Frierson v. Hamburg, Arkansas, City of et al

Filing 25

MEMORANDUM OPINION. Signed by Honorable Harry F. Barnes on April 18, 2011. (cnn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
CALVIN FRIERSON

V.

PLAINTIFF

Case No. 10-CV-1005

CITY OF HAMBURG, ARKANSAS and
POLICE CHIEF TOMMY BREEDLOVE

DEFENDANTS

MEMORANDUM OPINION
Before the Court is a Motion for Summary Judgment filed by Defendants. (Doc. 13).
Plaintiff Calvin Frierson has responded. (Doc. 17). Defendants have filed a reply. (Doc. 20). The
Court finds the matter ripe for consideration.
BACKGROUND
Calvin Frierson, an African American, was employed as police officer for the city of
Hamburg, Arkansas, for over fifteen years. In 2004, Frierson was promoted to the rank of sergeant.
On April 21, 2009, close to midnight, Frierson assisted the Ashley County Sheriff’s Department in
pursuing a vehicle traveling at a high rate of speed through Hamburg. The speeding vehicle began
heading south on Main Street. While in pursuit of the vehicle, Frierson was able to identify the
driver of the vehicle as Vance Davis. A passenger was in the vehicle but Frierson could not identify
him.1 During the pursuit, Davis attempted to sideswipe Frierson’s vehicle and force it off the road
several times.

1

The passenger in the vehicle was later identified as Jimmy Davis, the owner of the car
Vance Davis was driving. Vance Davis had stolen the car from Jimmy Davis, who was not charged
with any crime in connection with this incident.

The speed of both vehicles involved in the pursuit reached eighty-five to ninety miles per
hour on Main Street in the vicinity of both businesses and residences. Frierson fired three shots at
the right front tire of Davis’s vehicle in an attempt to stop Davis. The vehicle did not stop and
increased its speed to over 100 miles per hour. Frierson then fired two shots at the right rear tire of
Davis’s vehicle, causing the tire to deflate.
During the chase, Frierson advised the dispatcher to notify the Hamburg Chief of Police,
Tommy Breedlove, that shots had been fired. At 1:10 a.m., the dispatcher notified Chief Breedlove
that shots had been fired during a high-speed chase but that she did not know whether Frierson fired
the shots or whether the suspect fired the shots.
After the pursuit ended and Davis was apprehended, Frierson explained what happened to
Officer David Oliver. Around 7:00 a.m., Frierson asked Oliver to notify Chief Breedlove that
Frierson was going home and that if Frierson did not talk to Chief Breedlove by 8:00 a.m., Frierson
would talk to Chief Breedlove later. Chief Breedlove learned that Frierson shot at Davis’s vehicle
from Officer Oliver on the morning of April 21, 2009.
At the time of the high-speed chase, the Hamburg Police Department had a policy regarding
the use of firearms. The relevant portions of this policy are as follows:
Personnel shall not fire at a fleeing suspect when there appears to be no immediate
danger that the suspect will cause injury or death to another person; nor is there any
justification, under most circumstances, to fire at a fleeing vehicle where in the lives
of innocent persons may be endangered.
When shots are fired by police personnel, for whatever reason, except at an
authorized training function, the chief of police will be notified immediately.
On April 29, 2009, Chief Breedlove terminated Frierson for violation of departmental
policies. Frierson alleges other instances in which Caucasian officers of the Hamburg Police
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Department violated departmental policies and were not terminated. Shannon Shaver damaged a
patrol car by ramming it into the same suspect, Vance Davis, during a vehicular pursuit. Officer
Shaver failed to follow the chain of command because Shaver reported the incident directly to Chief
Breedlove instead of Shaver’s immediate supervisor. Officer Shaver was not disciplined for this
incident. David Oliver, performed a PIT (precision immobilization technique) maneuver and
rammed a suspect vehicle at 50 miles per hour. Officer Oliver was not disciplined for this incident.
Frierson wrote up John Turner for failing to follow policy procedure and insubordination when he
failed to wear his bulletproof vest and then made an obscene gesture towards Frierson when Frierson
wrote him up for the violation. Chief Breedlove counseled Officer Turner and advised him never
to act this way again. Frierson alleges that he knew of two other Caucasian officers who did not
wear a bulletproof vests, in violation of departmental policy, and were not disciplined.
Approximately nine years before Frierson was terminated, he stated that he saw a noose
hanging by a thumbtack on the bulletin board in Chief Breedlove’s office. The noose was made out
of some material about as thick as an ink pen. According to Plaintiff, he told Chief Breedlove that
it was offensive to him, and Chief Breedlove directed Frierson to pull it off the bulletin board and
throw it away. This incident was never discussed again between Frierson and Chief Breedlove.2
On January 21, 2010, Frierson brought this lawsuit against the City of Hamburg, Arkansas
and Police Chief Tommy Breedlove, alleging race discrimination in violation of his rights under 42
U.S.C. § 1983. This case is presently before the Court on a Motion for Summary Judgment filed by
Defendants. (Doc. 13).

2

Chief Breedlove denies ever having a noose in his office. However, the Court construe the
facts in the light most favorable to Frierson, the non-moving party.
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STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(c) states that summary judgment is appropriate “if the
pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
Under this standard, the inquiry is not whether the evidence favors one side or the other, but
“whether a fair minded jury could return a verdict for the plaintiff on the evidence presented.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). When considering a summary judgment
motion, the Court “must view the evidence ‘in the light most favorable to the nonmoving party.’”
Sappington v. Skyjack, Inc., 512 F.3d 440, 445 (8th Cir. 2008). To defeat a motion for summary
judgment, however, the non-moving party must “make a showing sufficient to establish the existence
of an element essential to that party’s case and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The “nonmovant must present more than
a scintilla of evidence and must advance specific facts to create a genuine issue of material fact for
trial.” F.D.I.C. v. Bell, 106 F.3d 258 (8th Cir. 1997). “In order to survive a motion for summary
judgment, the non-moving party must be able to show sufficient probative evidence that would
permit a finding in his favor on more than mere speculation, conjecture, or fantasy.” Binkley v.
Entergy Operations, Inc., 602 F.3d 928, 931 (8th Cir. 2010).
DISCUSSION
Frierson may survive summary judgment by providing direct evidence of race discrimination
or by providing evidence that creates an inference of discrimination under the familiar McDonnell
Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03

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(1973); see Ottman v. City of Independence, Mo., 341 F.3d 751, 756 (8th Cir. 2003) (applying
McDonnell Douglas to a section 1983 claim). Frierson has presented no direct evidence, so the
Court will apply the McDonnell Douglas framework. First, Frierson must establish a prima facie
case of discrimination by showing that (1) he is a member of a protected class, (2) he was meeting
his employer’s legitimate job expectations, (3) he suffered an adverse employment action, and (4)
similarly situated employees outside the protected class were treated differently. Fields v. Shelter
Mut. Ins. Co., 520 F.3d 859, 864 (8th Cir. 2008). If he establishes a prima facie case, then the
burden shifts to Defendants to articulate a legitimate, non-discriminatory reason for terminating
Frierson. See Torgerson v. City of Rochester, 605 F.3d 584, 595 (8th Cir. 2010). If Defendants
provide such a reason, Frierson must then show that the proffered reason is a pretext for the unlawful
discrimination. See id.
Without contesting the first three elements of a prima facie case, Defendants argue that there
are no similarly situated Caucasian employees who were treated differently than Frierson. The
Eighth Circuit has pointed out the following:
[t]here appear to be conflicting lines of cases in our Circuit regarding the standard for
determining whether employees are similarly situated at the prima facie stage of the
McDonnell Douglas burden-shifting framework. One line sets a “low threshold” for
employees to be considered similarly situated, requiring only that the employees “are
involved in or accused of the same or similar conduct and are disciplined in different
ways.” The other line ... is more rigorous at the prima facie state and requires that
the employees must be “similarly situated in all respects.”
Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 851-52 (8th Cir. 2005). In considering these two lines
of cases, the Eighth Circuit has noted that the “burden of establishing a prima facie case of disparate
treatment is not onerous” and that using a more rigorous standard “might conflate the prima facie

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case with the ultimate issue of discrimination.” Id. at 852 (quoting Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981) and Williams v. Ford Motor Co., 14 F.3d 1305, 1308 (8th Cir.
1994)). Thus, the Eighth Circuit has chosen to follow the low-threshold standard. Id.; see Wimbley
v. Cashion, No. 08-2829, 2009 WL 4348276, at *2 (8th Cir. Dec. 3, 2009) (applying the lowthreshold standard).
Here, Frierson points to four different instances in which he claims that he was treated
differently than Caucasian police officers: (1) an officer rammed a fleeing suspect’s vehicle,
damaged the patrol car, and failed to follow the chain of command in reporting the incident (the
incident was reported directly to Chief Breedlove instead of the officer’s immediate supervisor); (2)
an officer performed a PIT maneuver at 50 miles per hour; (3) an officer was cited for
insubordination and failing to wear a bulletproof vest; and (4) other Caucasian officers do not wear
bulletproof vests. In each of these four instances, the officers were not terminated for their conduct,
and in some cases, were not disciplined at all. However, even applying the low-threshold standard,
none of these incidents involved conduct similar to Frierson’s conduct, which was using a firearm
to stop a fleeing vehicle. While Frierson cited to instances where Caucasian officers violated some
departmental policy and were not terminated, the violations of those officers are not similar to
Frierson’s violation. Frierson’s violation was more serious than the violations committed by the
Caucasian officers. Importantly, a firearm was not involved in any of the four instances cited by
Frierson. Frierson’s evidence is not sufficient to show that similarly situated non-African-American
employees were treated differently than he was. Thus, Frierson cannot establish a prima facie case
of race discrimination.

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Even if Frierson did satisfy his initial burden under the McDonnell Douglas framework,
Defendants have articulated a legitimate, nondiscriminatory reason for terminating his employment:
Frierson violated departmental policy when he used his firearm, while traveling down Main Street
in Hamburg at 80 miles per hour, to stop a fleeing vehicle that contained a passenger. Thus, the
burden returns to Frierson to show that this proffered reason for terminating him was pretextual. At
this stage, the test for determining whether Frierson is similarly situated to any of the Caucasian
employees in the Hamburg Police Department is rigorous. Wimbley, 2009 WL 4348276, at *3;
Rodgers, 417 F.3d at 843. Frierson must show that he and other officers are similarly situated “in
all relevant respects.” Wimbley, 2009 WL 4348276, at *3. “To be probative of pretext, the
misconduct of the more leniently disciplined employees must be of comparable seriousness.”
Rodgers, 417 F.3d at 853.
Here, Frierson and the other Caucasian officers that Frierson references are not similarly
situated in all relevant aspects. None of the instances regarding the Caucasian officers involve the
use of a firearm to stop a fleeing vehicle. In fact, these instances cited by Frierson do not involve
the use of a firearm at all. The misconduct of the Caucasian officers is not of comparable
seriousness to Frierson’s violation. Thus, the instances regarding the Caucasian officers are not
probative of pretext.
Although Frierson’s brief does not clearly argue what evidence he believes supports an
inference of pretext, the Court assumes that Frierson points to the alleged incident with the noose
in Chief Breedlove’s office as evidence of pretext. According to Frierson, the noose was removed
after he informed Chief Breedlove that it was offensive. This incident occurred nine years prior to

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Frierson’s termination. Furthermore, Frierson has been promoted since the incident with the noose.
Thus, the Court finds that this incident is not direct evidence that Chief Breedlove was motivated
by a discriminatory reason when he terminated Frierson. In sum, Frierson has failed to present any
evidence that would support a reasonable inference of pretext.
Frierson cannot establish a prima facie case of race discrimination. Even if he could establish
a prima facie case of race discrimination, he cannot show that Defendants’ stated reason for
Frierson’s termination was pretextual. Thus, Frierson’s race discrimination claim cannot survive
summary judgment under McDonnell Douglas.
CONCLUSION
Upon consideration, the Court finds that Defendants’ Motion for Summary Judgment should
be and hereby is GRANTED. Plaintiff’s complaint is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED, this 18th day of April, 2011.

/s/ Harry F. Barnes
Hon. Harry F. Barnes
United States District Judge

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