United Food & Comm'l Workers Int'l Union, 866 F.2d 1380, 1384 (11th
Cir.1989); see also Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594,
604 (5th Cir.1981)(“The form of the complaint is not significant if it alleges
facts upon which relief can be granted, even if it fails to categorize correctly
the legal theory giving rise to the claim.”).
Evans v. McClain of Georgia, Inc., 131 F.3d 957, 964 n.2 (11th Cir. 1997). “A plaintiff is
not required to set forth a legal theory to match the facts, so long as some legal theory can
be sustained on the facts pleaded in the complaint.” O’Grady v. Village of Libertyville, 304
F.3d 719, 723 (7th Cir. 2002)(citing Wudtke v. Davel, 128 F.3d 1057, 1061-62 (7th Cir.
1997)). “Well-pleaded facts, not legal theories or conclusions, determine the adequacy of
the complaint.” Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009)(internal
quotations and alterations omitted).
Plaintiffs’ Amended Complaint adequately states a claim for relief against Murphy
in his individual capacity for discriminatory pay decisions. Murphy’s Objections to the
Magistrate Judge’s Recommendation that his Motion for Summary Judgment should be
denied as to plaintiffs’ pay claims are OVERRULED.
3. Termination was not Adverse Employment Action
Murphy objects to the Magistrate Judge’s finding that the plaintiffs’ terminations
constituted actionable adverse employment actions. (Doc. 77 at 7.) In essence, Murphy
contends that, because the City Council reinstated plaintiffs before they suffered any loss or
delay in their pay, plaintiffs cannot prove their terminations were adverse employment
actions. (Id. at 7-8 [citing Crittenden v. International Paper Co., 214 F. Supp. 2d 1250
(M.D. Ala. 2002)].)
In the Eleventh Circuit, a plaintiff claiming intentional employment discrimination
establishes an adverse employment action by proving either “an ultimate employment
decision” or “a serious and material change in the terms, conditions, or privileges or
employment.” Crawford v. Carroll, 529 F.3d 961, 970-71 (11th Cir. 2008)(citing, inter alia,
Stavropoulos v. Firestone, 361 F.3d 610, 616-17 (11th Cir. 2004) and quoting Davis v. Town
of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001)(emphasis omitted)). A termination is
an “ultimate employment decision.” Id. (quoting Stavropoulos, 361 F.3d at 617). Therefore,
plaintiffs may pursue discrimination claims based on their terminations without showing that
they suffered monetary losses because of their terminations.
Defendant Murphy’s Objections to the Magistrate Judge’s finding that plaintiffs’
terminations were actionable adverse employment actions are OVERRULED.
4. Evidence Not Sufficient to Prove Intentional Race Discrimination
The Magistrate Judge held:
Because Plaintiffs cannot show that a similarly situated employee outside their
protected class was treated more favorably, they cannot establish their case
through McDonnell Douglas.
As an alternative to McDonnell Douglas, Plaintiffs can also present
sufficient “‘circumstantial evidence [to create] a triable issue concerning the
employer’s discriminatory intent.’” Hamilton v. Southland Christian Sch.,
Inc., 680 F.3d 1316, 1320 (11th Cir. 2012)(quoting Smith v. Lockheed-Martin
Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)). “A triable issue of fact exists
if the record, viewed in the light most favorable to the plaintiff, presents
enough circumstantial evidence to raise a reasonable inference of intentional
discrimination.” Id. Plaintiffs argue that they have submitted sufficient
evidence to do just that. (Plaintiffs’ Response, Doc. 54 at 39-46).
Specifically, Plaintiffs point to the facts that they were fired for failing to water
the flowers, even though it had rained the night before; that the City Council
rejected Murphy’s reasons for terminating Plaintiffs and promptly voted to
reinstate them without taking any other disciplinary action; and the volume of
evidence demonstrating Murphy’s racial animus. The court agrees that the
above evidence, when considered together, is sufficient to raise a reasonable
inference of intentional discrimination.
To be clear, because Mayor Murphy’s racial comments were unrelated
to the employment decision, those comments are not sufficient to create a
reasonable inference of intentional discrimination on their own. See Ross v.
Rhodes Furniture, Inc., 146 F.3d 1286, 1291-92 (11th Cir. 1998) (finding that
when racial remarks are submitted as evidence of pretext, but are not direct
evidence of discrimination because they are either too remote in time or too
attenuated, they may provide circumstantial evidence that, when read in
conjunction with the entire record, show a decision-maker’s discriminatory
attitude). However, when viewed in conjunction with the fact that the City
Council promptly reinstated Plaintiffs without any negative remarks in their
personnel files, a reasonable inference that the termination was racially
motivated is created. The reasonable inference being that by reinstating
Plaintiffs, the City Council found that Murphy’s stated reasons for termination
were invalid. When combined with the evidence of Murphy’s racist
comments, it is reasonable to infer that Murphy in fact fired Plaintiffs because
of their race.
(Doc. 73 at 39-41 [footnotes omitted].)
Murphy objects to the Magistrate Judge’s finding that plaintiffs presented sufficient
circumstantial evidence that to establish a prima facie case of race discrimination or to show
that his articulated reasons were pretextual. (See doc. 77 at 9-14.) He contends:
Initially, the Court correctly held there was no proper similarly situated
comparator upon which to base a discrimination prima facie case regarding
termination.5 However, the Court incorrectly held that other circumstantial
Although neither party objects, the court rejects the Magistrate Judge’s finding that
Jackson cannot establish a prima facie case of employment discrimination “[b]ecause [he]
cannot show that a similarly situated employee outside [his] protected class was treated more
favorably.” (See doc. 73 at 39.) A plaintiff can establish that his employer treated
similarly-situated employees outside his protected class more favorably by showing either
that he was disciplined more harshly than one outside the protected class for nearly identical
conduct or that he was “replaced by one outside the protected class.” Nix v. WLCY
Radio/Rahall Communications, 738 F.2d 1181, 1185 (11th Cir. 1984). Although Jackson has
not demonstrated that he was disciplined more harshly than a similarly-situated white
employee, the Magistrate Judge found that Murphy hired a white employee, Barry McMillan,
as Street Superintendent, the job plaintiff Jackson was performing at the time of his
termination, after he fired Jackson. (See doc. 73 at 16 and n.25, 41, 46-47.) This is sufficient
evidence to support a finding that Murphy replaced Jackson, an African-American employee,
with McMillan, a white employee. See Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th
Cir. 1987); Hawkins v. Ceco Corp., 883 F.2d 977, 983-84 (11th Cir.1989). This is sufficient
evidence was sufficient to create a question of fact regarding race
discrimination. The record, taken as a whole and even in the light most
favorable to Plaintiffs, does not support a finding that pretext has been
established regarding the reasons Plaintiffs were terminated. Moreover, the
Court’s recommended opinion ignores the undisputed facts that (1) Murphy
recruited Jackson and hired Jackson then later his brother, McLaughlin; (2)
Murphy gave Jackson numerous raises; (3) Murphy was chastised for
attempting raises for Jackson; (4) Jackson never heard Murphy tell a racially
derogatory joke or use the “n” word; (5) McLaughlin has no complaints about
treatment other than being called [“]boy[”] and the record is clear that this was
rare (Jackson says 5 times in 3 or more years) and that Murphy referred to all
the street crew as “boys”. . . . The evidence regarding Murphy’s alleged
propensity to make racially derogatory comments initially causes pause. But
at the end of the analysis, there is a complete lack of connective evidence
regarding Mayor Murphy getting mad and firing the whole crew at work that
day, and the attempt to prove he did it because Plaintiffs were black; in short,
it simply makes no sense. Regardless of how inappropriate Mayor Murphy’s
alleged comments were, they are not evidence sufficient to establish a prima
facie case of race discrimination or sufficient to qualify as enough pretext
evidence, such that Plaintiffs can survive summary judgment.
(Id. at 8-10 [footnote added].)
“Discriminatory motive may be proved by direct evidence of the [decisionmaker’s]
racially discriminatory attitude[ ] regardless of whether it relates to the employment decision
at issue. EEOC v. Beverage Canners, Inc., 897 F.2d 1067, 1071 n.9 (11th Cir. 1990).
However, this “direct evidence” must be “evidence from which a reasonable trier of fact
could find, more probably than not, a causal link between an adverse employment action and
a protected personal characteristic. Wright v. Southland Corp., 187 F.3d 1287, 1298, 1300
(11th Cir. 1999).
to satisfy the prima facie showing for Jackson’s termination claim.
The record contains evidence that Murphy had used racially-derogatory epithets to
refer to African-Americans on numerous occasions and he referred to his membership in the
Ku Klux Klan. These incidents are evidence of Murphy’s racially-discriminatory attitude.
Viewing the evidence in the light most favorable to plaintiffs, the non-moving parties,
a reasonable jury could find that Murphy had no legitimate reason to fire the plaintiffs.
Considering evidence of Murphy’s discriminatory attitude, together with evidence on which
a reasonable jury could find that Murphy knew he had no cause to terminate plaintiffs, the
court finds the evidence is sufficient to allow a reasonable jury to find a causal link between
an adverse employment action – plaintiffs’ terminations – and a protected personal
characteristic – plaintiffs’ race. Wright, 187 F.3d at 1298.
Murphy’s Objections to the Magistrate Judge’s finding that “it is reasonable to infer
that Murphy in fact fired Plaintiffs because of their race,” (doc. 73 at 41), are
5. Insufficient Evidence of Discrimination as to Pay Claims
Murphy objects to the Magistrate Judge’s finding that “there was a discriminatory
intent regarding rate of pay even if Mayor Murphy could be considered a decision maker.”
(Doc. 77 at 14.) Specifically, Murphy contends, “The Court ignored the evidence about
white comparators being paid less than McLaughlin and created reasons the distinctions were
not relevant (in comparing white employees allegedly similarly situated) based on facts not
argued by Plaintiffs and not otherwise supported by the record.” (Id.) Murphy does not cite
to any specific record evidence it contends the Magistrate Judge ignored.
The court has carefully reviewed and considered de novo all the materials in the court
file, including, but not limited to, the Report and Recommendation and the parties’ summary
judgment submissions. Based on this review of the record, viewing the evidence in the light
most favorable to plaintiffs, the court finds Murphy’s objections to the Magistrate Judge’s
Report and Recommendation regarding plaintiffs’ pay claims are OVERRULED. Murphy’s
evidence may be sufficient to allow a reasonable jury to find in his favor on plaintiffs’ pay
claims; however, it does not compel such a finding.
For the foregoing reasons, the court OVERRULES the parties’ Objections to the
Report and Recommendation, (docs. 76 and 77); the Magistrate Judge’s Report is
ADOPTED and his Recommendation is ACCEPTED. Contemporaneous with the entry of
this Memorandum Opinion, the court will enter an Order granting the Motion for Summary
Judgment filed by the City of Centreville, (doc. 46); granting in part and denying in part the
Motion for Summary Judgment filed by Murphy, (doc. 47); denying and administratively
terminating the City’s second Motion for Summary Judgment, (doc. 52); denying plaintiffs’
Motion to Strike the City’s second Motion for Summary Judgment, (doc. 56); and denying
as moot plaintiffs’ Motion to Strike the affidavit of Scott, (doc. 57).
DONE, this 24th day of September, 2012.
SHARON LOVELACE BLACKBURN
CHIEF UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?