Ezell et al v. Darr et al
Filing
72
ORDER granting in part and denying in part 32 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 06/12/2013 (jcs)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
TERRI EZELL, DONNA
and JOAN B. WYNN,
TOMPKINS, *
*
Plaintiffs,
*
vs.
CASE NO. 4:11-CV-93 (CDL)
*
JOHN DARR, Individually and in
his
Official
Capacity
as *
Sheriff of Muscogee County, and
the
COLUMBUS
CONSOLIDATED *
GOVERNMENT
*
Defendants.
*
O R D E R
INTRODUCTION
“If you shoot at a king, you must kill him.” 1
The modern
political version: “Make sure you pick the winner.”
Plaintiffs
Terri Ezell (“Ezell”) and Donna Tompkins (“Tompkins”), Muscogee
County deputy sheriffs, picked their boss, incumbent Muscogee
1
This advice has been written in many forms through the years, but it
has frequently been attributed to Ralph Waldo Emerson who wrote in his
journal in 1843: “Never strike a king unless you are sure you shall
kill him.”
Ralph Waldo Emerson, Journal U, in IX The Journals and
Miscellaneous Notebooks of Ralph Waldo Emerson: 1843-1847, at 15
(William Henry Gilman et al. eds., Belknap Press of Harvard University
Press 1971).
An anecdote cited on occasion by Judge Oliver Wendell
Holmes, Jr. tells the story of a young essayist who mentioned his
essay criticizing Plato to Emerson.
Emerson responded with the
remark, “When you strike at a King, you must kill him.”
Oliver
Wendell Holmes, Ralph Waldo Emerson, in The Writings of Oliver Wendell
Holmes 56 (Riverside Press 1892). Attribution for this phrase,
however, cannot be given exclusively to Emerson. Niccolò Machiavelli
expressed a similar sentiment as far back as 1505 in chapter 3 of The
Prince, paraphrased as “Never do an enemy a small injury.”
Niccolò
Machiavelli, The Prince, in XLIII The World’s Classics 8 (Luigi Ricci
trans., Grant Richards 1903).
County
Sheriff
Ralph
Johnson
(“Johnson”),
when
they
actively
campaigned for him in his reelection bid against challenger John
Darr (“Darr”).
Ezell
and
Johnson lost, and Darr became their new boss.
Tompkins
now
claim
that
shortly
after
Darr
took
office, he retaliated against them for their political support
of Johnson by demoting them.
They also maintain that their
alleged demotions were motivated by their gender.
In addition
to these demotion claims, Ezell contends that she was denied
“comp time” because of her gender, and Tompkins and Plaintiff
Joan B. Wynn (“Wynn”) contend that they were denied a promotion
because of their gender.2
Defendants
move
Plaintiffs’ claims.
for
summary
judgment
as
to
all
of
Defendants’ motion (ECF No. 32) is granted
in part and denied in part as follows.
Public employees do not
forfeit their constitutional rights, but those rights are not
absolute.
Although
the
First
2
Amendment
generally
prohibits
Ezell’s and Tompkins’s First Amendment claims are asserted pursuant
to 42 U.S.C. § 1983 against Columbus Consolidated Government
(“Columbus”) and Darr in his official and individual capacities.
Plaintiffs’ gender discrimination claims are asserted against Columbus
pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e et seq., and against Columbus and Darr, in his
official and individual capacities, pursuant to § 1983 for violations
of the Fourteenth Amendment.
Columbus is a consolidated government comprised of the city of
Columbus, Georgia and Muscogee County, Georgia.
The Court treats
Plaintiffs’ claims against Darr in his official capacity as claims
against Columbus.
Keene v. Prine, F. App’x 575, 578-79 (11th Cir.
2012) (per curiam) (concluding that a Georgia Sheriff is an arm of the
county, not an arm of the state, when making personnel decisions).
Defendants do not suggest that these official capacity claims should
be treated otherwise.
2
discrimination
government
legitimate
based
employers
job
upon
can
political
insist
requirement.
upon
affiliation,
political
Under
our
certain
loyalty
First
as
a
Amendment
jurisprudence, the unique relationship between a sheriff and his
deputies permits such a requirement.
Therefore, to the extent
that Plaintiffs allege that Sheriff Darr retaliated against them
for supporting former Sheriff Johnson, that retaliation does not
violate the First Amendment.
Defendants are entitled to summary
judgment on those claims.
Although the unique relationship between a sheriff and his
deputies may limit deputies’ rights under the First Amendment,
that relationship does not authorize adverse employment actions
motivated by gender.
Because a genuine factual dispute exists
as to whether gender was a motivating factor in Darr’s decision
not to promote Tompkins and Wynn and his decision to deny Ezell
comp
time,
summary
judgment
is
denied
as
to
those
claims.
Defendants, however, are entitled to summary judgment on Ezell’s
and
Tompkins’s
gender-based
demotion/transfer
claims
because
Ezell failed to produce sufficient evidence that gender was a
motivating
factor
in
Darr’s
decision
3
to
transfer
her,
and
Tompkins
cannot
establish
that
her
transfer
was
an
adverse
employment action.3
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
In determining whether a
genuine
Fed. R.
dispute of
material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).
Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant
or necessary to the outcome of the suit.
Id. at 248.
A factual
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
Id.
FACTUAL BACKGROUND
Viewed
in
the
light
most
favorable
to
Plaintiffs,
the
record reveals the following.
Darr was a deputy sheriff under Johnson.
challenge his boss and ran against him in 2008.
He decided to
Darr won the
election and was sworn into office as Muscogee County Sheriff in
January 2009.
Ezell and Tompkins, who had been employed as
3
Ezell and Tompkins do not strongly contest that their Title VII
demotion/transfer claims fail as a matter of law because of their
failure to exhaust administrative remedies.
4
deputy
sheriffs
during
Johnson’s
administration,
publicly
supported Johnson by putting a sign in their yards, attending
campaign events, and sharing their endorsement of Johnson with
other Sheriff’s Office employees.4
Ezell Decl. ¶ 12, ECF No. 50;
Tompkins Decl. ¶ 9, ECF No. 49.
I.
2009 Reorganization
Under
three
Johnson,
main
county
divisions:
jail.
majors;
the
the
Sheriff’s
administration,
Administration
jail
was
Office
headed
and
by
was
operations,
operations
the
organized
jail
were
with
and
the
headed
by
commander.
Those
officers, who were the highest ranking officers in the Sheriff’s
Office, made up the Sheriff’s command staff and closely assisted
the Sheriff with the management and direction of the Sheriff’s
Office.
Johnson’s command staff included Chief Deputy Jimmy
Griffin,
Commander
Ezell
at
the
jail,
Major
Joe
McCrea
in
administration, and Major Troy Culpepper in operations.5
Darr was not satisfied with the organization of the office
or
Johnson’s
command
staff.
Darr
Dep.
45:23-47:19.
He
reorganized the Sheriff’s Office along the following lines of
responsibility:
handled
the
(1) the county jail; (2) administration, which
front
office,
warrants,
4
tracking
registered
sex
Defendants contend that Darr had no specific knowledge about yard
signs, but it is undisputed that Darr believed Ezell and Tompkins
supported Johnson. Darr Dep. 62:25-63:16, 124:8-125:5, ECF No. 45.
5
Employees of the Sheriff’s Office are ranked from lowest to highest
as follows:
correctional officer, deputy, sergeant, lieutenant,
captain, major, commander, chief deputy, and sheriff.
5
offenders,
training,
and
the
budget;
(3)
operations,
which
included patrol, special operations, courts, and investigations;
and (4) professional standards, which was eventually separated
out from administration and included internal affairs.
also replaced Johnson’s command staff.
Darr
Griffin retired, McCrea
was terminated, Ezell was transferred to Recorder’s Court, and
Culpepper
was
transferred
duties assigned to him.6
promoting
Randy
John
to
from
major,
the
from
lieutenant
and
jail
without
any
specific
Darr formed a new command staff by
Fitzpatrick
Robertson
captain
to
Dane
lieutenant
to
to
Mike
Collins
major,
from
chief
deputy,
Massey
lieutenant
to
from
jail
commander.
In addition to the complete overhaul of the command staff,
Darr made other employment changes based
on his belief that
significant operational changes were necessary.
wanted
to
improve
communications
among
He specifically
Sheriff’s
Office
employees and establish a renewed focus on the Office’s core
mission—the jail.
Id.
As part of this reorganization, Darr
promoted Larry Tippins, Gifford Anthony, Michael Farley, Brad
Hicks, and Steven Sikes from sergeant to lieutenant; promoted
Rusty Blair, Thomas Reavis, and Charles Pickett to sergeant;
6
Culpepper also thought he was being retaliated against, and he
immediately complained to the new chief deputy about the reassignment.
Later that year, he was transferred to operations and was eventually
placed in charge of the office of professional standards.
He is
currently a member of Darr’s command staff.
6
transferred Sgt. Ron Trotter from an administrative position at
the
jail
to
Tompkins,
jail;
Lt.
a
squad
position
at
the
jail;
transferred
Pamela Brown, and Sgt. Thomas Mitchell
transferred
Sgt.
Grace
Boone
Black
from
the
Lt.
to the
jail
to
administration; and hired Tabitha Massey as an “administrative
coordinator.”
Defs.’ Mot. for Summ. J. Attach. 3, Darr Aff. ¶
8, ECF No. 32-3; Darr Dep. 171:17-178:17; Darr Dep. Ex. 35,
Proposed Reorganization Spreadsheet, ECF No. 53-2 at 20.
Although Ezell and Tompkins lost no pay or benefits as a
result
of
Darr’s
reorganization,
transfers to be demotions.
they
both
considered
their
They also maintain that Darr demoted
them in retaliation for their political support of Johnson.
A.
Ezell’s Employment and Transfer
Ezell was hired as a correctional officer in 1983 and was
promoted to deputy sheriff in 1985, sergeant in 1987, lieutenant
in 1992, and captain in 1993.
at that time.
She was the only female captain
She was the first woman to be promoted to major
and became the jail warden in 2000.
Ezell became commander in
2008 and began earning 5% more than majors in the same pay
grade.
As
jail
commander,
Ezell
was
third
in
command
on
Johnson’s command staff and supervised approximately 250 people.
Ezell Decl. ¶ 10.
Ezell considered running the jail one of the
most important jobs in the Sheriff’s Office.
44:1, ECF No. 39.
7
Ezell Dep. 43:24-
1. Replacement of Ezell as Jail
Transfer to Recorder’s Court
Commander
and
Upon taking office, Darr replaced Ezell with Collins as
jail commander.
Collins has worked for the Sheriff’s Office
since 1993, has a master’s degree, and had worked with Darr as a
lieutenant squad commander at the jail.
Darr explained that he
decided to replace Ezell as jail commander because during the
time he worked as a sergeant at the jail, he witnessed several
issues that needed improvement for which Ezell was ultimately
responsible.
communication
Those
among
issues
the
included
staff
and
a
a
lack
lack
of
of
effective
progress
in
addressing problems at the jail covered by a consent order with
the Department of Justice.
Darr Aff. ¶ 4.
Darr believed that
Collins was better-suited to effectuate the changes at the jail
because of Collins’s demonstrated organization, communication,
and supervisory skills, which Darr had personally observed when
he and Collins worked together at the jail.
Id. ¶ 5.
Upon deciding that Ezell would no longer be jail commander,
Darr transferred her to Recorder’s Court to handle the duties of
the clerk for the Recorder’s Court judge.
previously
held
by
a
sergeant.
In
her
That position was
new
position,
Ezell
primarily performed clerical duties related to the Recorder’s
Court
docket,
employees
under
although
her
she
also
supervision.
8
had
approximately
Recorder’s
twelve
Court
has
jurisdiction over traffic citations, city ordinance violations,
and
preliminary
cases.
detention/bond
hearings
in
certain
criminal
The Recorder’s Court judge sets bail, issues warrants,
and collects fines/bonds.
Notwithstanding the importance of Recorder’s Court and even
though
she
experienced
no
change
in
pay
or
benefits,
Ezell
considered her transfer and the accompanying change of duties to
be a demotion.
She points to the following evidence to show
that
the
others
demotion.
in
Sheriff’s
Office
also
considered
it
a
A Personnel Action Form identifies the transfer as a
change from jail commander to department major.
card identifies her as a major.
Ezell’s new ID
Chief Deputy Patrick, who is
the highest ranking person in the Office just below the Sheriff,
once referred to her as “Major” Ezell at a meeting.
now
considered
a
“major”
and
not
a
“commander”
She is also
by
other
employees in the Office who have referred to her as Major or Ms.
Ezell.
the
Shortly after her transfer, Ezell reported directly to
chief
deputy,
but
she
was
excluded
from
command
staff
meetings with the exception of one meeting that specifically
related
to
the
budget
for
Recorder’s
Court.
Ezell
also
complains that her communications radio was taken from her at
Darr’s request.
She believed she needed the radio for her own
safety but acknowledges that she has not shared this concern
with anyone but Culpepper.
Ezell Dep. 46:21-51:1.
9
The Sheriff relinquished control of Recorder’s Court Clerk
to the City Manager in 2010, which had the effect of moving
Ezell from a law enforcement employee to a general government
employee supervised by the Deputy City Manager.
After she came
under the supervision of the City Manager’s Office, Ezell was
prevented from wearing her uniform, and she no longer has any
law enforcement responsibilities.
As a result of the transfer,
she feels that she has suffered humiliation and loss of prestige
and respect.
Id. at 140:23-141:10; Ezell Decl. ¶ 15.
2. Denial of Comp Time
Ezell also claims that she is not allowed to earn and use
comp
time
even
though
Darr
has
permitted
male
employees,
including Chief Deputy Fitzpatrick, Major Robertson, and Major
Culpepper,
227:17.
to
accrue
and
use
comp
time.
Darr
Dep.
226:17-
Defendants respond that Ezell has been an “exempt”
employee under the Fair Labor Standards Act since being promoted
to lieutenant in 1992, and therefore she is not entitled to comp
time.
Defendants dispute that Darr intentionally allowed other
exempt employees to accrue comp time, but they do acknowledge
that some employees may have done so erroneously.
Ezell points
to Defendants’ records that show these male deputies’ comp time
totals rising and falling since Darr became Sheriff, suggesting
that
some
exempt
accrue comp time.
male
employees
were
in
fact
continuing
to
Ezell Decl. Ex. 1, Time and Pay Records, ECF
10
No. 50-1.
Ezell filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”) on September 28, 2010
charging
that
she
experienced
gender
discrimination
between
January 1, 2010, and May 1, 2010.
B.
Tompkins’s Employment and Transfer
Tompkins has worked for the Sheriff’s Office since 1984.
She
started
as
a
clerk
in
Recorder’s
Court
correctional officer at the jail in 1993.
1994
to
deputy
eventually
rose
sheriff
in
to
rank
the
the
of
Patrol
and
became
a
She was promoted in
Division,
patrol
where
sergeant
in
she
2000.
Tompkins became the front desk sergeant a year or two later and
was reassigned to Recorder’s Court at the end of 2003.
In 2007,
she was promoted to lieutenant of internal and legal standards.
In that position, she reported to the Sheriff or Chief Deputy.
She
was
responsible
for
community
relations,
and
she
shared
responsibility with Captain Larry Tew for all internal affairs
investigations, review of use of force reports, assisting with
litigation
matters,
responding
to
Georgia
Open
Records
Act
requests, sitting on boards, state certification for policy and
practices,
accreditation,
budgeting,
and
the
Guardian
newsletter.
Tompkins’s position was eliminated by Darr as part of his
reorganization, and she was transferred to a lieutenant squad
commander
position
at
the
jail.
11
Tompkins
considers
this
transfer to be a demotion and contends that her old position was
not
eliminated
for
legitimate
reasons
but
was
eliminated
to
remove her from the duties and responsibilities she previously
had
as
a
lieutenant
in
administration.
Darr
claims
he
was
unaware of Tompkins’s role in budgeting, internal affairs, or
citizen complaints before deciding to eliminate her position.
Darr
Dep.
143:14-146:10,
75:25-76:15,
ECF
No.
157:15-24,
38.
Under
158:17-22;
Darr’s
Tompkins
reorganization
Dep.
plan,
internal affairs was part of the operations division.
Budgeting
was
and
handled
records
by
matters
138:11-23.
Lieutenant
were
Anthony,
and
litigation
handled by Captain Tew.
Tompkins Dep.
Darr thought citizen complaints would “eventually
get turned over to whoever was over operations.”
27:10-20.
open
No
one
took
over
the
agency
Darr Dep.
certification
or
newsletter duties performed by Tompkins because Darr decided to
discontinue
regarding
those
internal
activities.
affairs
and
Tompkins’s
use
eventually assigned to Major Culpepper.
of
responsibilities
force
reports
were
Culpepper Dep. 67:22-
68:12, 73:21-74:7, ECF No. 36; Tompkins Decl. ¶ 15.
As lieutenant squad commander at the jail, Tompkins has
retained significant responsibilities; they are just different
than her previous duties.
She is now responsible for overseeing
a squad of approximately thirty-six officers and four sergeants,
and her duties include
maintaining security at the jail and
12
dealing
She
with
works
other
disciplinary,
twelve-hour
court,
rotating
weekends, and holidays.
and
shifts
employee
including
issues.
nights,
Tompkins has kept her take-home vehicle
privileges and has suffered no loss of pay, health insurance, or
retirement
benefits.
It
is
undisputed
that
Darr
considers
Tompkins’s position to be “very, very important.”
158:23-159:6.
Darr’s
Darr Dep.
In fact, Tompkins replaced Fitzpatrick, who was
lieutenant
squad
commander
at
the
jail
before
Darr
promoted him to chief deputy.
Nevertheless, Tompkins views the transfer as a demotion.
She testified that some Sheriff’s Office employees regard being
transferred to the jail as discipline or punishment.
Tompkins
Dep. 79:11-21; Fitzpatrick Dep. 80:8-20, ECF No. 37; Ezell Dep.
116:13-117:7; Wynn Dep. 172:12-24, ECF No. 40; Culpepper Dep.
42:9-15; Brown Dep. 34:19-23, 79:15-16, 80:20-81:8, ECF No. 42;
Tompkins Decl. ¶ 12.
reorganization,
the
Tompkins notes that as part of Darr’s
following
transferred to the jail:
male
lieutenants
avoided
being
Mike Dailey, David Mack, Ricky Hinton,
and Randy Robertson, who was promoted to major.
Tompkins Decl.
¶ 13.
II.
Denial of Captain Promotion—Tompkins and Wynn
In
April
2010,
Captain
Leroy
Mills
retired,
creating
a
vacancy for the position of captain of administration at the
jail.
Both Tompkins and Wynn applied for the job.
13
Two other
lieutenants
with
relatively
long
tenures
in
the
Sheriff’s
Office, William Drury (“Drury”) and Charles Shafer (“Shafer”),
also applied.
Fitzpatrick Dep. 34:9-35:6.
candidate’s
relevant
experience,
education.
He ultimately
years
selected Shafer
Darr considered each
of
service,
and
based on his
work
history and experience with jail administration as a lieutenant
under
Captain
Mills.
Darr
Fitzpatrick Dep. 34:23-35:3.
Dep.
215:16-21,
218:21-220:20;
Tompkins and Wynn claim they were
clearly more qualified and that they were denied the promotion
because of their gender.
The captain position included responsibility for overseeing
the
budget,
outside
grievances,
agencies,
personnel
facilities
issues,
communication
maintenance,
classification, processing, and transportation.
and
with
inmate
Tompkins Dep.
124:1-12; Tompkins Decl. ¶ 21; Wynn Decl. ¶ 12, ECF No. 51.
The
qualifications of the four applicants are as follows.
Shafer started working for the Sheriff’s Office in 1983 and
was promoted to deputy sheriff and then sergeant in 1984.
was promoted to lieutenant in 1999.
He
Shafer has spent virtually
his entire career working at the jail, including more than ten
years as a lieutenant handling facilities management at the jail
under
Captain
Mills.
Shafer
completing his associate’s degree.
14
is
several
units
short
of
In addition to her work experience which has previously
been described in this Order, Tompkins has a master’s degree in
public administration.
She has also attended Command College.
Wynn also has a master’s degree and has been to Command
College.
She was hired as a jailor in 1986 and was promoted to
deputy sheriff in 1988.
Wynn resigned in 1990 but was rehired
as a deputy in administration in 1994.
Wynn was promoted to
sergeant in 1999 and was transferred to the jail.
period
of
time,
she
worked
in
the
front
For a short
office
performing
administrative duties, but she primarily worked on the squad at
the jail.
She was promoted to lieutenant squad commander in
2002.
Drury obtained a bachelor’s degree in education in 1982 and
was an educator until the Sheriff’s Office hired him as a jailor
in 1984.
Drury became a deputy sheriff in the uniform division
that same year.
his
master’s
division
until
He was promoted to sergeant in 1993, obtained
degree
he
in
was
1997,
and
promoted
to
remained
in
lieutenant
the
in
uniform
2002
as
a
lieutenant squad commander at the jail.
The four candidates were interviewed one after the other in
joint
sessions
Collins,
and
by
Darr,
Majors
Chief
Deputy
Robertson
and
Fitzpatrick,
Massey.
Darr
Commander
led
the
subsequent discussion to determine who was the best individual
for
the
position,
but
he
did
not
15
make
his
preference
clear
during that discussion.
Fitzpatrick Dep. 37:4-7.
Fitzpatrick
opined that a woman should be chosen, but he felt that all four
candidates were qualified.
After
Shafer
was
promoted
to
the
position,
Collins
transferred Wynn to work under Shafer where she performed some
of
the
administrative
Captain Mills.
responsibilities
formerly
handled
by
Those responsibilities included overseeing the
jail administrative office, the court detail and trip detail
officers, and the employees handling accounts, classification,
and timekeeping.
According to Wynn, Mills told her that Shafer
“was not qualified” to perform these tasks.
Wynn
also
consisted
only
2-5%
stated
that
primarily
of
of
the
Shafer’s
reviewing
administrative
previous
work
crew
captain
Wynn Decl. ¶ 16.
experience,
orders,
duties.
which
comprises
Id.
¶
17.
Collins explained that he transferred Wynn to work under Shafer
in jail administration because he thought Wynn would prefer to
work on a Monday-Friday schedule rather than in her position as
lieutenant
squad
commander,
involving
rotating days and nights every ten weeks.
twelve-hour
shifts,
Collins Aff. ¶ 9, ECF
No. 32-5.
Tompkins and Wynn filed Charges of Discrimination alleging
gender discrimination with the EEOC on September 28, 2010.
16
III. Employment Policies and Final Decisionmaking
The Sheriff has the final word on all employment decisions
in
the
Sheriff’s
Office
except
for
terminations,
suspensions of more than one day, and fines.
demotions,
All Sheriff’s
Office employees have been placed under Columbus’s merit system,
so
an
aggrieved
suspensions,
employee
and
fines
may
to
appeal
Columbus’s
terminations,
Personnel
demotions,
Review
Board,
which can reverse these employment decisions.
Columbus
has
personnel
policies
prohibiting
harassment,
discrimination, and retaliation on the basis of race, gender,
and any other legally protected category; these policies apply
to employees of the Sheriff’s Office.
Barron Aff. ¶¶ 2-3, ECF
No. 32-4; Barron Dep. 70:13-20, 76:20-25, ECF No. 35; Ezell Dep.
34:2-11;
Tompkins
Dep.
65:12-66:15;
Wynn
Dep.
83:14-84:4.
Columbus’s Fair Treatment Policy provides a formal method for
employees
to
“appeal
personnel
actions
relating
to
demotion,
suspension, fines, dismissal, alleged discrimination, or unfair
treatment.”
Tompkins Dep. Ex. 7, Affirmative Action
Treatment Policy, ECF No. 54-1 at 15.
unfair
treatment
by
filing
a
Fair
–
Fair
Employees can appeal any
Treatment
Report
for
independent review by the Human Resources Director for Columbus.
The
Human
Resources
Director,
however,
does
not
have
the
authority to compel an elected official, such as the Sheriff, to
correct employee grievances that do not rise to the level of
17
termination, demotion, suspension, or fines, and there is no
appeal to the Personnel Review Board for these less serious
employee grievances.
Barron Dep. 78:1-80:3.
Instead, the Human
Resources Director is left with the tepid tool of mediation on
behalf
of
the
employee
to
persuade
the
elected
official
to
change the decision, with the assistance of the City Attorney if
necessary.
It
is
suspension,
clear
and
that
for
fines,
claims
the
of
termination,
Sheriff
is
not
demotion,
the
final
decisionmaker for Columbus—the Personnel Review Board is.
But
for all other employment actions, the Sheriff acts as the final
decisionmaker for Columbus.7
DISCUSSION
In an effort to minimize duplication, the remainder of this
Order is organized as follows.
First Amendment claims.
Section I addresses Plaintiffs’
Section II addresses Plaintiffs’ gender
discrimination claims and is subdivided as follows.
II.A
disposes
of
some
of
Plaintiffs’
Title
Subsection
VII
gender
discrimination claims because of Plaintiffs’ failure to exhaust
administrative
remedies.
Subsection
II.B
discusses
whether
gender was a motivating factor as to the employment decisions
complained of by Plaintiffs.
Subsection II.C.1 addresses Darr’s
7
Columbus does not argue that the Sheriff does not act on behalf of
Columbus when he makes employment decisions.
Columbus simply
maintains that the Sheriff is not the final decisionmaker because his
employees are under the Columbus Merit System.
18
qualified
immunity
defense
Amendment § 1983 claims.
Columbus’s
liability
as
to
Plaintiffs’
Fourteenth
Finally, Subsection II.C.2 discusses
under
§
1983
for
Plaintiffs’
Fourteenth
Amendment gender discrimination claims.
I.
First Amendment § 1983 Claims
Ezell and Tompkins assert § 1983 claims against Columbus
and Darr for violations of the First Amendment.
they
contend
that
Darr
transferred
them
in
Specifically,
retaliation
for
exercising their First Amendment rights to support Johnson in
the 2008 election.
The Court first addresses whether political loyalty is an
appropriate
Muscogee
requirement
County
deputy
for
the
effective
sheriff.
If
performance
it
is,
the
of
a
adverse
employment actions complained of by Ezell and Tompkins do not
violate the First Amendment.
See Branti v. Finkel, 445 U.S.
507, 517-18 (1980) (noting that political affiliation “may be an
acceptable
requirement
employment”).
for
some
types
of
government
The Eleventh Circuit has held that, under Alabama
and Florida law, such loyalty is an appropriate requirement for
deputy sheriffs.
In Terry v. Cook, the Eleventh Circuit held
that
the
“loyalty
policies
he
appropriate
deputy
to
seeks
to
requirement
sheriff.”
866
individual
sheriff
and
the
implement
through
his
office
for
F.2d
the
effective
373,
377
19
(11th
goals
is
performance
Cir.
1989).
of
and
an
a
In
finding
that
the
Alabama
sheriff
did
not
violate
the
First
Amendment when he refused to reappoint those deputy sheriffs who
did
not
support
relationship
his
between
election,
a
the
sheriff
court
and
his
explained
that
deputies
the
required
“closeness and cooperation” justifying the need for a sheriff’s
“absolute
authority”
support him.
Id.
to
hire
and
fire
based
on
who
did
not
The court further noted that a deputy sheriff
functions as the sheriff’s general agent and that a sheriff can
be held liable for the actions of his deputy sheriffs.
Cutcliffe
v.
Cochran,
the
Eleventh
Circuit
found
In
Terry
controlling and affirmed summary judgment in favor of a Florida
sheriff who terminated deputies who had supported his opponent
in the election.
in
Silva
117 F.3d 1353, 1357-58 (11th Cir. 1997).
v. Bieluch, the Eleventh Circuit
And
held that because
Terry established that “personal loyalty to the sheriff is an
appropriate
requirement
for
the
effective
performance
of
a
deputy sheriff,” a Florida sheriff may promote and demote in
addition to hire and fire based on loyalty.
351 F.3d 1045, 1047
(11th
has
Cir.
2003).
The
Eleventh
Circuit
not
determined
whether Georgia Sheriffs are likewise entitled to this absolute
loyalty that shields them from these types of First Amendment
claims, but the Court finds the rationale and holdings of these
cases binding here.
20
Plaintiffs
appropriate
argue
that
requirement
political
for
the
loyalty
Sheriff
of
cannot
Muscogee
be
an
County,
Georgia because all employees of the Sheriff’s Office have been
placed within the protection of the Columbus merit system.
appears
well
settled
under
Georgia
law
that
employees
of
It
a
Sheriff who are under a merit system plan are entitled to all
rights provided for under that plan.
See, e.g., Wayne Cnty. v.
Herrin, 210 Ga. App. 747, 753, 437 S.E.2d 793, 799 (1993); see
also Hill v. Watkins, 280 Ga. 278, 278-79, 627 S.E.2d 3, 4
(2006).
Therefore, if the merit system permits employees to
appeal employment decisions to a personnel review board, the
Sheriff is bound by that process.
This does not mean, however,
that a merit system plan creates new First Amendment rights that
do not exist without the plan.
It also does not eliminate the
nature of a deputy sheriff position and the unique relationship
between
deputies
loyalty
a
necessary
decisions.
considers
and
the
sheriff
which
consideration
for
may
make
certain
political
employment
And it certainly does not mean that a sheriff who
such
circumstances
has
violated
a
deputy’s
First
Amendment rights.
It simply means that the deputy sheriff must
be
rights
afforded
the
provided
under
the
merit
system
consistent with due process considerations.
Plaintiffs argue that by placing Sheriff’s Office employees
under the Columbus merit system, Columbus and the Sheriff have
21
determined
that
requirement
political
for
any
loyalty
employee’s
is
not
effective
an
appropriate
job
performance.
Plaintiffs point to the following language from the Columbus
Ordinance:
“this
government
shall
be
an
equal
employment
opportunity employer, and . . . applicants and employees shall
not be discriminated against because of race, color, creed, sex,
political
affiliations,
age,
physical
disability,
origin, or any other non[-]merit factor.”
of
Ordinances
§
16B-1-2(b).
The
national
Columbus, Ga., Code
Court
finds
Plaintiffs’
interpretation of this ordinance to be overbroad.
The clear
purpose of this ordinance is to express Columbus’s confirmation
that it is an equal employment opportunity employer and that it
intends to comply with anti-discrimination laws.
Even if the
ordinance somehow established a “right” to be free from “nonmerit” based employment decisions, that right must be vindicated
through the merit system process not via the First Amendment.
The
Columbus
City
Council
certainly
cannot
amend
the
United
States Constitution notwithstanding counsel’s creative argument
that they have done so.
The Court rejects Plaintiff’s contention that the Sheriff
has expanded First Amendment protections to his deputies beyond
those
available
certainly
does
under
not
well-established
state
or
imply
law.
that
The
the
ordinance
Sheriff
has
determined that political loyalty is not a necessary requirement
22
for
any
position
in
his
office.
To
determine
whether
the
position of deputy sheriff is a position for which the Sheriff
may insist upon political loyalty without violating the First
Amendment, the Court must examine the duties of the office of
deputy sheriff and determine whether they are the same duties to
be performed by the Sheriff.
1335,
1344
“categorical”
(11th
Cir.
Underwood v. Harkins, 698 F.3d
2012)
approach).
There
(expressly
is
no
adopting
genuine
dispute
this
that
Georgia sheriffs and their deputies share the same type of close
relationship shared by Alabama sheriffs and their deputies as
described in Terry.
See O.C.G.A. § 15-16-10 (setting forth a
sheriff’s duties); Veit v. State, 182 Ga. App. 753, 756, 357
S.E.2d 113, 115 (1987) (“A deputy sheriff is an agent of the
sheriff and in effecting the proper discharge of his duties is
empowered with the same duties and powers.”).
For the same
reasons that political loyalty is a legitimate requirement for
the effective performance of an Alabama deputy’s job, the Court
finds
it
Georgia
is
a
deputy
concerned.
legitimate
sheriffs
Consequently,
requirement
insofar
under
as
for
the
Terry,
Muscogee
First
Darr
did
County,
Amendment
not
is
violate
Plaintiffs’ First Amendment rights when he transferred them.8
8
Even if the Court applied the “actual job duties test” advocated by
the dissent in Underwood, 698 F.3d at 1346 (Martin, J. dissenting),
the Court would find as a matter of law that the actual job duties
performed by Plaintiffs were such that political loyalty is an
appropriate requirement for the effective performance of their
23
The Court makes no determination today as to whether a
decision by Darr to terminate or demote a deputy sheriff because
of
a
lack
of
political
loyalty
could
be
Personnel Review Board under the merit system.
reviewed
by
the
The Court simply
holds that the First Amendment does not tie the hands of the
Sheriff.
Moreover, Columbus’s expression of a general policy
that it is an equal opportunity employer does not convert a
constitutional employment action into an unconstitutional one.
See
Silva,
351
F.3d
at
1047-48
(addressing
the
effect
of
a
Florida county merit system on the plaintiffs’ procedural due
process claims but still applying Terry and Cutcliffe to the
plaintiffs’ political patronage claims).
While the Sheriff may
be constrained by the terms of the merit system and due process
considerations, he is not constrained by the First Amendment for
employment decisions based on a deputy’s lack of loyalty.
Under Terry, Darr did not violate Ezell’s and Tompkins’s
First Amendment rights.
The fact that Ezell and Tompkins have
certain rights under the Columbus merit system does not change
positions.
Darr ran against the incumbent sheriff to change the
direction of the office.
Ezell was a member of the incumbent’s
command staff, his number three person.
A new sheriff certainly
should be able to expect to fill that position with a person he can
trust unconditionally.
Tompkins, while not a member of the command
staff, was also directly involved in the administration and direction
of the Sheriff’s Office.
Darr should be able to have a person
handling those duties who he can trust to implement his vision for the
Sheriff’s Office.
Darr was elected by the citizens to establish the
direction of the Sheriff’s Office and manage it. Our First Amendment
jurisprudence clearly holds that he should be able to surround himself
with deputies at the top of his organization who share his vision.
24
this conclusion.
For these reasons, Defendants are entitled to
summary judgment on Plaintiffs’ First Amendment claims.
II.
Gender Discrimination Claims
Although a sheriff’s employment decisions may be motivated
by
political
loyalty
without
running
afoul
of
the
First
Amendment, they may not generally be motivated by gender without
violating
Title
VII
and
Fourteenth Amendment.
the
Equal
Protection
clause
of
the
In support of their Title VII claims and
their Fourteenth Amendment gender discrimination claims brought
pursuant
to
§
1983,
Plaintiffs
maintain
that
gender
was
a
motivating factor in Darr’s decisions to: (1) transfer Ezell
from jail commander to clerk in Recorder’s Court; (2) transfer
Tompkins
from
lieutenant
of
internal
and
legal
standards
in
administration to lieutenant squad commander at the jail; (3)
deny
the
promotion
promotion
of
Wynn
of
to
Tompkins
captain;
earning and using comp time.9
and
Tompkins
failed
to
to
and
captain;
(5)
(4)
prohibit
deny
Ezell
the
from
Defendants respond that (1) Ezell
exhaust
their
administrative
remedies
under Title VII for their transfer claims; (2) gender was not a
motivating factor in any of these decisions, and even if it was,
9
In response to Defendants’ Motion for Summary Judgment and Statement
of Material Facts, Plaintiffs failed to present any arguments as to
any separate claim based on (1) Wynn’s transfer to an administrative
position at the jail in 2010, (2) Tompkins’s supervisor’s instruction
that she not to go to Recorder’s Court except on official business,
and (3) the transfer of Recorder’s Court to the City Manager’s Office.
As such, these claims are deemed abandoned. Resolution Trust Corp. v.
Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en banc).
25
Darr would have made the same decision for non-discriminatory
reasons;
(3)
the
transfers
of
Ezell
and
Tompkins
were
not
adverse employment actions and thus not actionable under Title
VII or § 1983; (4) Darr is entitled to qualified immunity as to
Plaintiffs’ claims against him in his individual capacity; and
(5) Columbus is not liable under § 1983 because Darr was not the
final
decisionmaker
Plaintiffs’
claims
for
the
against
employment
Columbus
decisions
upon
which
based.
The
Court
are
addresses each of these issues in turn.
A.
Failure to Exhaust Administrative Remedies under Title
VII
Defendants
argue
transfer/demotion
that
claims
are
Ezell’s
not
and
Tompkins’s
actionable
under
Title
VII
because they occurred more than 180 days prior to Ezell’s and
Tompkins’s September 2010 Charges of Discrimination.
Title VII
requires plaintiffs to file charges of discrimination with the
EEOC within 180 days after the allegedly discriminatory act(s)
occurred.
Tompkins
42
U.S.C.
concede
administrative
§ 2000e-5(e)(1).
that
remedies
they
with
failed
regard
to
Because
to
their
Ezell
exhaust
January
and
their
2009
transfers, Pls.’ Resp. in Opp’n to Defs.’ Mot. for Summ. J. 12
n.13, ECF No. 46, Defendants are entitled to summary judgment as
26
to these Title VII claims.10
This ruling does not affect Ezell’s
and Tompkins’s Fourteenth Amendment § 1983 claims arising from
these transfers.
B.
Gender as a Motivating Factor, Adverse
Actions, and the “Same Decision Defense”
To
prevail
discrimination
on
claims
their
remaining
against
Columbus
Title
and
§
Employment
VII
gender
1983
gender
discrimination claims against Darr and Columbus, Plaintiffs must
first
prove
that
gender
was
a
motivating
factor
in
Darr’s
employment decisions and that those decisions resulted in an
adverse employment action.
Plaintiffs rely on circumstantial
evidence to prove that gender was a motivating factor in Darr’s
decisions,
so
the
Court
will
use
the
familiar
framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) and Texas Department of Community Affairs v. Burdine, 450
U.S. 248 (1981), which applies in both Title VII and § 1983
gender discrimination cases.
Underwood v. Perry Cnty. Comm’n,
431 F.3d 788, 793-94 (11th Cir. 2005) (per curiam).
Under this
framework, the Court must first determine whether the plaintiff
has made out a prima facie case.
case, the plaintiff must show,
10
To make out a prima facie
among other things,
that she
In their reply brief, Defendants asserted that Ezell failed to
exhaust her administrative remedies regarding her comp time claim
because her Charge of Discrimination did not complain of any issues
with her comp time.
Because this argument relies on an analysis of
the Charge itself, a document which the parties did not point to and
which does not appear to be in the present record, the Court declines
to address the argument at this stage of the proceedings.
27
suffered an adverse employment action.
facie
case
exists,
the
burden
Id. at 794.
shifts
to
the
If a prima
defendant
to
articulate a non-discriminatory reason for taking the complained
of employment action.
Id.
If the defendant meets this burden,
the burden shifts to the plaintiff to create a genuine factual
dispute as to whether defendant’s reasons are a pretext for
discrimination.
Id.
Even if gender were a motivating factor, Defendants can
escape all liability for the § 1983 claims and liability for
damages on the Title VII claims if they can establish that Darr
would
have
reasons.
made
the
same
decisions
for
non-discriminatory
See 42 U.S.C. § 2000e-5(g)(2)(B) (providing that if a
Title VII defendant can demonstrate that he “would have taken
the
same
factor,
action
the
in
court
absence
.
.
.
of
the
impermissible
motivating
shall
not
award
or
damages
issue”
certain equitable relief); Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 287 (1977) (placing the burden on
the defendant to show by a preponderance of the evidence that it
would
have
reached
unconstitutional
the
motivating
same
factor);
decision
Foy
v.
despite
Holston,
94
the
F.3d
1528, 1534 (11th Cir. 1996) (noting that Mt. Healthy establishes
that
a
decision
motivated
by
discriminatory
reasons
is
not
unlawful for § 1983 purposes if the official can show that he
28
would
have
made
the
same
decision
even
if
he
lacked
discriminatory intent).
1. Failure to Promote Tompkins or Wynn to Captain
Both
Tompkins
and
Wynn
claim
that
they
promotion to captain because of their gender.
were
denied
a
To establish a
prima facie failure to promote claim, a plaintiff must show “(1)
she belonged to a protected class, (2) she was qualified for and
applied for the position, (3) despite [her] qualifications, she
was rejected, and (4) the position was filled with an individual
outside the protected class.”11
Springer v. Convergys Customer
Mgmt. Grp., Inc., 509 F.3d 1344, 1347 n.2 (11th Cir. 2007) (per
curiam).
There is no dispute that Tompkins and Wynn belong to a
protected group, that they applied for and were qualified for
the promotion, that neither received the promotion, and that
Shafer, a male, was promoted to the captain position.
burden
shifts
nondiscriminatory
to
Defendants
reason
for
to
articulate
promoting
Shafer
a
Thus, the
legitimate
instead
of
Tompkins or Wynn.
Darr states that his decision to promote Shafer instead of
Tompkins or Wynn was based on the fact that Shafer was the only
11
Some Eleventh Circuit cases have articulated the fourth prong
differently as “(4) that other equally or less-qualified employees
outside her class were promoted.” Brown v. Ala. Dep’t of Transp., 597
F.3d 1160, 1174 (11th Cir. 2010). In Walker v. Mortham, the Eleventh
Circuit addressed the issue and specifically held that a plaintiff
need not prove relative qualifications at the prima facie stage. 158
F.3d 1177, 1193 (11th Cir. 1998). Therefore, the Court will address
that evidence during subsequent stages of its analysis.
29
candidate who had experience in jail administration—facilities
maintenance in particular—and that he was the only candidate who
had been working in that area for years under the captain he was
seeking to replace.
Given these legitimate non-discriminatory
reasons for Darr’s promotion of Shafer, Plaintiffs must point to
sufficient evidence creating a factual dispute as to whether
these proffered reasons were pretext for discrimination in order
to avoid summary judgment.
A plaintiff may demonstrate pretext
through “such weaknesses, implausibilities, inconsistencies or
contradictions in [the defendant’s] proffered legitimate reasons
for its actions that a reasonable factfinder could find them
unworthy of credence.”
Id. at 1348.
A plaintiff cannot prove
pretext simply “by showing that [s]he was better qualified than
the [person] who received the position [s]he coveted.”
Id. at
1349 (second alteration in original) (internal quotation marks
omitted).
between
Rather, a plaintiff must show that the disparities
their
significance
impartial
“qualifications
that
no
judgment,
reasonable
could
have
were
of
person,
chosen
such
in
the
weight
the
and
exercise
candidate
selected
over the plaintiff.”
Id. (internal quotation marks omitted).
plaintiff
prove
evidence
can
that
also
the
discrimination.
judgment
if
she
decision
A
pretext
was
plaintiff
presents
in
will
by
fact
A
circumstantial
motivated
always
circumstantial
30
other
of
by
survive
evidence
gender
summary
that
would
allow a jury to infer a defendant acted with discriminatory
intent.
Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328
(11th Cir. 2011).
If the record, viewed in the light most
favorable to the plaintiff, “presents a convincing mosaic of
circumstantial evidence” that raises a reasonable inference that
the
employer
judgment
is
discriminated
not
against
appropriate.
Id.
the
plaintiff,
(internal
summary
quotation
marks
omitted).
Here,
Plaintiffs
point
to
sufficient
evidence
to
raise
factual disputes as to whether Defendants’ reasons were pretext
for intentional discrimination. 12
The record shows that Darr
considered
relevant
tenure,
promotion decision.
education,
and
experience
in
his
While it is undisputed that Shafer started
working at the Sheriff’s Office a year before Tompkins and that
he has the most experience as a deputy and lieutenant in jail
administration,
Tompkins
and
Wynn
have
each
worked
for
the
Sheriff’s Office more than twenty years in various capacities
and also have experience relevant to the position.
administrative
experience
with
budgeting
and
Tompkins has
working
with
outside agencies, and Wynn temporarily had administrative duties
12
Plaintiffs also point to testimony that Chief Deputy Fitzpatrick
recommended to Darr that “a female needed to be promoted” to the
captain position as evidence.
Fitzpatrick Dep. 33:22-34:5.
The
comment makes no reference to the qualifications of Tompkins, Wynn, or
Shafer. Declining to follow a recommendation that is based on gender
rather than actual qualifications cannot constitute evidence of gender
discrimination.
31
at the jail.
Also, Tompkins and Wynn have considerably more
education than Shafer.13
Furthermore, the evidence shows that after Shafer received
the
promotion,
Wynn
was
assigned
to
handle
some
of
the
administrative responsibilities that Shafer was not qualified to
handle.
Darr’s
This evidence raises weaknesses and inconsistencies in
stated
reason
for
choosing
Shafer—that
he
was
better
qualified—and would permit a reasonable jury to conclude that
Darr’s
proffered
discrimination.
reason
for
his
decision
is
pretext
for
The Court therefore finds that a jury question
exists as to whether gender was a motivating factor in Darr’s
denial
of
likewise
the
finds
promotion
that
to
Tompkins
disputed
factual
Defendants’ same decision defense.
undisputed
fact
that
a
denial
and
Wynn.
issues
The
exist
Court
regarding
Given these findings and the
of
a
promotion
is
clearly
an
adverse employment action, Columbus is not entitled to summary
judgment on Tompkins’s and Wynn’s Title VII failure to promote
claims.
Whether Columbus is entitled to summary judgment on
Tompkins’s and Wynn’s failure to promote claims under § 1983
depends on whether Darr was a final decisionmaker for Columbus
for this employment action, which the Court discusses in Section
II.C.2,
infra,
of
this
Order.
13
Whether
Darr
is
entitled
to
Defendants dispute the importance of master’s degrees by pointing
out that even Johnson promoted Larry Mitchell to captain although he
did not have a master’s degree at a time Tompkins and Wynn did.
32
qualified
immunity
on
these
claims
is
discussed
in
Section
II.C.1, infra, of this Order.
2. Refusal to Allow Ezell to Earn or Use Comp Time
Ezell claims that Darr did not allow her to earn or use
comp time because of her gender.
To establish a prima facie
case of disparate treatment gender discrimination, a plaintiff
must show that she was (1) a member of a protected class; (2)
qualified for her current position; (3) subjected to an adverse
employment
action;
and
(4)
treated
less
favorably
than
similarly-situated employee outside her protected group.
a
E.g.,
Gresham v. City of Florence, Ala., 319 F. App’x 857, 864 (11th
Cir. 2009) (per curiam).
is
a
member
position,
of
but
a
they
Defendants do not dispute that Ezell
protected
do
class
contend
or
qualified
Ezell
that
is
cannot
for
her
show
she
suffered an adverse employment action or that the male employees
with
whom
she
compares
herself
were
similarly
situated.
Defendants’ first argument relies solely on Ezell’s testimony
that she did not remember exactly what she was asking when she
was told she did not have the comp time hours she thought she
had.
Ezell
testimony
Dep.
147:13-148:1.
establishes
as
a
matter
Defendants
of
suffered speculative, intangible harm.
law
contend
that
Ezell
this
only
See Davis v. Town of
Lake Park, Fl., 245 F.3d 1232, 1240 (11th Cir. 2001) (“[T]he
asserted impact cannot be speculative and must at least have a
33
tangible adverse effect on . . . employment.”).
pointed to
evidence in the record that
Darr
Plaintiffs
actually
denied
Ezell the use and accrual of comp time—her declaration swearing
so.
Ezell Decl. ¶ 11.
Because the denial of comp time impacts
her employment benefits “in a real demonstrable way,” Davis, 245
F.3d
at
argument.
from
1240,
the
Court
is
not
convinced
by
Defendants’
Second, Defendants argue that Ezell has been exempt
accruing
comp
time
for
the
last
twenty
years
and
that
because her male comparators only used comp time accrued before
they
became
contradict
exempt,
they
Defendants’
are
not
contention,
similarly
Ezell
situated.
points
to
To
business
records showing these male employees’ comp time totals falling
and rising in 2009, suggesting that they were earning comp time
and using it after they allegedly became exempt.
A jury could
reasonably infer from this evidence that the male comparators
were
permitted
to
their exempt status.
earn
and
accrue
comp
time
notwithstanding
Ezell has made out a prima facie case.
As explained, Defendants’ explanation that Ezell was denied
comp
time
because
she
is
“exempt”
is
weakened
by
evidence
suggesting that other high-ranking male employees were permitted
to use and add to their comp time since becoming exempt.
Ezell
has pointed to sufficient evidence to create a disputed issue of
material fact as to whether Defendants’ reason for denying her
comp time is a pretext for gender discrimination.
34
Columbus is
not entitled to summary judgment on this Title VII claim.
As
with the denial of promotion claims, the issue of whether Darr
can be individually liable for this claim depends on whether he
is entitled to qualified immunity, and
the issue of whether
Columbus can be found liable under § 1983 depends on whether
Darr
was
a
final
decisionmaker
for
Columbus
on
this
claim.
These issues are discussed in Sections II.C.1 and II.C.2, infra.
3. Transfers of Ezell and Tompkins
Although
Ezell
transfer/demotion
and
claims
Tompkins
pursuant
to
cannot
Title
pursue
VII
their
because
they
failed to exhaust their Title VII administrative remedies, they
can
pursue
the
claims
as
a
violation
Amendment rights pursuant to § 1983.
of
their
Fourteenth
To establish a prima facie
case of a discriminatory transfer, a plaintiff must show she was
(1) a member of a protected class; (2) qualified for her current
position; (3) subjected to a transfer constituting an adverse
employment
action;
protected class.
F.3d
821,
neither
828
Ezell
and
(4)
replaced
by
someone
outside
Hinson v. Clinch Cnty., Ga. Bd. of Educ., 231
(11th
nor
Cir.
Tompkins
2000).
can
make
Defendants
out
a
maintain
prima
facie
because their transfers were not adverse employment actions.
“adverse
her
employment
action”
requires
“a
serious
and
that
case
An
material
change in the terms, conditions, or privileges of employment.”
Webb-Edwards v. Orange Cnty. Sheriff’s Office, 525 F.3d 1013,
35
1031 (11th Cir. 2008) (internal quotation marks omitted).
The
relevant inquiry is whether the employment action is “materially
adverse as viewed by a reasonable person in the circumstances,”
regardless of the “employee’s subjective view of the significant
adversity.”
Id. (internal quotation marks omitted).
A transfer
can be adverse if it involves a serious and material “reduction
in pay, prestige, or responsibility.”
Defendants
also
determined
to
actionable
maintain
be
because
discriminatory
adverse
that
even
if
employment
they
reasons,
Hinson, 231 F.3d at 829.
were
and
transfers
for
evidence
are
they
actions,
made
no
the
not
are
legitimate
exists
that
nonDarr’s
legitimate stated reasons were pretextual.
i.
Ezell
action
asserts
because
her
that
Ezell’s Transfer
she
transfer
suffered
was
a
an
adverse
demotion
and
employment
involved
serious reduction in prestige and responsibility.
a
Ezell was
transferred from jail commander to clerk of Recorder’s Court.
It is undisputed that Ezell received the same pay and employment
benefits
after
Defendants
her
transfer.
nevertheless
Ezell
reduced
her
contends,
rank,
treated her as if she had a lower rank.
Ezell’s rank was ever reduced.
or
however,
at
a
that
minimum,
Defendants deny that
Ezell, however, has presented
evidence to raise a factual dispute as to this issue.
After her
transfer, Ezell’s rank was listed on her official ID card and
36
personnel form as Major instead of Commander.
Other employees,
including Chief Deputy Fitzpatrick, have called her Major Ezell.
Defendants respond that the personnel form does not reflect a
change in rank because “they are pretty much identical positions
as far as the payroll system’s concerned.”
(explaining
further
that
“that
other
Barron Dep. 128:5-18
position
was
associated
with the job title major in the computer system because somebody
put it that way and not necessarily was a change of rank at
all”).
Defendants also explain that her rank was erroneously
listed as Major on her ID and that they mistakenly thought the
error had been corrected.
Fitzpatrick Dep. 67:8-16.
Ezell
disputes this explanation with testimony that the individual who
prepared the ID card “was instructed to do it that way.”
Dep. 95:18-96:7.
Ezell
The present record thus demonstrates that a
genuine factual dispute exists as to whether Defendants lowered
Ezell’s rank, albeit without any loss in pay.
Ezell also pointed to evidence that her transfer resulted
in
a
Ezell
significant
reduction
went
supervising
from
supervising
performed
twelve
by
commander.
a
in
people.
sergeant
prestige
approximately
Her
four
and
new
ranks
responsibility.
250
position
lower
than
people
to
was
formerly
her
rank
of
She was no longer invited to the sheriff’s command
staff
meetings
Court.
Her
unless
new
they
duties
specifically
also
were
37
not
involved
connected
Recorder’s
to
duties
typically
performed
by
a
sworn
law
enforcement
officer.
Instead, Ezell functioned as the clerk for the Recorder’s Court
judge, keeping the records and calendar straight.
Eventually,
the position was placed under the City Manager’s authority and
taken outside of the Sheriff’s chain of command, where she was
instructed not to wear her uniform.
conclude
these
changes
were
A reasonable jury could
sufficiently
significant
that
a
reasonable person would view the transfer as materially adverse.
Defendants argue that even if the transfer was an adverse
employment
action,
it
was
not
motivated
by
Ezell’s
gender.
Darr’s stated reason for transferring Ezell was that it was done
as part of his reorganization of the Sheriff’s Office.
reorganized
with
the
the
way
Sheriff’s
it
had
been
Office
because
operating
he
under
was
dissatisfied
Johnson
and
members of Johnson’s command staff were unprofessional.
linked Ezell to these problems.
Darr
felt
Darr
While she was jail commander,
Darr witnessed communication problems at the jail, and he was
concerned with the jail’s lack of progress regarding the federal
consent decree while Ezell was jail commander.
Darr Aff. ¶ 4.
Darr wanted a change and wanted to put someone in the position
of jail commander who would share his vision for the jail.
¶
5.
The
Defendants’
Court
burden
for the transfer.
finds
of
these
reasons
articulating
adequate
Id.
to
satisfy
non-discriminatory
reasons
Accordingly, the burden shifts back to Ezell
38
to
demonstrate
these
reasons
are
pretext
for
discrimination
rather than the true reasons for Ezell’s transfer.
To
establish
pretext,
Ezell’s
counsel
points
to
the
following: (1) Darr decided to transfer Ezell immediately upon
taking
office
without
attempting
to
resolve
any
claimed
deficiencies in the way Ezell ran the jail; (2) she was replaced
by
a
male
formerly
three
ranks
beneath
her;
(3)
she
was
transferred to her new post which was most recently held by a
male four ranks beneath her; and (4) although she was still the
highest
ranking
female
in
the
Sheriff’s
Office,
she
was
no
longer invited to attend the regular meetings of the command
staff, to which only males were regularly invited.14
Ezell’s counsel, however, selectively ignores the context
in which the transfer decision was made when arguing her gender
claim despite highlighting this context when advocating for her
First Amendment claim.
While counsel may certainly maintain
alternative claims, counsel cannot ignore evidence or lack of
it.
Darr had defeated the incumbent sheriff.
He was clearly
not satisfied with the previous administration’s management of
the office, and he planned to make changes.
changes,
Darr
changed
the
command
staff.
To implement his
While
there
is
evidence that he did so because Ezell supported Johnson, there
14
Plaintiffs also point to Darr’s
evidence of his general gender bias.
39
other
promotion
decisions
as
is no evidence that his transfer of her was motivated by gender.
In
fact,
the
thrust
of
Ezell’s
complaint
is
that
Darr
transferred her to retaliate against her because of her support
of Johnson.
The Court acknowledges that Ezell can assert a
claim based upon more than one improper motive.
But she has
simply failed to present sufficient evidence that gender was one
of them.
Although Ezell may disagree with Darr’s rationale, her
circumstantial
evidence
does
not
sufficiently
establish
that
Darr’s stated reasons for his decision are so implausible that
they are pretext for gender discrimination.
Plantation
(noting
Patterns,
106
F.3d
1519,
1543
See, e.g., Combs v.
(11th
Cir.
plaintiff’s confusion between “disagreement
1997)
about the
wisdom of an employer’s reason and disbelief of the existence of
that
reason
finding
and
that
its
merely
application
questioning
in
the
the
circumstances”
defendant’s
reason
and
was
insufficient “to permit a reasonable factfinder to disbelieve”
the defendant’s proffered explanation); see also Chapman v. AI
Transp.,
229
F.3d
1012,
1030
(11th
Cir.
2000)
(en
banc)
(“Provided that the proffered reason is one that might motivate
a reasonable employer, an employee must meet that reason head on
and
rebut
it,
and
the
employee
cannot
succeed
quarrelling with the wisdom of that reason.”).
by
simply
Accordingly,
Defendants are entitled to summary judgment on Ezell’s genderbased demotion/transfer claim.
40
ii.
Tompkins’s Transfer
Defendants contend that Tompkins cannot make out a prima
facie case on her transfer claim primarily because the transfer
does not constitute an adverse employment action.
It
is
undisputed
that
Tompkins
was
transferred
from
a
lieutenant position overseeing internal and legal standards in
administration to a lieutenant squad commander position at the
jail.
It is also undisputed that she received the same pay and
employment benefits.
adverse
employment
Tompkins argues that her transfer was an
action
because
significantly diminished.
her
claim.
The
record
her
responsibilities
were
The present record does not support
demonstrates
that
while
her
duties
changed, her responsibilities were not significantly diminished
to the point that a reasonable juror could conclude that she
suffered a material loss in prestige and responsibility.
fact,
the
record
reveals
that
she
assumed
more
In
supervisory
responsibilities as lieutenant squad commander at the jail.
Her
conclusory and vague allegation that transfers to the jail have
generally
been
considered
“punishment”
establish an adverse employment action.
is
not
enough
to
The Court finds that
although Tompkins may have viewed her new assignment as less
desirable than her previous one, there is insufficient evidence
from which a reasonable jury could conclude that she suffered a
serious
reduction
in
pay,
responsibilities,
41
or
prestige
such
that her transfer would be considered materially adverse.
In
light of this finding, it is unnecessary to determine whether
Darr was motivated by Tompkins’s gender when he transferred her.
Without an adverse employment action, Tompkins cannot recover
regardless of Darr’s motivation.
judgment
is
granted
as
Defendants’ motion for summary
to
Tompkins’s
gender-based
transfer/demotion claim.
C.
As
Fourteenth Amendment § 1983 Claims Against Darr and
Columbus
previously
explained,
the
Court
finds
that
jury
questions exist as to whether gender was a motivating factor in
the following adverse employment actions taken by Darr: (1) the
denials of promotion to Tompkins and Wynn and (2) the denial of
comp time to Ezell.
But this is not enough to avoid summary
judgment in favor of Darr and Columbus.
For Darr to be liable
in his individual capacity for Plaintiffs’ Fourteenth Amendment
§
1983
claims,
immunity defense.
Columbus,
Plaintiffs
must
overcome
Darr’s
qualified
And to establish their § 1983 claim against
Plaintiffs
must
establish
that
Darr
was
a
final
decisionmaker for Columbus regarding these employment decisions.
The Court addresses these issues in turn.
1. Darr’s
Individual
Immunity
Public
officials
acting
Liability
within
the
and
scope
Qualified
of
their
discretionary authority are protected by qualified immunity as
42
long as their actions do not violate clearly established law.
Rehberg v. Paulk, 611 F.3d 828, 838 (11th Cir. 2010), aff’d, 132
S. Ct. 1497 (2012).
that
he
burden
was
Once an individual defendant establishes
acting
shifts
to
within
the
his
plaintiff
discretionary
to
authority,
demonstrate
(1)
the
that
the
defendant’s conduct violated a constitutional right and (2) that
the right was clearly established at the time of the alleged
violation.
Pearson v. Callahan, 555 U.S. 223, 232 (2009).
A
right is clearly established if it is “sufficiently clear that a
reasonable
official
would
understand
that
what
he
is
doing
violates that right.”
Hope v. Pelzer, 536 U.S. 730, 739 (2002).
While
action
the
particular
in
question
need
not
have
been
previously held unlawful, the unlawfulness of the action must be
apparent in light of pre-existing law.
Id.
Here, it is undisputed that Darr was acting within his
discretionary
decisions
authority
regarding
as
employees
sheriff
of
the
when
making
Sheriff’s
employment
Office.
The
Court has concluded that a reasonable jury could find that Darr
intentionally discriminated against Plaintiffs
based on their
gender when he failed to promote Tompkins or Wynn and failed to
allow Ezell to use or accrue comp time.
The question is whether
it was clearly established at the time he made these decisions
that
these
actions
violated
Plaintiffs’
rights.
43
Fourteenth
Amendment
Defendants do not dispute that the right to be free from
gender discrimination in the workplace was clearly established
at
the
time
Darr
took
these
employment
actions.
Rather,
Defendants argue that Darr is entitled to qualified immunity
because a reasonable sheriff would not have known from preexisting case law that taking the specific employment actions in
question was unlawful “in light of the specific context” of the
facts he confronted.
Rioux v. City of Atlanta, Ga., 520 F.3d
1269, 1283 (11th Cir. 2008) (internal quotation marks omitted).
The Court finds it clear that if Darr denied Tompkins and Wynn
the promotion because of their gender, a decision to be made
ultimately by the jury, that he violated clearly established
law.
comp
Furthermore, if the jury concludes that he denied Ezell
time
because
of
her
gender,
then
he
violated
clearly
established law.
Darr also argues that he is entitled to qualified immunity
based
on
his
contention
that
it
is
undisputed
that
(1)
objectively valid reasons existed for his employment actions and
(2) the employment actions were actually motivated, at least in
part, by the objectively valid reasons.
See Rioux, 520 F.3d at
1284-85
to
(extending
qualified
immunity
defendant
because
undisputed evidence showed that his decisions were motivated at
least in part by lawful justifications);
Stanley v. City of
Dalton, Ga., 219 F.3d 1280, 1296 (11th Cir. 2000) (finding that
44
defendant was entitled to qualified immunity when his actions
were indisputably motivated by lawful considerations); see also
Foy v. Holston, 94 F.3d 1528, 1535 (11th Cir. 1996) (concluding
that defendants were entitled to qualified immunity because the
record showed indisputable and sufficient lawful motivations).
Although Darr would be entitled to qualified immunity on
Plaintiffs’
gender
discrimination
claims
if
there
was
indisputable evidence that his decisions were motivated at least
in part by lawful considerations, there is no such indisputable
evidence in this case.
at 1535.
Stanley, 219 F.3d at 1296; Foy, 94 F.3d
Here, Darr presents evidence, which if believed by the
jury, could support his same decision defense; but that evidence
does not indisputably establish that lawful reasons existed and
that Darr was in fact motivated, even in part, by these reasons.
The
record
does
not
support
an
indisputable
conclusion
that
Shafer was even arguably more qualified than Tompkins or Wynn
for the captain position.
Nor does the record indisputably
establish that other “exempt” officers were treated the same as
Ezell and denied the accrual of comp time while they were in
exempt status.
Moreover, a reasonable jury could find that the
only reason these decisions were made was gender-based, and if a
jury made that finding, it is clear that any reasonable sheriff
would have known that such discrimination is unlawful.
Viewing
all the evidence in the light most favorable to Plaintiffs, the
45
record does not demonstrate that Darr is entitled to qualified
immunity
grounds.
based
on
the
same
decision
defense
or
mixed-motive
Darr’s motion for summary judgment based on qualified
immunity on Tompkins’s and Wynn’s denial of promotion claims and
Ezell’s comp time claim is denied.
2. Columbus’s Liability for Darr’s Decisions
It is well established that a local government can be held
liable under § 1983 when its official policy or custom causes a
constitutional violation.
Bd. of Cnty. Comm’rs v. Brown, 520
U.S. 397, 403-04 (1997); Monell v. Dep’t of Social Servs., 436
U.S. 658, 694 (1978).
official
policy
or
An official’s decision constitutes an
custom
if
that
official
possesses
“final
policymaking authority” in the relevant subject matter.
Scala
v. City of Winter Park, 116 F.3d 1396, 1397 (11th Cir. 1997).
Final policymaking authority exists when an official’s decisions
are not constrained by official policies and are not subject to
“meaningful
administrative
review.”
Id.
at
1399-1402
(discussing City of St. Louis v. Praprotnik, 485 U.S. 112 (1988)
(plurality opinion)).
Columbus does not dispute that Darr made the decision to
promote Shafer instead of Tompkins or Wynn and that Darr made
the decisions regarding comp time for his officers.
It is also
undisputed that Darr made these decisions as an official of the
Columbus Consolidated Government.
46
Columbus disputes, however,
that
Darr
is
decisions.
the
final
Columbus
decisionmaker
decisionmaker
contends
because
those
employment
Darr
is
not
decisionmaking
his
that
for
the
final
is
constrained
by
Columbus’s official employment policies under the merit system
and Fair Treatment Policy review process.
The only employment actions of the Sheriff that are subject
to reversal under the merit system are termination, demotion,
suspension,
and fines.
Any
other
employment actions
may be
subject to voluntary reconsideration by the Sheriff, but there
is no meaningful review of those decisions.
These unreviewable
decisions include denials of promotions and refusals to allow
the earning or use of comp time.
Since these decisions are not
subject
the
to
meaningful
decisionmaker for them.
(11th Cir. 1989).
review,
Sheriff
is
the
final
Mandel v. Doe, 888 F.2d 783, 792-94
Accordingly,
Columbus is not
entitled
to
summary judgment on Tompkins’s and Wynn’s denial of promotion
claims and Ezell’s denial of comp time claim asserted pursuant
to the Fourteenth Amendment and § 1983.
CONCLUSION
For the reasons explained in this Order, the Court denies
Defendants’
motion
for
claims,
which
remain
Wynn’s
failure
to
summary
pending
promote
judgment
for
claims
trial:
under
as
to
(1)
the
following
Tompkins’s
Title
VII
and
against
Columbus and under the Fourteenth Amendment and § 1983 against
47
Columbus and Darr; and (2) Ezell’s comp time claim under Title
VII
against
Columbus
and
under
the
§ 1983 against Columbus and Darr.
Fourteenth
Amendment
and
The Court otherwise grants
Defendants’ motion for summary judgment as to all other claims.
IT IS SO ORDERED, this 12th day of June, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
48
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