Marable v. Marion Military Institute, et al
ORDER granting 69 Motion for Summary Judgment filed by Marion Military Institute and Col. Thomas L. Tate, and denying as moot defendants' 104 Objections and Motion to Strike and for Sanctions. Costs are taxed to plaintiff. Signed by Judge Callie V. S. Granade on 11/5/2012. (mab)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
REGINALD D. MARABLE, SR.,
MARION MILITARY INSTITUTE
and COL. THOMAS L. TATE, in
his individual and official
CASE NO. 2:11-cv-563-CG-B
This matter is before the court on the motion for summary judgment of
the defendants, Marion Military Institute (“MMI”), and Col. Thomas L. Tate
(“Tate”), in his individual and official capacities (collectively, “the
defendants”). (Doc. 69). The defendants and the plaintiff, Reginald D.
Marable, Sr. (“Marable”), have filed briefs and evidentiary materials in
support of their respective positions, and the motion is now ripe for
resolution. After careful consideration, the court concludes that the
defendants’ summary judgment motion is due to be GRANTED. For the
reasons enumerated below, the defendants’ Objections and Motion to Strike
and for Sanctions is hereby DENIED as MOOT.
Marable has asserted the following claims: (1) a retaliation claim
against MMI pursuant to Title VII and 42 U.S.C. § 1981; (2) a First
Amendment retaliation claim against both defendants pursuant to 42 U.S.C.
§ 1983; (3) a claim against MMI for a hostile work environment pursuant to
Title VII and § 1981; (4) an equal protection claim against both defendants
pursuant to § 1983; (5) a failure to promote claim against MMI pursuant to
Title VII and § 1981; and (6) a state law claim against MMI for negligent and
wanton training and supervision. See Doc. 1 at 9-15. Marable seeks money
damages, including punitive damages, and injunctive relief. Id. at 15-16.
MMI is an Alabama state college and military educational college.
(Doc. 72 at 2). From August 2008 until May 2010, Marable was employed by
MMI as a Trainer Advisor Counselor Officer (“TAC officer”). (Doc. 1 at 3, 7).
His job responsibilities included training cadets in military and life skills,
physical training, and providing general “counseling and assistance” to
cadets. (Doc. 80-1 at 31-32). Marable was also responsible for cadet
discipline for all cadets assigned to his company. Id. at 32. Marable was
employed pursuant to a one-year employment contract for the 2008-09
academic year, which MMI renewed for the 2009-10 academic year. (Doc. 72
at 2, 3). It is undisputed that, at all relevant times, Marable was a
probationary employee. (Doc. 72 at 11).
Marable’s supervisor at MMI was the Commandant of Cadets, Col.
Thomas L. Tate, who was “in charge of ensur[ing] the health, safety, welfare,
and good order and discipline of the entire student population,” and who
supervised all TAC officers. Id. at 2. MMI’s president was Col. David
Mollohan, USMC (ret.), who came to MMI in August 2009. Id.
Marable’s Complaint paints an unflattering portrait of racial
discrimination at MMI during the time he was employed there. Specifically,
Marable asserts that he observed that African-American cadets were
disciplined more harshly for less serious infractions while white cadets were
disciplined less harshly for more serious infractions. (Doc. 1 at 4). Marable
also alleges that Tate personally disciplined black students for “mingling”
with white students and directed them to “stay with their own kind.” Id. He
also claims that on one occasion he heard Tate say that his (Tate’s) daughter
“would never be with a nigger,” (Doc. 80-1 at 52), and recalls another occasion
when he heard Tate refer to a black cadet as a “thug,” and when questioned
about his use of the term said, “well he is black isn’t he?” Id.
Marable claims that he addressed his concerns regarding the disparate
treatment of African-American cadets with several colleagues and
supervisors. (Doc 1 at 5). For example, he testified that he complained to
Tate at some point before November 2009 about both the treatment of
minority cadets and “his own personal feelings of discrimination.” (Doc. 80-1
at 42). Marable also asserts that in April 2010, he and another AfricanAmerican faculty member approached Tate and Mollohan and “raised
concerns regarding Tate and MMI’s disparate treatment of African-American
students.” (Doc. 1 at 5). He also claims that he had a conversation about
Tate with Mollohan shortly after the 2009-10 academic year began. (Doc. 801 at 44).
While the first year of Marable’s employment at MMI saw him receive
high performance review ratings from Tate, see Doc. 84-1 at 1, his second
year was more turbulent. In September 2009, Marable wrote a note to Tate
regarding two cadets who displayed disrespectful conduct towards him, and
referenced a confrontation with a third cadet, who had to be restrained. (Doc.
86-14). Marable wrote that “I WILL NOT TOLERATE (IT.) Cadets coming @
me. I WILL DEFEND myself this year.” Id. (emphasis in original). Later the
same month, Marable was accused of hazing cadets and placed on
administrative leave, (Doc. 85-2), pending an investigation which ultimately
cleared him of the hazing accusations, but which found that he had violated
MMI training policies. (Doc. 85-6 at 4-8). At the conclusion of the hazing
investigation in October 2009, Mollohan issued a “letter of formal counseling”
to Marable, which stated Mollohan’s concerns over “a pattern of conduct that
appears to include recurring failure to comply with orders given [and] policies
established …” (Doc. 70 at 226-27). One month later, a dispute arose
between Tate and Marable over grooming standards for TAC officers, (Doc.
70-3 at 45-46), after which Mollohan stated that Marable “displayed a total
disrespect for directives which reinforced my lack of trust and confidence in
Mr. Marable’s performance and conduct.” (Doc. 70-1 at 6). On November 29,
2009, Marable emailed Mollohan and requested mediation between himself
and Tate. (Doc. 70-3 at 48). Mollohan directed Susan Stevenson, MMI’s
Executive Vice President, and Janice McGee, MMI’s Director of Human
Resources, to meet with Marable. (Doc. 80-1 at 54). Tate did not attend. Id.
In April 2010, Tate recommended to Mollohan against renewing
Marable’s employment contract for the following academic year. (Doc. 72 at
11). Mollohan agreed, and placed Marable on administrative leave with full
pay and benefits until his contract terminated on May 31, 2010. (Doc. 1 at 7;
Doc. 72 at 11).
Marable claims that the events of his troubled second year at MMI
were the result of retaliation stemming from his “opposition and complaints
regarding racially disparate enforcement of student policy and procedures at
MMI.” (Doc. 1 at 5). He claims that the hazing allegations originated with
Tate and were false. See Doc. 95 at 3, 19. He also claims that he was the
only TAC officer who was required to report to the commandant’s office upon
his arrival on campus, (Doc. 80-1 at 54); that Tate did not allow him to take
four days of FMLA leave when his mother-in-law was dying of cancer, id.; and
that Tate reprimanded him for allegedly unauthorized leave and absences
which, in fact, were legitimate. (Doc. 95 at 5).
Additionally, Marable alleges that in October 2009, he applied for an
admissions counselor position at MMI for which he was well-qualified. (Doc.
1 at 5). Marable was interviewed as one of three finalists for the position in
November 2009. Id.; Doc. 72 at 15. Marable claims that the interview panel
considered him the best candidate for the position. (Doc. 80-1 at 38).
Nevertheless, a white candidate, Harry Howell, who Marable asserts was less
qualified for the position, was selected. (Doc. 1 at 6).
Shortly before his contract with MMI expired, Marable filed an EEOC
charge alleging race and age discrimination and retaliation on May 27, 2010.
(Doc. 70-3 at 40). Approximately 8 months later, on February 4, 2011,
Marable filed for Chapter 13 bankruptcy protection in the United States
Bankruptcy Court for the Northern District of Alabama. (Doc. 70-13 at 2).
Marable filed the instant lawsuit in the United States District Court for the
Northern District of Alabama on July 1, 2011. See Doc. 1 at 1. The case was
then transferred to the United States District Court for the Southern District
of Alabama on September 29, 2011. See Doc. 11.
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(a) provides that summary judgment
shall be granted “if the movant shows that there is no genuine dispute as to
any material fact and that the movant is entitled to judgment as a matter of
law.” The trial court’s function is not “to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “The mere
existence of some evidence to support the non-moving party is not sufficient
for denial of summary judgment; there must be ‘sufficient evidence favoring
the nonmoving party for a jury to return a verdict for that party.’” Bailey v.
Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting Anderson, 477 U.S.
at 249). “If the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.” Anderson, 477 U.S. at 249-250.
(internal citations omitted).
The basic issue before the court on a motion for summary judgment is
“whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail
as a matter of law.” See Anderson, 477 U.S. at 251-252. The moving party
bears the burden of proving that no genuine issue of material fact exists.
O'Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001). In
evaluating the argument of the moving party, the court must view all
evidence in the light most favorable to the non-moving party, and resolve all
reasonable doubts about the facts in its favor. Burton v. City of Belle Glade,
178 F.3d 1175, 1187 (11th Cir. 1999). “If reasonable minds might differ on
the inferences arising from undisputed facts, then a court should deny
summary judgment.” Hinesville Bank v. Pony Exp. Courier Corp., 868 F.2d
1532, 1535 (11th Cir. 1989) (citing Mercantile Bank & Trust v. Fidelity &
Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)).
Once the movant satisfies his initial burden under Rule 56(a), the nonmoving party “must make a sufficient showing to establish the existence of
each essential element to that party's case, and on which that party will bear
the burden of proof at trial.” Howard v. BP Oil Co., 32 F.3d 520, 524 (11th
Cir. 1994)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
Otherwise stated, the non-movant must “demonstrate that there is indeed a
material issue of fact that precludes summary judgment.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The non-moving party “may
not rely merely on allegations or denials in its own pleading; rather, its
response .... must be by affidavits or as otherwise provided in this rule be set
out specific facts showing a genuine issue for trial.” Vega v. Invsco Group,
Ltd., 2011 WL 2533755, *2 (11th Cir. 2011). “A mere ‘scintilla’ of evidence
supporting the [non-moving] party’s position will not suffice; there must be
enough of a showing that the jury could reasonably find for that party.”
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted).
“[T]he nonmoving party may avail itself of all facts and justifiable inferences
in the record taken as a whole.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d
994, 998 (11th Cir. 1992). “Where the record taken as a whole could not lead
a rational trier of fact to find for the non-moving party, there is no genuine
issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (internal quotation and citation omitted).
APPLICATION OF JUDICIAL ESTOPPEL
On May 27, 2010, Marable filed a charge of discrimination against
MMI with the EEOC. (Doc. 88-9). Eight months later, on February 4, 2011,
he filed a bankruptcy petition (the “Petition”) with the United States
Bankruptcy Court for the Northern District of Alabama. (Doc. 70-13).
However, Marable did not disclose his pre-existing EEOC claim as required
on either the Petition’s Debtor’s Schedule (“Debtor’s Schedule”) or the
Statement of Financial Affairs (“SFA”). On April 6, 2011, the EEOC issued a
right to sue letter which stated that it was “unable to conclude that the
information obtained establish[ed] violations of [anti-discrimination]
statutes,” and further informed Marable that he had 90 days in which to file
suit. (Doc. 88-10 at 1). Marable subsequently filed the instant lawsuit on
July 1, 2011. (Doc. 1).
MMI now argues that the doctrine of judicial estoppel prevents
Marable from pursuing his claim in this court, having sworn to the
Bankruptcy court that no claims existed. (Doc. 71 at 17). Marable, on the
other hand, argues that “[his] claims against MMI arose after his initial
filing,” and that “[h]is failure to amend was inadvertent.” (Doc. 95 at 6).
Statement of the Law
“Judicial estoppel is an equitable doctrine invoked at a court’s
discretion.” Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir.
2002) (citing New Hampshire v. Maine, 532 U.S. 742, 750 (2001). The
doctrine “prevents a party from asserting a claim in a legal proceeding that is
inconsistent with a claim taken by that party in a previous proceeding.” New
Hampshire, 532 U.S. at 749 (internal quotations omitted). Although there
are no “inflexible prerequisites or an exhaustive formula for determining the
applicability of judicial estoppel,” the U.S. Supreme Court has elucidated
several factors which typically inform the decision whether or not to apply
judicial estoppel in a particular case. Id. at 751. “First, a party’s later
position must be clearly inconsistent with its earlier position.” Id. at 750
(string citation omitted). “Second, courts regularly inquire whether the party
has succeeded in persuading a court to accept that party’s earlier position, so
that judicial acceptance of an inconsistent position in a later proceeding
would create ‘the perception that either the first or the second court was
misled…’” Id. (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th
Cir. 1982). “[T]hird…is whether the party seeking to assert an inconsistent
position would derive an unfair advantage or impose an unfair detriment on
the opposing party if not estopped.” Id. at 751
Courts in the Eleventh Circuit consider two additional factors. “First,
it must be shown that the allegedly inconsistent positions were made under
oath in a prior proceeding. Second, such inconsistencies must be shown to
have been calculated to make a mockery of the judicial system.” Burnes, 291
F.3d at 1285. However, these two factors are not “inflexible or exhaustive,”
and therefore the court must give due consideration to all of the
circumstances of a particular case when considering the applicability of
judicial estoppel. Id. at 1286.
As a general matter, “while privity and/or detrimental reliance are
often present in judicial estoppel cases, they are not required.” Id. This is
because judicial estoppel protects the integrity of the judicial system, and not
that of the litigants. Id. (quoting Ryan Operations G.P. v. Santiam-Midwest
Lumber Co. et al., 81 F.3d 355, 362 (3rd Cir. 1996).
A party who is under Chapter 13 or Chapter 7 bankruptcy protection
from creditors is under a continuing duty to disclose all assets and potential
assets to the bankruptcy court. Robinson v. Tyson Foods, Inc., 595 F.3d 1269,
1274 (11th Cir. 2010) ( “The duty to disclose is a continuing one that does not
end once the forms are submitted to the bankruptcy court; rather the debtor
must amend [her] financial statements if circumstances change.”) (citing
Burnes, 291 F.3d at 1286).
Statement Submitted Under Oath In a Prior
The court takes the electronic signatures on the Petition at face value
and finds as a matter of undisputed fact that Marable submitted his SFA and
Debtor’s Schedule under oath to the Bankruptcy Court on February 4, 2011,
which predates the instant case. (Doc. 70-13 at 15). Therefore, the matter
turns upon the question of intent.
Judicial estoppel may be applied only in situations involving
intentional manipulation of the courts, and not when the litigant’s
contradictory positions are “the product of inadvertence or mistake.” Burnes,
291 F.3d at 1287 (quoting Matter of Cassidy, 892 F.2d 637, 642 (7th Cir.
1990)). In cases where a debtor fails to disclose a claim or potential claim in
a bankruptcy proceeding, the court will find the failure inadvertent only
when the debtor either (i) lacks knowledge of the undisclosed claim or (ii) has
no motive for its concealment. Burnes, 291 F.3d at 1287 (citing In re Coastal
Plains, Inc., 179 F.3d 197, 210 (5th Cir. 1999). Otherwise, intent may be
(a) Knowledge of Claims
Marable argues that his claims against MMI arose only after he filed
for bankruptcy. (Doc. 95 at 6). However, this assertion is undermined by the
fact that Marable brought his EEOC charge on May 27, 2010 – more than
eight months before he filed the Petition on February 4, 2011. (Doc. 88-9),
(Doc. 70-13 at 2). It is of no import that Marable did not file a lawsuit before
filing his Petition, because the EEOC claim constitutes “administrative
proceedings” and “[o]ther contingent and unliquidated claims” that Marable
was required to disclose in his SFA and Debtor’s Schedule. Casanova v. Pre
Solutions, Inc., 228 Fed. Appx. 837, 841 (11th Cir. 2007). “The property of
[the] bankruptcy estate includes all potential causes of action existing at the
time petitioner files for bankruptcy.” Id. (quoting Barger v. City of
Cartersville, 348 F.3d 1289, 1293 (11th Cir. 2003).
Furthermore, the court notes that Marable’s own complaint and sworn
affidavit flatly contradict his assertion that he had no claim at the time of his
bankruptcy filing, because Marable alleges that Tate informed him on April
21, 2010, that he was being placed on administrative leave until the end of
his contract term on May 31, 2010. (Doc. 1 at 7; Doc. 88-26 at 11).
Secondly, Marable also claims that “his failure to amend was
inadvertent,” (Doc. 95 at 6), and cites his own sworn affidavit (Doc. 88-26) for
factual support. In the affidavit, Marable makes the puzzling claim that
“[m]y attorney advised me that an amended schedule was not necessary due
to my intention to file a Motion to Dismiss the petition due to changed
circumstances. On or about February 2011, the Petition to Dismiss was
filed.” (Doc. 88-26 at 13). This assertion is simply not credible. The
Bankruptcy Court docket reflects no motion to dismiss filed by Marable,
either in February 2011 or at any other time. See In re Marable, Case No.
11-70235-CMS13 (Bankr. N.D. Ala.). In fact, the only motions to dismiss
listed in the bankruptcy docket were filed by the Bankruptcy Trustee because
Marable failed to make plan payments as required. See id. at Doc. 55 and 70.
The only motions that were withdrawn were the Trustee’s motions. Id. Nor
does the bankruptcy docket contain a “Petition to Dismiss.” Id. The fact that
these misstatements of fact appear in Marable’s second opposition brief (the
first one having been stricken for procedural failings) does not help his
credibility, to put it mildly.
For these reasons, the court finds that Marable had knowledge of his
claim at the time he filed the Petition.
(b) Motive for Concealment
The issue of intent thus hinges on whether Marable had a motive to
conceal his discrimination claim. Marable argues that “[his] open disclosure
is evident and further, there is no evidence of concealment.” (Doc. 95 at 6-7).
However, the record does not evidence anything remotely like “open
disclosure” – to the contrary, the court notes a striking lack of disclosure on
Marable’s part until his hand was forced at the last possible moment.
Marable not only failed to amend his Petition after the EEOC issued a right
to sue letter on April 6, 2011, (Doc. 88-10), but he also waited more than two
weeks after MMI raised the issue of judicial estoppel in its summary
judgment motion before finally amending the Petition. See Doc. 71 at 16-17;
see also In re Marable, supra, Doc. 80 at 3.
Furthermore, Marable appeared to gain an advantage when he failed
to list his EEOC claim on his Debtor’s Schedule because, by omitting the
claim, he could keep any proceeds resulting from his claim for himself and
not have them become part of the bankruptcy estate. See Barger v. City of
Cartersville, Ga., 348 F.3d 1289, 1296 (11th Cir. 2003); see also Robinson v.
Tyson Foods, Inc., 595 F.3d 1269, 1275 (11th Cir. 2010).
Intent By Inference
Marable puts forward a perfunctory and conclusory argument that,
based upon his “open disclosure … intent cannot be inferred.” (Doc. 95 at 7).
The court addressed the lack of factual support for Marable’s claims of open
disclosure, supra. Similarly, there is no legal support for Marable’s assertion
that intent to conceal cannot be inferred. Although he cites several cases
dealing with judicial estoppel, none are availing. In Roots v. Morehouse
School of Medicine, Inc., 2009 WL 4798217 (N.D. Ga. 2009), none of the three
plaintiffs had ongoing administrative claims prior to filing for bankruptcy
protection, a fact which the Roots court noted. See id. at 4 (“The failure to
amend does not create the same inference as the case where the debtor has
knowledge of or has filed his non-bankruptcy claim prior to filing for Chapter
13 bankruptcy.”). The same is true of the plaintiffs in Snowden v. Fred’s
Stores of Tennessee, Inc., 419 F.Supp.2d 1367, 1373 (M.D. Ala. 2006) and
Lewis v. Weyerhauser Co., 141 Fed. Appx. 420, 426 (6th Cir. 2005). Marable,
by contrast, filed his EEOC complaint eight months prior to filing his
bankruptcy petition, see Doc. 88-9 and Doc. 70-13, and failed to amend his
Debtor’s Schedule until two weeks after the opposing party in his lawsuit
raised the issue of judicial estoppel in its summary judgment motion. See
Doc. 71 at 16-17. See also In re Marable, supra, Doc. 80 at 3. This behavior
is easily distinguishable from the “affirmative steps to fully inform the
trustee and the bankruptcy court” that the Sixth Circuit discussed in Lewis.
See Lewis, 141 Fed. Appx. At 426.
Accordingly, the court finds that Marable’s knowledge of his
discrimination claim and his motive to conceal it are sufficient evidence from
which to infer his intentional manipulation. See Burnes, 291 F.3d at 1287.
The court finds further that the doctrine of judicial estoppel is appropriate in
this case, where Marable failed to disclose his administrative claim before the
EEOC to the Bankruptcy Court, and then failed to amend his Petition until
after the defendants raised the issue of judicial estoppel at summary
judgment. Marable is therefore estopped from collecting monetary damages
from the defendants in the instant action.
THE CASE ON THE MERITS
The doctrine of judicial estoppel applies only to Marable’s claims for
monetary damages, and does not bar his claims for injunctive relief. See
Burnes, 291 F.3d at 1289; Casanova v. Pre Solutions, Inc., 228 Fed. Appx.
837, 841 (11th Cir. 2007). Therefore, the court turns to Marable’s claims on
Marable’s Affidavit (Doc. 88-26)
As a preliminary matter, the court notes that Marable’s sworn
affidavit (Doc. 88-26) is larded with statements which constitute inadmissible
hearsay, utterly conclusory statements of no probative value, and statements
which are based upon his personal belief rather than his personal knowledge.
See Doc. 88-26. To be considered on summary judgment, affidavits or
declarations must be based on personal knowledge, cannot be conclusory, and
must contain information that can be reduced to admissible form at trial. See,
e.g., Corwin v. Walt Disney Co., 475 F.3d 1239, 1249 (11th Cir. 2007) (“Even
on summary judgment, a court is not obligated to take as true testimony that
is not based upon personal knowledge.”) (citation omitted); Leigh v. Warner
Bros., Inc., 212 F.3d 1210 (11th Cir. 2000) (“This court has consistently held
that conclusory allegations without specific supporting facts have no
probative value.”) (citation omitted); Rowell v. BellSouth Corp., 433 F.3d 794,
800 (11th Cir. 2005) (“On motions for summary judgment, we may consider
only that evidence which can be reduced to an admissible form.”).
Consequently, the court hereby disregards the following paragraphs in
Marable’s affidavit because they consist of conclusory statements that
contain no probative value: paragraph 33 (Marable’s claim that Tate’s
recommendation of an investigation was “harassment and retaliatory”),
paragraph 35 (Marable’s blanket statement that Howell “did not meet the
minimum qualifications for the position”), paragraph 36 (Marable’s
unadorned statement that “I was the best qualified candidate for the position
of Admission Counselor …”), paragraph 39 (“the harassment by Tate became
more severe and pervasive”), paragraph 57 (Marable “felt” that reprimands
were “… retaliatory”), paragraph 66 (Marable “observed a pattern of
retaliatory and discriminatory conduct by [defendants]”), paragraph 67
(unadorned allegation that “Jackson and Burns … were transferred from
their positions as a result of their complaints,” and that “Hastings and
Steiger were terminated as a result of their complaints.”), and paragraph 70
(Marable’s unsubstantiated claim of knowledge of a “pattern of retaliation” by
defendants which caused employees to refrain from stating concerns about
discrimination). See Doc. 88-26.
The court further disregards the following paragraphs from Marable’s
affidavit because they are based upon his belief rather than his personal
knowledge, as required by Fed.R.Civ.P. 56(c)(4): paragraph 33 (stating
Marable’s belief that his being targeted for investigation was “harassment
and retaliatory”), paragraph 68 (stating Marable’s belief that certain adverse
action taken against him and other employees was based upon their
complaints of discrimination), and paragraph 69 (stating Marable’s belief
that adverse action taken against him and other employees was retaliatory).
Additionally, the court disregards the following paragraphs from
Marable’s affidavit because they contain inadmissible hearsay, which
Marable has not indicated is capable of being reduced to an admissible form:
paragraph 13 (claiming that a female cadet “indicated to Tate that she was
not offended by the [dropped condom] incident”), paragraph 36 (claiming that
members of the Selection Committee advised him that he was the best
qualified candidate for the position of Admissions Counselor), paragraph 37
(quoting Dennis Hastings as stating that “Tate doesn’t want you to get this
position.”), paragraph 56 (alleging that Stevenson directed Marable to “obey”
Tate without question), paragraph 66 (claims that Polly Burns and Christine
Jackson, for whom no affidavit or testimony was submitted, reported
concerns of discrimination).
Affidavits of Daniel Steiger and Marcus Thomas
When an affidavit submitted in support of, or opposition to, a motion
for summary judgment contains inadmissible evidence, the court may strike
the inadmissible portions of the affidavit and consider the rest. See Lee v.
National Life Assurance Co., 632 F.2d 524, 529 (5th Cir.1980). Here,
however, the court finds the affidavits of Daniel Steiger and Marcus Thomas
to be so riddled-through with irrelevant statements, conclusory assertions
with no probative value, inadmissible hearsay, and statements based upon
belief rather than personal knowledge, that both documents are due to be,
and hereby are, stricken. See Pace v. Capobianco, 283 F.3d 1275, 1278-79
(11th Cir. 2002); Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir.
2000) ( “This court has consistently held that conclusory allegations without
specific supporting facts have no probative value”); Casiano v. Gonzales, 2006
WL 229956, *7 (N.D. Fla. 2006); Gaddis v. Russell Corp., 242 F. Supp.2d
1123, 1138 n. 12 (M.D. Ala. 2003) (“the favorable reviews of nondecisionmakers are irrelevant to the challenged employment action”); Mays v.
Union Camp Corp., 114 F.Supp.2d 1233, 1244 (M.D. Ala. 2000); see also
Corwin, supra, at 1249; Leigh, supra at 1217; and Rowell, supra at 800.
Repeated Violations of Local Rule 7.2(b)
The court also disregards a number of citations contained in Marable’s
opposition to summary judgment (Doc. 95) as violative of Local Rule 7.2(b).
The court has addressed the evidentiary shortcomings of some of Marable’s
supporting documents, supra. But in addition to those shortcomings,
Marable’s opposition brief repeatedly cites documents in the record without
indicating the specific page and paragraph numbers. “A brief must make all
arguments accessible to the judges, rather than ask them to play
archaeologist with the record.” DeSilva v. DiLeonardi, 181 F.3d 865, 867 (7th
Cir. 1999). Filing a large evidentiary record, making conclusory and opinionladen references to exhibits in that record, and expecting the Court “to scour
those exhibits with the faint hope of stumbling across a disputed issue of fact”
is simply insufficient to comply with Local Rule 7.2. Henry v. City of
Tallahassee, 216 F.Supp.2d 1299, 1312 (N.D. Fla. 2002). Local Rule 7.2(b)
requires that, “if it is contended that there are material factual disputes, [the
party opposing summary judgment] shall point out the disputed facts
appropriately referenced to the supporting document or documents filed in
the action.” This Marable has failed to do. Accordingly, the court will
disregard those citations to the record which indicate only an exhibit number
but no relevant page and/or paragraph number. See Doc. 95 at 1-5, ¶s 1, 2, 3,
6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21, and ¶ 15 fn. 10. See also id.
at 6, 9-12, 14, 15, 17-20, 22-24, and 26.
TITLE VII AND § 1981 FAILURE TO PROMOTE AND
RETALIATION CLAIMS (COUNTS I and V)
Counts I and V of Marable’s complaint are brought pursuant to Title
VII and 42 U.S.C. § 1981 and consist of a retaliation claim (Count I) and a
claim alleging racial discrimination based upon an alleged failure to promote
Marable to the position of admissions counselor (Count V). See Doc. 1 at 910, 12-14.
Marable’s Retaliation Claim (COUNT I)
Statement of the Law
A retaliation claim based on circumstantial evidence is analyzed
according to the McDonnell Douglas framework. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973); Farley v. Nationwide Mut. Ins.
Co., 197 F.3d 1322, 1336 (11th Cir. 1999) (applying McDonnell Douglas-type
analysis to retaliation claims). The plaintiff bears the initial burden of
establishing a prima facie case of retaliation, which he may do by
demonstrating that (1) he engaged in statutorily-protected activity; (2) he
suffered a materially adverse action; and (3) there was some causal relation
between these two events. Dixon v. The Hallmark Companies, Inc., 627 F.3d
849 (11th Cir. 2010). The Eleventh Circuit construes the “causal link”
element broadly, so as “to require merely that the plaintiff establish that the
protected activity and the adverse action were not wholly unrelated.”
Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1286 (11th Cir. 2008)
(quoting Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th
If a plaintiff establishes the prima facie elements of the claim, he
raises a presumption that his race motivated his employer to treat him
unfavorably. Smith v. Lockheed-Martin Corporation, 644 F.3d 1321, 1325
(11th Cir. 2011) (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
254 (1981)). The defendant then has an opportunity to articulate a
legitimate, non-retaliatory reason for the challenged employment action as
an affirmative defense to liability. Id. If the defendant employer meets its
burden, then the presumption of discrimination raised by the plaintiff’s
prima facie case is rebutted and thus disappears. Id. at 1325-26. The
plaintiff must then prove that the reason provided by the employer is a
pretext for prohibited retaliatory conduct. Id. at 1326.
MMI’s Legitimate and Non-Discriminatory Reasons
In order to avoid a protracted dispute between the parties over the
admissibility of a document which purports to establish that Marable
complained to Mollohan about racially discriminatory employment practices
(Doc. 88-7), the court hereby assumes for the sake of argument that Marable
has established a prima facie case of retaliation. Accordingly, the court
begins its McDonnell-Douglas analysis with MMI’s proffered nondiscriminatory reasons for not renewing Marable’s contract.
MMI argues that it did not renew Marable’s contract because
Marable’s performance waned during the course of the 2009-10 academic
year. (Doc. 72 at 8). Tate testified at his deposition that as early as January
2009 he was concerned about Marable’s judgment and tendency to escalate
confrontations with cadets. Doc. 70-4 at 7 and 12. Although Tate
subsequently gave Marable a glowing evaluation at the end of the 2008-09
academic year, MMI points to what can only be described as an irate,
handwritten note from Marable dated September 2009, which tends to
support Tate’s concerns and post-dates Marable’s positive evaluation. See
Doc. 86-14 (“I WILL NOT TOLERATE (IT.) Cadets coming @ me. I WILL
DEFEND Myself This Year.”). Mollohan’s testimony also tends to
corroborate Tate’s concerns, if less vividly. (Doc. 70 at 10).
By October 2009, a full six months before Marable was placed on
administrative leave and seven months before his contract was allowed to
expire, Mollohan sent Marable a letter of formal counseling (Doc. 70 at 22627) which noted Mollohan’s “concern that you have begun to establish a
pattern of conduct that appears to include recurring failure to comply with
orders given, policies established, and in effectively setting the appropriate
example to our cadets of adherence to the highest standards of conduct.” Id.
A dispute between Tate and Marable over grooming standards for TAC
officers followed in November 2009, (Doc. 70-3 at 45-46), after which
Mollohan stated that Marable “displayed a total disrespect for directives
which reinforced my lack of trust and confidence in Mr. Marable’s
performance and conduct.” (Doc. 70-1 at 6). Mollohan further testified that
by the spring of 2010, he determined that there existed a “severe personality
conflict” between Tate and Marable. Id. When Tate recommended against
renewing Marable’s employment contract, Mollohan concurred. (Doc. 70 at
13.) Mollohan also testified that, in addition to Tate’s recommendation, he
was influenced by budgetary considerations in not renewing Marable’s
contract because it offered an opportunity to save payroll costs. Id.
The reasons for not renewing Marable’s employment contract, as
stated by Mollohan and Tate in their respective depositions (Doc. 70 and Doc.
70-4) and in Mollohan’s affidavit (Doc. 70-1 at 6), are perfectly legitimate and
non-discriminatory. Therefore, any presumption of discrimination is
rebutted, and thus disappears. Smith v. Lockheed-Martin Corporation, 644
F.3d at 1325-26. The inquiry now proceeds to a “new level of specificity,”
whereby Marable must prove by a preponderance of evidence that the
defendant’s reason is a mere pretext for unlawful discrimination or
retaliation. Id. at 1326. (citations omitted).
A plaintiff may demonstrate that an employer's reason is pretextual by
identifying “such weaknesses, implausibilities, inconsistencies, incoherencies
or contradictions in the employer's proffered legitimate reasons for its actions
that a reasonable fact finder could find them unworthy of credence.” Ritchie
v. Industrial Steel, Inc., 426 Fed. Appx. 867, 872 (11th Cir. 2011) (citing
Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997).
However, “[a] legitimate nondiscriminatory reason proffered by the employer
is not a pretext for prohibited conduct unless it is shown that the reason was
false and that the real reason was impermissible retaliation or
discrimination.” Worley v. City of Lilburn, No. 09–15537, 2011 WL 43543, at
*3 (11th Cir. Jan. 6, 2011). Rather than “simply quarreling with the wisdom
of [the employer's] reason,” the plaintiff “must meet that reason head on and
rebut it.” Ritchie, 426 Fed. Appx. at 872 (quotation omitted). Furthermore,
“[t]he inquiry into pretext centers on the employer's beliefs, not the
employee's beliefs.” Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253,
1266 (11th Cir. 2010).
Instead of meeting MMI’s reasons “head on” and attempting more fully
to rebut them, Marable expends a great deal of energy arguing past MMI’s
legitimate, non-discriminatory reasons for not renewing his contract. See
Doc. 95 at 16-22. First, Marable claims that MMI failed to provide him with
its reasons for not renewing his contract, and vacillated when it was pressed
to explain those reasons. Id. But, in his own brief, Marable himself cites
three non-discriminatory reasons proffered by MMI – i.e., that Marable was
“not the right fit;” that MMI administrators had “performance concerns”
about Marable; and that there existed other “performance and budgetary
issues.” (Doc. 95 at 18).
The “vacillation” to which Marable refers is really just an observation
that MMI has cited more than one reason for not renewing Marable’s
contract, none of which are mutually exclusive. The fact that MMI did not
present Marable with all of its reasons simultaneously is of no import,
because the existence of a possible additional non-discriminatory basis for an
employee’s termination does not necessarily prove pretext. Tidwell v. Carter
Products, 135 F.3d 1422, 1428 (11th Cir. 1998); see also Zaben v. Air
Products & Chem., Inc., 129 F.3d 1453, 1458-59 (11th Cir. 1997) (“Although
the company gave differing explanations for the selection of employees to be
discharged, saying on the one hand that seniority played no role in the
process and that only an employee's performance was considered while, on
the other hand, asserting that [the employee] was discharged because he had
the least seniority, its reasons are not ... necessarily inconsistent.”).1
Marable also argues that evidence of pretext exists in MMI’s “failure to
follow it’s [sic] own customs, policies and procedures, and usual practices …”
(Doc. 95 at 17). What follows at this point in Marable’s brief is conclusory
statement after conclusory statement, accompanied by multiple citations to
the evidentiary record which lack any explanation for how the cited portions
of the record support Marable’s argument. Id. Marable does not even
identify in his brief which policies and procedures MMI is alleged to have
violated. Id. The court reviewed the cited excerpts of the Stevenson,
Mollohan, Tate, McGee, and Colburn depositions but found no discussion of
MMI policies or procedures regarding renewal of an employee’s contract,
much less evidence that such policies were violated. The court did not review
The court also notes that Marable’s accusation that MMI “adjusted their
reasons to include performance and budgetary issues” is without factual support.
(Doc. 95 at 18). The cited portion of the EEOC file that Marable cites (Doc. 84 at 4)
does not address MMI’s reasons for not renewing Marable’s contract at all, much
less provide evidence that MMI “adjusted” them after the lawsuit was filed.
Similarly, the cited portion of Mollohan’s testimony (Doc. 81 at 39, 57) simply does
not, in any way, support Marable’s claim that Mollohan somehow concocted the
budgetary issue as a pretextual reason after the instant lawsuit was filed.
the 9 exhibits Marable cited in one string citation, amounting to 217 pages in
total, for which he failed to provide a single page or paragraph number. (Doc.
95 at 17). Not only does this violate Local Rule 7.2(b) as indicated, supra, but
it foists upon the court the onus of searching through hundreds of pages of
exhibits in order to find facts which might support Marable’s argument. The
court declines to do plaintiff’s counsel’s job for her. “It is not the
responsibility of this Court to root through the record like a pig in search of
truffles to determine whether there is a factual basis” for Marable’s claim of
pretext. Keaton v. Cobb County, 545 F.Supp.2d 1275, 1309 (N.D. Ga. 2008)
(quoting Keach v. U.S. Trust Co., N.A., 245 F.Supp.2d 941, 945 (C.D. Ill.
Pointing to another alleged deviation from MMI’s policies and
procedures, Marable argues that Tate reprimanded him for authorized leave
that he took and allegedly issued memoranda to him “without notice.” (Doc.
95 at 17-18). But Marable offers no argument or legal support explaining
how or why these allegations constitute evidence of pretext. In the same
vein, Marable offers no legal support for his puzzling statement that
“unusual action taken by supervisors heightens suspicion of an unlawful
motivation in the adverse actions taken against him screaming pretext.”
(Doc. 95 at 18). Nor does Marable point to any case law for his assertion that
“[p]robative weight should also be extended since Marable denied leave and
policy violations and asserts Defendants’ asserted reasons for the adverse
acts are false.” Id.
Marable also argues that MMI’s asserted “performance concerns” are
undercut by a positive May 2009 performance review in which Tate described
Marable as “extremely competent,” (Doc. 84-2 at 2) lauded his “excellent
performance,” id., and cited him as “one of the top two TACs here at MMI.”
(Doc. 84-1 at 1). However, evidence of Plaintiff's past good performance
cannot be used now to show that later unsatisfactory performance in the
2009-10 academic year — cited as the principal reason for Marable’s
separation—is merely a pretext for discrimination. See Cole v. Alabama
Department of Forensic Sciences, 2011 WL 671683, *8 (S.D. Ala. 2011) (citing
Muse v. N.Y. City Dep't of Hous. Pres. & Dev., No. 96–CV–6221 FB ASC,
2000 WL 1209427, at *4 (E.D.N.Y. Aug. 22, 2000) (“Prior good evaluations of
the plaintiff's work performance alone cannot establish that later
unsatisfactory evaluations are a pretext for unlawful discrimination.”)
(quoting Moorer v. Grumman Aerospace Corp., 964 F.Supp. 665, 674
(E.D.N.Y. 1997), overruled on other grounds).
The remainder of Marable’s pretext argument consists of conclusory
accusations of “disparate treatment,” “increased scrutiny,” “a general
campaign to punish” Marable, and “other retaliatory acts” which contain
citations to the record that either do not support the fact alleged2 or violate
For example, Marable cites Mollohan’s and Tate’s testimony to support his
claim of disparate treatment regarding grooming standards. (Doc. 95 at 20). However,
Local Rule 7.2, as discussed extensively, supra. While Marable may have felt
harassed, annoyed, or offended by Tate’s reprimands, that does not establish
pretext. The Eleventh Circuit has written that “Title VII does not take away
an employer's right to interpret its rules as it chooses, and to make
determinations as it sees fit under those rules ... Title VII is not a shield
against harsh treatment at the workplace.” Nix v. WLCY Radio, 738 F.2d
1181, 1187 (11th Cir.1984) (citations and quotations omitted).
Accordingly, the court finds that Marable’s argument and evidence fall
well short of meeting his burden of establishing pretext. Federal courts are
not in the business of judging whether employment decisions are prudent or
fair. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th
Cir. 1999). Rather, the court’s sole concern is whether unlawful
discriminatory animus motivates a challenged employment decision. Id.
(citing Nix, 738 F.2d at 1187). Marable has not shown that MMI
administrators’ stated concerns about his judgment and their complaints
about his waning performance were secretly motivated by race or by his
complaints of discrimination. For this reason, summary judgment is due to
be granted on Count I of Marable’s complaint.
Mollohan, in the cited portion of his testimony (Doc. 81 at 16), simply states that some
faculty members at MMI had facial hair, that facial hair was permitted as long as it was
trimmed, and that Mollohan was not aware of a Sergeant Duke, a white male faculty
member at MMI, having been reprimanded over grooming standards. Tate, in the cited
portion of his testimony, specifically denied ever recalling that Duke was “unshaven or
unkempt.” (Doc. 82 at 34). These cited portions of the evidentiary record simply do not
serve, in any way, Marable’s attempt to rebut MMI’s alleged non-discriminatory reasons
for not renewing his contract.
Marable’s Failure to Promote Claim (COUNT V)
Marable claims that in October 2009, while employed as a TAC officer,
he applied for the position of admissions counselor at MMI3, a position for
which he asserts he was the best qualified applicant. (Doc. 95 at 3-4).
Nevertheless, MMI hired Harry Howell, a 22 year-old white male, for the
position. Id. at 4. Marable maintains that “his non-selection as the
admissions counselor was both discriminatory and retaliatory due to his race,
African American, and his advocacy of minority rights.” Id. at 24. Marable
also argues that Howell’s selection “was inconsistent with policies and
procedures of MMI, and State laws.” Id.
In his opposition to summary judgment, Marable does not dispute
MMI’s argument that the admissions counselor position was not a promotion
because it did not confer a higher salary or other additional benefits than
Marable’s position as a TAC officer. Doc. 71 at 28; Doc. 70-8 at 3 (“At the
time in question, Mr. Marable was on the C3 salary schedule. As an
admissions counselor, he would have remained on the C3 salary schedule.”);
see also Doc. 86-1 (indicating that Marable was on the C3 salary schedule),
Doc. 83-6 at 5 (indicating that Howell was on the C3 salary schedule).
Marable also does not dispute the defendants’ assertion that the admissions
counselor position would not have resulted in any greater responsibility than
Although Marable refers to the position as an “Enrollment Counselor,” in some
documents, he and the defendants also refer to the position as an “admissions counselor.”
For clarity’s sake, the court refers to the position by the latter term.
he already had as a TAC officer. Doc. 70-1 at 4; Doc. 70-8 at 3-4. “A plaintiff
asserting a failure to promote claim must be able to show that the position he
desired had a greater wage or salary, a more distinguishable title, or
significantly more responsibilities.” Johnson v. Fulton Concrete Co., 330
F.Supp.2d 1330, 1339 (N.D. Ga. 2004).
Furthermore, “grounds alleged in the complaint but not relied upon in
summary judgment are deemed abandoned.” Shamburger v. City of Mobile,
2008 WL 2874363 at *1 (S.D. Ala. 2008) (citing Resolution Trust Corp. v.
Dunmar Corp., 43 F.3d 587, 592 (11th Cir. 1995)). Given Marable’s lack of
argument on this point, the court finds that Marable has abandoned his
failure to promote claim. Even absent this determination, the court finds
that Marable failed to establish a prima facie case of discriminatory failure to
promote. Therefore, summary judgment is due to be granted to the
defendants on Count V of Marable’s complaint.
HOSTILE WORK ENVIRONMENT CLAIM (COUNT III)
Statement of the Law
“A hostile work environment claim under Title VII is established upon
proof that ‘the workplace is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working
environment.’ ” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275
(11th Cir, 2002) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,21 (1993)).
A plaintiff must show that (1) he belongs to a protected group, (2) he has been
subject to unwelcome harassment, (3) the harassment was based on a
protected characteristic of the employee, such as race or national origin, (4)
the harassment was “sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working environment,” and
(5) the plaintiff’s employer is responsible for such an environment, either
directly or vicariously. Miller, 277 F.3d at 1275.
In order to determine whether harassment meets the “severe and
pervasive” requirement, the court must consider an additional four factors in
order to evaluate the objective severity of the harassment, including (1) the
frequency of the conduct, (2) the severity of the conduct, (3) whether the
conduct was physically threatening or humiliating, or a mere offensive
utterance, and (4) whether the conduct unreasonably interferes with the
employee’s job performance. Medoza v. Borden, Inc., 195 F.3d 1238, 1246
(11th Cir. 1999). The employee must establish not only that he subjectively
perceived the environment as hostile, but that a reasonable person would
perceive the environment to be hostile and abusive. Barrow v. Georgia
Pacific, Inc., 144 Fed. Appx. 54, 56 (11th Cir. 2005).
Furthermore, “[t]his is not, and by its nature cannot be, a
mathematically precise test.” Harris, 510 U.S. at 22. Whether a work
environment is hostile can be determined only by looking at all the
circumstances. Id. at 23.
Marable claims that he was subjected to a racially hostile work
environment during his employment at MMI. (Doc. 1, p. 11). Specifically,
Marable testified that, on several occasions, Tate stated that black male
cadets “needed to stay with their own kind,” apparently meaning that they
should stay away from white female cadets, and on several occasions stated
his disapproval of white females dating black males. (Doc. 80-1 at 52-53).
Marable also quoted Tate as saying on another occasion in 2008 or 2009 that
his daughter “would never be with a nigger.” Id. at 52. Marable also testified
that Tate referred to a black cadet as a “thug,” allegedly telling Marable
“well, he is black, isn’t he?” Id. at 61.
The word “nigger” certainly qualifies as an offensive utterance;
however, the fact that Tate allegedly said this word in Marable’s presence on
one occasion does not tend to prove that MMI was “permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of [Marable’s] employment and create an
abusive working environment.” Barrow, 144 Fed. Appx. at 54 (quoting
Harris, 510 U.S. at 21) (plaintiffs failed to establish a hostile working
environment where one of the plaintiffs was called “nigger” three times in one
The same reasoning applies with regard to Tate’s allegedly referring
on one occasion to a black cadet as a “thug;” with regard to Tate’s alleged
disapproval of interracial dating; and with regard to his purported opinion
that black male cadets should “stay with their own kind.” (Doc. 80-1 at 5253). Such comments, while certainly offensive, are not sufficient for Marable
to establish a prima facie case of a hostile work environment. See Barrow,
144 Fed. Appx. at 57-58. (African American plaintiffs failed to establish a
hostile working environment despite testimony of racial epithets scrawled on
bathroom walls, use of the word “nigger,” displaying of the Confederate flag,
a noose found in an employee’s locker, multiple threats from a supervisor
that he was going to kick the plaintiff’s “black ass,” and a threat by another
supervisor that if he looked at a white girl he would “cut” him).
Accordingly, the defendants’ motion for summary judgment with
regard to Count III of Marable’s complaint is due to be granted.
§ 1983 CLAIMS (COUNTS II and IV)
Two of Marable’s claims are brought pursuant to 42 U.S.C. § 1983. The
first is a First Amendment retaliation claim (Count II) and the second is an
Equal Protection hostile work environment claim (Count IV). The defendants
argue that MMI is entitled to absolute immunity from the § 1983 claims
because MMI is “an arm of the State of Alabama,” and “is not a ‘person’ subject
to suit under § 1983.” (Doc. 71 at 24 and 26 n.16). The defendants also argue
that Tate is entitled to qualified immunity on both of these counts. Id. at 25.
Marable did not dispute the defendants’ absolute immunity argument in
his opposition to summary judgment. See Doc. 95. “Grounds alleged in the
complaint but not relied upon in summary judgment are deemed abandoned.”
Shamburger v. City of Mobile, 2008 WL 2874363 at *1 (S.D. Ala. 2008) (citing
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir. 1995)).
Accordingly, the court finds that MMI enjoys absolute immunity from Counts
II and IV of Marable’s complaint, and the defendants’ summary judgment
motion is granted as to MMI on these counts. The court now turns to
Marable’s § 1983 claims as they pertain to Tate.
§ 1983 First Amendment Retaliation Claim (COUNT II)
It is well established that, to set forth a claim of retaliation, a public
employee must show: (1) he was speaking as a citizen on a matter of public
concern; (2) his interests as a citizen outweighed the interests of the State as
an employer; and (3) the speech played a substantial or motivating role in the
adverse employment action. Vila v. Padron, 484 F.3d 1334, 1339 (11th Cir.
2007); Akins v. Fulton County, 420 F.3d 1293, 1303 (11th Cir.2005)4. If the
plaintiff establishes these elements, the burden shifts to the defendant to
prove it would have made the same adverse employment decision absent the
employee's speech. Id. (citing Akins at 1303). The first two elements are
In the plaintiff’s opposition brief, under a heading titled “First Amendment
Claims,” Marable cited the Title VII retaliation elements set forth in Stavropoulos v.
Firestone, 361 F.3d 610, 616 (11th Cir. 2004). This standard is not the same as that
required for a First Amendment claim. Miller v. Univ. of S. Ala., 2010 WL 1994910,
*8 (S.D. Ala. 2010). Indeed, it appears that plaintiff’s counsel has conflated entirely
her client’s Title VII retaliation claim with his First Amendment claim and
submitted one argument for both claims. See Doc. 95 at 7-24. Although Marable
cited both Standard v. A.B.E.L., 161 F.3d 1318, 1330 (11th Cir. 1998) and Brown v.
M.A.R.T.A., 261 Fed. Appx. 167, 174 (11th Cir. 2008), neither case states that a §
1983 First Amendment retaliation claim should be analyzed under the same
framework as a Title VII retaliation claim.
questions of law that the court decides. Id. (citing Bryson v. City of
Waycross, 888 F.2d 1562, 1565-66 (11th Cir. 1989)). The court must examine
the statements at issue and the circumstances under which they are made to
determine whether or not there is First Amendment protection. Id.
To determine whether a public employee’s speech is on a matter of
public concern, the court takes into account “the content, form, and context”
of the speech to glean its “main thrust.” Id. at 755. (citations omitted). If the
“main thrust” of the speech is on a matter that can be “fairly considered as
relating to any matter of political, social, or other concern to the community,”
then the speech is protected. Rodin v. City of Coral Springs, Florida, 229
Fed. Appx. 849, 852 (11th Cir. 2007) (citing Fikes v. City of Daphne, 79 F.3d
1079, 1083 (11th Cir. 1996).
If, on the other hand, the public employee spoke pursuant to his job
duties, then the speech is not protected. Garcetti v. Ceballos, 547 U.S. 410,
421 (2006); Abdur-Rahman v. Walker, 567 F.3d 1278, 1282 (11th Cir. 2009).
Other relevant but not dispositive factors which come into play are (1)
whether the employee’s speech occurred in the workplace, (2) whether the
subject matter of the speech concerned the employee’s job, and (3) whether
the speech was given to a limited audience or as part of a public dialogue.
Abdur-Rahman v. Walker, 567 F.3d 1278, 1282 (11th Cir. 2009); Anderson v.
Burke County, Ga., 39 F.3d 1216, 1221 (11th Cir., 2001) (where plaintiff
limited an employment questionnaire's audience to candidates for the local
county board of commissioners, the court found that “[b]ecause of this limited
audience, plaintiff's argument that he was addressing a public concern
garners less weight in our balancing process.”).
The speech at issue in this case covered two general categories: (1)
Marable’s complaints about the treatment of African-American cadets; and
(2) Marable’s complaints about his own treatment. (Doc. 95 at 9)
(“[Marable’s] complaints not only addressed concerns of discriminatory
practices related to students, but discriminatory and retaliatory acts against
him.”). As an initial matter, the court finds that Marable’s complaints about
his own treatment do not qualify as protected speech on a matter of public
concern because it “was driven by [his] own entirely rational self-interest in
improving the conditions of [his] employment … [and were] centered around
[his] private matters, not matters of social interest.” Morgan v. Ford, 6 F.3d
750, 755 (11th Cir. 1993).
Regarding Marable’s complaints about the treatment of cadets, the
court finds that all the factors discussed above weigh against Marable’s
having spoken out on a matter of public concern. Marable has not alleged
that he complained publicly about alleged discrimination against black cadets
at MMI. Rather, he asserts that he aired his complaints to Mollahan, Tate,
Steiger, McGee, and Hastings, all of whom were either MMI administrators
or faculty. (Doc. 95 at 2-3). Furthermore, this limited audience garners
reduced weight in the court’s analysis. See Anderson at 1221.
The court also agrees with the defendants’ argument that any
complaints related to the treatment of cadets was not protected speech
because it was part of Marable’s official duties as a TAC officer. (Doc. 105 at
14). See, e.g., Abdur-Rahman, 567 F.3d 1278 (compliance inspectors for
public works department who complained to supervisors about improper
reporting of sewer overflows to state authorities and over flow related
violations of environmental laws spoke pursuant to job duties and not as
citizens); D'Angelo v. School Board of Polk County, Florida, 497 F.3d 1203
(11th Cir. 2007) (statements made by principal in connection with effort to
convert school to charter status were made pursuant to his official duties as
principal and hence not protected by First Amendment); Williams v. Dallas
Independent School Dist., 480 F.3d 689 (5th Cir. 2007) (coach's speech
questioning handling of school athletic funds was made in course of
performing his employment, rather than as a citizen and thus not protected
by First Amendment); Woodlock v. Orange Ulster B.O.C.E.S., 281 Fed. Appx.
66 (2d Cir. 2008) (special education school counselor's communications
regarding lack of physical education and art classes at satellite facility
concerned tasks she was paid to perform, and thus were not protected speech
for purposes of First Amendment retaliation claim); Houlihan v. Sussex
Technical School Dist., 461 F.Supp.2d 252 (D.Del. 2006) (school psychologist's
statements concerning school's alleged noncompliance with Individuals with
Disabilities Education Act were made in connection with her official duties as
school psychologist and therefore lay outside First Amendment protection);
Manigualte v. C.W. Post of Long Island University, 659 F.Supp.2d 367, 379
(E.D.N.Y. 2009) (“teachers who complain to their superiors on behalf of
students are speaking in their official duties as educators and the complaints
are not protected speech.”)
The court finds no merit to Marable’s bald, conclusory assertions that
his complaints that were “outside of his job duties” and that his “advocacy of
students went beyond required reporting duties.” (Doc. 95 at 10). Marable
offers no evidence other than (1) a general citation to his own self-serving
affidavit, with no page or paragraph number indicated, and (2) a citation to
the deposition testimony of Dennis L. Hastings, MMI’s Director of
Enrollment Management. (Doc. 81-1 at 9, 14). The court has already
addressed myriad problems with Marable’s affidavit, supra, including his
repeated failure to appropriately reference the page and paragraph that
allegedly supports his argument. Additionally, Hastings testified that
Marable’s complaints “w[ere] never about him, only about his students and
how they were being treated,” (Doc. 81-1 at 9), which suggests that Marable
was speaking within the scope of his duties as a TAC officer. Furthermore,
Hastings was an MMI administrator and constituted a limited audience of
one. See Anderson at 1221.
Thus, the court finds that Marable has failed to show that he was
speaking as a private citizen on a matter of public concern, and therefore has
failed to establish a prima facie claim of First Amendment retaliation under §
1983. Therefore, summary judgment is due to be granted in favor of Tate as
to Count II.
§ 1983 Equal Protection Claim (COUNT IV)
Tate is entitled to qualified immunity on Marable’s § 1983 Equal
Protection claim. Qualified immunity protects government officials performing
discretionary functions from civil liability. Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Whether an official is entitled to qualified immunity is a two-step
inquiry: (1) whether the facts alleged show the officer's conduct violated a
constitutional right, and (2) whether that right was clearly established. Saucier
v. Katz, 533 U.S. 194, 201 (2001). A district court is “permitted to exercise [its]
sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the
particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Marable cannot show that Tate violated a right that was clearly
established under the equal protection clause. “The right to be free from
retaliation is clearly established as a first amendment right and as a statutory
right under Title VII; but no clearly established right exists under the equal
protection clause to be free from retaliation.” Ratliff v. DeKalb County, Ga., 62
F.3d 338, 340 (11th Cir. 1995). Therefore, summary judgment is due to be
granted in favor of Tate on Marable’s § 1983 Equal Protection claim (Count
State Law Claims Against MMI (COUNT VI)
In his opposition brief, Marable neglected to address the defendants’
argument regarding his state law claim for negligent and/or wanton training
and/or supervision. See Doc. 95. “[G]rounds alleged in the complaint but not
relied upon in summary judgment are deemed abandoned.” Shamburger v.
City of Mobile, 2008 WL 2874363 at *1 (S.D. Ala. 2008) (citing Resolution
Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir. 1995)). Therefore,
the court finds that summary judgment is due to be granted in the
defendants’ favor with regard to Count VI of Marable’s complaint.
For the reasons stated herein, defendant's motion for summary
judgment is GRANTED as to all claims. Costs are taxed to plaintiff.
DONE and ORDERED this 5th day of November 2012.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
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