Green v. Northport, City of et al

Filing 71

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 3/9/2018. (TLM, )

FILED
2018 Mar-09 PM 01:34
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
ROBERT W. GREEN,
Plaintiff,
vs.
CITY OF NORTHPORT, et
al.,
Defendants.

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7:15-cv-01854-LSC

MEMORANDUM OF OPINION
Before the Court is Defendants’, City of Northport (“City”) and Scott
Collins (“Collins”) (collectively “Defendants”), Motion for Summary Judgment.
(Doc. 42.) Likewise before the Court are Defendants’ Motion to Admit Evidence
(doc. 40), Motion for the Court to Take Judicial Notice (doc. 41), Motion to Strike
Exhibit K (doc. 60), and Plaintiff Robert W. Green’s (“Plaintiff”) Motion to Strike
(doc. 52). This case caps what has been a lengthy dispute between Plaintiff and
Defendants concerning Plaintiff’s former employment as Chief of Police of the City
of Northport. Following allegations of racial discrimination by Plaintiff against
Defendants and exhaustion of administrative remedies, Plaintiff instituted suit in
the Northern District of Alabama in the case styled Green v. City of Northport
(“Green I”), 7:11-cv-2354-SLB, 2014 WL 1338108 (N.D. Ala. Mar. 31, 2014). This
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action is related to, and arises from issues addressed in Green I. Specifically,
Plaintiff claims that Defendants retaliated against him for filing his EEOC charges
and later instituting Green I; Defendants later escalated such retaliation, created a
hostile work environment, and constructively discharged Plaintiff in 2012.
Defendants deny that any of their actions were done in retaliation for
Plaintiff’s litigation activities in Green I. They instead point to a slew of complaints
by various city officials and employees about Plaintiff’s management style and the
atmosphere he created in the City Police Department. Defendants state that they
determined it was necessary for the safety of city officials and employees to audit
the City Police Department and place Plaintiff on paid administrative leave. After
receiving the results of the audit, which were negative towards Plaintiff,
Defendants determined that Plaintiff should be allowed to resign, or alternatively
terminated from his position. Following a meeting between the parties on May 29,
2012, Plaintiff resigned his position and then filed the administrative charges with
the EEOC that eventually led to this suit. As set out in further detail below,
Defendants’ Motion for Summary Judgment is due to be granted.
I. BACKGROUND
a. RELEVANT FACTS LEADING TO GREEN I

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Plaintiff first became employed as Police Chief for the City of Northport on
April 17, 2006. When Plaintiff was first hired, Charles Swann (“Swann”) was the
City Administrator. Collins was a member of the Northport City Council when
Plaintiff was hired. Collins voted to hire Plaintiff as Police Chief because he
believed Plaintiff was the most qualified candidate for the job. (Doc. 46 Ex. B
Collins Depo. at 135.) While Plaintiff was Police Chief and Swann was the City
Administrator, Plaintiff did not receive any criticism regarding his job performance.
(Doc. 44 Ex. A Green Depo. at 276-77.) Likewise, throughout his tenure as Mayor
of the City of Northport starting in November 2008, Bobby Herndon (“Herndon”)
never learned of any problems the City had with Plaintiff. (Doc. 51 Ex. B Herndon
Depo. at 17, 20.)
At the end of 2008, Swann became the City Engineer, and on December 15,
2008, Scott Collins became employed as City Administrator. (Doc. 46 Ex. B
Collins Depo. at 136.) As City Administrator, Collins was responsible for nine
departments within the City: police, fire, IT, public works, utilities, HR, planning,
legal, and retail development. As part of his duties, Collins worked closely with
Plaintiff. At all times relevant to the instant lawsuit, Plaintiff reported to Collins.
Collins had authority to discipline all city employees, including department heads;

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however, Collins needed approval from the City Council to terminate a department
head.
Plaintiff filed an EEOC charge against the City of Northport on May 14,
2009 and later filed an Amended EEOC charge against the City on June 2, 2009.
Plaintiff continued to do his job as Police Chief; however, he testified that he felt he
was being subjected to hostile working conditions because of Collins’s
discrimination and retaliation. For example, on December 16, 2009, Collins
stormed into Plaintiff’s office, slammed the door behind him, and screamed at
Plaintiff. On December 21, 2009, Plaintiff sent a letter to the City Council which
outlined Collins’s violation of the anti-harassment policy and his alleged
unprofessional conduct based on that incident. Collins was not disciplined for that
incident.
After investigating Plaintiff’s two charges, the EEOC issued a dismissal and
Notice of Right to Sue on April 1, 2011. On June 29, 2011, Plaintiff filed a
Complaint in the United States District Court for the Northern District of Alabama
alleging race discrimination and retaliation against the City of Northport and
Collins, Green I. Plaintiff remained Police Chief until his voluntary resignation on
May 31, 2012.

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While Plaintiff testified that he and Collins had a “strained and rocky
relationship,” Plaintiff admitted that he and Collins routinely spoke, met,
discussed department needs and purchases, and deferred to one another in the time
period from 2011-2012. One example of such deference occurred in an October 21,
2011 e-mail exchange with the City Council and Plaintiff. In that e-mail, Collins
indicated that a pumper truck, requested by the Fire Department, was too
expensive and recommended getting a less expensive ladder truck. In the same email, Collins asked Plaintiff for his input concerning the number of police vehicles
the department needed. Plaintiff testified that he believed he got all the police
vehicles he requested in 2011, although Collins ordered vehicles that were different
from the ones Plaintiff and the police department preferred.
b. DEFENDANTS ORDER
DEPARTMENT

EXTERNAL

AUDIT

OF

THE

POLICE

Collins testified that “a number of incidents in the Police Department” led
him to believe that the City needed an external audit of the Police Department by
an independent expert. (Doc. 51 Ex. A at Ex. 213-14). He specifically referred to the
following:
On June 24, 2011, Plaintiff requested copies of psychological reports for all
department employees. (Doc. 44 Ex. A Green Depo. at 106.) In his e-mail to the
Northport City Council President, Plaintiff stated that he had “an officer who is
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about to go off the deep end” and that “[t]he officer in question is capable of
showing up at a City Council meeting and shooting up the council chambers.” (Id.)
Plaintiff also explained in the e-mail that he had access to officers’ psychological
reports for many years, but that Collins had stopped providing him with the
reports. Collins testified that the threat of an officer shooting up City Hall
concerned him and that Plaintiff’s statement was “alarming.” Collins attempted to
discuss the matter with Plaintiff verbally and further attempted to schedule two
meetings with Plaintiff, but never received a response. Collins did not document
these attempts, nor did he discipline Plaintiff for not meeting with him. (Doc. 46
Ex. B Collins Depo. at 243-44.) Collins later sent Plaintiff a follow-up e-mail three
months later requesting to meet regarding the office safety issue.
On November 1, 2011, Collins received a complaint from IT Director
Michael Ramm (“Ramm”), another department head, that Plaintiff had been
threatening and disrespectful towards him in an e-mail exchange. Ramm and
Plaintiff had corresponded regarding the location of new computers for the police
department, and they did not agree on where the computers would be placed.
Plaintiff sent Ramm an e-mail on November 1, 2011 insisting that Ramm follow
Plaintiff’s plan for the computers, telling Ramm that he (Plaintiff) “was trying to
be civil about this matter” and warning Ramm “don’t make waves.” Collins
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testified that Ramm was offended by Plaintiff’s e-mail. After receiving Ramm’s
complaint, Collins forwarded the information to Rodger Fisher, then-Human
Resources Director. On November 9, 2011, after Fisher responded to Collins,
Collins issued a written warning to Plaintiff concerning the November 1, 2011 email. In the warning, Collins instructed Plaintiff that he was to be professional and
respectful to all city employees, including in instances of disagreement. Plaintiff
refused to sign the warning, but was not penalized in any way for his refusal to sign
it.
Plaintiff also recalled an incident in which a female police officer, Carrie
Summers (“Summers”), accused Lt. Jason McKinney (“McKinney”) of sexual
harassment. Plaintiff testified that he did not remember the details of Summers’s
complaint. Plaintiff did not recall whether McKinney was placed on paid
administrative leave while the City investigated the allegations. However, Plaintiff
admitted that placing an individual on leave so an investigation could be conducted
is a legitimate practice. (Doc. 44 Ex. A Green Depo. at 139-40). During the
investigation into Summers’s complaint about McKinney, the Northport Incident
Investigation Team (“I.I. Team”) interviewed another female police officer, Kelly
McCarley, on December 5, 2011. In the interview, McCarley complained about the
lack of morale in the police department, the high turnover rate, the lack of
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confidentiality, and how when they take complaints to a supervisor or to Plaintiff,
nothing ever gets done. (Doc. 46 Ex. B Collins Depo. at 213-18.) Collins received a
report from the group that was compiled to investigate McCarley’s complaint and
was also told that McCarley felt safer in a dangerous area of Northport unarmed
than at the Police Department. (Id. at 215.)
On or about December 5, 2011, in a meeting with the I.I. Team, legal, and
various City Council members, Collins verbalized the idea of bringing in
independent auditors to “tell us what we need to do or don’t need to do.” (Doc. 46
Ex. B Collins Depo. at 476.) Collins also stated in his deposition that “[t]here were
some things that we needed to address and I felt it was best to have someone from
the outside to take a look and tell us are we operating right, are we not operating
right.” Collins first called Chief Cooley at the police academy for a
recommendation for a person to conduct the audit. Collins testified that Cooley
gave him the name Robert Pastula (“Pastula”) at the University of North Alabama.
Collins sent an e-mail to Pastula on December 8, 2011, explaining that the City is
“looking into some operational issues within our police department and are
considering requesting for an outside independent consultant or consulting firm to
conduct a management study and review of the department.”

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On December 13, 2011, five days after he contacted Pastula, Collins received
a written complaint from Captain Tim Frazier (“Frazier”) in which he alleged
Plaintiff harassed and treated him unfairly. Frazier wrote in the complaint that in a
December 12, 2011 meeting with Plaintiff, Plaintiff called Frazier a “hostile captain
and a mad captain.” Further, Plaintiff refused to give Frazier the schedule to which
he was entitled according to his shift preference. Frazier wrote that he told Plaintiff
he felt he was being singled out by Plaintiff. Frazier later filed an EEOC charge
against Plaintiff, stating “I believe Chief Green [Plaintiff] created a hostile work
environment.” (Doc. 44 Ex. A. Ex. 26.)
Collins thereafter recommended the audit to the Northport City Council,
and the City Council unanimously approved it.1 (Doc. 46 Ex. B Collins Depo. at
247.) Collins testified that he thought Plaintiff’s presence in the department might
influence the study, so he placed Plaintiff on paid administrative leave. (Id. at 249.)
The City Council agreed. (Id. at 248.) Collins testified that he offered to also go on
leave for the duration of the audit, but the City Council declined to place Collins on
leave, saying it was not necessary. (Id. at 247-48.)
On February 20, 2012, Collins met with Plaintiff and informed Plaintiff he
was being placed on leave. (See Doc. 45 Ex. B Ex. 27.)Plaintiff testified that Collins
1

Collins had to obtain City Council approval for any funding over $15,000. At the time of this
action, the City Council included five members, two of which were minorities. (Doc. 44 Ex. A
Green Depo. at 66-67.)
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told him in the meeting that he had done nothing wrong. (Doc. 44 Ex. A Green
Depo. at 316.) Plaintiff testified that he had been fearful of retaliation by Collins,
and that the audit of the Police Department was a complete shock. (Id. at 393.) At
the end of the meeting, Collins took Plaintiff’s city-owned firearm, keys, and cards.
Collins testified that he similarly took a white department head’s city-owned keys
and cards when that department head was placed on leave. (Doc. 46 Ex. B Collins
Depo. at 228-29.)
Plaintiff was embarrassed when he was put on paid leave, but admitted that
the purpose of placing an employee on paid administrative leave is to enable the
City to fairly investigate a matter. (Id. at 191.) Plaintiff also admitted that he
considered this practice legitimate protocol and “standard procedure.” (Id. at 13940, 190.) Plaintiff also admitted that during his tenure as police chief, he had placed
at least one employee on paid administrative leave to investigate accusations
against that employee. (Id. at 186-191.)
Also on February 21, 2012, Collins met with the Police Department staff.
Collins testified that “[t]here was a lot going on in the police department,” and his
purpose in speaking to the staff was “to make sure that everyone understood the
status of the police department, come to work, do your job, there’s going to be a
study that takes place, be honest, tell the truth, make it effective, don’t leave
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anything on the table, follow through what you’re supposed to do to make your
department better whatever that is.” (Doc. 46 Ex. B Collins Depo. at 253-254.)
Collins informed the employees at the meeting that he had placed Plaintiff on
administrative leave. (Id. at 254.) Further, Collins testified that he discussed
Plaintiff’s EEOC charges in the meeting, including incidents regarding a BMW and
an incident with an officer named Crowder; however, Collins stated that he
believed the mentioning of the BMW incident and other complaints from the
department was in response to a specific question asked by members of the Police
Department during the meeting. (Id. at 261-63.) Collins further testified that he
stated in the meeting that Plaintiff had filed his lawsuit in Green I eighty-eight days
after receiving his Notice of Right to Sue from the EEOC. (Id. at 291.) Collins
denied that he was trying to influence the audit/study, other than having staff “tell
the truth and do what they need to do.” (Id. at 254.)
In March 2012, the City Council chose CWH Research of Lone Tree,
Colorado to conduct the audit of the Police Department. (Doc. 45 Ex. A at Ex. 35;
Doc. 46 Ex. B Collins Depo. at 475.) Regarding the cost of the audit, Collins
testified that $46,000 “sounded about right.” (Id.) Collins testified that 2010 and
2011 were the worst times for city budgeting and there was not money for pens,

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pencils, and garbage pickup; however, Collins further testified that the budget had
improved by the time the audit was to be conducted. (Id. at 447-48, 475.)
On Monday, April 23, 2012, the audit began with Collins being interviewed.
(Id. at 472.) The auditors reviewed, among many other items, the “Complaint and
Case of Robert Green vs. City of Northport and Scott Collins”, aka Green I. (Doc.
51 Ex. A at Ex. 27 at 8.) Plaintiff testified that he met with the auditors for only ten
to twelve minutes, (Doc. 44 Ex. A Green Depo. at 416), although the audit agenda
reflects that the auditors set aside three hours to meet with Plaintiff. (Doc. 51 Ex. A
at Ex. 27 at 72.) Auditors interviewed fifty-six Police Department employees as part
of the audit. Not all employees were interviewed. According to the audit report, the
auditors conducted on-site visits from April 23 through April 26, 2012; May 15,
2012; and May 18, 2012. (Id. at 8.) Further, CWH Research e-mailed survey
invitations to all sworn officers, desk officers, and dispatchers on May 14, 2012. (Id.
at 8-9.) According to the audit report, sixty-two responses were returned as of May
28, 2012. (Id. at 9.)
c. THE PARTIES HOLD A “MEDIATION” CONFERENCE
On May 29, 2012, the parties in Green I conducted an informal mediation
conference. In the meeting, the City offered to settle all pending claims by Plaintiff,
which consisted of Plaintiff dismissing Green I, resigning his position, and accepting
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a financial settlement of $43,000. Plaintiff testified that Collins also represented
that the City would not release the audit results in exchange for Plaintiff’s
retirement and the settlement of Green I. 2 (Id. at 52-53.) Collins on the other hand
testified that the City did not have the option to keep the study private because it
was a publicly funded audit. (Doc. 46 Ex. B Collins Depo. at 429-30.) Plaintiff also
testified that Collins said the study was negative for Plaintiff, and if Plaintiff did not
dismiss Green I and retire by May 31, 2012, the City would release the results of the
audit. (Doc. 44 Ex. A Green Depo. at 212-13.) According to Plaintiff, Collins told
him that if he did not retire, he would be fired at the next City Council meeting on
June 4, 2012. (Id. at 212-13, 225-26.) Plaintiff also testified that in additions to the
results of the study, Collins identified other issues in the Police Department,
including a sexual harassment complaint, although it was not directed at Plaintiff,
and a complaint regarding manipulation of payroll. (Id. at 213.) Plaintiff testified
that Courtney Crowder, an attorney representing the Defendants, told him that
“sometimes the team wants to change the coaches.” (Id. at 214.)
On May 31, 2012, Plaintiff submitted his resignation via e-mail to Collins,
copying his attorneys. Plaintiff admitted in his deposition that he knew he could
have waited to see what would happen or what action the City Council might take.

2

Collins disputes that he asked Plaintiff to retire and that he had authority to do so.
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(Id. at 225-29.) Plaintiff also knew he could have appealed to the Northport Civil
Service Board (“CSB”) if he were terminated. (Id. at 230.) Plaintiff chose to make
his resignation to be effective July 1, 2012, meaning that Plaintiff gave over one
month’s notice of his retirement; however, Plaintiff testified that he was required
to give thirty days’ notice to the Retirement System of Alabama to receive
retirement benefits. (Doc. 45 Ex. A Green Depo. at Ex. 34.)
After his resignation Plaintiff filed two EEOC charges against the City of
Northport. Then on July 18, 2012, seventeen days after his resignation was
effective, Plaintiff filed EEOC charge No. 420-2012-02762. (Doc. 45 Ex. A Green
Depo. at Ex. 7.) On August 17, 2012, Plaintiff filed an Amended EEOC charge. (Id.
at Ex. 8.) Green I was dismissed on March 31, 2014, and Plaintiff filed the complaint
in the instant case on October 22, 2015.
II. MOTION FOR SUMMARY JUDGMENT STANDARD
A motion for summary judgement is appropriate when “the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it
“might affect the outcome of the suit under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); see also Ave. CLO Fund, Ltd. v. Bank of Am.,
N.A., 723 F.3d 1287, 1294 (11th Cir. 2013). A genuine dispute as to a material fact
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exists “if the nonmoving party has produced evidence such that a reasonable
factfinder could return a verdict in its favor.” Greenberg v. BellSouth
Telecommunications, Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (quoting Waddell v.
Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The trial judge
should not weigh the evidence but must simply determine whether there are any
genuine issues to be resolved at trial. Anderson, 447 U.S. at 249.
In considering a motion for summary judgment, trial courts must give
deference to the non-moving party by “view[ing] the materials presented and all
factual inferences in the light most favorable to the nonmoving party.” Animal
Legal Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1213–14 (11th Cir. 2015)
(citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). However,
“unsubstantiated assertions alone are not enough to withstand a motion for
summary judgment.” Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir.
1987). Conclusory allegations and “mere scintilla of evidence in support of the
nonmoving party will not suffice to overcome a motion for summary judgment.”
Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016) (per curiam) (quoting Young
v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004)). “[T]he moving party
has the burden of either negating an essential element of the nonmoving party’s
case or showing that there is no evidence to prove a fact necessary to the
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nonmoving party’s case.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236,
1242 (11th Cir. 2013). Although the trial courts must use caution when granting
motions for summary judgment, “summary judgment procedure is properly
regarded not as a disfavored procedural shortcut, but rather as an integral part of
the Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
III.

DISCUSSION
a. RACIAL DISCRIMINATION

In his response to Defendants’ Motion for Summary Judgment, Plaintiff has
clarified that “[a]fter review of the record, [Plaintiff] concedes his claim of race
discrimination.” (Doc. 53 at 4.) Because Plaintiff has not opposed Defendants’
Motion in this respect, Plaintiff’s claim for “Title VII and § 1981 Racial
Discrimination,” (doc. 1 at 5), is due to be dismissed.
b. HOSTILE WORK ENVIRONMENT
Defendants have also moved for dismissal of Plaintiff’s hostile work
environment claim, (doc. 42 at 62), and Plaintiff has in no way addressed the merits
of Defendants’ arguments in his Response. The Court deems this claim
abandoned, and will also be dismissed. Coal. for the Abolition of Marijuana
Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000) (“the onus is
upon the parties to formulate arguments; grounds alleged in the complaint but not
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relied upon in summary judgment are deemed abandoned” (quoting Lyes v. City of
Riviera Beach, 126 F.3d 1380, 1388 (11th Cir. 1997))).
c. CONSTRUCTIVE DISCHARGE
Plaintiff argues that following the audit, Collins and his counsel “summoned
[Plaintiff] to a meeting which he alleged was a ‘mediation conference,’ despite not
having a mediator present and threatened and tried to manipulate Green into
dismissing his lawsuit and leaving his employment.” (Doc. 53 at 40.)Plaintiff
argues that the statements made during that settlement conference amount to his
constructive discharge. Before addressing the merits of Plaintiff’s claim the Court
must first address Defendants’ challenge to the admissibility of the statements
made during this meeting under Federal Rule of Evidence 408.
Defendants argue that the discussions between the parties at the May 29,
2012 conference are inadmissible settlement negotiations according to Federal Rule
of Evidence 408. Plaintiff responds that Rule 408 does not prevent negotiations
regarding one lawsuit from being admissible in a different, future lawsuit; therefore,
because the parties’ discussions pertained only to the first lawsuit Green I, what
was said during the May 29, 2012 discussions is admissible in the present lawsuit.
Negotiations seeking to settle one lawsuit may be admissible in a future
lawsuit concerning different claims. Such a reading of Rule 408 is consistent with
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the rule’s text, which reads: “Evidence of the following is not admissible … either
to prove or disprove the validity or amount of a disputed claim . . . : furnishing,
promising, or offering . . . a valuable consideration in compromising or attempting
to compromise the claim.” Fed. R. Evid. 408 (emphasis added). While the Court’s
research has found no binding authority directly on point, the Court is persuaded
that evidence of settlement negotiations may be admissible in a case when those
negotiations relate to a different case. See Zurich American Ins. Co. v. Watts
Industries, Inc., 417 F.3d 682, 689 (7th Cir. 2005); Broadcort Capital Corp. v. Summa
Medical Corp., 972 F.2d 1183, 1194 (10th Cir. 1992); Armstrong v. HRB Royalty, Inc.,
392 F. Supp. 2d 1302, 1304 (S.D. Ala. 2005) (“Gauged either by standard usage of
the English language or by accepted rules of statutory construction, the definite
article ‘the’ limits ‘the claim’ [under Rule 408] as to which evidence may not be
admitted to the claim previously referenced, i.e., the claim which was the subject of
a settlement offer.”).
Defendants argue in their Reply that the purpose of the mediation
conference was to reach a global settlement of all present and future claims
between the parties. (Doc. 62 at 29.) However, this argument is not supported by
any evidence in the record; in fact, it is contradicted by both Collins’s and
Plaintiff’s sworn deposition testimony that the aim of conference was to settle
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Green I.3 (Doc. 44 Ex. A Green Depo. at 212 (“Collins said that he offered a
settlement somewhere around 43 thousand dollars. And he said that the results of
the study were negative, but if I were to drop my complaint . . . .”); Doc. 46 Ex. B
Collins Depo. at 6–10 (“Q: Wasn’t a term of condition of the settlement is that he
dismiss his [current] lawsuit? A: Yes, sir.”) Given that the statements made in the
“mediation conference” themselves serve as the basis for Plaintiff’s constructive
discharge and retaliation claim, it is nonsensical to say that the Defendants’
statements were a threat to retaliate against Plaintiff and also an offer to settle that
retaliation and constructive discharge claim. Defendants have failed to show how
the statements made during that “conference” are inadmissible for purposes of the
present motion.
Plaintiff appears to assert two separate claims related to the May 29, 2012,
mediation conference as underlying both his constructive discharge claim, and to
serve as a “materially adverse action” for his claim of retaliation. To prove
constructive discharge, the plaintiff must demonstrate that his “working conditions
were so intolerable that a reasonable person in [his] position would be compelled to
resign.” Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1284 (11th Cir. 1999)
(emphasis added). In the Eleventh Circuit, employee resignations are presumed
3

The Court also notes the Defendant’s assertion in his Statement of Undisputed Facts that the
City made an offer “to settle all pending claims.” (Doc. 42 ¶ 75.)
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voluntary, even if the only alternative to resignation is facing termination for cause.
Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995). Even when the
plaintiff faces an unpleasant alternative, e.g., termination for cause, the resignation
is nevertheless presumed voluntary because “the fact remains that plaintiff had a
choice. He could stand pat and fight.” Id. (internal citations omitted) (emphasis in
the original). The Court judges the availability of real alternatives under an
objective standard, rather than by the employee’s subjective evaluation. Id. Factors
for the Court to consider include:
(1) whether the employee was given some alternative to resignation;
(2) whether the employee understood the nature of the choice he was
given;
(3) whether the employee was given a reasonable time in which to
choose;
(4) whether the employee was permitted to select the effective date of
the resignation; and
(5) whether the employee had the advice of counsel.
Hargray, 57 F.3d at 1568.
Even construing the facts in the light most favorable to Plaintiff, including
that Collins did in fact offer not to release the audit results in exchange for
Plaintiff’s resignation, Plaintiff has not rebutted the presumption that his
resignation was voluntary. Plaintiff was faced with a choice to (1) resign voluntarily
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and collect retirement benefits or (2) to wait and see what action the City Council
would take at the next meeting. Plaintiff himself acknowledged that he had such a
choice and could appeal any negative action to the Northport Civil Service Board.
(Doc. 44 Ex. A Green Depo. at 225-29, 30.) Plaintiff also understood the nature of
his choice: retire by May 31, 2012 and avoid the release of the negative audit
results, or he could be fired at the next City Council meeting on June 4, 2012 and
the audit results would be released. (Id. at 212-15.) Further, Plaintiff was permitted
to select the effective date of his resignation as July 1, 2012—more than thirty days
after the parties’ mediation conference—so that he could collect his retirement
benefits. (Id. at 232.) Plaintiff was likewise represented by counsel during the
negotiations. Based on the totality of these factors, the Court concludes that
Plaintiff has not rebutted the presumption that his resignation was voluntary.
No reasonable person in Plaintiff’s position would find Plaintiff’s working
conditions—the audit, being placed on paid administrative leave, Collins’s offer to
not release the audit if Plaintiff dismissed Green I, or being given a choice between
resignation and termination—so intolerable that they felt compelled to resign.
Therefore, Plaintiff has failed to prove constructive discharge and this claim is due
to be dismissed.
d. RETALIATION
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Title VII prohibits an employer from discriminating against an employee
“because he has made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing” pursuant to a charge of unlawful
discrimination.” 42 U.S.C. 2000e–3(a). Absent direct evidence of retaliation, the
plaintiff may demonstrate circumstantial evidence of retaliation through the
McDonnell Douglas burden-shifting framework. Brown v. Ala. Dep’t of Transp., 597
F.3d 1160, 1181 (11th Cir. 2010). See generally McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Under this framework, the aggrieved employee must first make
out a prima facie case of retaliation. Brown, 597 F.3d at 1181. The burden of
production then shifts to the defendant-employer “to rebut the presumption by
articulating a legitimate, non-discriminatory reason for the adverse employment
action.” Id. (quoting Bryant, 575 F.3d at 1308). After the employer offers a
legitimate, nondiscriminatory reason for the adverse employment action, the
plaintiff employee must prove his case through additional evidence demonstrating
that the employer’s reason is a pretext for unlawful retaliation. Id. at 1181–82
(quoting Bryant, 575 F.3d at 1308). Throughout the entire process, the ultimate
burden of persuading the trier of fact that the defendant engaged in unlawful
retaliation remains with the Plaintiff. Sims v. MVM, Inc., 704 F.3d 1327, 1333 (11th
Cir. 2013)
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i. PRIMA FACIE CASE
To establish a prima facie case for retaliation under § 1981 or Title VII, a
plaintiff must show that (1) he was engaged in statutorily protected activity; (2) he
suffered an adverse employment action; and (3) a causal link exists between the
protected activity and the adverse employment action. Furcron v. Mail Ctrs. Plus,
LLC, 843 F.3d 1295, 1310 (11th Cir. 2016); see also Standard v. A.B.E.L. Servs., Inc.,
161 F.3d 1318, 1330 (11th Cir. 1998) (“Both of these statutes [i.e., section
1981 and Title VII] have the same requirements of proof and use the same
analytical framework.”). A complaint that “explicitly or implicitly communicate[s]
a belief that [the conduct suffered by the plaintiff] constitutes unlawful
employment discrimination” is protected activity. Furcron, 161 F.3d at 1311.
Similarly, an adverse employment action need not be as serious as outright
termination but may also include “adverse actions which fall short of ultimate
employment decisions,” such as written reprimands. Wideman v. Wal-Mart Stores,
Inc., 141 F.3d 1453, 1455-56 (11th Cir. 1998). To prove causation, the plaintiff must
demonstrate that the employer’s desire to retaliate was the but-for cause of the
alleged adverse employment action. Booth v. Pasco Cty., 757 F.3d 1198, 1207 (11th
Cir. 2014) (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 363 (2013)).
1. STATUTORILY PROTECTED ACTIVITY
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Plaintiff asserts that he engaged in statutorily protected activity when he (1)
filed an EEOC charge on May 14, 2009 and an amended charge on June 2, 2009,
(2) filed his Complaint in Green I on June 29, 2011, and prosecuted that case, and
(3) sent a letter to the Northport City Council on December 21, 2009. (Doc. 53 at
35). Defendants concede that the filing of the original and amended EEOC charges
constitutes statutorily protected activity, but dispute that the filing of the
Complaint based on the same EEOC charges constitutes a separate “statutorily
protected activity” from the filing of the EEOC charge, and also dispute that the
December 21, 2009, letter constitutes protected activity. (Doc. 62 at 30.)
Statutorily protected activity includes (1) “oppos[ing] any practice made an
unlawful employment practice by” Title VII and (2) “mak[ing] a charge,
testif[ying], assist[ing], or participat[ing] in any manner in an investigation,
proceeding, or hearing under” Title VII. 42 U.S.C. § 2000e–3(a); see EEOC v.
Total Sys. Servs., Inc., 221 F.3d 1171, 1174–75 (11th Cir. 2000). The filing of a
lawsuit under Title VII against an employer is a “statutorily protected activity.”
While the Defendants dispute under the causation prong of the analysis whether
the Court may consider the filing of Green I as an occurrence separate and apart
from the initial EEOC complaints that were conditions precedent to filing the suit,
there can be no dispute that the filing of the suit itself was a “statutorily protected
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activity.” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001) (considering
petitioner’s filing of suit against respondent as a statutorily protected activity, but
rejecting a causal link between filing of suit and adverse action because suit was
filed after respondent determined to take adverse action); Raspanti v. Four Amigos
Travel, Inc., 266 F. App’x 820, 823 (11th Cir. 2008) (The plaintiff’s participation in
FLSA lawsuit was protected activity, but not causally linked to any materially
adverse action.).
Finally, Green identifies his December 21, 2009, letter to the Northport City
Council as statutorily protected activity. Green I already considered this letter and
correctly noted that “[the December 21, 2009 letter] does not mention that
[Plaintiff] considered the hostile environment to be based on his race or retaliation
for complaining about race discrimination. Rather, he contends that Collins berated
him on this occasion because he had stated that he was going to contact the United
States Department of Labor regarding issues with his work hours.” Green I, 2014
WL 1338108, at *13 (internal citation omitted). Title VII’s protections only extend
to individuals who communicate, explicitly or implicitly, their belief that their
employer’s actions constitute unlawful employment discrimination. Furcron, 843
F.3d at 1310; see also EEOC Enforcement Guidance on Retaliation and Related Issues,
No. 915.004 (August 25, 2016), https://www.eeoc.gov/laws/guidance/retaliationPage 25 of 42

guidance.cfm. The letter makes clear that Plaintiff is communicating his belief that
Collins’s actions violated the Northport Anti-Harassment Policy, not employment
discrimination law. Even construing the letter liberally, 4 a reasonable jury could not
conclude that Plaintiff even implicitly communicated a belief that Collins’s actions
constituted unlawful employment discrimination. Therefore, the December 21,
2009, letter from Plaintiff to the Northport City Council is not statutorily protected
activity for the purposes of Plaintiff’s prima facie case for retaliation. 5
2. ADVERSE EMPLOYMENT ACTIONS
To prove an adverse employment action in the context of a retaliation claim,
the plaintiff must show that a reasonable employee would have found the
challenged action materially adverse, meaning “it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); accord Crawford
4

The EEOC Guidance on Retaliation encourages a broad reading of the protected activity
requirement, given that many individuals “may not know the specific requirements of antidiscrimination laws.” EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004
(August 25, 2016), https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm. The
communication is protected if it “would reasonably have been interpreted as opposition to
employment discrimination.” Id.
5

Defendants appear to argue that the “law of the case” doctrine applies to this issue in light of
Judge Blackburn’s holding in Green I. (Doc. 42 at 47.) This argument is without merit. Judge
Blackburn did not hold in Green I that the letter was not statutorily protected activity. Rather,
Judge Blackburn merely observed (correctly) that the letter failed to allege that any of the actions
by Collins were based on Plaintiff’s race or retaliation. Green v. City of Northport et al., No. 7:11–
CV–2354–SLB, 2014 WL 1338108 at *13 (N.D. Ala. Mar. 31, 2014), aff’d 599 Fed. App’x 894
(11th Cir. 2015).
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v. Carroll, 529 F.3d 961, 974 (11th Cir. 2008). Plaintiff alleges that the following
constitute adverse employment actions by Collins: (1) the police department being
subjected to an audit; (2) Plaintiff’s placement on administrative leave; and (3)
Plaintiff’s constructive discharge during the “mediation conference.” (Doc. 53 at
36.)
A. AUDIT
Plaintiff argues that the ordering of a departmental audit was an adverse
employment action that would dissuade a reasonable employee from pursuing a
claim of discrimination or retaliation. (Doc. 53 at 38) Plaintiff states that:
Collins went after Plaintiff, and made it difficult for Plaintiff to manage
his department. According to Janis Green, a neutral witness, Collins
micromanaged the department, and held requisition orders which
made it difficult to order uniforms and supplies. After meddling in the
Police Department and undermining Plaintiff’s credibility he blamed
any issues in the department on Plaintiff.
...
Collins testified there was not money in the budget for pencils,
lightbulbs or garbage pickup, yet he recommended to the City Council
to spend $46,000 on an audit.
(Id. at 38-39) Plaintiff does not explain in any of his briefs why a departmental audit
is materially adverse, aside from questioning the reasonableness of the decision and
making a circular argument that the action was adverse because it was done in
retaliation for Plaintiff’s EEOC charge. Plaintiff’s allegations and evidence of
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Collins’ meddling and micromanagement do not inform the materially adverse
employment action inquiry, but simply seeks to quarrel with the wisdom of those
actions. In reviewing the evidence and considering it in the light most favorable to
Plaintiff, the Court concludes that a reasonable employee under the circumstances
would not be dissuaded from maintaining a discrimination claim by a departmental
audit.
B. PAID ADMINISTRATIVE LEAVE
Plaintiff argues that being placed on paid administrative leave was an adverse
employment action that would dissuade a reasonable employee from pursuing a
claim of discrimination or retaliation against Collins. (Doc. 53 at 39.) However,
Plaintiff does not explain in any of his pleadings why being placed on leave is
materially adverse. Like his audit argument, Plaintiff simply questions the
reasonableness of the decision and makes a circular argument that the action was
adverse because it was done in retaliation for Plaintiff’s EEOC charge.
Being placed in paid administrative leave would not dissuade a reasonable
worker from pursuing a discrimination claim against his employer. While a loss or
reduction in pay would constitute an adverse employment action, Plaintiff did not
suffer any such loss or reduction as a result of his leave. See Davis v. Town of Lake
Park, Fla., 245 F.3d 1232, 1240 (11th Cir. 2001). Similarly, having to surrender his
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gun, badge, and keys is not materially adverse; it would not discourage a reasonable
employee from sustaining a charge of discrimination. Further, even if a reasonable
worker would be embarrassed by being placed on paid administrative leave, it does
not follow that said reasonable worker would be dissuaded from pursuing a charge
of discrimination as a result. And the Eleventh Circuit has observed that Title VII’s
protections “simply do not extend to everything that makes an employee
unhappy.” Davis, 245 F.3d at 1242 (internal quotations and citation omitted).
More importantly, it was legitimate protocol and standard procedure within
the Northport Police Department to place an employee on leave to allow the City
to fairly investigate a matter, which Plaintiff himself admitted. (Doc. 44 Ex. A
Green Depo. at 139–40; 190–91.) To underscore the alleged impropriety of placing
Plaintiff on leave, Plaintiff highlights that Collins himself continued to serve as City
Administrator for the duration of the audit. (Doc. 53 at 39.) However, Collins
testified that he offered to go on leave during the audit, but the City Council
declined to place him on leave. (Doc. 46 Ex. B Collins Depo. at 247–48.)
Given that Plaintiff was placed on paid leave and given that placing an
individual on leave was the Department’s standard procedure in similar
circumstances, a reasonable jury could not conclude that placing Plaintiff on
administrative leave constitutes an adverse employment action. That Plaintiff was
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allegedly constructively discharged when he was on paid leave does not change the
fact that the paid leave was not materially adverse. Plaintiff’s claim concerning
administrative leave must stand on its own, and it is not somehow transformed into
a materially adverse action by acts the Defendants took later during the mediation
conference.
C. STATEMENTS DURING SETTLEMENT
CONFERENCE
Plaintiff additionally argues that Defendants threatened and tried to
manipulate Plaintiff into dismissing his lawsuit and leaving his employment at what
has been described as a mediation conference. (Doc. 53 at 40.) While there is a
dispute over what exactly Collins said during the mediation conference, even
assuming the truth of Plaintiff’s version of events, Plaintiff’s claim that he suffered
a materially adverse action through Defendants’ statements during this meeting is
without merit.
Defendants deny that Collins ever said that the City would not release the
results of the audit if Plaintiff dismissed his lawsuit. They contend that “the City
was not able to keep the audit study private because it was a publically funded
audit.” (Doc. 42 ¶ 80; see also Doc. 42 Ex. B Collins Depo. at 10 (“Q: And if
[Plaintiff] didn’t retire you were going to release the study, the audit had been
conducted that reflected negative on him; is that correct? A: That is not correct. Q:
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So you didn’t say that? A: No, sir, I did not.”). On the other hand, Plaintiff,
referring to what he had written in one of his EEOC charges, recounted that during
the meeting “I was told I would either settlement (sic), which is probably settle my
claims for what I believed to be an unreasonable amount or the City had conducted
a study and I would be fired for numerous violations of the policy.” (Doc. 44 Ex. A
Green Depo. at 52; see also Id. at 52-53 (“Q: Who told you that [you would be fired
if you did not settle your claims]? A: Scott Collins. Q: Then you say, “if I settled
my lawsuit the study would not be released”? A: Yes. Q: Correct? A: Yes. Q: And
so Collins told you you would be fired, correct? A: Yes.”); Id. at 212-13 (“I recall
Scott Collins was doing most of the talking and they told me that Collins said that
he offered a settlement somewhere around 43 thousand dollars. And he said the
results of the study were negative, but if I were to drop my complaint and retire by
the end of May, May 31st, that they would not release the results of the study to the
media. He also said that if I did not retire then the city council would terminate my
employment at the very next council meeting which was scheduled for June
4th.”).)
A threat to terminate Plaintiff if he did not accede to Defendants’ requests to
(1) resign from his position and (2) dismiss Green I is not a materially adverse
action under the circumstances. Burlington directs the Court to focus on whether
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the complained of conduct “could well dissuade a reasonable worker from making
or supporting a charge of discrimination.” Burlington, 548 U.S. at 57. This standard
is phrased “in general terms because the significance of any given act of retaliation
will often depend upon the particular circumstances. Context matters.” Id. at 69.
Regardless of the label attached to the parties’ May 29, 2012, meeting, it was clear
that the parties had come together to try to resolve their ongoing disputes. An offer
of forty-three thousand dollars to settle Green I is not materially adverse, nor is
mentioning the negative results of the audit conducted by a neutral third party and
stating that Plaintiff would be terminated unless he resigned. While Plaintiff argues
that Collins threatened that Plaintiff would be terminated at the next City Council
meeting unless he settled Green I, it is undisputed that Defendants took no action
to terminate Plaintiff at the time of the meeting even though Plaintiff ultimately did
not settle Green I. Obviously Plaintiff was not dissuaded from continuing his lawsuit
by the statements during the meeting, and given the total lack of any adverse acts
by Defendants, the Court is convinced that Collins’ statements would not
“dissuade a reasonable worker from making or supporting a charge of
discrimination.” Burlington, 548 U.S. at 57.
Because Plaintiff has failed to identify a materially adverse action by
Defendants, his claim for retaliation is due to be dismissed. Even assuming in
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arguendo that Plaintiff suffered a materially adverse action, Plaintiff has nonetheless
failed to show how such an adverse action was causally linked to his protected
activity, nor has Plaintiff shown that Defendants’ legitimate, non-discriminatory
grounds for the actions were a pretext for retaliation.
3. CAUSAL LINK
As part of his prima facie case, a plaintiff must also establish that a causal
connection exists between his statutorily protected activity and the alleged adverse
employment actions he suffered. Furcron, 843 F.3d at 1310. To do so, the plaintiff
must prove that but-for the employer’s desire to retaliate, he would not have
suffered the adverse employment action. Booth, 757 F.3d at 1207. Plaintiff cites
Goldsmith v. Bagby Elevator Company, 513 F.3d 1261, 1278 (11th Cir. 2008) for the
proposition that “the causal link element require[s] merely that the plaintiff
establish that the protected activity and the adverse action were not wholly
unrelated.” University of Texas Southwestern Medical Center made clear that but-for
causation is the standard, not a “wholly unrelated” standard as stated in Bagby
Elevator. 570 U.S. at 359-360. Following University of Texas Southwestern Medical
Center, the Eleventh Circuit has reaffirmed its reliance on the “but-for” causation
standard. Trask v. Sec’y, Dep’t of Veterans Affairs, 822 F.3d 1179, 1194 (11th Cir.
2016), cert. denied sub nom. Trask v. Shulkin, 137 S. Ct. 1133 (2017); Mealing v.
Page 33 of 42

Georgia Dep’t of Juvenile Justice, 564 F. App’x 421, 427 n.9 (11th Cir. 2014) (“We
conclude that the McDonnell Douglas framework continues to apply after the
Supreme Court’s Nassar, holding that a plaintiff must demonstrate “but-for”
causation when making a Title VII retaliation claim.”).
One way the plaintiff can establish a causal connection is if he can show
sufficient evidence that the employer knew of his statutorily protected activity and
that there was a close temporal proximity between this awareness and the adverse
employment actions. Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004); see
Breeden, 532 U.S. at 273 (holding that the temporal proximity must be “very
close”). A claim of retaliation fails as a matter of law “[i]f there is a substantial
delay between the protected expression and the adverse action in the absence of
other evidence tending to show causation.” Higdon, 393 F.3d 1220. Alternatively,
but-for causation must be proved by showing that the desire to retaliate was the
“determinative influence” on the defendant’s decision to take an adverse action.
Sims, 704 F.3d at 1337.
Without other evidence of causation, a three-and-a-half month passage of
time between the protected activity and adverse action is too long for the purposes
of establishing the causal link. See Clark, 532 U.S at 273-74. The almost year-long
gap in time between Plaintiff’s protected activity and Defendants’ alleged adverse
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actions—and lack of other evidence that Defendants intended to retaliate against
Plaintiff—prevents the Court from finding a causal connection in this action.
Plaintiff filed his EEOC charges in May and June 2009 6 and filed Green I on June
29, 2011.

7

The acts of which Plaintiff complains occurred almost a year after

Defendants became aware of Plaintiff’s last protected act. Plaintiff was placed on
administrative leave on February 20, 2012, and the statements made by Collins to
Plaintiff during the settlement conference occurred on May 29, 2012. The temporal
gap between the activities is thus too great to find a causal link, when there is no
other evidence of causation.
While Plaintiff argues that the Court should consider the entire period of
Green I for the purposes of its temporal proximity analysis, the Court identifies the
date the decision-maker became aware of the protected activity, not when that
protected activity ceased. Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337
(11th Cir. 1999) (“We have plainly held that a plaintiff satisfies this element if he
provides sufficient evidence that the decision-maker became aware of the protected
conduct, and that there was close temporal proximity between this awareness and

6

Collins became aware of the EEOC charges shortly after they were filed on May 29, 2009.
(Doc. 46 Ex. B Collins Depo. at 141-42.)
7
Collins was aware of Green I as late as July 8, 2011, according to the Notice of Service filed in
Green I. See Doc. 3, Green I, 7:11-cv-2354-SLB (N.D. Ala. July 11, 2011).
Page 35 of 42

the adverse employment action.”). Given the passage of time and a lack of other
evidence of causation, Plaintiff has not proved the required causal connection.
Plaintiff argues that because Collins mentioned the EEOC charges to
members of the City Police Department during the audit, this comment shows that
Collins’ reason for the audit was to retaliate against Plaintiff. It is undisputed that
Collins was answering a question posed by a member of the Department. (Doc. 46
Ex. B Collins Depo. at 261 (“Q: Do you think you brought [issues with Plaintiff] up
or did somebody else bring it up? A: I believe I opened the floor for questions and
someone had come and asked about why she was – she didn’t get a one-day
suspension and someone else did.”).) Plaintiff additionally argues that “the
recording of the meeting indicates Collins was attempting to taint the audit with
negative statements made about [Plaintiff] in his absence,” citing generally to a
CD-recording of Collins’ informal talk with the City Police Department, without
pointing to any statements that actually support their allegation. (Doc. 53 ¶ 66.)
Such a generalized statement is not sufficient to show but-for causation.
Nor does Plaintiff provide other “evidence of causation” to show a causal
relationship between his filing of Green I and Defendants’ later decision to either
allow Plaintiff to resign or terminate his employment based on the results of the
independent audit. Defendants have clearly shown good reason for the audit: both
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concern over officer safety and evidence of dysfunction in Plaintiff’s leadership of
the City Police Department. Plaintiff states other disagreements with how the audit
was conducted, such as its cost, the fact that the audit occurred months after
Plaintiff first told Collins about officer safety issues, and that Defendants should
have taken less serious disciplinary measures against Plaintiff. But these criticisms
do not show a causal relationship, just that the audit could be conducted more costeffectively, sooner, or resulting in less serious sanctions. Thus, because of the
extended period of time between Defendants’ awareness of Plaintiff’s protected
activity and the alleged adverse acts and absence of other evidence showing
causation, the Court finds Plaintiff has failed to show a required causal link.
ii. LEGITIMATE, NONDISCRIMINATORY REASON
If a Title VII plaintiff has made out a prima facie case for retaliation, which he
has not, the burden of production then shifts to the defendant to articulate
legitimate, nondiscriminatory reasons for its actions. Brown, 597 F.3d at 1181
(quoting Bryant, 575 F.3d at 1308). Even if Plaintiff had met his burden,
Defendants have articulated many legitimate and nondiscriminatory reasons for
their decision to terminate Plaintiff if he did not voluntarily resign, and Plaintiff has
not devoted a specific section of his Response to argue that the Defendants did not
have a legitimate, nondiscriminatory reason to threaten to terminate Plaintiff. The
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audit of the Police Department was approved by the City Council because of
concerns about officer safety, including Plaintiff’s e-mail to Collins that an officer
was about to “go off the deep end” and might shoot up the Council chambers.
Another reason for the audit relates to concerns voiced by Officer McCarley about
another officer’s sexual harassment complaint; these concerns went far beyond
Plaintiff individually. Further, Collins’s unrefuted testimony shows that other
managerial issues influenced his decision to suggest the audit, such as supervisory
issues, promotion practices, training, and favoritism. Therefore, the Court has no
trouble concluding that Defendants have proffered legitimate, nondiscriminatory
reasons for its decision to ask Plaintiff to retire or face termination.
iii. PRETEXT
If the analysis were to have gotten to this point, Plaintiff would be required to
show that Defendants’ proffered reasons for the adverse action were pretextual. In
order to show pretext, the plaintiff must “demonstrate that [Defendants’]
proffered reason was not the true reason for the employment decision . . . [The
plaintiff] may succeed in this either directly by persuading the court that a
discriminatory reason [or retaliatory motive] more likely motivated the employer or
indirectly by showing that the employer’s proffered explanation is unworthy of
credence.” Jackson v. State of Alabama State Tenure Comm’n, 405 F.3d 1276, 1289
Page 38 of 42

(11th Cir. 2005); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). A
plaintiff survives summary adjudication if he produces sufficient evidence to allow
a reasonable factfinder to disbelieve the employer’s articulated reasons for its
decisions. Jackson, 405 F.3d at 1289 ; Howard v. BP Oil Co., 32 F.3d 520, 525-26
(11th Cir. 1994). The plaintiff must show sufficient “weaknesses or
implausibilities” in the employer’s articulated reasons. Rioux v. City of Atlanta, 520
F.3d 1269, 1278 (11th Cir. 2008).
Defendants have shown sufficient grounds for the audit of the police
department; Plaintiff admitted that he sent the June 24, 2011 e-mail to Collins in
which he mentioned an officer about to “go off the deep end” and who might
“shoot[] up the council chambers.” (Doc. 44 Ex. A Green Depo. at 106.) Plaintiff
argues that the City of Northport had never conducted an audit of a department
and thus its decision to “deviat[e] from its own standard procedures” shows
pretext, basing his argument on Hurlbert v. St. Mary’s Health Care Sys., Inc., 439
F.3d 1286, 1299 (11th Cir. 2006). But Hurlbert’s deviation language relied solely on
cases where the employer violated its own procedures, unlike in the present action
where Defendants simply took a step that they had never previously done, but were
within their power to do. See Id. In any case, that Defendants never before audited a
department of the City does not show that they were seeking a pretext to fire
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Plaintiff, rather that they were seeking to respond to extraordinary circumstances in
the Police Department.
Likewise, simply questioning whether it was wise to spend such a large
amount of money on the audit does not show that the audit was actually a pretext to
retaliate against Plaintiff. Questions about the wisdom of the employer’s decisions
should not be reviewed by the courts. Chapman v. AI Transport, 229 F.3d 1012,
1030 (11th Cir. 2000) (“Federal courts do not sit as a super-personnel department
that reexamines an entity’s business decisions.”). Regarding being placed on leave,
Plaintiff admitted that the purpose of placing an employee on paid administrative
leave is to enable the City to fairly investigate a matter and that this practice was
legitimate protocol and “standard procedure.” (Doc. 44 Ex. A Green Depo. at 13940, 190.)
Defendants based their decision to terminate Plaintiff on the results of the
audit, and Plaintiff has not offered any evidence that Defendants were instead
motivated by a desire to retaliate against him. Plaintiff makes much of the fact that
the audit was not yet finalized at the time of the conference. However, as shown by
the audit itself, interviews of relevant persons in the Department and a
questionnaire survey had already been conducted prior to the conference. (See Doc.
51 Ex. A Ex. 27 at 8.) That Green I was being litigated during the time the
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settlement conference occurred is also immaterial; Defendants had known of
Plaintiff’s lawsuit for almost a year, and Plaintiff has offered nothing more than
speculation that litigation activities in Green I motivated Defendants’ actions. In
conclusion, Plaintiff has failed both to make a prima facie case of discrimination and
to show that Defendants’ legitimate grounds for their actions were pretextual.
IV.

CONCLUSION

For the reasons stated above, Defendants’ Motion for Summary Judgment
(doc. 42) is due to be GRANTED. Defendants’ Motion to Admit Evidence 8 (doc.
40), Motion for the Court to Take Judicial Notice 9 (doc. 41), Motion to Strike
Exhibit K10, and Plaintiff’s Motion to Strike11 (doc. 52) are due to be DENIED as
MOOT. An Order consistent with this Opinion will be entered separately.

Defendants moved to introduce evidence that a white department head, Michael Ramm, was
placed on administrative leave subsequent to Plaintiff’s own administrative leave. The
information Defendants’ Motion seeks to introduce is not material to the Court’s decision, and
thus the Motion to Admit Evidence is Denied as Moot.
9
Defendants’ Motion to Introduce Evidence seeks to introduce certain findings from Green I.
Because the evidence Defendants seek to introduce would not change the results of this Opinion,
the Motion is Denied as Moot.
10
The Court has not relied on Plaintiff’s Exhibit K nor considered it in the course of its decision,
nor would that Exhibit if relied upon change the results of the Court’s Opinion.
11
Plaintiff’s Motion to Strike objected to the use of Exhibit C to Defendants’ Motion for
Summary Judgment and facts concerning Kieth McKeown’s placement on administrative leave.
While Exhibit C includes an interview of Kelly McCarley by I.I., the information from Exhibit C
is largely repeated by Collins during his deposition. The Court thus relies on Collins’ deposition
rather than the contents of Exhibit C. The facts concerning Kieth McKeown’s placement on
administrative leave were in no way necessary to the Court’s Opinion, and the Court has not
relied on that information in reaching its decision.
8

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DONE and ORDERED on March 9, 2018.

_____________________________
L. Scott Coogler
United States District Judge
190485

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