LEWIS v. Georgia Department of Public Safety

Filing 36

ORDER granting 26 Motion for Summary Judgment. Ordered by U.S. District Judge W LOUIS SANDS on 1/30/2014. (bcl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
MICHAEL LEWIS,

:
:
Plaintiff,
:
v.
:
:
GEORGIA DEPARTMENT OF PUBLIC :
SAFETY,
:
:
Defendant.
:
:

Case No. 1:11-CV-0180 (WLS)

ORDER
Presently pending before the Court is Defendant Georgia Department of Public
Safety’s Motion for Summary Judgment (Doc. 26). For the following reasons, Defendant
Georgia Department of Public Safety’s Motion for Summary Judgment (Doc. 26) is
GRANTED.
I.

PROCEDURAL HISTORY
Plaintiff Michael Lewis filed a Complaint in the above-captioned matter on

December 21, 2011. (Docs. 1, 2.)1 Plaintiff’s Complaint alleges that the Georgia
Department of Public Safety (“DPS”) wrongfully terminated him on the basis of race in
violation of Title VII of the Civil Rights Act of 1964, as amended at 42 U.S.C. § 2000e, et
seq., and violated his due process when it denied him legal counsel at the hearing
regarding his proposed dismissal. (Id.) Plaintiff filed a Charge of Discrimination with

It appears that Plaintiff filed portions of his Complaint as part of his Motion to Proceed In Forma
Pauperis. (See Docs. 1, 2.)
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the Equal Employment Opportunity Commission (“EEOC”), and received his Right to
Sue letter on September 27, 2011. (Doc. 1-1.)
On June 7, 2013, Defendant moved for summary judgment as to Plaintiff’s
Complaint. (Doc. 26.) According to Defendant, Plaintiff’s race discrimination claim fails
because he cannot identify a similarly situated comparator, and even if he could meet
the prima facie case for discrimination, Plaintiff’s claim still fails because he cannot
overcome Defendant’s legitimate, nondiscriminatory reason for his termination—that
he failed “to uphold two basic tenets of every law enforcement officer’s oath;
truthfulness and respect for the Fourth Amendment.” (Doc. 26-2 at 17-20.) Defendant
also argues that Plaintiff’s due process claim under 42 U.S.C. § 1983 is barred by
Eleventh Amendment immunity and because DPS is not a “person” as that term is
defined by § 1983.
On June 13, 2013, in accordance with the Court’s procedures governing notice to
pro se plaintiffs, the Court issued an order directing Plaintiff to file a response in
opposition to Defendant’s motion. (Doc. 29.) Plaintiff was noticed that he would be
required to respond in opposition to Defendant’s motion “with affirmative affidavits,
depositions, documents[, and] rely with specificity upon evidence that is part of the
record.” (Id. at 1-2.) Plaintiff was further noticed that “[i]f a party fails or refuses to file
any materials in opposition to a motion for summary judgment, a FINAL judgment
may be rendered against that party if otherwise appropriate under the law. In that
event, there would be no trial or any further proceedings.” (Id. at 2.)

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On January 24, 2013, Plaintiff filed a number of documents in response to
Defendant’s Motion for Summary Judgment. Plaintiff filed a Response in Opposition to
Defendant’s Summary Judgment. (Doc. 31.) Plaintiff filed a Statement of Material Facts
to which he contends there is a genuine dispute, but did not file a Responsive Statement
of Facts to specifically controvert each of Defendant’s numbered facts in its Statement of
Undisputed Facts. (Doc. 33.) Plaintiff also filed an Objection to Entry of Defendant’s
Summary Judgment wherein he objects to Defendant’s filing of his deposition transcript
without notifying him that the deposition was complete or allowing him to review and
sign the transcript. (Doc. 32.) Finally, Plaintiff also re-filed an objection to Defendant’s
Motion for Leave to File Excess Pages for its brief in support of Motion for Summary
Judgment. (Doc. 30.) The Court, however, already addressed, and overruled, Plaintiff’s
objection in its Order directing Plaintiff to respond to Defendant’s Motion for Summary
Judgment. (Doc. 29.)
On July 8, 2013, Defendant submitted its Reply in Support of its Motion for
Summary Judgment. (Doc. 35.) Therein, Defendant stated that Plaintiff was notified by
the court reporter on December 20, 2012, that his deposition transcript was complete
and that he needed to make an appointment to read and sign his deposition. (Id. at 2.)
Defendant also states that Plaintiff failed to include any facts in his opposition brief
showing that his dismissal was based upon race in violation of Title VII.
The briefing for Defendant’s Motion for Summary Judgment has now concluded,
and the Court finds that Defendant’s Motion for Summary Judgment is ripe for review.

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II.

Summary Judgment Standard
A.

Federal Rule of Civil Procedure 56

Pursuant to Fed. R. Civ. P. 56, summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). An issue is “genuine” if the quantum and quality of proof
necessary to support liability under the claim is raised. Allen v. Tyson Foods, 121 F.3d
642, 646 (11th Cir. 1997). A fact is “material” if it hinges on the substantive law at issue
and it might affect the outcome of the nonmoving party’s claim. Anderson v. Liberty
Lobby, 477 U.S. 242, 248 (1986); see also Allen, 121 F.3d at 646. A judgment is appropriate
“as a matter of law” when the nonmoving party has failed to meet its burden of
persuading the Court on an essential element of the claim. See Cleveland v. Policy
Management Sys. Corp., 526 U.S. 795, 804 (1999); Celotex, 477 U.S. at 323.
The movant bears the initial burden of showing that there is no genuine issue of
material fact. See Celotex, 477 U.S. at 323. The movant can meet this burden by
presenting evidence showing there is no dispute of material fact or by showing or
pointing out to the district court that the nonmoving party has failed to present
evidence in support of some element of its case on which it bears the ultimate burden of
proof. See id. at 322-24. Once the movant has met its burden, the nonmoving party is
required “to go beyond the pleadings” and identify “specific facts showing that there is
a genuine issue for trial.” Id. at 324. To avoid summary judgment, the nonmoving party

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must do more than summarily deny the allegations or ‘show that there is some
metaphysical doubt as to the material facts.” Matsuhita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
On a motion for summary judgment, the Court must view all the evidence and
all factual inferences drawn therefrom in the light most favorable to the nonmoving
party and determine whether that evidence could reasonably sustain a jury verdict. See
Celotex, 477 U.S. at 322-23; Allen, 121 F.3d at 646. The Court must, however, grant
summary judgment if there is no genuine issue of material fact and the movant is
entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56(c).
B.

Local Rule 56

Local Rule 56 requires the following from a respondent to a motion for summary
judgment:
The respondent to a motion for summary judgment shall attach to the
response a separate and concise statement of material facts, numbered
separately, to which the respondent contends there exists a genuine issue to
be tried. Response shall be made to each of the movant's numbered material
facts. All material facts contained in the moving party's statement which are
not specifically controverted by the respondent in respondent's statement
shall be deemed to have been admitted, unless otherwise inappropriate.
M.D. Ga. L.R. 56. Here, Defendant properly filed a summary judgment motion along
with a statement of undisputed facts, as is required by the Federal Rules of Civil
Procedure and the Local Rules of this Court. (Doc. 26-1.) Plaintiff filed his own
Statement of Material Facts to which he believes there is a genuine issue of disputed fact
but not a responsive statement of facts, as required. (See Doc. 33.) Thus, in accordance

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with L.R. 56, where not controverted, the facts set forth in Defendant’s Statement of
Material Facts are deemed admitted.
Additionally, while Plaintiff filed some exhibits in conjunction with his response
brief, Plaintiff’s Statement of Material Facts did not include any specific citations to
record evidence. (See generally id.) As mentioned previously, Rule 56 requires that “the
nonmoving party must come forward with ‘specific facts showing that there is a genuine
issue for trial.’” Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 587 (quoting Fed. R. Civ. P.
56(e)). Stated in other words, “conclusory assertions contrary [to the movant’s
assertions], in the absence of supporting evidence, are insufficient to withstand
summary judgment.” Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (citations
omitted). Thus, by not properly citing to record evidence, the facts that Plaintiff proffers
in opposition to Defendant’s Motion “lack evidentiary value for the purpose of
summary judgment.” Wells v. XPEDX, No. 8:05-cv-2193, 2007 WL 2696566, at *11 (M.D.
Fla. Sept. 11, 2007) (citing Arvigan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991)).
Nevertheless, despite the fact that Defendant’s facts are deemed admitted by
operation of the local rules and that Plaintiff’s “facts” lack the requisite evidentiary
support, this does not mean that Defendant will be excused from “the initial burden of
production in demonstrating the absence of any genuine issue of material fact,” or that
the Court is relieved of its duty to “satisfy itself that the burden has been satisfactorily
discharged.” Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008). The Court is still
required to make an independent review of the record before deciding Defendant’s
Motion for Summary Judgment. See United States v. Delbridge, No. 1:06-cv-110, 2008 WL

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1869867, at *3 (M.D. Ga. Feb. 22, 2008) (WLS) (concluding that Eleventh Circuit
precedent does not allow a district court to grant a summary judgment based on
default). Plaintiff’s insufficient submissions have, however, created an uphill battle in
his quest to prevail as “[t]here is no burden upon the district court to distill every
potential argument that could be made based upon the materials before it on summary
judgment.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995);
Henry v. City of Tallahassee, 216 F. Supp. 2d 1299, 1310 (N.D. Fla. 2002) (“[W]hen a party
fails to file a proper Rule 56.1(A) statement, district courts are not obligated to search for
a fact question by sifting through the record.”)
Having established the applicable summary judgment standards, the Court will
proceed to the facts.
III.

RELEVANT FACTUAL BACKGROUND
The following facts are derived from the Complaint (Doc. 1); Defendant’s

Answer (Doc. 9); Defendant’s Statement of Undisputed Facts (Doc. 26-1); and where
appropriate and compliant with the applicable rules, Plaintiff’s Statement of Disputed
Material Facts (Doc. 33), all of which were submitted pursuant to Local Rule 56; and the
record in this case. Where relevant, the factual summary also contains undisputed and
disputed facts derived from the pleadings, the discovery and disclosure materials on
file, and any affidavits, all of which are construed in a light most favorable to Plaintiff as
the nonmoving party. See Celotex Corp., 477 U.S. at 322-23; Fed. R. Civ. P. 56.
On June 15, 2009, Ms. Randae Lowe filed a complaint alleging that Plaintiff, a
Trooper First Class II (“TFCII”) with the Georgia Department of Public Safety (“DPS”),

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and two Americus police officers, James Walters and Jason Lovette, entered her home
unlawfully on March 9, 2009. (Doc. 26-1 ¶¶ 1, 10.) On or about June 22, 2009, the
Commanding Officer of Field Operations for DPS, Major Mark McDonough, assigned
the case to Captain Pat Duff, the Troop Commander, and Plaintiff’s fifth-level superior,
who in turn assigned the case to his immediate subordinate, Lieutenant Dennis Dixon,
for investigation. (Id. ¶¶ 4, 11.) Upon review of the complaint, Dixon determined that
there was a possible Fourth Amendment Issue. (Id. ¶ 12.) During the investigation,
Plaintiff was asked to submit a written statement. (Id.) In his first statement, Plaintiff
stated that he received a phone call from Walters who stated that he saw Nardara
Dodson, who was wanted on an obstruction warrant, on the front porch of Lowe’s
house. (Id. ¶ 13.) Plaintiff further wrote that he made contact with Walters in the Elk’s
Club parking lot, and that upon leaving the parking lot, he (Plaintiff) observed Dodson
wearing a white shirt and entering the residence of Lowe. (Id.) As discussed in more
detail below, for his part, Plaintiff alleges that the account of him making visual contact
with Dodson was the result of him (Plaintiff) making a transcript error in his report.
(Doc. 33 ¶ 5.) Plaintiff states that he was not aware of the issues concerning his
statement. (Id. ¶ 6.)
After receiving contradicting reports about the incident from Walters and
Lovette, and after his own site visit concluded that a positive identification could not be
made from the Elk’s Club parking lot because of the distance between the lot and the
Lowe residence, Dixon requested that Plaintiff submit another written statement. (Doc.
26-1 ¶¶ 16-19.) In the second statement, Plaintiff repeated his prior statement about

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making contact with Walters in the Elk’s Club parking lot and observing a black male
identified as Dodson entering the Lowe residence. (Id. ¶ 20.) During an interview with
Lowe on July 7, 2009, Lowe informed Dixon that Dodson was not at her home at the
time the officers entered it. (Id. ¶ 21.)
Due to the conflicting accounts and the fact that Plaintiff had been given an
opportunity to revise his statement but did not, McDonough ordered a polygraph. (Id. ¶
23.) On July 17, 2009, Plaintiff consented to and was administered a polygraph
examination. (Id. ¶ 24.) It was determined that Plaintiff’s polygraph results were
indicative of deception. (Id. ¶ 25.) When asked if he saw Dodson entering the Lowe
residence, Plaintiff answered “yes.” (Id.) After the polygraph, Plaintiff confessed to
Dixon that he did not see Mr. Lowe enter the residence as he previously stated. (Id. ¶ 26;
see also Doc. 26-4 at 36-38 (“I didn’t necessarily, ah, see him go into the home;” “I didn’t
see him on the porch at that time, no;” and “I didn’t see him.”) Per Plaintiff, he stated
“yes” to seeing Dodson on the porch during his polygraph because he “was afraid and
in fear of losing his job because the way the case had been handle [sic] and the
dishonestly [sic] shown by [his] supervisors.” (Doc. 33 ¶ 8.) Plaintiff further states that
he “had no intentions of being dishonest with anyone and after the polygraph and
asked to speak with Dixon to clear up the matter.” (Id.)
Plaintiff’s polygraph results and confession were reported to the DPS Command
Staff at headquarters. (Doc. 26-1 ¶ 27.) Per Defendant, because McDonough felt that
what may have been a routine reporting matter had evolved into a complex issue with
constitutional implications, McDonough requested that an investigation be conducted

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by the Office of Professional Standards, which conducts internal affairs investigations.
(Id. ¶ 28.) Plaintiff was placed on administrative leave without pay for the duration of
the investigation. (Id. ¶ 29.) On August 27, 2009, during an interview with OPS officer,
Sergeant James Welch, Plaintiff admitted that his prior two written statements were
deceptive in that he did not see Dodson on the front porch or enter the Lowe residence.
(Id. ¶ 32.) Plaintiff also admitted to being untruthful to Dixon in the investigation. (Id.)
Additionally, Plaintiff admitted that he had an opportunity prior to his polygraph to tell
the truth but chose not to and that he was deceptive during the polygraph. (Id.) After
reviewing the results of the investigation, Welch determined that Plaintiff’s conduct
violated DPS Code of Conduct Policy 3.01.A.9, which states that “[m]embers are
required to be truthful to their supervisors and to all superior officers.” (Id. ¶ 33.) Welch
also determined that Plaintiff’s submission of two false statements to Dixon violated
Code of Conduct Policy 3.01.G.10, which states “Reports submitted by members will be
truthful and complete, and no member will knowingly make false statements, charges
or allegations in connection with any citations, warnings, assistance rendered, traffic
crash reports, field reports, investigative reports, computer entries or by any other
means which creates an official record of the Department.” (Id. ¶ 34.)
Welch’s investigative summary was received by McDonough on October 22,
2009. (Id. ¶ 36.) On November 4, 2009, McDonough met with Plaintiff to give him a
chance to explain any inconsistencies in his written statements, polygraph, and his postpolygraph interview. (Id. ¶ 37.) Though he had admitted in his post-polygraph
interview that his two previous written statements were false, on this occasion Plaintiff

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stated that the inconsistencies were “merely a transcript error.” (Id.) Per Plaintiff, when
McDonough accused of him of choosing to protect the two officers rather than protect
the citizen, Plaintiff contended “that he did not protect the two officers and that his
report was simply a transcript error.” (Doc. 33 ¶ 9.)
On November 4, 2009, McDonough issued Plaintiff a Notice of Proposed
Adverse Action of dismissal for misconduct. (Id. ¶ 38.) According to McDonough,
Plaintiff’s dismissal was a direct result of his failure to tell the truth and his failure to
uphold two basic tenets of every sworn officer’s oath—truthfulness and respect for
Fourth Amendment rights. (Id. ¶ 39.)
Plaintiff requested and was granted a review of his dismissal. (Id. ¶ 40.) On
November 18, 2009, Plaintiff presented his case to the reviewing officer, Lieutenant
Colonel Fred Snellings, a black male. (Id.) Plaintiff gave an oral presentation, responded
to questions, and submitted documentation. (Id.) Thereafter, Snellings issued Plaintiff a
final decision affirming the dismissal. (Id.)
On or about April 19, 2010, Plaintiff filed a charge with the EEOC, alleging that
his dismissal was based upon his race and age. (Id. ¶ 41.) On September 27, 2011, the
EEOC issued a Notice of Right to Sue. (Doc. 1-1.)
IV.

DISCUSSION
A.

Title VII Race Discrimination Claim

When a plaintiff seeks to prove a Title VII violation through circumstantial
evidence (as is the case here since Plaintiff offers no direct evidence of discrimination),
the Court is guided by the burden-shifting framework established in McDonnell Douglas

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Corp. v. Green, 411 U.S. 792 (1973). Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1331
(11th Cir. 1998). Under this framework, in order to establish a prima facie case of
discrimination under Title VII, a plaintiff must show that he: 1) is a member of a
protected class; 2) was qualified for the position; 3) suffered an adverse employment
action; and 4) can show that similarly situated employees outside of his protected class
were treated more favorably or was replaced by someone outside of her his/her
protected class. Rice-Lamar v. City of Ft. Lauderdale, 232 F.3d 836, 842 (11th Cir. 2000). If
the claimant establishes a prima facie case of discrimination, this creates a presumption
of discrimination, and the burden then shifts to the employer to offer a legitimate,
nondiscriminatory reason for the adverse employment action to rebut the presumption.
Standard, 161 F.3d at 1331.
Defendant alleges that Plaintiff cannot establish a prima facie case of
discrimination because he cannot identify similarly situated Caucasian employees who
were treated more favorably. On the contrary, Plaintiff alleges that five white males—
Sergeant James Warren, Trooper First Class Lavon Kitchens, TFC Jonathan Foskey, and
Sergeant Randy Lane—engaged in similar conduct but were dealt with more leniently
than he was because of their race. The Court will address each of these comparators.
In order to determine whether a valid comparator has been presented, the Court
must consider “whether the comparators were involved in, or accused of, the same or
similar conduct and disciplined differently.” Beckles v. Federal Exp. Corp., No. 11-14283,
2012 WL 3932112, at *2 (11th Cir. Sept. 11, 2012) (citing Maniccia v. Brown, 171 F.3d 1364,
1368 (11th Cir. 1999)). A plaintiff is similarly situated to another employee only if

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the “quantity and quality of the comparator's misconduct” are “nearly identical.”
Johnson v. Miller Brewing Co., 341 F. App’x 477, 478 (11th Cir. 2009) (quoting BurkeFowler, 171 F.3d at 1323). Importantly, “[t]he plaintiff and the employee she identifies as
a comparator must be similarly situated “in all relevant respects.” Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004) (citations omitted). This requirement
that the comparator be “nearly identical to the Plaintiff” is in place “to prevent courts
from second-guessing employers' reasonable decisions and confusing apples with
oranges.” Silvera v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001) (citations
omitted).
1.

James Warren

In May 2010, McDonough issued Sergeant James Warren, a white male, a Notice
of Proposed Adverse Action of Suspension Without Pay for ten days for misconduct
and conduct reflecting discredit upon DPS. (Doc. 26-1 ¶ 43.) Warren was alleged to have
made racial gestures in the presence of fellow officers. (Id.) During the investigation,
Warren was administered a polygraph examination with results “indicative of
deception when answering relevant questions regarding the issues at hand.” (Id.)
McDonough stated “that while Warren’s behavior was clearly inappropriate and
unprofessional, the underlying facts weighed in his decision: the person who reported
Warren’s behavior, TFC George Kitchens[,] did not report it in a timely manner as
required by DPS policy.” (Id.) Thus, because of the totality of circumstances and the fact
that Warren was honest in his post-polygraph interview, McDonough determined that
a suspension without pay was the proper discipline. (Id.)

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Plaintiff contends that Warren was given two separate polygraph examinations
where he was given five opportunities to be truthful. (Doc. 31 at 3.) As Plaintiff himself
notes, however, “according to Defendant’s documentation Warren was forthright in his
post-polygraph interview.” (Id.) The Court finds that Warren’s candor during his postpolygraph interview, without a later recantation, makes him an inappropriate
comparator. Though both Plaintiff and Warren were deceptive during their polygraph,
Warren unequivocally told the truth following his polygraph. On the contrary, after his
polygraph, Plaintiff admitted to being dishonest about seeing Dodson on the porch, but
later when he was given a chance to reconcile all of the inconsistencies, Plaintiff once
again contended that the issue was “merely a transcript error.” Thus, Plaintiff never
unequivocally told the truth, and therefore, he and Warren are not similarly situated.
Additionally, Plaintiff’s false statements involved a possible constitutional violation of a
citizen. Warren’s deception involved his dispute with a fellow officer and was thus an
internal departmental issue. While the Court does not condone Warren’s alleged use of
racial epithets, the constitutional implications of Plaintiff’s conduct made the quality of
the misconduct graver. Thus, the “quality” of Plaintiff’s and Warren’s misconduct was
not “nearly identical.” Johnson, 341 F. App’x at 478.
2.

George Kitchens

Plaintiff also proffers Kitchens, the other officer in the Warren incident, as a
similarly situated comparator. As noted above, the Warren investigation was initiated
based on a complaint by Kitchens. (Doc. 26-1 ¶ 44.) During the investigation, it was
revealed that Kitchens also made racial gestures in the presence of fellow officers. (Id.)

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Kitchens, too, was administered a polygraph during which he gave deceptive answers.
(Id.) Following this incident, Kitchens resigned. (Id.) Therefore, because Kitchens
voluntarily chose to leave and preempted any discipline from DPS, Kitchens is not an
appropriate comparator since it is unknown whether he would have been terminated
had he chosen not to resign.
3.

Captain Fielding

Plaintiff also contends that Captain Fielding is a similarly situated compactor.
(Doc. 31 at 4.) Fielding, a white male, was a supervisor to Stacey Forrest, a third
individual who was present when Warren used the racial epithet. (Id.; Doc. 34-3 at 76.)
After Warren reported the racial-slur incident to Fielding, Fielding spoke to Forrest who
stated that he did not want to file a grievance or carry the matter any further. (Doc. 34-3
at 79.) Per Plaintiff, when Fielding was asked to describe the incident in an interview
Fielding stated “that he was not familiar with what steps to take as they relate to the
policy in an [sic] hostile work environment so he did nothing.” Even if Fielding violated
a policy that required that he report Warren’s conduct to Human Resources, his
conduct was in no way similar to Plaintiff’s. Therefore, Plaintiff and Fielding are not
similarly situated.
4.

Randy Lane

In April 2009, Lane was under investigation for falsifying documents related to
traffic stops. (Doc. 26-1 ¶ 45.) Prior to the conclusion of the investigation, Lane was
granted disability retirement by the Employees’ Retirement System of Georgia. (Id.)
Plaintiff alleges more specifically that Lane’s transgression involved alleging that a

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violator attacked him during a traffic stop and caused injury to his (Lane’s) back. (Doc.
33 ¶ 13.) Per Plaintiff, Lane was granted retirement in lieu of further investigation. (Id.)
First, Plaintiff does not provide any citations to any record evidence to support these
contentions. (See generally id.) And even if he did, Plaintiff’s allegation reflects that Lane
engaged in conduct tantamount to disability fraud (from what this Court can glean),
and while that is conduct considered quite contemptible in this Court’s opinion, it is
misconduct nevertheless distinguishable from Plaintiff’s. The misconduct must be
“sufficiently similar” to make the individuals similarly situated comparators for the
purposes of summary judgment. See Roy v. Broward Sheriff’s Office, 160 F. App’x 873, 876
(11th Cir. 2005). Second, while Plaintiff alleges that Lane was allowed to retire to avoid
the imposition of any discipline, there are numerous factors, to which this Court is not
privy, involved in the retirement process. Additionally, as noted by Defendant, the
Employees’ Retirement System of Georgia is a government entity separate from DPS.
(Doc. 35 at 6.) Therefore, the Court is not in a position to say whether the appropriate
response to Lane’s misconduct was termination without regard for any separate
retirement considerations. Additionally, Plaintiff has not shown that he was eligible, but
was denied the opportunity, to retire for disability or any other reason. Accordingly,
Lane is not a similarly situated comparator.
5.

Keith Collins

Plaintiff alleges that Sergeant First Class Collins, a white male, falsified
investigative reports as well as numerous other department policy violations but was
allowed to remain employed with DPS. (Doc. 33 ¶ 14.) Defendant notes that Collins was

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demoted to Trooper First Class because he mismanaged the evidence room; operated
speed detection devices without certification; falsified paperwork to obtain speed
detection device recertification; authorized inappropriate timesheet changes for a
subordinate; failed to complete a crash report in a timely manner; failed to complete
Administrative License Suspension form; and, solicited a donation from a vendor. (Doc.
26-1 ¶ 47.) Defendant states that an internal investigation was conducted, and that
Collins was truthful at all times during the investigation. (Id.) Collins was eventually
demoted three ranks to a position without supervisory authority because he
demonstrated a lack of supervisory responsibility. (Id.) McDonough states that
dismissal was not warranted because Collins remained honest during the investigation.
(Id.)
After reviewing Collins’s “misconduct,” the Court finds that it is not sufficiently
similar to Plaintiff’s misconduct. Most of Collins’s conduct involved internal financial
and administrative mismanagement. This conduct is not similar to Plaintiff’s act of
falsifying a police report to cover up a potential constitutional violation of a citizen’s
Fourth Amendment rights and subsequently rescinding his confession regarding the
incident. Accordingly, the Court concludes that Collins and Plaintiff are not similarly
situated comparators.
6.

Jonathan Foskey

In March 2011, Trooper First Class Foskey, a white male, received a Notice of
Proposed Adverse Action of Dismissal for submitting two falsified incident reports.
(Doc. 26-1 ¶ 42.) Defendant says that Foskey, a rookie officer, filed and submitted

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corrected incident reports prior to his court testimony. (Id.) Defendant further states
that McDonough decreased the adverse action to a demotion, with salary reduction,
from TFC to Dispatcher because Foskey was truthful when questioned about his
misrepresentations. (Id.) Though he alleges that Foskey was required to adhere to the
same regulations as he, Plaintiff does not deny that Foskey was truthful when
questioned. (See Doc. 33 ¶ 11.) Therefore, although both Foskey and Plaintiff both
engaged in the act of falsifying incident reports, unlike Foskey, Plaintiff conduct was
exacerbated by his failure to unequivocally tell the truth about what took place when he
entered Ms. Lowe’s home on March 9, 2009. As such, the “quality and quantity” of
Plaintiff’s misconduct is not sufficiently identical to Foskey’s in the way Plaintiff
alleges.
7. Richard Peck and Brian Sutherland
In its Motion for Summary Judgment, Defendant discusses the conduct of other
individuals—Richard Peck and Brian Strickland. (Doc. 26-2 at 15-16, 17.) Per Defendant,
in his deposition, Plaintiff referenced these individuals as two white males who were
given several chances while blacks were not. (Id. at 5.) Plaintiff did not, however,
mention these individuals in his Responsive Statement of Facts or in his Brief in
Opposition to Summary Judgment. (See Docs. 31, 33.) Nevertheless, the Court finds that
Peck’s and Sutherland’s misconduct was dissimilar to Plaintiff’s. Peck was
demoted/disciplined for failing to properly follow the chain of custody of trial
evidence, failing to properly supervise employees, and failing to follow DPS procedure
in issuing a driver’s license to a transgendered individual. (Doc. 26-1 ¶ 46.) Strickland

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was suspended without pay and transferred for inappropriate comments in the
workplace. A year after this suspension, Strickland was demoted for inappropriate
comments and use of profanity in the workplace, and then later placed on
administrative leave with pay during an investigation of possible misconduct. (Id. ¶ 48.)
In April 2010, prior to the conclusion of the investigation, Strickland was granted
disability retirement by the Employees’ Retirement System of Georgia. (Id.) Failing to
follow administrative procedures and making in appropriate comments, respectively,
bear no resemblance to falsifying police reports and failing to be truthful about said
falsification. Therefore, the Court concludes that these individuals are not similarly
situated comparators.
Defendant asserts that Plaintiff’s termination was precipitated by his failure to
tell the truth about the March 9, 2009 incident when he was given a final opportunity to
reconcile all of his previous statements. In response, Plaintiff has failed to identify an
individual who was 1) untruthful while engaging in the course of his/her employment
(Plaintiff was untruthful on three occasions to be exact—in his two written statements
and during his polygraph examination), 2) confessed to being untruthful, and then 3)
rescinded that confession when confronted by his superior (thus, being untruthful on a
fourth and final occasion). For this misconduct, Plaintiff has failed to identify someone
who behaved similarly but was disciplined differently. Instead, Plaintiff has merely
argued that white troopers also violated the same basic duties to be truthful and respect
the law. Pointing to a violation of an officer’s basic duties is not, however, sufficient to
meet Plaintiff’s burden to identify a similarly situated comparator. Accordingly,

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Plaintiff has failed to identify a similarly situated comparator, and has therefore failed
to meet his burden of demonstrating a prima facie claim for race discrimination.
B.

42 U.S.C. § 1983 Due Process Claim

Plaintiff has also alleged that his due process rights were violated because he was
not allowed to have legal counsel at his appeals hearing on November 18, 2009, before
the DPS Reviewing Officer regarding his proposed termination. (Doc. 31 at 1.)
Defendant asserts that Plaintiff’s § 1983 claim is not actionable because the Georgia
Department of Public Safety is not a “person” as defined by 42 U.S.C. § 1983 and
because his claim is barred by Eleventh Amendment Immunity. (Doc. 26-2 at 23-24.)
The Court concurs that Plaintiff’s § 1983 action is not actionable against DPS
because “states, state agencies, and state officials acting in their official capacities cannot
be sued under § 1983. McCall v. Dept. of Human Resources, 176 F. Supp. 2d 1355, 1363
(M.D. Ga. 2001) (citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989)).
Moreover, Plaintiff has not alleged that the State of Georgia or DPS has waived its
sovereign immunity, nor is there any evidence of such a waiver. Thus, in the absence of
an allegation that DPS is not considered an “arm of the state,” the Eleventh Amendment
also bars Plaintiff from bringing suit against DPS in federal court under section 1983. See
Taylor v. Dept. of Public Safety, 142 F. App’x 373, 374 (11th Cir. 2005) (affirming district
court’s dismissal of 42 U.S.C. § 1983 action on the grounds that “this case was brought
against state agencies, which are not “persons” for purposes of § 1983 and which enjoy
the same Eleventh Amendment immunity as does the State of Georgia”). Accordingly,

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Defendant is entitled to judgment as a matter of law as to Plaintiff’s 42 U.S.C. § 1983
claim.
CONCLUSION
For the foregoing reasons, Georgia Department of Public Safety’s Motion for
Summary Judgment (Doc. 26) is GRANTED. It is hereby ORDERED AND
ADJUDGED that Plaintiff shall take nothing by his Complaint (Docs. 1, 2), and
JUDGMENT shall be entered in favor of Defendant.
SO ORDERED, this 30th

day of January 2014.

/s/ W. Louis Sands
W. LOUIS SANDS, JUDGE
UNITED STATES DISTRICT COURT

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