Young v. City Of Mobile et al
ORDER granting 85 Motion for Summary Judgment by Jones; granting 89 Motion for Summary Judgment by Williams; granting 93 Motion for Summary Judgment by City of Mobile; finding as moot 109 Motion to Strike. Signed by Judge Kristi K. DuBose on 10/29/2014. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CITY OF MOBILE, et al.
CIVIL ACTION NO. 13-00586
This matter is before the Court on Defendant Samuel Jones’ Motion for Summary
Judgment, Defendant Michael Williams’ Motion for Summary Judgment, and Defendant
City of Mobile’s Motion for Summary Judgment and supporting briefs (Docs. 85-86, 8990, and 93-94), Plaintiff Jerone Young’s Responses (Docs. 103-105), and the
Defendants’ replies (Docs. 106-108).
On November 27, 2013, Plaintiff Jerone Young (“Young”) commenced this
action by filing a complaint against the City of Mobile (“the City”), Police Chief Michael
T. Williams (“Williams”), Mayor Samuel L. Jones (“Jones”), and Mayor Sandy Stimpson
(“Stimpson”). (Doc. 1). The complaint alleged that the Defendants had violated his due
process rights as well as the protections of the Equal Protection clause under the Fifth and
Fourteenth Amendments made actionable by 42 U.S.C. § 1983 (Counts One and Four),
violated his due process rights under the Alabama Constitution of 1901, Article 1, § § 6,
13, and 22 (Count Two), and violated his liberty interest possessed in his good name and
reputation (Count Three). (Doc. 1 at 6-13). Williams answered the complaint on
December 30, 2013 (Doc. 18). Jones and the City answered the complaint on January 16,
2014 (Docs. 21 and 22). On January 16, 2014, Stimpson filed a motion to dismiss the
complaint (Doc. 23) and an answer to the complaint. (Doc. 23). On February 5, 2014,
Young filed a motion to voluntarily dismiss Stimpson. (Doc. 27). On February 6, 2014
Young’s motion was granted and Stimpson was dismissed as a party. (Doc. 28).
On August 15, 2014, all Defendants moved for summary judgment on all claims
(Docs. 85, 89, and 93). Young’s responses and the Defendants’ replies were timely filed,
and the motions are now ripe for consideration.
Standard of Review
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” FED. R. CIV. P. 56(a) (Dec. 2010). Rule 56(c) provides as follows:
(1) Supporting Factual Positions. A party asserting that a fact cannot be
or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A
party may object that the material cited to support or dispute a fact cannot
be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials,
but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support
or oppose a motion must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.
FED.R.CIV.P. Rule 56(c) (Dec. 2010). The party seeking summary judgment bears the
“initial responsibility of informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Clark v. Coats & Clark, Inc., 929 F.2d 604,
608 (11th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the
nonmoving party fails to make “a sufficient showing on an essential element of her case
with respect to which she has the burden of proof,” the moving party is entitled to
summary judgment. Celotex, 477 U.S. at 323. “In reviewing whether the nonmoving
party has met its burden, the court must stop short of weighing the evidence and making
credibility determinations of the truth of the matter. Instead, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”
Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992) (internal
citations and quotations omitted).
At all times relevant to this action, Plaintiff Jerone Young (“Young”) has been a
“classified merit system employee” of the Police Department of Defendant City of
Mobile (“the City”). (Doc. 1 at 3). Young was employed by the Mobile Police
Department as a building maintenance supervisor. (Doc. 105-1 at 31-32) In September
2011, he was charged with conduct unbecoming an employee and failure to be truthful
during an investigation. (Id.)
At the summary judgment stage, the facts are taken in the light most favorable to the non-movant. Tipton
v. Bergrohr GMBH–Siegen, 965 F.2d 994, 998–999 (11th Cir. 1992). The “facts, as accepted at the
summary judgment stage of the proceedings, may not be the actual facts of the case.” Priester v. City of
Riviera Beach, 208 F.3d 919, 925 n. 3 (11th Cir. 2000).
On October 31, 2011, Young received a pre-disciplinary hearing notice from the
City. (Doc. 105-1 at 30). The notice advised him of the charges against him and the
hearing date on November 9, 2011. (Id.) A hearing took place on November 9, 2011 and
in a letter dated November 10, 2011, Young was suspended and demoted from his
position effective December 12, 2011. (Doc. 105-1 at 36).
The City operates under a merit system created by state statute and administered
by the Mobile County Personnel Board (MCPB). (Doc. 88-1 at 2-5). The state law
establishing the merit system, as well as the rules adopted by the MCPB, have certain
procedures by which any employee may appeal an adverse employment decision through
the independent board which then has full authority to affirm, increase, decrease, or
completely reverse any disciplinary action. (Id.). The MCPB rules require that a predisciplinary hearing be held within seven (7) days after written notice to the employee
(Doc. 105-2 at 3; Doc 105-3 at 17). 2
On December 2, 2011, Young filed a timely notice of appeal based on the
procedural violations of Rule 14.3(a), arguing that his hearing did not take place within
seven days of written notice. Young received notice of the hearing on October 31, 2011
and the hearing occurred on November 9, 2011, which was not within seven days of
MCPB Rule 14.3(a) states: Before any permanent employee is dismissed, suspended or demoted for
cause, the Appointing Authority or his designated representative shall afford the employee due process in
the form of a pre-disciplinary hearing. Written notice of the reasons for termination, suspension or
demotion must be given the employee at least twenty-four (24) hours prior to the pre-disciplinary hearing,
at which time the employee must be given the opportunity to respond orally and/or in writing to the charges
made before the official, or the designated representative of the official, charged with the responsibility of
making the disciplinary decision. The pre-disciplinary hearing must be held within seven (7) days after
written notice to the employee. The determination as a result of the pre-disciplinary hearing must be
communicated to the employee in writing within fourteen (14) days of the hearing. Circumstances that
prevent adherence to these timeframes must have approval of the Director. The dismissal, suspension or
demotion of an employee by an Appointing Authority without having first accorded the employee a predisciplinary hearing in accordance with this Rule shall be void and of no force and effect, and shall not be
recognized by the Board, except in extraordinary situations as hereinafter specified.
October 31, 2011. On February 28, 2012, the MCPB heard oral arguments on the matter
and on March 13, 2012, the board reversed the City’s decision to demote and suspend
Young, based on violations of the procedural guidelines of Rule 14.3(a). (Doc. 105-2 at
3-4). Pursuant to a written decision from the MCPB, Young was restored to his position
and granted back pay for time missed. (Id.)
On November 27, 2013, Young filed this complaint against the City of Mobile,
former Mayor Samuel L. Jones, former Chief of Police Michael T. Williams, and current
Mayor Sandy Stimpson.3 Young seeks $500,000 in compensatory damages, punitive
damages, $2,500 in attorneys fees incurred as a result of the MCPB hearing, attorneys
fees, costs, and expenses resulting from this action, permanent injunction, and any other
relief the Court finds appropriate. (Doc. 1 at 14-1 5).
Motion to Strike
Before turning to its summary judgment analysis, the Court will first address the
City’s motion to strike the contents of an affidavit (Doc. 105-1) that Young submitted
with his reply to the City’s motion for summary judgment. (Doc. 109). Though Young
included the affidavit with his response to each of the Defendants’ motions for summary
judgment, only the City has moved to strike. (Doc. 109).
The City contends that the affidavit’s contents are improper pursuant to Fed. R.
Civ. P. 56(c). (Doc. 109 at 1). Under Fed. R. Civ. P. 56(c)(4), “An affidavit or declaration
used to support or oppose a motion must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant or declarant is competent
On February 5, 2014, Young filed a motion to voluntarily dismiss Stimpson as a party. (Doc. 27). The
motion was granted on February 6, 2014. (Doc. 28).
to testify on the matters stated.” Fed. R. Civ. P. 56. The City argues that the affidavit
contains statements that are not based on Young’s personal knowledge and would not be
admissible into evidence. (Doc 109 at 1). The City’s motion to strike is MOOT as the
contents of the affidavit were not considered relevant to the decision.
Counts One and Four: Violations of the Due Process and Equal
Protection Clauses of the Fifth and Fourteenth Amendments45
Young alleges violations of his rights under the Fifth and Fourteenth
Amendments of the United States Constitution pursuant to Section 1983, which provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress. For the purposes of this section, any Act of
Congress applicable exclusively to the District of Columbia shall
be considered to be a statute of the District of Columbia.
42 U.S.C. § 1983. In order “[t]o sustain a cause of action based on section 1983, [a
plaintiff] must establish two elements: (1) that [he] suffered a deprivation of rights,
privileges or immunities secured by the Constitution and laws of the United States, and
(2) that the act or omission causing the deprivation was committed by a person acting
under color of law.” Wideman v. Shallowford Community Hosp., Inc., 826 F.2d 1030,
The complaint does not specify whether the alleged violations were based on procedural or substantive
due process. However, the right to continued public employment is not a fundamental right protected by
substantive due process. McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (en banc) (Holding that
public employment law “remain[s] largely outside the scope of substantive due process jurisprudence” and
“areas in which substantive rights are created only by state law (as is the case with tort law and
employment law) are not subject to substantive due process protection under the Due Process Clause
because ‘substantive due process rights are created only by the Constitution.’”). Accordingly, any
substantive due process claims under § 1983 are due to be dismissed.
The Fifth Amendment does not contain an equal protection clause, however, “[t]he Fifth Amendment's
Due Process Clause has an equal protection component akin to the Equal Protection Clause of the
Fourteenth Amendment.” United States v. Scrushy, 721 F.3d 1288, 1305 (11th Cir. 2013). As discussed
later in this order, the Due Process Clause of the Fifth Amendment applies only to the federal government.
1032 (11th Cir.1987) (internal quotations and citation omitted). The complaint alleges
that Young suffered a deprivation of Constitutional rights when the defendants
“demot[ed] and suspend[ed] Plaintiff without following mandatory and nondiscretionary
Mobile County Merit System procedure.” (Doc. 1 at 6). As discussed below, Young has
not suffered any deprivation of rights secured by the Constitution and laws of the United
States, and therefore cannot establish a claim under § 1983 for violations of either the
Fifth or Fourteenth Amendment.
Fifth Amendment Claims
Count One Due Process Claim
“The fifth amendment to the United States Constitution restrains the federal
government, and the fourteenth amendment, section 1, restrains the states, from depriving
any person of life, liberty, or property without due process of law.” Buxton v. City of
Plant City, Fla., 871 F.2d 1037, 1041 (11th Cir. 1989). The Fifth Amendment's due
process clause applies only to the federal government. Bartkus v. State of Illinois, 359
U.S. 121, 124 (1959). Because Young has alleged no federal actors, his claims predicated
on the Fifth Amendment’s due process clause are dismissed. Bates v. Alabama, 4:11-CV2183-KOB, 2012 WL 2154180 (N.D. Ala. June 13, 2012).
Count Four Equal Protection Claim
Young also alleges that he was retaliated against6 in violation of his equal
protection rights under the Fifth Amendment. Although “the Fifth Amendment contains
It is not clear from the complaint what the allegation of retaliation stems from but from what the Court
gathers from the filings, Young had previously been disciplined by the City and had successfully appealed
those actions. His complaint simply states, “Plaintiff has been forced to appeal other employment actions in
the past. Defendants retilated (sic) against him for having moved to protect his civil rights.” (Doc. 1 at 5).
It appears that he alleges that the suspension and demotion of October-November 2011was in retaliation of
his prior appeals.
no equal protection clause, it does forbid discrimination that is ‘so unjustifiable as to be
violative of due process.’” Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2 (1975)
quoting Schneider v. Rusk, 377 U.S. 163, 168 (1964); see also Bolling v. Sharpe, 347
U.S. 497, 499 (1954) (Also held that “discrimination may be so unjustifiable as to be
violative of due process”). “The [Supreme] Court’s approach to Fifth Amendment equal
protection claims is the same as to equal protection claims under the Fourteenth
Amendment.” Id. (citations omitted).7 As there is no equal protection clause in the Fifth
Amendment and the due process clause of the Fifth Amendment applies only to the
federal government, the Defendant’s motions for summary judgment on both of Young’s
Fifth Amendment claims (Counts One and Four) are GRANTED.
Fourteenth Amendment Claims
Count One Due Process Claim
Under the Due Process Clause of the Fourteenth Amendment, to the extent a
property interest exists in continued public employment, such interest cannot be taken
without complying with the requirements of the Due Process Clause. See Mack v. Ala.
Dep't of Human Res., 201 F.Supp.2d 1196, 1210 (M.D.Ala.2002) (citing Bd. of Regents
v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). Because of Young’s status
as a state merit system employee, he is vested with a protected property interest in
continued employment. Best v. Boswell, 696 F. 2d 1282, 1290 (11th Cir. 1983). Young
contends that his Due Process Rights under the Fourteenth Amendment were violated
“[b]y demoting and suspending [Young] without following mandatory and nondiscretionary Mobile County Merit System procedures.” (Doc. 1 at 6).
As discussed later, Young’s equal protection claim under the Fourteenth Amendment (Count Four) also
It is undisputed that the City did not comply with the notice requirements of
MCPB Rule 14.3(a) with regard to the proper amount of notice for his hearing. Young
appealed to the MCPB on these grounds and prevailed on this issue. The MCPB reversed
the City’s determination, restored Young to his previous position, awarded him full back
pay, and held that the City’s original determination was “void and of no force and effect.”
“Where a state provides procedures which govern the taking of property, and those
procedures are not fundamentally unfair on their face, and state law provides an adequate
remedy to correct alleged errors in the application of these procedures to a plaintiff, no
deprivation without due process can occur because the state has provided all the process
required by the Constitution.” Baxter v. Fulton-Dekalb Hosp. Authority, 764 F. Supp.
1510, 1519 (N.D. Ga. 1991)(citing Parratt v. Taylor, 451 U.S. 527 (1981); Lee v. Hutson,
810 F.2d 1030 (11th Cir. 1987). Such is the case with Young. Young was afforded notice
and an opportunity to be heard. He further appealed his suspension and demotion to the
MCPB. Therefore, “it is relatively easy to demonstrate that [Young] did receive
procedural due process; even if that process was not in perfect accord with the City’s
rules and policies.” Vincent v. City of Talladega, Ala., 980 F. Supp. 410, 412 (N.D. Ala.
1997). “The Fourteenth Amendment and the Supreme Court’s gloss on it, are the
measures of procedural due process, not the particular procedural rules of a particular
governmental entity.” Id. The procedures afforded Young in this case satisfied the
Fourteenth Amendment. There are no facts to support a claim that Young suffered a
constitutional violation. Accordingly, the defendants’ motions for summary judgment on
Count One as it pertains to the Fourteenth Amendment are GRANTED.
Count Four Equal Protection Claim
Young’s complaint states that the defendants
have violated equal protection principles through their illegal
employment discrimination against Plaintiff because he is a black
male and has sought to protect his rights wherein the Defendants
have retaliated against him. As such, the suspension and demotion
violated the equal protection clauses of the Fifth and Fourteenth
Amendments, made actionable by 42 U.S.C. Section 1983.
(Doc. 1 at 13). “To establish a claim under 42 U.S.C. § 1983, a plaintiff must prove (1) a
violation of a constitutional right, and (2) that the alleged violation was committed by a
person acting under color of state law. The first inquiry in any § 1983 lawsuit ... is
whether the plaintiff has been deprived of a right secured by the Constitution and laws.”
Holt v. Glenn, 361 F. App’x. 75, 77 (11th Cir. 2010) (not selected for publication)
(internal quotations and citations omitted). “The Equal Protection Clause ensures a right
to be free from intentional discrimination based upon race.” Williams v. Consol. City of
Jacksonville, 341 F.3d 1261, 1268 (11th Cir. 2003)
A claim of race discrimination based on § 1983 is analyzed using the same
standard for analyzing claims under Title VII. See Bryant v. Jones, 575 F.3d 1281, 1296
n. 20 (11th Cir. 2009). To establish this cause of action, Young must either have direct
evidence of discriminatory intent in the employment action or establish a prima facie case
as established in McDonnell Douglas v. Green, 411 U.S. 792 (1973). Direct evidence is
“evidence which, if believed, proves the existence of a fact without inference or
presumption.” Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1227 (11th Cir.
2002) (internal citations omitted). “‘Only the most blatant remarks, whose intent could be
nothing other than to discriminate on the [protected classification]’ are direct evidence of
discrimination.” Id. (citing Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d
1354, 1359 (11th Cir. 1999). To constitute direct evidence, “the remark must indicate that
the employment decision in question was motivated by race.” Id. Young has not shown
direct evidence of discrimination and is thus required to proceed under the shifting
framework established in McDonnell Douglas v. Green.
In order to establish a prima facie case for discrimination under this framework,
Young must show that he (1) was a member of a protected group, (here, African
American) (2) was subjected to adverse employment action, (3) that similarly situated
employees were treated more favorably, and (4) he was qualified to do the job. See
McCann v. Tillman, 526 F.3d 1370 (11th Cir. 2008). An adverse employment action has
been defined by the Eleventh Circuit as “a serious and material change in the terms,
conditions, or privileges of employment” as “viewed by a reasonable person in the
circumstances.” Davis v. Town of Lake Park, 254 F.3d 1232, 1239 -40 (11th Cir. 2001).
“The employee’s subjective view of the significance and adversity of the employer’s
action is not controlling.” Id.
Young has not established a prima facie case under the McDonnell shifting
framework in that he was not subjected to adverse employment action in contrast with
similarly situated employees outside the protected class. Young can point to no similarly
situated person or persons who were treated more favorably or a replacement who was
outside his protected class.8 In order to determine whether employees are similarly
situated to Young, the individuals must be similarly situated in all relevant respects
besides race, since different treatment of dissimilarly situated persons does not violate
civil rights laws.” Jackson v. Bell South Telecommunications, 372 F.3d 1250, 1273-74
(11th Cir. 2004) (internal citations and quotation omitted).
In his deposition, Young notes that he was replaced by John Russell, an African American male, for the
time he was away from work on suspension. (Doc. 94-2 at 6-7, Dep. Young at 91-92).
However, “establishing the elements of the McDonnell Douglas framework is not,
and never was intended to be, the sine qua non for a plaintiff to survive a summary
judgment motion in an employment discrimination case.” Smith v. Lockheed-Martin
Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). To create a triable issue of fact, Young
must come forward with “a convincing mosaic of circumstantial evidence that would
allow a jury to infer intentional discrimination by the decisionmaker.” Id. (footnote and
citation omitted). He has not done so.
With regard to Young’s retaliation claim, as Jones correctly points out (Doc. 86 at
22), “no established right exists under the equal protection clause to be free from
retaliation.” Ratliff v. DeKalb Cnty., Ga., 62 F.3d 338, 341 (11th Cir. 1995).
Consequently, Young’s retaliation claims found in Count Four are due to be dismissed.
Count Two: State Law Claim
Young alleges that he was unlawfully deprived of his due process rights
“guaranteed under the Alabama Constitution of 1901, Article 1, §§ 6, 13, 22, among
other applicable sections, including the provisions of the Mobile County Merit System
Act, the Rules of the Mobile County Personnel Board, and well-settled case law
decisions.” (Doc. 1 at 11). These violations stem from the same suspension and demotion
discussed in more detail previously.
As noted in Jones’ brief in support of his motion for summary judgment, there is
no private cause of action for monetary damages based on violation of provisions of the
Alabama Constitution. Matthews v. Alabama A & M Univ., 787 So. 2d 691, 698 (Ala.
2000). Accordingly, no claims for monetary damages based on alleged violations of the
Alabama Constitution will stand. Additionally, any claims for non-monetary relief are
also due to be dismissed. The Supreme Court of Alabama “has consistently interpreted
the due process guaranteed under the Alabama Constitution to be coextensive with the
due process guaranteed under the United States Constitution.” Lee v. City of Marion,
Ala., CIV.A.209-0301-KD-N, 2010 WL 2104181 (S.D. Ala. May 25, 2010)(citing
Alabama Dept. of Public Safety v. Prince, 2009 WL 3161829, 8 n. 2 (Ala. Civ. App.
2009) quoting Vista Land & Equip., L.L.C. v. Computer Programs & Sys., Inc., 953
So.2d 1170, 1174 (Ala. 2006)). As with Young’s claims based the due process guarantees
of the Fourteenth Amendment, Young has suffered no deprivation of due process. He was
successful in his appeal, reinstated and awarded full back pay. He cannot establish a due
process violation under the U.S. Constitution or the Alabama Constitution of 1901. The
Defendants’ motions for summary judgment on Young’s state law claims are
Count Three: Liberty Interest
Young alleges that he has suffered a violation of his Fourteenth Amendment
liberty interest in his good name and reputation. (Doc. 1 at 12-13). He alleges that the
suspension and demotion were made public and the Defendants have failed to expunge
his personnel file. (Doc. 1 at 12-13).
To establish a deprivation of a liberty interest without due process of law, a
plaintiff is required to prove “(1) a false statement (2) of a stigmatizing nature (3)
attending a governmental employee’s discharge (4) made public (5) by the government
employer (6) without a meaningful opportunity for employee name clearing.” Buxton v.
City of Plant City, Fla., 871 F.2d 1037, 1042-43 (11th Cir. 1989). Young has not
presented facts to establish the sixth element of his claim. Rather, it is undisputed that he
was provided a meaningful opportunity for name clearing; Young appealed his
suspension to the MCPB and the discipline was reversed. As noted in the MCPB’s
Therefore, after giving careful and deliberate consideration to all of
the positions put forth by the parties, it is the decision, finding and
order of the Board that the action of suspension and demotion
heretofore imposed on the employee, Jerone Young, be and the
same is hereby in all things void and of no force and effect. The
employee is to be restored to his former position and is granted
back pay for time missed.
(Doc. 103-2 at 4). Accordingly, the Defendants’ motions for summary judgment as to
Count Three of the complaint are GRANTED.
Accordingly, it is ORDERED that Defendants City of Mobile, Williams, and
Jones’ Motions for Summary Judgment on all claims (Docs. 85, 89, and 93) are
A Final Judgment consistent with the terms of this Order shall be entered by
separate document as required by Rule 58 of the Federal Rules of Civil Procedure.
DONE and ORDERED this the 29th day of October 2014.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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