Hopkins v. City of Jacksonville
Filing
140
ORDER re: 114 MOTION for summary judgment, granting as to Counts I, II, III and IV, and denying as to Count V; directing parties to contact Judge Schlesinger's chambers to arrange a settlement conference. Signed by Judge Timothy J. Corrigan on 11/19/2014. (SRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
PHILIP HOPKINS,
Plaintiff,
vs.
Case No. 3:07-cv-147-J-32MCR
CITY OF JACKSONVILLE,
Defendant.
ORDER
Plaintiff Philip Hopkins, who is African-American, joined the City of Jacksonville Fire
and Rescue Department in 1987 as a new firefighter. At the time, the City was under a
consent decree which required that for every white firefighter hired, a black firefighter would
be hired as well. Despite the obstacles, Hopkins rose up through the ranks to Captain and
in the fall of 2003, he sat for and passed a promotion exam to become a District Chief.
When the City did not promote him by November of 2005, he took action, filing a charge of
racial discrimination and retaliation with the EEOC in May of 2006 and thereafter bringing
this federal lawsuit in March of 2007. Following discovery and motion practice, and at the
Court’s urging, the parties engaged in lengthy, albeit unsuccessful, mediation and settlement
efforts facilitated by Judge Schlesinger. Thus, following the renewal of the parties’ earlier
motion practice, the Court heard oral argument and now issues its decision on the City’s
motion for summary judgment.1
1
The City’s motion is Doc. 114, Hopkins’ response is Doc. 120, the City’s reply is Doc.
131. Exhibits are attached to these filings and are additionally of record at Docs. 115, 121128. The transcript of the summary judgment hearing is filed at Doc. 138. Earlier record
There is no dispute that the City’s fire department has a troubled history of racial
discrimination. The Court’s increasingly restrictive consent decrees in the 1980's are
evidence of the fire department’s resistance to ending its discriminatory practices. More
recently, the Department of Justice, the NAACP, the EEOC, the black firefighters’ union, and
private parties have brought federal lawsuits challenging various aspects of the fire
department’s promotions and hiring practices as being racially discriminatory. This case,
however, is only about Captain Philip Hopkins, a respected career firefighter. Captain
Hopkins faced significant challenges to achieve his current position. The Court has had the
chance to hear him speak openly about the past and future of the fire department and has
no reason to doubt the sincerity of his beliefs or that he has rendered valuable service to the
City during his long career.2
Nonetheless, the task before this Court is to apply the law to the claims before it. The
Court finds the City is entitled to summary judgment on Counts I (Title VII race
discrimination), II (Title VII retaliation), III (§ 1983 race discrimination) and IV (First
Amendment retaliation) of the Second Amended Complaint (Doc. 22) but that its motion as
items also considered include Docs. 16, 56, 64-78, 84, 85, 88, 89, 90. Although Hopkins
objects to the City’s new motion as being beyond the bounds of what the Court contemplated
in permitting the parties to refile their papers, the Court did not limit the issues or arguments
that could be raised and Hopkins was given a full opportunity to respond to the motion (the
Court gave Hopkins nearly two months to respond to the motion and has permitted his
extended length brief (42 pages) to remain of record, notwithstanding the violation of Local
Rule 3.01(b)). Hopkins did not object to the City’s request for leave to file a reply (see Doc.
129) and Hopkins did not seek to file a sur-reply.
2
Captain Hopkins’ testimony occurred during an evidentiary hearing in another firefighter
discrimination lawsuit. Counsel for both parties in this case were present. See Coffey v.
Braddy, 3:71-cv-44-J-32PDB, Docs. 152 & 153 (transcripts).
2
to Count V (breach of contract) is due to be denied. The Court’s full decision follows.
I.
Standard of Review
The City seeks summary judgment as to each of the five claims raised in Hopkins’
Second Amended Complaint. To warrant the entry of summary judgment on any of these
counts, the Court must find 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). “An issue of fact
is ‘material’ if, under the applicable substantive law, it might affect the outcome of the case.
An issue of fact is ‘genuine’ if the record taken as a whole could lead a rational trier of fact
to find for the nonmoving party.” Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014)
(quotation and citation omitted). Although “all justifiable inferences are to be drawn in [the
nonmovant’s] favor,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), “the mere
existence of a scintilla of evidence in support of [that party’s] position will be insufficient.”
Miller’s Ale House, Inc. v. Boynton Carolina Ale House, LLC, 702 F.3d 1312, 1316 (11th Cir.
2012) (quoting Anderson, 477 U.S. at 252).
II.
Background
The issues here arise as the fallout from the settlement of an earlier federal lawsuit
Hopkins and others filed against the City, and the parties’ efforts to extricate themselves from
a subsequent state court lawsuit filed against all of them by the Jacksonville Association of
Firefighters, Local 122 (“the Union”). Here is what happened: In March 2000, Hopkins and
three other African-Americans who were or had been employed by the fire department filed
suit in federal court against the City alleging that the City’s promotions system discriminated
against them based on race. Both then and now, promotions within the fire department are
3
based on two factors: passing scores on an examination and seniority points which are
awarded for time with the department and time within the current position. Generally
speaking, a candidate’s passing examination score and seniority points are added together,
a list is created ranking the candidates based on those sums and, when a vacancy occurs,
a promotion is awarded to the person at the top of the list. The list is only valid for two years.
After two years (or earlier if the current list of eligible candidates is exhausted), if a
vacancy occurs before a new examination is administered and a new list is created,
provisional promotions are awarded based on seniority. Persons provisionally promoted are
returned to their previous positions as permanent promotions are made from the new list
(unless of course a provisionally promoted person scored high enough on the examination
to be at the top of the new list, in which case the promotion would become permanent).
The City’s Civil Service Rules allow an exception to the promotions procedure for
candidates who are returning from military service or who require accommodation based on
a disability. Those candidates are permitted to take a make-up examination and, if they pass
the test, their scores will be coupled with their seniority points and their names will be
inserted into the existing rank-ordered promotion eligibility list.3
3
Hopkins’ argument that the insertion of a returning veteran onto the existing list should
restart the two-year clock is not supported by the law or City practice. See Doc. 56-9,
Attach. C (Civil Service Rule 4.03(2)(d)) (providing that a special examination shall be given
to an employee whose military leave prevented participation in the scheduled examination);
Doc. 56-9 (Declaration of Archie Cullen, City Human Resources Analyst-Principal)
(explaining City’s compliance with Civil Service Rule 4.03(2)(d)); Doc. 73 (Cullen Deposition)
at Tr. 62-68 (explaining process and City practice). See also, Uniformed Services
Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et seq.; Williams
v. Dept. of Air Force, 542 Fed. App’x 608 (Fed. Cir. 2013) (explaining that USERRA requires
returning veterans be treated comparably with coworkers who remained continuously
4
In the earlier federal lawsuit (Hopkins, et al. v. City of Jacksonville, et al., 3:00-cv-309J-25) (Hopkins I), Hopkins and two of the other plaintiffs eventually reached a settlement with
the City by which the City agreed to promote them without requiring them to take the
promotion exam, and awarded them in-grade seniority points as though they had been
promoted from the list.4 The Union then filed suit in state court against the City, Hopkins and
the other two plaintiffs who had settled with the City, seeking to undo the settlement on
employed). The City’s practice of adding returning veterans to the list without restarting the
two-year clock complies with the law. Moreover, Hopkins’ suggested alternative of restarting
the two-year clock each time a veteran returned could result in a list that never expired,
thereby precluding any new non-military candidates from ever seeking a promotion.
4
The Court has of course reviewed the record from Hopkins I and must clarify some of
Hopkins’ counsel’s repeated misunderstandings about the procedural history of that case.
First, although the Union initially entered the case when its unopposed motion to intervene
was granted, the Order granting intervention was vacated because the plaintiffs, including
Hopkins, filed an amended complaint naming the Union as a defendant. Second, when the
plaintiffs announced they had reached a settlement with the City and filed their motion for
approval of the settlement, the Court conducted a hearing at which the Union vigorously
argued against approval, contending that a fairness hearing was required and announcing
that it would pursue its remedies in state court against the plaintiffs and the City if they went
forward with their settlement agreement. The Court denied the parties’ motion to approve
the settlement on the record at the hearing. However, the plaintiffs and the City announced
they were willing to forego judicial approval of their agreement and instead asked the Court
to permit plaintiffs to simply voluntarily dismiss the City under Rule 41. After questioning all
parties (plaintiffs were originally represented by counsel, but they were all proceeding pro
se at the time of their settlement with the City), the Court permitted that course and the City
was dismissed from the case. The Union and plaintiffs (who retained new counsel following
their settlement with the City) continued to litigate plaintiffs’ claims against the Union. At trial,
the Court granted the Union’s motion for a directed verdict on all counts. See Hopkins v.
City, Case No. 3:00-cv-309-J-25, Docs. 11, 13, 14, 15, 19, 20, 43, 44, 49, 50, 54, 55, 56
(December 21, 2001 hearing transcript, also of record in this case as Doc. 16-3), 57, 80.
Plaintiff’s various arguments that derive from a misconception about the record (including
that the Union waived any right to pursue claims against Hopkins by failing to appeal the
[non-existent] Order granting the motion for approval of the settlement) are unavailing and,
frankly, reveal a disconcerting lack of attention to the record.
5
grounds that the promotions and awarding of seniority points violated the Union’s Collective
Bargaining Agreement with the City.5 See Doc. 64-16 (Union state court complaint).
When the Union filed a motion for summary judgment against the City and the other
Hopkins I plaintiffs in the state court on December 31, 2002, Steve Rohan (who at the time
was representing the City) and Reginald Luster (who represented Hopkins and the other two
individual plaintiffs), met and discussed having the firefighters relinquish the in-grade
seniority points awarded during their settlement with the City as a means of defeating
summary judgment and protecting the promotions achieved through that settlement. See
Doc. 69 (Luster Declaration), Doc. 85-2 (January 30, 2003 Rohan affidavit filed in state court
in opposition to summary judgment).
Luster sent Rohan a letter memorializing that
conversation on January 14, 2003 which states, inter alia, “Please be advised that my
clients, Willie Jones and Phillip [sic] Hopkins, have authorized me to advise you that they are
in agreement to relinquish the seniority points awarded to them as part of the settlement with
the City of Jacksonville in 2001.” Doc. 69 (Luster Declaration) at Ex. A.
Hopkins contends that he offered to relinquish the in-grade seniority points as part of
settlement negotiations with the Union, although an affidavit signed by him on January 29,
2003 and filed by Luster in the state court proceeding says that the affidavit is submitted in
opposition to the Union’s motion for summary judgment. Hopkins’ affidavit states that his
5
William Henry Harris, a plaintiff in Hopkins I, was a former City employee suing for past
discrimination. Because he did not receive a promotion or seniority points when the other
plaintiffs settled with the City, the Union did not sue him in its state court law suit. See
Hopkins I (3:00-cv-309), Doc. 1 at ¶ 14 & Doc. 44 at 10; Hopkins II (3:07-cv-147), Doc. 6416.
6
settlement agreement with the City, which had provided for a promotion and seniority points,
“was later amended whereas I was promoted to captain without seniority points.” Doc. 84-4
(Hopkins Affidavit) at ¶¶ 1, 8. Hopkins’ affidavit does not say anything about a settlement
of the Union case. Rohan later testified that he felt the Union’s motion for summary
judgment could best be undercut if the seniority points were off the table, thereby reducing
the likelihood that the Hopkins I plaintiffs would also lose their promotions, which were at risk
in the Union suit. See Doc. 72 (Rohan Deposition) at Tr. 96-101.
The Union’s motion relied on United States v. City of Miami, 664 F.2d 435 (5th Cir.
1981) (see Doc. 114-2, Union motion and memorandum from state court litigation) and
Luster recalled that Rohan feared that the seniority points were in jeopardy under the Miami
case. See Doc. 69 (Luster Declaration). Luster further explained that he told Rohan that his
clients would give up the seniority points if the trial court was prepared to rely on the Miami
case (see id.), but Hopkins’ January 29, 2003 affidavit, which Luster filed with the state court
in opposition to the Union’s summary judgment motion, refers to the loss of seniority points
in the past tense, stating the original Hopkins I settlement agreement “was later amended”
such that Hopkins was promoted “without seniority points.” Doc. 84-4. Two months later,
the Court denied the Union’s summary judgment motion and the state court litigation
continued.
Meanwhile, in October 2003, Hopkins sat for a District Chief promotion exam and
scored 86.00 points. On November 19, 2003, the City released its rank ordered promotion
eligibility list, showing that 9.506 seniority points were added to Hopkins’ examination score,
resulting in a total score of 95.506, and placing him at 24 out of 32 candidates who had
7
passed the exam. Doc. 56-9 at 2-8. The 9.506 seniority points that were added to his
examination score included the in-grade seniority points originally awarded under Hopkins’
settlement with the City in Hopkins I.
According to Archie Cullen with the City’s Human Resources Division, on December
9, 2003, the City’s Office of General Counsel forwarded to the HR Division a copy of the
January 14, 2003 letter Luster sent to Rohan which stated that Hopkins and Jones agreed
to give up their seniority points. Id. at 3, 20. Cullen states that his office was instructed at
that time by the Office of General Counsel to recompute the total scores for Hopkins and
Jones (who also took and passed the District Chief exam) to reflect their agreement to
relinquish the Hopkins I seniority points. Id. at 3.6 In that computation, Hopkins lost 3.58
points and his position on the list dropped to 28, as reflected on the City’s amended rank
order list issued on December 11, 2003. Id. at 3, 25-26. According to Hopkins, he received
a document from the City noting the change. Doc. 56-7 (Hopkins Deposition) at Tr. 25; see
also Doc. 56-9 (December 2003 Candidate Score Report to Hopkins advising of his new
score and rank); Doc. 131-1 (Hopkins’ response to requests for admission, admitting that he
was informed in December 2003 of removal of points and amendment to score). Hopkins’
rank on the list fell to 29 in May 2004 when Adrian Johnson, an African-American, returned
from active military duty, took the exam, and scored higher. Doc. 56-9 at 4. Johnson was
promoted to District Chief less than two weeks later. Doc. 56-4.
6
Cullen started handling JFRD HR records in August 2004 but pieced together this
information from Hopkins’ HR file. See Doc. 73 (Cullen Deposition) at Tr. 14, 46-50.
8
The City continued to promote from the list until it expired as scheduled on November
19, 2005. At that time, Hopkins was eighth in line for promotion. Doc. 56-4 at 2-3, 47-48.7
Thereafter, in February and March of 2006, the Union, the City, Hopkins, and the other
defendants to the state court action were in the midst of attempting to settle that lawsuit. On
February 14, 2006, Luster sent a letter to Hopkins advising that he believed the agreement
being proposed would leave intact the seniority points awarded in Hopkins I. Doc. 64-23 at
1. Thus, on February 28, 2006 Hopkins and Luster signed a document consenting to
settlement and dismissal contingent on the City’s approval of the settlement agreement.
Doc. 56-5 at 14.
The settlement agreement contained two potentially contradictory
statements. First, it stated that Hopkins I was settled by offering promotions to Hopkins and
the others (omitting any language about the seniority points), yet it further stated that the
Hopkins I settlement (which at least originally included seniority points) would remain intact
and not be altered by the agreement. Doc. 56-5 at 7, 14. The agreement was filed with the
City Council in March 2006 but was withdrawn before the City Council took action. Doc. 56-4
at 9.
Meanwhile, in early April 2006, the City needed three additional District Chiefs and
returned to the expired promotion eligibility list to select the candidates for provisional
appointments who served for just short of three months until a new exam was administered
and the results certified. The provisional appointments followed rank order; thus neither
7
Hopkins is listed in the ninth position but one person listed above him had retired by the
time the list expired in November 2005 so Hopkins would have been eighth in line for
promotion. See Doc. 56-4 at 48; Doc. 114 at 6, n.3.
9
Hopkins nor the three people on the list ahead of him (all of whom were white) were selected
for any of the three provisional appointments. A new District Chief exam was administered
on April 25, 2006. Hopkins registered for the exam but he did not take it and was therefore
ineligible for promotion when the new list was eventually certified in July 2006.8
In the meantime, between May 1 and May 16, 2006, Luster and counsel for the City
exchanged a series of letters in which Luster demanded that the Hopkins I seniority points
be returned to Hopkins and the City countered that they had been relinquished during the
state litigation. See Docs. 64-24, 64-25, 84-8, 84-9. Before they were done, Hopkins had
filed a charge of discrimination with the EEOC claiming he was discriminated against based
on race and retaliation on November 18, 2005 when he was not promoted to District Chief.
See Doc. 56-4 at 22.
By September 2006, the Union and the City had reached an agreement to resolve the
state court suit and on October 3, 2006 the Mayor signed an ordinance passed by City
Council awarding back pay and seniority points to certain Union members allegedly harmed
by the Hopkins I settlement. The Ordinance also states that the City’s Hopkins I settlement
with Hopkins and the other plaintiffs “shall remain intact and not be altered by this Settlement
Agreement.”
Doc. 56-5 at 23.
Hopkins never signed the consent form that was to
accompany the agreement. On November 2, 2006, Luster sent Hopkins a letter advising him
that the Ordinance had passed and that the Hopkins I settlement was “intact and not altered”
by the state court litigation. Doc. 64-64. On March 1, 2007, the state court entered an Order
8
Another District Chief exam was given in September 2009. Hopkins registered for that
exam too but did not take it. Doc. 131-4.
10
dismissing the Union’s suit against the City and the Hopkins I plaintiffs. See Doc. 84-6 (state
court order of dismissal with prejudice). Meanwhile, the EEOC had issued Hopkins a notice
of right to sue (Doc. 56-5 at 3-4) and four days after the dismissal of the state court lawsuit,
Hopkins filed this case in federal court.
III.
Discussion
In his Second Amended Complaint, Hopkins brings claims of race discrimination and
retaliation under Title VII (Counts I and II), a § 1983 race discrimination claim (Count III), a
First Amendment retaliation claim (Count IV), and a breach of contract claim (Count V).
A.
Breach of Contract (Count V)
Though listed last in the Second Amended Complaint, the alleged breach of contract
impacts the analysis of the other counts and the Court therefore addresses it first. To prove
breach of contract under Florida law, Hopkins must establish there was “(1) a valid contract;
(2) a material breach; and (3) damages.” Beck v. Lazard Freres & Co., LLC, 175 F.3d 913,
914 (11th Cir. 1999) (applying Florida law).9 Hopkins claims the City breached their Hopkins
I settlement agreement by taking away the in-grade seniority points. The City argues there
was no breach because Hopkins voluntarily gave up the points to avoid an adverse summary
judgment ruling in the state court case.
In support, the City points to: (1) Hopkins’ affidavit filed in the state court suit in
opposition to the Union’s motion for summary judgment in which he describes the
amendment to the settlement agreement as follows: “The settlement with the City of
9
The Court exercises supplemental jurisdiction over this claim pursuant to 28 U.S.C. §
1367.
11
Jacksonville provided that I would be promoted to captain with seniority points. The
settlement did not include costs and attorney’s fees. The settlement was later amended
whereas I was promoted to captain without seniority points. I have not utilized the seniority
points in that I have not sat for a chief examination.” (Doc. 84-4); (2) the letter from Luster
to Rohan in which Luster said his clients authorized him to give up their seniority points (Doc.
69); (3) Hopkins’ failure to object to Rohan’s affidavit filed in the state court proceeding which
attached Luster’s letter and stated that under the amendment to the Hopkins I settlement,
“[n]one of the [Hopkins I] plaintiffs will receive promotional seniority as a result of the
settlement.” (Doc. 85-2); (4) Hopkins’ failure to object when the City took the points away
in December 2003; (5) Hopkins’ admission that he knew in December 2003 that the points
had been removed (Doc. 131-1); (6) Hopkins’ testimony in an April 26, 2004 deposition in
the Union’s state court suit in which Hopkins testified that the agreement had been amended
(Doc. 77 (Hopkins Deposition) at Tr. 38-57 (describing the earlier deposition, which is itself
of record at Doc. 56-2)).
Hopkins, on the other hand, points to the following evidence in support of his
contention that the original settlement agreement with the City did not change: (1) Hopkins
agrees he was willing to give up the points to settle the state court suit but when the case
did not settle for several years, it was not clear whether his offer was still on the table10; (2)
he was never asked to sign an amended settlement agreement to memorialize the change;
10
Hopkins’ counsel’s statement at oral argument that his state court affidavit was “a
typographical error” (Doc. 138 at Tr. 26) conflicts with his explanation, which is essentially
that he was willing to give up the seniority points to settle the Union’s suit, but that it was not
clear to him later whether the City was holding him to that agreement.
12
(3) when Hopkins’ score for the District Chief’s exam was released in November 2003, the
in-grade seniority points were added to his score on the rank order list (Doc. 64-20), and
there was no documentation to explain why the points were taken away a month later; (4)
the City Ordinance that embodies the terms of the state court settlement explicitly states that
the Hopkins I settlement “shall remain intact and not be altered by this Settlement
Agreement” (Doc. 64-17); (5) his own attorney advised him that he believed this language
meant the seniority points remained intact (Doc. 64-23) (Luster letter to Hopkins).11
While the evidence in support of the City’s position is strong, the evidence to the
contrary is sufficient to create a disputed issue of material fact as to whether the parties
amended the Hopkins I settlement agreement.12 If they did not amend the agreement, then
11
The Court need not consider Hopkins’ contention that the City had no authority to
negotiate a state court settlement with the Union because to do so would violate the City’s
charter and/or his claim that the Union suit was void for lack of standing and/or on
constitutional grounds. Hopkins was a defendant in that lawsuit and he was represented by
counsel who could have raised any applicable defense to the claims or objections to the
proceedings. Even if that were not the case, this lawsuit is not the appropriate venue to raise
those arguments.
12
At oral argument, the City’s counsel seemed to concede that this issue presented a
disputed issue of fact, but later contended that it did not preclude entry of summary
judgment. See Doc. 138 at Tr. 13-14, 53. The Court disagrees. As the City’s counsel
herself noted, had the parties actually executed an amended settlement agreement, there
would be no question as to what happened, but they did not. Id. at Tr. 10; see also, Doc. 72
(Rohan Deposition) at Tr. 109-11.
The City also argued that Hopkins is judicially estopped from contending in this case
that the points had not been taken back when he filed an affidavit to the contrary with the
state court. The application of judicial estoppel requires two factors: that the prior
statements were made under oath (which is satisfied here), and that the inconsistency is
“shown to have been calculated to make a mockery of the judicial system.” Baloco v.
Drummond Co., Inc., 767 F.3d 1229, 1245 (11th Cir. 2014) (quotation and citation omitted).
Based on Hopkins’ explanation of what he thought was happening at the time with the state
proceedings, the Court cannot decide on summary judgment that he is judicially estopped
13
the City likely breached it by taking away the in-grade seniority points Hopkins would have
otherwise had.13 The City’s motion for summary judgment as to Count V is denied.
B.
Title VII Race Discrimination (Count I)
Despite his various suggestions to the contrary, Hopkins’ Count I claim of race
discrimination is limited to failure to promote arising out of the 2003 District Chief exam. The
EEOC charge underlying this claim (and relied on in the complaint, see Doc. 22 at ¶ 61)
complains of the City’s failure to promote him to District Chief based on the 2003 exam. See
Stuart v. Jefferson County Dep’t of Human Resources, 152 Fed. App’x 798, 801 (11th Cir.
2005) (holding court properly rejected claim of failure to promote that was not included in
EEOC charge).
Although Hopkins’ Second Amended Complaint alleges the City’s
discrimination is evidenced by “various acts and omissions,” including, “without limitation,”
its failure to promote him following the 2003 exam (Doc. 22 at ¶ 64), he has not put forward
any particular claim other than the failure to promote, and his factual allegations do not
suggest any other. See Doc. 22 at ¶¶ 1-59. The Court rejects counsel’s suggestion that a
hostile work environment claim is in this case and “was tried by consent.” No such claim is
from claiming the City breached their settlement agreement.
13
The Court does not have a complete understanding of the benefits carried with in-grade
seniority points (beyond affecting rank on a promotion eligibility list) but presumes other
employment benefits (such as pensions) may be affected and that a breach, therefore, would
be material. See, e.g., Doc. 64-16 (Union’s state court complaint) at ¶ 9 (alleging that
seniority affects eligibility for transfers); Doc. 56-5 at 22 (Attach. K, Ordinance memorializing
settlement of Union suit) (awarding “pension contributions and benefits” so as to be in accord
with award of pay and seniority). See also, U.S. v. City of Hialeah , 140 F.3d 968, 981-82
(11th Cir. 1998) (describing myriad working conditions, such as awarding of overtime duty
and special team assignments, as being affected by seniority points).
14
raised in Hopkins’ complaint. See Doc. 138 (hearing transcript) at Tr. 20.14
Further, to the extent Hopkins argues that an earlier version of his EEOC charge had
other claims in it that he intended to include in this lawsuit, that argument too is rejected.
Hopkins swore to the truth of the charge he filed on May 12, 2006. See Doc. 56-4 at 22.
There is no basis to believe that the other draft in evidence was intended to be attached to
the back side of the filed charge, as Hopkins’ counsel contended, as it includes much of the
same language that is included in the charge he filed (and some of the language from the
front page of the unfiled charge). See Doc. 64-54 (unfiled charge); Doc. 138 (transcript of
oral argument) at Tr. 50. Hopkins explains that EEOC personnel told him his claim was too
long, yet the form expressly permits the filing of additional pages. Further, as with the EEOC
charge Hopkins did file, the unfiled charge states that the alleged discrimination started and
ended on November 18, 2005 (which is when the promotion eligibility list expired without
Hopkins having been promoted).
14
Admittedly, Hopkins’ amended declaration (Doc. 89) paints a disturbing picture of the
racially charged environment Hopkins has endured as a firefighter for more than two
decades. However, the cases upon which Hopkins’ counsel relies do not support the
proposition that a claim not included in a complaint can be “tried by consent” where there has
been no trial and where the City has not consented to any such thing. See Gupta v. E. Tex.
State Univ., 654 F.2d 411, 413-15 (5th Cir. Unit A Aug. 1981) (holding that a district court
has ancillary jurisdiction to hear a retaliation claim contained within a complaint if the claim
grows out of earlier EEOC charge); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
114-18 (2002) (holding that while incidents of discrimination and retaliation are each
discretely actionable, hostile work environment incidents may accrue over time and be
actionable as a group of incidents joined in a single claim). Neither of those cases say that
a plaintiff may litigate a claim not included in his complaint or his EEOC charge without
consent from the other side and when there has been no trial. See Blue Cross and Blue
Shield of Ala. v. Weitz, 913 F.2d 1544, 1550 (11th Cir. 1990) (holding that Fed.R.Civ.P 15(b)
is inapplicable where case is decided at summary judgment and not at trial).
15
Additionally, Hopkins had filed a federal lawsuit based on an EEOC charge in the past
so was not a stranger to the process. See Hopkins I, Doc. 1. And, while Hopkins was
apparently representing himself in his initial dealings with the EEOC (though Luster was still
representing him in other affairs at the time and Juanita Powell, a lawyer sharing Luster’s
address, responded to the EEOC investigator and received a copy from the EEOC of
Hopkins’ right to sue letter, see Docs. 64-26, 64-41), by the time Hopkins filed his lawsuit,
he had a lawyer and had fair opportunity to file a new charge or to seek a stay while
amending his charge with the EEOC if he did not believe the charge to which he swore was
accurate. He did neither. See Duble v. FedEx Ground Package System, Inc., 572 Fed.
App’x 889, 892 (11th Cir. 2014) (explaining that purpose of Title VII exhaustion is to allow
EEOC first opportunity to investigate alleged practices and perform its role of promoting
conciliation; thus, a judicial complaint is limited by the scope of the EEOC investigation
reasonably expected to grow out of the charge) (citing Gregory v. Ga. Dep’t of Human Res.,
355 F.3d 1277, 1279 (11th Cir. 2004)).15 Therefore, Hopkins’ Count I claim of Title VII race
discrimination is limited to failure to promote arising out of the 2003 District Chief exam.
Under Title VII, no employer may fire or otherwise discriminate against an employee
because of the employee’s race. 42 U.S.C. § 2000e-2(a)(1). To succeed on a discrimination
claim based on circumstantial evidence,16 a plaintiff generally must make it through the three
15
Hopkins’ reliance on Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008) for
support is misplaced. That case explains that the EEOC may consider other documents in
lieu of formal charges. Id. at 402. It does not say that other documents never processed by
the EEOC can form the basis of a later lawsuit.
16
Hopkins agrees his claims are based on circumstantial evidence. See Doc. 120 at 22.
16
steps of the McDonnell Douglas burden-shifting framework. Smith v. Lockheed-Martin Corp.,
644 F.3d 1321, 1325 (11th Cir. 2011).17 In the context of a failure to promote claim, the first
step requires a plaintiff to establish a prima facie case of discrimination “by showing that:
(1) [he] is a member of a protected class; (2) [he] was qualified and applied for the
promotion; (3) [he] was rejected despite [his] qualifications; and (4) other equally or less
qualified individuals who were not members of the protected class were promoted.”18 Wilson
v. B/E Aerospace, Inc., 376 F.3d 1079, 1089 (11th Cir. 2004); see also, Turner v. City of
Auburn, 361 Fed. App’x 62, 64 (11th Cir. 2010) (citing Wilson for standard in a firefighter
race discrimination failure to promote case).
The City agrees plaintiff is a member of a protected class but contends he fails to
meet any of the other requirements necessary to establish a Title VII violation because,
given his rank on the promotion eligibility list, he did not qualify for promotion, and therefore
cannot demonstrate that he was rejected for promotion despite his qualifications. Hopkins
argues the City took away the seniority points for the purpose of denying him the opportunity
to be promoted while, at the same time in the Williams case (another federal discrimination
lawsuit), white firefighters received back pay and points.
17
A plaintiff can alternatively survive summary judgment by presenting “circumstantial
evidence that creates a triable issue concerning the employer’s discriminatory intent.” Smith,
644 F.3d at 1328.
18
If a plaintiff establishes a prima facie case, the second step of the McDonnell Douglas
framework shifts the burden to the employer to rebut the presumption of discrimination by
presenting a legitimate, non-discriminatory reason for its action. Alvarez v. Royal Atlantic
Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). If successful, the burden then shifts
back to the plaintiff to show that the stated reason is a mere pretext for discrimination. Id.
17
First, the City litigated against the Williams plaintiffs and only awarded them back pay
and seniority points when required to do so because the City lost at trial (and on appeal).
See Williams v. City of Jacksonville, Case No. 3:00-cv-469-J32TEM, Doc. 309 (Judgment)
(May 15, 2006). Second, although the City initially included the points in Hopkins’ score
when the rankings were released in November 2003 (when Hopkins was 24th on the
promotion eligibility list), it promptly adjusted the score to reflect the removal of the points
just three weeks later, in December of 2003. There is no evidence to support a suggestion
that, in doing so, the City calculated that, two and a half years later, Hopkins would be
eligible for a three month provisional promotion and that it should therefore take away
seniority points to deprive him of that future opportunity. Archie Cullen explained the
circumstances under which the points were removed from Hopkins’ score in December 2003
to account for the settlement of the state lawsuit (see Doc. 56-9) and, while the City perhaps
should have handled the matter differently, Hopkins has no evidence that the City acted in
December 2003 to prevent his provisional promotion two and a half years later.19 The three
people promoted to the temporary provisional chief positions were ahead of Hopkins on the
promotion eligibility list. Doc. 56-4.
Hopkins’ counsel’s statement at oral argument that the City “didn’t remove [the points]
until he scored highly enough to be promoted off the list” (Doc. 138 at Tr. 27) is contrary to
19
As noted, supra, footnote 3, the Court rejects Hopkins’ suggestion that the insertion
of returning veteran Adrian Johnson required the City to restart the two year clock on the list.
The eligibility list was amended on May 3, 2004 to include Johnson and stated that it expired
on November 19, 2005 (the original expiration date). See Doc. 64-21. There is no evidence
that anyone objected when the list was released or at anytime before the list expired.
18
all the evidence. The points were removed on December 11, 2003, less than a month after
the original list was generated at a time when Hopkins was 24th in line for promotion.
Hopkins himself admits he was advised in December of 2003 that the points had been
removed. Doc. 131-1. Hopkins did not complain about the removal of the points in his
EEOC charge (nor in his unfiled draft). Counsel’s further statement that he would have been
promoted to District Chief if the points had not been removed (Doc. 138 at Tr. 33) is also
inaccurate. Even if the in-grade seniority points remained, Hopkins would have been entitled
to only a provisional promotion that would have expired within three months because a new
list (for an exam Hopkins registered for but did not take) resulted in permanent promotions
for those then eligible. In short, while the City may have breached its settlement agreement
in Hopkins I by removing the points (a matter a jury will decide), there is no evidence that any
decision to do so was racially motivated or calculated to deprive him of a short term future
opportunity no one knew he might have. Thus, Hopkins cannot establish that he was
qualified for promotion and thus cannot show that he was rejected for promotion despite
being qualified as required to meet his prima facie case for racial discrimination.20
Hopkins also contends that the City had a demonstrated need for six additional
District Chief positions which could have been filled before the promotion eligibility list
expired in November 2005. But Hopkins was eighth on the list at the time it expired so still
20
Even if the Court determined Hopkins had established his prima facie case, Hopkins
cannot show that the City’s reason for not promoting him (his position on the eligibility list)
was pretext. See Alvarez, 610 F.3d at 1265 (“To show pretext, [a plaintiff] must demonstrate
such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder could find
them unworthy of credence.”) (internal quotation and citation omitted).
19
would not have been eligible for promotion and Hopkins has produced no evidence that the
City’s decision not to create the positions had anything to do with Hopkins’ placement on the
list. Daniel Kleman (the City’s decision maker at the time) explained that he opposed the
proposal (which was to convert safety officers to District Chiefs) as compromising safety and
being too costly (Doc. 56-4 at 5-7), “reason[s] [which] might motivate a reasonable
employer.” Alvarez, 610 F.3d at 1266. Thus, even if the creation of six positions would have
resulted in Hopkins receiving a short term provisional promotion, he cannot show the City’s
reason for not creating the positions is pretext for discrimination by “simply quarreling with
the wisdom of that reason.” Id. The City’s motion for summary judgment as to Count I is
granted.
C.
Title VII Retaliation (Count II)
To establish a prima facie case of retaliation under Title VII, a plaintiff must show that
(1) he engaged in a statutorily protected activity (opposing discrimination or participating in
a discrimination-related proceeding); (2) he suffered a materially adverse employment action;
(3) the protected activity and adverse action were causally connected. Chapter 7 Tr. v. Gate
Gourmet, Inc., 683 F.3d 1249, 1258 (11th Cir. 2012); 42 U.S.C. § 2000e-3(a). Once the
plaintiff establishes these elements, the burden shifts to the employer to provide a legitimate,
non-retaliatory reason for the adverse action. Goldsmtih v. Bagby Elevator Co., Inc, 513 F.3d
1261, 1277 (11th Cir. 2008). If the employer succeeds in this task, the plaintiff then must
prove that the reason provided is a mere pretext for prohibited retaliatory conduct. Id. See
also, Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013) (“Title VII
retaliation claims must be proved according to traditional principles of but-for causation, [thus
20
requiring] proof that the unlawful retaliation would not have occurred in the absence of the
alleged wrongful action or actions of the employer.”).
Hopkins’ Title VII retaliation claim is limited to the scope of his EEOC charge and
actions that “grow out of” the protected activity. Gregory, 355 F.3d at 1280. In his charge,
Hopkins states that the City denied him a promotion in retaliation for his filing a complaint in
1992. The City says there is no evidence of a 1992 complaint.21 However, even assuming
Hopkins engaged in protected activity during the relevant time, as explained above, the
reason Hopkins was not promoted is that he was eighth on the promotion eligibility list at the
time it expired and the City’s decision not to create additional positions before the list expired
is not actionable. Even assuming Hopkins’ various other claims of retaliation were within or
grew out of his EEOC charge,22 Hopkins testified that he received no formal discipline (Doc.
77 (Hopkins Deposition) at Tr. 94-95), there is no evidence he lost pay or benefits, and the
City explained its actions with regard to Hopkins’ other claims by providing unrebutted
21
Hopkins’ responsive brief does not address this. Even if there was a 1992 complaint,
it would be too remote in time from the allegedly adverse employment action to establish
causation. See, e.g., Clark County School Dist. v. Breeden, 532 U.S. 268, 273 (2001);
Faircloth v. Herkel Investments, Inc., 514 Fed. App’x 848, 852 (11th Cir. 2013).
22
In his Second Amended Complaint, Hopkins alleges he was retaliated against in terms
of unwarranted discipline, manipulation of his test scores, assignments, denials of promotion,
and failure to promote when the City had a clear need for additional positions. Doc. 22 at
¶¶ 56, 66. In his amended declaration, Hopkins also stated that the City failed to follow
overtime protocols, but he has not supported this claim with any evidence, has not
demonstrated that it caused a serious and material change in the terms, conditions, or
privileges of his employment, and has not alleged that the failure was retaliation for any
protected activity. And, such occasions were likely outside the scope of his complaint as he
stated they occurred “recently.” See Doc. 89 (Hopkins January 16, 2009 Declaration) at
¶¶152-56.
21
“reason[s] [which] might motivate a reasonable employer.” Alvarez, 610 F.3d at 1266. See
Doc. 131-3 (Drysdale Affidavit) (explaining City policy with regard to job assignments and
station operations); Doc. 56-4 (Kleman Declaration) (explaining City action in response to
HRC recommendations); Doc. 115-1 (Senterfitt Affidavit) (describing staffing of safety cars);
Doc. 131-2 (Wilson Affidavit) (describing station house layouts and opening). Thus, Hopkins
cannot show that he suffered a materially adverse employment action. Even if he had, he
cannot show that the City’s reasons for taking the actions it did were a pretext for retaliation.
The City’s motion for summary judgment is granted as to Count II.
D.
Race Discrimination under the Equal Protection Act (under § 1983)
(Count III)
Title VII and § 1983 require the same elements to establish a claim of race
discrimination. Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). However, unlike
his Title VII claim, Hopkins’ § 1983 claim of race discrimination is not limited by his EEOC
charge. Rather, a claim under § 1983 is limited by Florida’s four-year statute of limitations.
See, e.g., McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008) (“All constitutional claims
brought under § 1983 are tort actions, subject to the statute of limitations governing personal
injury actions in the state where the § 1983 action has been brought.”); City of Hialeah, Fla.
v. Rojas, 311 F.3d 1096, 1103 (11th Cir. 2002) (“Plaintiffs must bring a section 1983 claim
arising in Florida within four years of the alleged unlawful discriminatory practice”); Fl. St. §
95.11(3).
Hopkins first raised his § 1983 race discrimination claim in his Second Amended
Complaint, filed on December 19, 2007, so this claim is limited to adverse employment
22
actions occurring on or after December 19, 2003.23 Hopkins’ claim alleges discrimination by
failing to promote him, failing to create new positions before the eligibility list expired and,
incorporating the earlier allegations, by “discipline, manipulation of his test scores, and other
aspects of his employment.” Doc. 22 at ¶¶ 56, 67, 68. As explained above, Hopkins was
eighth in line for promotion when the District Chief eligibility list expired and the City’s choice
not to create additional positions before the list expired is not actionable. As to his other
claims of discriminatory conduct, Hopkins claims he was not subject to formal discipline but
perceived some action as informal discipline. See Doc. 77 (Hopkins Deposition) at Tr. 9495. However, as those actions did not cause “a serious and material change to the terms,
conditions or privileges of employment,” they are not actionable.24 Crawford, 529 F.3d at
970-71. The City’s motion for summary judgment is granted as to Count III.
E.
Retaliation under the First Amendment (under § 1983) (Count IV)
While a public employee may not be made to suffer an adverse employment action
for speech protected by the First Amendment, “a public employee’s right to freedom of
speech is not absolute.” Leslie v. Hancock County Bd. of Educ., 720 F.3d 1338, 1346 (11th
23
Because of the four year statute of limitations, if the cause of action accrued at the time
the points were removed on December 11, 2003, Hopkins would be too late (and he has not
contested the City’s position that this claim does not relate back to the date of filing his
original complaint). However, it appears more likely that the cause of action accrued in
November 2005 when the list expired without Hopkins having been promoted. If that is so,
his claim is not barred by the statute of limitations but, for the reasons explained above, the
City is still entitled to judgment on this claim.
24
Again, the Court finds the description of Hopkins’ career with JFRD as presented in his
amended declaration (Doc. 89) to be disconcerting but not actionable given the complaint
before the Court.
23
Cir. 2013) (quoting Vila v. Padron, 484 F.3d 1334, 1339 (11th Cir. 2007)). To establish his
First Amendment retaliation claim, Hopkins 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
[City] as an employer; and (3) the speech played a substantial or motivating role in the
adverse employment action.” Id. (quoting Vila, 484 F.3d at 1339). If Hopkins were able to
establish these elements, “the burden [would then] shift[ ] to the [City] to prove it would have
made the same adverse employment decision absent [Hopkins’] speech.” Id. (quoting Vila,
484 F.3d at 1339). Florida’s four-year statute of limitations applies to this claim. Rojas, 311
F.3d at 1103. Thus, only adverse employment actions occurring on or after December 19,
2003 are actionable.25
In this count, Hopkins incorporates by reference all 59 paragraphs of the earlier
factual allegations, but does not identify any particular speech that he claims is protected and
that caused the City to retaliate. See Doc. 22 (Second Amended Complaint) at ¶¶ 69-70.
In responding to the City’s motion, Hopkins contends that “he has long spoken out against
race discrimination against himself and others, [which is] per se protected activity and
speech.” Doc. 120 at 38. While this broad brush statement may be true, it is insufficient to
support Hopkins’ claim of First Amendment retaliation. Although Hopkins further states that
“[l]awsuits, internal complaints, and charges”, id., are protected speech, he has not identified
any particular time at which he spoke as a citizen on a matter of public interest.
25
Hopkins’ original and first amended complaint did not include a First Amendment
retaliation claim. Hopkins has not contested the City’s position that this claim does not relate
back either.
24
“[C]onclusory allegations without specific supporting facts have no probative value” and are
insufficient to withstand a motion for summary judgment. Leigh v. Warner Bros., Inc., 212
F.3d 1210, 1217 (11th Cir. 2000).
Even if the Court were to assume that Hopkins spoke as a citizen on a matter of
public interest, Hopkins has failed to establish any adverse employment action that occurred
in response during the relevant time frame. In the context of a First Amendment retaliation
claim, an adverse employment action is one that “would likely chill the exercise of
constitutionally protected speech.” Akins v. Fulton Cnty., 420 F.3d 1293, 1300 (11th Cir.
2005). The action must “involve an important condition of employment” such as “salary, title,
position, or job duties.” Id.
Hopkins’ position on the District Chief eligibility list precluded him from obtaining a
promotion and foreclosed a provisional promotion during the brief period after the list
expired.26 The other conduct of which Hopkins complains in his declarations and deposition
(see Docs. 65, 77, 89, 121) was either promptly addressed by the City, or is not tied to any
protected statement, or is not sufficiently related to an “important condition of employment”
as to be actionable. See Akins, 420 F.3d at 1301-02. The City’s motion for summary
judgment on the First Amendment retaliation claim (Count IV) is granted.
26
Although the points were removed from Hopkins’ score earlier than the statutorily
relevant time period, even if that conduct is considered, as noted above, there is no evidence
to suggest the City removed the points to prevent a possible three month provisional
promotion two and a half years down the road.
25
IV.
Conclusion
Accordingly, it is hereby
ORDERED:
The City’s Motion for Summary Judgment (Doc. 114) is granted as to Counts I, II,
III and IV and denied as to Count V of the Second Amended Complaint. At oral argument,
the City suggested that a favorable outcome for Hopkins at trial on Count V would likely
result in the need for a fairness hearing because, while the claim for breach would be tried
to a jury, the in-grade seniority points were awarded as part of a settlement which could
entitle certain Union members to a fairness hearing. At this juncture, the Court takes no
position on that matter. However, in light of the uncertainty as to how this will all play out,
the Court encourages the parties to find an alternative way to resolve this short of further
litigation and will direct the parties to attend a settlement conference with Judge Schlesinger.
The parties shall contact Judge Schlesinger’s chambers to make the arrangements.
DONE AND ORDERED at Jacksonville, Florida this 19th day of November, 2014.
s.
Copies:
Honorable Harvey E. Schlesinger
Senior United States District Judge
counsel of record
26
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