WEST v. HOUSTON COUNTY GEORGIA et al
Filing
56
ORDER granting in part and denying in part 32 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 9/29/2015 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
RICK WEST,
Plaintiff,
:
:
:
:
v.
:
:
No. 5:13‐CV‐338 (CAR)
HOUSTON COUNTY, GEORGIA,
:
CULLEN TALTON, Individually and :
in his Official Capacity as Sheriff of :
Houston County, CHARLES HOLT, :
Individually and in his Official
:
Capacity as Major in the Houston
:
County Sheriff’s Department,
:
:
Defendants.
:
___________________________________ :
ORDER ON SUMMARY JUDGMENT
Plaintiff Rick West brings this employment discrimination action against his
former employers, Houston County, Georgia and Sheriff Cullen Talton, and his former
supervisor, Major Charles Holt, on the grounds that he was terminated on the basis of
his race, in violation of 42 U.S.C. §§ 1981 and 1983 as well as Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”). Currently before the
Court is Defendants Houston County and Sheriff Talton’s Motion for Summary
Judgment [Doc. 32]. Having carefully considered the Motion, the response and replies
thereto, and the applicable law, Defendants’ Motion [Doc. 19] is GRANTED in part and
DENIED in part.
LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must
be granted “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.”1 A genuine issue of material
fact exists when “there is sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party.”2
When deciding a party’s motion for summary judgment, the district court must
view the evidence and all justifiable inferences in the light most favorable to the
nonmoving party. The court may not make credibility determinations or weigh the
evidence.3 The moving party “always bears the initial responsibility of informing the
district court of the basis for its motion and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of
material fact.”4 If the moving party discharges this burden, the burden then shifts to the
nonmoving party to go beyond the pleadings and present specific evidence showing
that there is a genuine issue of material fact.5 If the non‐moving party fails “to make a
sufficient showing on an essential element of her case with respect to which she has the
Fed. R. Civ. P. 56(a). See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
3 See id. at 254‐55; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
4 Celotex Corp., 477 U.S. at 323 (internal quotation marks omitted).
5 See Fed. R. Civ. P. 56(e); see also Celotex Corp., 477 U.S. at 324‐26.
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burden of proof,”6 the motion for summary judgment must be granted.
For the purposes of this motion, the relevant facts are taken principally from the
partiesʹ statement of material facts and responses thereto [Docs. 32‐2, 51‐1, 51‐2, & 52‐1].
Under Rule 56, the district court need only consider the materials cited by the parties,
though it may also consider other materials in the record. Fed. R. Civ. P. 56(c). The
court is not expected to scour the depositions, declarations, and exhibits to identify
evidence that could create a genuine issue of material fact or establish the lack of.7 It is
the parties’ burden to identify specific evidence in the record and to articulate the
precise manner in which that evidence supports their position on summary judgment.8
BACKGROUND
The facts, construed in the light most favorable to Plaintiff, the non‐movant, are
as follows:
In 1997, Plaintiff Rick West, an African American male, began working for the
Houston County Sherriff’s Department (“HCSD”) as a detention officer. At the time of
his termination fifteen years later, he was ranked as Sergeant and served as a supervisor
in the inmate intake area at the Houston County Detention Center (“the Jail”).9 During
Celotex, 477 U.S. at 323.
See e.g., Tomasini v. Mount Sinai Medical Center of Florida, Inc., 315 F. Supp. 2d 1252, 1260 n.11 (S.D. Fla.,
2004) (citing L.S. Heath & Son, Inc. v. AT & T Info. Sys. Inc., 9 F.3d 561, 567 (7th Cir. 1993)); Compania de
Elaborados de Café v. Cardinal Capital Mgmt., Inc., 401 F. Supp. 2d 1270, 1282 n.5 (S.D. Fla.2003).
8 See id; Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Topalian v. Ehrman, 954 F.2d 1125, 1131
(5th Cir. 1992)).
9 Plaintiff’s Response to Defendants’ Statement of Facts (“Pl.’s Resp. Defs.’ SF”) [Doc. 51‐1] ¶¶ 23‐25
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his tenure, Plaintiff received “fully satisfactory” or “superior” performance reviews.10
On the evening of July 24, 2010, Plaintiff went to Seanna’s Lucky Cabin (“the
Lucky Cabin”), an illegal video gambling establishment in Warner Robins, Georgia, to
pick up his girlfriend, Valerie Brown. At the time, Plaintiff was off‐duty and not in
uniform. He drove to Lucky Cabin after a telephone call with his girlfriend during
which they argued over the fact she was gambling. Plaintiff did not want Brown to be
at the Lucky Cabin because he knew the establishment was operating illegally. 11
When Plaintiff arrived at the Lucky Cabin, he recognized the man who let him
inside as Phil Campbell, a former inmate at the Jail. Campbell had numerous prior
arrests and convictions.12 The parties dispute what happened thereafter: Plaintiff states
that, when he arrived, he found Ms. Brown, tapped her on the shoulder, said “let’s go,”
and escorted her out. Plaintiff did not push his girlfriend or curse at her.13 The owner
of the establishment, Seanna Milam, walked out behind Plaintiff screaming and
cursing.14 Campbell also followed them. As Campbell made his way to the door,
Plaintiff pointed in his direction, told them that he knew the establishment was
Plaintiff’s Statement of Material Facts (“Pl.’s SF”) [Doc. 51‐2] ¶ 1
Id. at ¶¶ 123‐126; Defendants’ Statement of Undisputed Facts (“Defs.’ SF”) [Doc. 32‐2] ¶¶ 62‐63, 64, 66.
12 Id. at ¶ 126
13 Id. at ¶¶ 127‐128
14 Id. at ¶¶ 130‐132
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operating illegally, and threatened “to help [his] boys shut [the] place down.”15
Campbell and Milam knew that Plaintiff worked for the HCSD.
After the incident, Plaintiff phoned the HCSD, spoke to Sergeant Guy Fussell,
and reported that illegal gambling was taking place at the Lucky Cabin. The same
night, Sergeant Fussell also received a message from Seanna Milam; she had called the
HCSD and requested a phone call from an officer. When Sergeant Fussell returned her
call, Milam did not request assistance at the Lucky Cabin; she only wanted to report
Plaintiff’s appearance there. Because the Lucky Cabin was located inside the city limits,
Fussell referred the matter to the Warner Robins Police Department (“WRPD”).16
An officer with the WRPD was dispatched and met with Milam that evening.
According to his incident report, Milam alleged that, when Plaintiff arrived, he
“snatched [Brown] out of her chair and pushed her out the front door.” Milam stated
that, as Campbell made his way to the door, Plaintiff put his hand on Campbell’s
forehead and pushed him back inside. Neither Plaintiff nor Brown was interviewed by
the WRPD, and thus the incident report does include their side of the story.17 In a
sworn declaration, Brown later stated that she left voluntarily and that Campbell’s story
was false. The WRPD did not pursue the matter; and Plaintiff was never arrested.18
Pl.’s Resp. Defs.’ SF ¶¶ 71, 73, 74
Pl.’s SF 136‐138, 140, 141‐142;
17 Talton Dep., Ex. 14
18 Pl.’s SF ¶¶ 129, 143, 146
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Although Plaintiff was never arrested, a copy of the incident report was
forwarded to the HCSD. After learning of the incident, Major Holt called Milam and
spoke with her several times about what happened; he also obtained statements from
Campbell and another witness.19 At that time, Holt was aware that Milam was the
owner of an illegal casino and that Campbell was a former inmate at the Jail. He also
presumed that their witness was either one of Milam’s employees or someone who was
gambling illegally at the Lucky Cabin. 20
Major Holt did not question Plaintiff about the incident. Nor did he speak to Ms.
Brown to find out whether she supported Milam’s story. If he had, Major Holt may
have learned that Ms. Brown left with Plaintiff voluntarily. She has since stated that
Plaintiff did not hurt her and that Plaintiff did not put his hand on Campbell.21 Holt,
however, simply took the word of persons involved in an illegal gambling enterprise
and a former HCSD inmate who knew Plaintiff worked at the Jail. It was not unusual
for inmates to make false charges against officers, and Holt admitted that it was not his
usual practice to take the word of an inmate over the word of an officer.22
Id. at ¶ 155; Pl.’s Resp. Defs.’ SF ¶¶ 79; Holt Dep. 128:6‐8, 129:10‐25
See Pl.’s SF ¶ 165‐166
21 Id. at ¶ 129, 162‐163, 165
22 Id. at ¶ 165‐167, See Holt Dep. 138:20‐23, 278‐1‐13, 280:1‐10.
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On Wednesday, July 28, 2010, Major Holt drafted a written recommendation for
Plaintiff’s termination.23 Though Holt had the authority to issue or recommend a lessor
sanction, such as a suspension or demotion, he did not choose to take lessor action. In
the memo to his superiors, Holt stated that he instead recommended termination
because he believed Plaintiff lacked self‐control and was a proven threat to his
girlfriend, coworkers, inmates at the Jail, and members of the community.24 In support,
Major Holt cited the Lucky Cabin incident and three former allegations of misconduct:
(1) Holt first referenced an incident involving the use of force on an inmate,
Benjamin McLemore.25 The recommendation, however, failed to disclose
that the inmate was injured after he grabbed Plaintiff and Plaintiff used a
defensive tactic of striking him with an open hand, which is permissible in
that situation. Here, it caused the inmate to fall and break his ankle; the
hit also left hand mark. Plaintiff was later accused of using excessive
force, but Holt never interviewed or questioned him about the incident.26
(2) Holt also cited an incident when Plaintiff argued with a subordinate white
male, Daryl Foster.27 Major Holt failed to disclose, however, that there
was a dispute as to what caused the altercation and what was said.
Pl.’s SF ¶ 157
Id. at ¶¶ 160, 162, 164; Holt Dep. Ex. 24
25 West Dep. Ex. 4, Pl.’s SF ¶ 24
26 Pl.’s SF ¶¶ 23, 25‐28, 30, 32‐33
27 West Dep, Ex. 4, Pl.’s SF ¶ 22
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Plaintiff claims that Foster, a lower ranking officer, provoked him by
intentionally and repeatedly calling him the wrong name.28 Plaintiff felt
that Foster was being insubordinate, but did not write him up because
every time Foster was accused of insubordination, “Holt did nothing
about it.”29 So Plaintiff just got over it, and Holt never questioned him
about anything he said to Foster.30
(3) Holt then described two incidents when inmates were able to smuggle
contraband into the jail—one hid money in a cast on his arm and another
consumed drugs.31 Major Holt later admitted that Plaintiff was not
responsible for searching the inmate’s cast, and the inmate who consumed
drugs did so before he was inside the intake area.32
Also included with Holt’s recommendation were the WRPD report and statements from
witnesses who worked for in Milam at the Lucky Cabin. There was no statement from
Plaintiff or his girlfriend. No one at the HCSD ever asked Plaintiff about the incident.33
Major Holt submitted the recommendation to his superiors, Chief Deputy Rape34
Pl.’s SF ¶¶ 14‐28
Foster Dep. 108:8‐16. Foster was reported by another supervisor for being rude and insubordinate on
multiple occasions; however, Holt never took any disciplinary action against Foster. Pl.’s SF ¶¶ 43‐49
30 Pl.’s SF ¶¶ 18, 20‐21
31 West Dep. Ex. 4
32 Pl.’s SF ¶¶ 168‐169, 173‐174
33 Pl.’s SF ¶ 156
34 Id. at ¶ 158‐159
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and Sheriff Talton.35 Sheriff Talton served as the ultimate and final authority for
personnel decisions at the HCSD,36 but he delegated full responsibility over the jail to
Major Holt.37 Thus, with respect to disciplinary matters at the jail, Major Holt had the
discretion and authority to issue written and verbal reprimands to jail employees,
which were not appealable. Holt also had the authority to suspend personnel under his
command for three days without appeal or for five days with the right to an appeal. A
longer suspension, demotion, or termination required the Sheriff’s approval.38
The usual practice was for the necessary paper work to first go to the HCSD
administrator, Colonel McGhee. He would review it, and if he concurred with the
recommendation, it was sent on to Chief Deputy Rape. Rape would then review the
paperwork, and if he also signed off on it, the recommendation would be considered by
the Sheriff.39 Talton would always talk to Rape before terminating an employee.40
In this case, the usual administrative process was not followed; Major Holt sent
his recommendation directly to Chief Deputy Rape.41 After reviewing only Holt’s
Id. at ¶¶ 147, 149; Rape Dep. 17:20‐23
Pl.’s Resp. to Defs.’ SF ¶¶ 1, 9
37 Id. at SF ¶¶ 2, 5
38 Id. at ¶¶ 14‐15, 19‐22
39 McGhee Dep. 11:5‐23
40 Pl.’s SF ¶ 150; Talton Dep. 25:22‐26:13.
41 In his deposition, Colonel McGhee stated did not receive or review any paperwork regarding Plaintiff’s
termination and had nothing to do with that decision. McGhee Dep. 12:6‐14:11. There is some a dispute
on this point. Chief Deputy Rape stated that he gave the paperwork to McGhee to review and that
McGhee signed off on it and returned it to him. Rape Dep. 161:19‐163:14. McGhee failed to remember
whether he actually discussed the incident with Rape and Talton, but he stated that no one ever asked
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recommendation and attachments, Rape notified Plaintiff that he was on “suspension
without pay pending termination” because he engaged in “conduct unbecoming an
officer,” in violation of the HCSD’s Standard Operating Procedures.42 Rape’s
subsequent report to the Georgia Department of Labor, specifying the reason for
Plaintiff’s termination, stated that Plaintiff had “caused public respect for the [HCSD] to
be destroyed.”43 Rape believes that any time an HCSD officer is involved in “any kind
of fracas” off duty “it brings down public respect for the department.”44
When he issued the suspension, Chief Deputy Rape had not interviewed Plaintiff
or any other witnesses, asked anyone else to get a statement from Plaintiff, or done any
independent investigation into the matter; and he had no knowledge of whether Major
Holt had ever questioned Plaintiff. Rape simply took Holt’s facts at face value.45
Chief Deputy Rape was aware, when he read the recommendation, that Plaintiff
had been arrested years earlier in Dooly County, on questionable charges, and that
those charges were in fact dropped shortly thereafter.46 In his deposition, however,
him if he thought Plaintiff should be terminated. McGhee Dep. 12:6‐14:11, 20:5‐23:4. Therefore, because
all facts must now be viewed in Plaintiff favor, the Court will proceed, for the purpose of this Motion, as
if McGhee was not involved in Talton’s decision to terminate Plaintiff.
42 See Rape Dep., Ex. 12 [Doc. 45].
43 Pl.’s Resp. to Defs.’ SF ¶ 84
44 Pl.’s SF ¶ 52
45 Id. at ¶ 177‐183; Rape Dep. 97:17‐98:14
46 Rape Dep. 93:5‐12, 108:1‐1‐4; See Pl.’s SF ¶ 3. Plaintiff was arrested while moonlighting as a bouncer at
a bar in Dooly County because it appeared as if he was impersonating a deputy sheriff. The main issue
was that Plaintiff wore generic shirt with the word “Sheriff” across the front. Id. at 117‐119:6. Rape
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Rape stated that neither the Dooly County incident nor the misconduct listed in Holt’s
recommendation47 were factors in his decision to suspend Plaintiff pending
termination. 48 Rape also testified that Plaintiff would not have been terminated, but for
Holt’s recommendation;49 and he could not remember a time when he rejected a
recommendation after receiving it and any further review from Holt.50
The suspension letter also notified Plaintiff that he had the right to appeal the
termination decision.51 Plaintiff chose to exercise that right, and was allowed an appeal
hearing. 52 Rape only attended the beginning of the hearing and supplied the hearing
officer with Major Holt’s findings.53 Rape did not hear any testimony or evidence.54
Afterward, the hearing officer issued a letter upholding Plaintiff’s termination.
Sheriff Talton did not attend or participate in the hearing or hear any report about what
happened at the hearing. 55 Neither Rape nor Talton consulted with the hearing officer,
admits to questioning the correctness of the arrest when it occurred, and he believed Plaintiff should not
have been arrested. Id. at 11:2‐23, 109:2‐11, 184:16‐15.
47 Rape Dep. 91:10‐21, 129:20‐23, 184:1‐7; Pl.’s SF ¶ 184‐185. One other incident involving Plaintiff’s use of
a taser was raised by Defendants as cause for his termination, although it was not included in Holt’s
recommendation. Holt only raised the issue after he learned that Plaintiff planned to file an EEOC
charge. Pl.’s SF ¶¶ 34‐37, Holt Dep. 166:23‐167:7. Rape said he did not know about the incident, and it
was not a factor in his decision.
48 Rape Dep. 129:20‐23.
49 Id. 132:13‐133:4. Rape stated that, if Holt had recommended some lessor action, such as a demotion or
suspension, he would have considered it; Rape just went along with Holt’s recommendation. Id.
50 Rape Dep. 31:10‐15
51 Holt Dep. 21:15‐23:13, Ex. 1
52 Pl.’s Resp. to Defs.’ SF ¶ 83
53 Rape Dep. 115:15‐116:7
54 Id. at 117:25‐118:21, 120:13‐15
55 Pl.’s SF ¶ 190; Talton Dep. 78:13‐20, 94:1‐6; Holt Dep. 148:8‐10
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and neither read a transcript of the hearing before Plaintiff’s termination.56 Talton also
did not request to review any materials from at the hearing; the only thing he received
was a letter stating that the termination was upheld.57
Sheriff Talton likewise did not review Holt’s recommendation or speak to Holt
about the facts of the case before terminating Plaintiff.58 Talton never independently
investigated the allegations, spoke to Plaintiff, or inquired as to whether anyone else
had spoken to Plaintiff or his girlfriend59; he never reviewed witness statements60; and
he never read the narrative section of the incident report.61 As a result, Talton did not
know about the excessive force allegation or that Plaintiff may have referenced his
connection to the HCSD at the Lucky Cabin; so those things were not factors in his
decision.62 Sheriff Talton additionally stated that no one had ever told him Plaintiff’s
job performance was unsatisfactory prior to his termination.63 Although, like Rape,
Talton was aware of his Dooly County arrest when Plaintiff was terminated, Talton
stated that he was “fine” with Plaintiff continuing to work for the HCSD in spite of that
incident. Plaintiff was actually given raise shortly thereafter.64
Rape Dep. 120:1‐121:5, Talton Dep. I 97:3‐12
Talton Dep. 97:3‐12
58 Talton Dep. 68:10‐69:9, 75:10‐13
59 Pl.’s SF ¶¶ 194, 197, 199‐201; Talton Dep. 69:22‐25, 70:4‐7, 71:10‐13, 108:25‐109:2
60 Pl.’s SF ¶ 198; Talton Dep. 70:1‐3
61 Pl.’s SF ¶ 204
62 Id. at ¶¶ 193, 195‐196; Talton Dep. I 64:6‐65:13, 81:16‐19
63 Talton’s Dep. 58:21‐24.
64 Pl.’s SF ¶ 13; Pl.’s Resp. to Defs.’ SF ¶ 81; Talton Dep. 119:1‐5
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The HCSD’s hearing officers nearly always adopted recommendations when
appealed; and, though Sheriff Talton is not required to adopt the appeal decisions, he
“never had an occasion where [he] didn’t follow the decision of a hearing officer.”65
Even when the hearing officer made decisions that Talton did not completely agree
with, he would go along with what the hearing officer decided.66 It further appears that
neither the hearing officer nor Talton had ever declined to adopt one of Major Holt’s
recommendations to discharge an employee: During the time Holt as served as Major,
he recommended the termination of a dozen or more employees, and all were
terminated.67 The hearing officer and Talton approved Holt’s recommendation to
terminate Plaintiff’s employment in this case as well.68 Talton would not have
terminated Plaintiff if Holt had not recommended that he do so.69
Neither Chief Deputy Rape nor Sheriff Talton admits to being aware of any racial
bias harbored by Major Holt.70 Yet, there were other employees who had filed charges
of discrimination against Holt.71 Major Holt admitted that he had called someone a
“nigger” in the past.72 There is evidence that, on one occasion, Holt asked a white
female officer if she was “sleeping with that nigger” (referring to an African‐American
Pl.’s SF ¶¶ 191‐192; Rape Dep. 121:15‐17, 123:24‐124:13; Talton Dep. I 92:1‐5, 94:7‐18, 96:19‐24
Talton Dep. 94:10‐14.
67 Pl.’s SF ¶¶ 152‐153; Holt Dep. 58:18‐59:5; Talton Dep. 17:5‐10
68 Pl.’s SF ¶ 205; Holt Dep. 150:1‐9
69 Pl.’s SF ¶ 189; Talton Dep. 62:20‐25, 109:11‐14
70 Rape Dep. 140:20‐141:5; Talton Dep. 112:1‐12
71 Pl.’s SF ¶¶ 84‐86
72 Pl.’s SF ¶ 100
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supervisor).73 Holt likewise told another white female officer that, as long as she was
dating Plaintiff, she would not be promoted.74
Major Holt also admitted to viewing racist websites and discussion forums. Holt
used his HCSD computer and email account to forward a link for the website
www.niggermania.net to his personal account and looked at both that web page and
www.niggermania.com when he got home. “Niggermania” is a website “dedicated to
spreading the truth and presenting facts about niggers,” and has “many pages of nigger
jokes and racist humor.” Holt looked through the website and some of its forums. He
also, on numerous occasions, viewed a website entitled “Stuff Black People Don’t Like,”
which similarly disparages African Americans.75
After his termination, Plaintiff filed a charge of discrimination, and the EEOC
found reasonable cause to believe that Plaintiff was subjected to race discrimination.76
DISCUSSION
Based on the foregoing, Plaintiff brought the present action asserting that
Houston County, Sheriff Talton, and Major Holt discriminated against Plaintiff on the
basis of his race in violation 42 U.S.C. § 1981 and § 1983. Plaintiff also brings claims
against Houston County and Sheriff Talton under Title VII. Presently before the Court
Thompson Dep. 24:1‐8; Mitchell Dep. 6‐8.
Thompson Dep. 20:24‐25
75 See Pl.’s SF ¶¶ 99, 102‐121
76 Id. at ¶ 122
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is Houston County and Sheriff Talton’s Motion for Summary Judgment.
I.
Claims against Houston County
Defendants first argue that Plaintiff’s claims against Houston County fail as a
matter of law because Sheriff Talton is not considered an employee of the County.77
Plaintiff does not dispute that Houston County should be dismissed and admits that the
proper defendant is the HCSD or Sheriff Talton in his official capacity. 78
Accordingly, with respect to all claims against Defendant Houston County,
Defendants’ Motion for Summary Judgment is GRANTED.
II.
Claims against Sheriff Talton
As to the remaining claims, Sheriff Talton argues (1) that there is not sufficient
evidence for a jury to find that race was a motivating factor in Plaintiff’s termination
and (2) that he is entitled to qualified immunity as to the §§ 1981 and 1983 claims
against him in his individual capacity and sovereign immunity as to those claims
brought against him in his official capacity.
A. Evidence of Intentional Discrimination
The test and evidentiary burdens for establishing claims of intentional
Under Georgia law, a sheriff has the authority to hire and fire employees, direct and regulate their
duties, and control their daily activities, including the power in this discretion to appoint deputies.
O.C.G.A. § 15‐16‐23. A county is precluded from controlling or affecting the sheriff’s office or personnel.
Grech v. Clayton Cnty., Ga., 335 F.3d 1326, 1333 (11th Cir. 2003). Therefore, as a matter of law, a sheriff is
“independent of the county and its governing body.” Martin v. Peach Cnty., Ga., 5:10‐cv‐236, 2001 WL
4830176, at * 6 (M.D. Ga. Oct. 12, 2011).
78 See Plaintiff’s Response [Doc. 51] at 27 n.7.
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discrimination under the Title VII, § 1981, and § 1983 are essentially the same.79 All
employ the McDonald Douglas80 framework: First, the plaintiff must identify sufficient
evidence to establish a prima facie case of discrimination.81 If the plaintiff does so, the
burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason
for the decision.82 If the employer meets this burden, the plaintiff then has an
opportunity to show that the employerʹs proffered reasons for the adverse employment
action are pretext for discrimination.83 The intermediate burdens of production shift,
but “the ultimate burden of persuading the trier of fact that the employer intentionally
discriminated against the employee remains at all times with the plaintiff.”84
1. Prima Facie Case
The first issue therefore is whether Plaintiff has identified sufficient evidence on
summary judgment to establish a prima facie case of discrimination. Because it is
undisputed that this is not a case involving direct evidence discrimination, Plaintiff will
have to establish his case with circumstantial evidence. The most common way to do so
is for the plaintiff to show: (1) he is a member of a protected class; (2) he was qualified
See Patterson v. McLean Credit Union, 491 U.S. 164, 185–87 (1989) (finding that the McDonnell Douglas
framework for proving intentional race discrimination is applicable to § 1981 claims); Cross v. Alabama, 49
F.3d 1490, 1508 (11th Cir. 1995) (holding that where § 1983 is used as a parallel remedy for a violation of
Title VII, the elements of the causes of action are the same.).
80 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
81 Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
82 Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
83 Id. at 253.
84 E.E.O.C. v. Joeʹs Stone Crabs, Inc., 296 F.3d 1265, 1273 (11th Cir. 2002)
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for the position; (3) he suffered an adverse employment action; and (4) he was replaced
by a person outside his protected class or was treated less favorably than a similarly‐
situated individual outside his protected class.85 If a plaintiff is unable to satisfy the
fourth prong of this test, a prima facie case may, in the alternative, be proven by “a
convincing mosaic of circumstantial evidence sufficient for a jury to reasonably infer
intentional discrimination.”86
In this case, Talton does not dispute whether Plaintiff can satisfy the first three
elements of a prima facie case. He contends that Plaintiff’s claims fail, as matter of law,
because: (1) Plaintiff’s proffered comparators are not sufficiently similar87; (2) Plaintiff’s
evidence is not sufficient for a jury to otherwise infer intentional discrimination; and (3)
even if there is sufficient evidence that race was a motivating factor in Holt’s
recommendation, any discriminatory intent by Holt cannot be not imputed to Talton.
a. Similarly Situated Comparators
To determine other whether employees are “similarly situated” in the context of
a disciplinary action, the court must consider whether the employees were accused of
the same or similar misconduct and disciplined in different ways.88 The plaintiff is thus
required to identify at least one similarly situated employee, outside his protected class,
See McDonnell Douglas, 411 U.S. at 802.
Smith v. Lockheed–Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (emphasis added).
87 It is undisputed that Plaintiff was not replaced by a person outside his protected class. Defs’ SF ¶ 86‐87.
88 Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1311 (11th Cir.) (quoting Holifield v. Reno, 115 F.3d
1555, 1562 (11th Cir. 1997)), opinion modified by 151 F.3d 1321 (11th Cir. 1998).
85
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who engaged in nearly identical misconduct, but received more favorable treatment.89
When comparing misconduct, “the quantity and quality of the comparatorʹs misconduct
must be nearly identical to prevent courts from second‐guessing employersʹ reasonable
decisions and confusing apples with oranges.”90 The most important factor, however, is
“the nature of the offenses committed” not the exact facts of the each case. “Exact
correlation is neither likely nor necessary”; the cases need only “be fair congeners.”91
“In other words, apples should be compared to apples.”92
In this case, Sheriff Talton contends that Plaintiff must identify an employee
outside his protected class who both (1) engaged in an unlawful public altercation and
(2) directly implicated the HCSD in his misconduct.93 These, however, were not
necessarily the factors considered at the time of Plaintiff’s termination. Sheriff Talton
never claimed that Plaintiff was terminated because he directly implicated the HCSD in
the Lucky Cabin incident. Talton did even not know that Plaintiff referenced his
connection to the HCSD during the Lucky Cabin incident; it was thus not a factor in his
Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.1999).
Id.
91 Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989)
92 Id.
93 Defendants do not contend on summary judgment that the comparators are dissimilar when quantity
of past misconduct is considered, and it is unclear whether there is evidence to support that argument.
The Court will thus not make that argument sua sponte. There 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). Furthermore, the
evidence shows that Plaintiff was not ever questioned or disciplined with respect to much of the
misconduct alleged. See infra.
89
90
18
decision.94 Plaintiff was also never informed that he was terminated for engaging in
unlawful conduct and implicating the HCSD. Rape’s termination letter stated that
Plaintiff had engaged in “conduct unbecoming an officer.” In a later report, Rape stated
that Plaintiff “caused public respect for the [HCSD]” to be destroyed,95 which he
believes occurs anytime an HCSD officer is involved in “any kind of fracas” off duty.
The Court thus finds Sheriff Talton’s comparator requirements to be overly narrow.
Plaintiff, on the other hand, identifies an overly broad category of comparators.
He contends that he need only identify another officer who engaged in “conduct
unbecoming an officer.” The HCSD defines conduct unbecoming an officer as the
“commission of a felony, misdemeanor, or violation of a county ordinance; habitual
indulgence in narcotics or drugs; disobedience of or failure to comply with orders, or
immorality.”96 This definition encompasses many different types of misconduct in both
action and severity. An employee fired after committing a criminal battery cannot be
reasonably compared to one involved in non‐physical or administrative misconduct.97
That being said, Plaintiff has identified HCSD officers, outside his protected
class, who were not terminated after being accused of serious misconduct, certainly no
Pl.’s SF ¶¶ 193, 195‐196, Talton Dep. I 64:6‐65:13, 81:16‐19
Pl.’s Resp. to Defs.’ SF ¶ 84; Pl.’s SF ¶ 52
96 Holt Dep. 21:15‐23:13, Ex. 1
97 See Silvera v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1260 (11th Cir. 2001) (misconduct of a violent nature is
not comparable to receiving a DUI); Floyd v. Federal Express Corp., 423 F. App’x 924 (11th Cir. 2011) (non‐
physical conduct cannot be considered nearly identical to battery). See also, Hawkins v. Ceco Corp., 883
F.2d 977, 985 (11th Cir. 1989), cert. denied, 495 U.S. 935, 1467 (1990) (stealing and insubordination are not
comparable misconduct).
94
95
19
less serious than Plaintiff’s conduct at the Lucky Cabin.98 The seriousness of the offense
is of course not solely determinative; the misconduct must also be similar in form.99
With that in mind, the Court finds that a proper comparator is another HCSD officer
who was accused of misconduct involving (1) an assault, battery, or similar disturbance
while off duty which was (2) sufficiently serious to also involve a police report, arrest,
or other public recognition which may reflect poorly on the HCSD. Under this
standard, Plaintiff has identified at least one similarly situated officer outside his
protected class who received more favorable treatment during the investigation of
charges of misconduct and received lesser or no disciplinary sanction.
Daryl Foster, a white HCSD detention officer, was arrested after being involved
in a bar fight. Despite Foster’s actual arrest for disorderly conduct, Major Holt did not
recommend Mr. Foster’s suspension or termination.100 Nor did Holt initiate his own
investigation into the incident, read the arrest report, or interview the other individual
involved.101 Major Holt instead spoke only with Foster and believed his side of the
story, which was that he was an innocent bystander and victim of attack, not the
aggressor. The charges against Foster were later dropped, as they were in Plaintiff’s
See Lobeck v. City of Riviera Beach, 976 F. Supp. 1460, 1467 (S.D. Fla. 1997). “Of course, trial may prove
that these incidents were in fact very different from the incidents that Plaintiff’s demotion, but the Court
is reluctant to usurp the function of the jury” on this issue. Id.
99 Accord Bethel v. Porterfield, 293 F. Supp. 2d 1307, 1321 (S.D. Ga. 2003), affʹd, 116 F. App’x 246 (11th Cir.
2004) (unpublished table decision).
100 Pl.’s SF ¶¶ 50‐51; Holt Dep. Ex. 7
101 Id. ¶ 54
98
20
case. Yet, unlike Plaintiff – who was immediately suspended and then terminated after
the Lucky Cabin incident without ever being questioned – Foster received no
disciplinary action despite the fact that he too was involved in a public fracas, initially
suspected of battery, and actually arrested.
Plaintiff also identifies Sean Alexander, a white male, who was arrested for
“sexual battery” in 2009.102 Major Holt did not recommend Alexander’s termination as
a result of the charge. Unlike in Plaintiff’s case, Major Holt and Sheriff Talton both
chose to talk to Alexander first because, as Talton explained, there are “two sides to
every story.” They did not consider or ask for a statement from Alexander’s accuser103;
Sheriff Talton instead interviewed Alexander personally and got a written statement
from him. Talton believed that “it was important to get Alexander’s side of the story
before making any decision.”104 In the end, despite his actual arrest and criminal
charges being filed against him, Alexander was not terminated because he, like Plaintiff,
“was not proven guilty” of the crime alleged. Alexander remained employed by the
HCSD for a number of years until he resigned voluntarily. 105
Based on these comparators, the Court finds that Plaintiff has sufficiently
satisfied the fourth element of the traditional test and established a prima facie case of
Id. ¶ 69; Holt Dep. Ex 9.
Talton Dep. 47:6:15
104 Pl.’s SF ¶ 72‐74
105 Id. at ¶ 71, 75
102
103
21
intentional discrimination. The Court thus need not consider Plaintiff’s “convincing
mosaic” argument on summary judgment.
b. Cat’s Paw Theory of Liability
The Court also finds that Plaintiff’s evidence is sufficient to create a triable issue
as to Talton’s liability under a “cat’s paw” theory. To proceed under this theory, a
plaintiff must identify evidence that the ultimate decision‐maker followed a
discriminatory
recommendation
of
a
subordinate
without
“independently
investigating” the basis for termination.106 If, however, the evidence shows that the
decision‐maker conducted his own evaluation of the misconduct and makes an
independent decision, his decision is “free of the taint of a biased subordinate
employee.”107 Still, vague evidence of an “independent investigation” standing alone
does not preclude liability: If the plaintiff can show that “the independent investigation
relied on facts provided by the biased supervisor,” a jury could find that “the
investigation was not, in actuality, independent.”108 Therefore, in this case, to proceed
under a cat’s paw theory, Plaintiff must present evidence: that Major Holt’s
recommendation was motivated by a discriminatory animus; that he intended the
Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999).
Pennington v. City of Huntsville, 261 F.3d 1262, 1270 (11th Cir. 2001).
108 Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 352 (6th Cir. 2012). See Staub v. Proctor Hosp., 562 U.S.
411, 421 (2011) (noting that it “is necessary in any case of catʹs‐paw liability” that “the independent
investigation rel[y] on facts provided by the biased supervisor”).
106
107
22
recommendation to result in Plaintiff’s termination; and that his recommendation was
the proximate cause of Plaintiff termination.109
Based on the comparators identified above, the Court finds that Plaintiff has
identified sufficient evidence to establish a prima face case of intentional discrimination
against Major Holt. Plaintiff has also identified ample evidence in this case that neither
Chief Deputy Rape nor Sheriff Talton conducted any type of investigation into the
factual basis for Holt’s recommendation and simply took Holt’s one‐sided findings at
face value. In so doing, both effectively delegated the fact‐finding portion of the
investigation to Major Holt, who in turn gave his superiors selective information about
Plaintiff’s misconduct. Rape and Talton further concede that they would not have,
absent Holt’s recommendation, terminated Plaintiff. This is certainly evidence of
proximate causation.110
Defendants argue that Plaintiff’s appeal hearing before an independent hearing
officer still breaks the causal connection between any racial animus harbored by Major
Holt and Sheriff Talton’s choice to terminate Plaintiff. The evidence does show that
Plaintiff was permitted an appeal hearing. Yet, the hearing officer was also given Holt’s
See Staub, 562 U.S. at 422. See also King v. Volunteers of Am., N. Ala., Inc., 502 F. App’x 823, 828 (11th Cir.
2012) (applying principles of Staub to Title VII case).
110 See Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 353 (6th Cir. 2012) (investigation conducted was not
“unrelated” to bias actions when non‐decisionmaker both misinformed and selectively informed the
employer about the incident; reasonable factfinder could find non‐decisionmaker’s actions were a
proximate cause of the adverse decisions). Accord Watkins v. EFP, LLC, No. 5:12‐CV‐02747‐JHE, 2014 WL
7337392, at *18 (N.D. Ala. Dec. 23, 2014) (finding that plaintiff produced sufficient evidence of proximate
cause where decisionmaker relied entirely on biased supervisor’s fact‐finding).
109
23
findings to consider,111 and Defendants have not identified evidence to show how or
why the hearing officer decided to uphold the termination, what evidence was
presented during the hearing, or if Plaintiff was permitted to call or cross‐examine any
witnesses. Rape and Talton never heard any of the testimony; nor did Talton inquire
about the evidence presented at the hearing before terminating Plaintiff.
In the absence of any evidence to show that Plaintiff’s termination was
independently investigated apart from those findings included in Holt’s
recommendation, Plaintiff’s evidence is sufficient to at least create a jury question as to
the extent of Sheriff’s Talton’s liability. The Third Circuit Court of Appeals in fact
upheld the application of the cat’s paw theory in an analogous situation where, as here,
it was not clear whether the plaintiff called witnesses on his behalf or cross‐examined
his supervisor; there was no evidence about testimony at the hearing; and there was no
evidence that the decisionmaker reviewed hearing materials prior to the termination.112
Furthermore, even if the Court were to assume that Plaintiff did have some
opportunity to present a defense at the hearing, he has also identified sufficient
evidence that the hearing itself may have been one in a series of “rubber stamps”
leading to his termination and not a true break in the causal link. The evidence, when
Defs’ SF ¶ 84.
See McKenna v. City of Philadelphia, 649 F.3d 171, 178‐79 (3d Cir. 2011). Compare with Stimpson, 186 F.3d
at 1332 (finding that decisionmaker was not liable under cat’s paw theory where plaintiff was provided a
hearing, with counsel, and allowed to put on defense evidence and witnesses).
111
112
24
viewed in Plaintiff’s favor, shows that Chief Deputy Rape simply adopted Holt’s
recommendation without investigation and provided it for the hearing officer to
consider, that the hearing officer had never disagreed with a termination recommended
by Major Holt,113 and that Sheriff Talton always followed the decision of the hearing
officer and did not, in this case, conduct any independent investigation of his own.114
Thus, while Sheriff Talton claims that he relied on the decision of an independent
hearing officer when terminating Plaintiff, the Court finds that material issues of fact
exist as to whether Sheriff Talton’s decision was based on any information independent
of those facts presented by Major Holt. For this reason ‐ and because there is sufficient
evidence that Holt harbored a discriminatory animus and intended to cause Plaintiff’s
termination – the Court finds Plaintiff has also established a prima facie case against
Talton under a cat’s paw theory. 115
2. Legitimate, Nondiscriminatory Reason Plaintiff’s Termination
Because Plaintiff can establish a prima facie case of discrimination, “a legal
presumption of unlawful discrimination arises and the burden shifts to [Sheriff Talton]
Again, during the time Holt as served as Major, he recommended the termination of a dozen or more
employees, all of which were terminated. Talton could not remember declining to terminate someone
that Holt recommended for termination. Pl.’s SF ¶¶ 152‐153, 191‐192; Rape Dep. 121:15‐17, 123:24‐124:13;
Talton Dep. 17:5‐10, 92:1‐5, 94:7‐18, 96:19‐24.
114 Pl.’s SF ¶¶ 191‐192; Rape Dep. 121:15‐17, 123:24‐124:13; Talton Dep. I 92:1‐5, 94:7‐18, 96:19‐24
115 See also Dwyer v. Ethan Allen Retail, Inc., 528 F. Supp. 2d 1297, 1304 (S.D. Fla. 2007) affʹd, 325 F. Appʹx
755 (11th Cir. 2009) (finding that plaintiff provided sufficient evidence that non‐decisionmaker harbored a
discriminatory animus and then passed information to the decisionmaker which caused Plaintiff to be
terminated – and thereby demonstrated a prima facie case of discrimination under a “catʹs paw” theory).
113
25
to articulate a legitimate, nondiscriminatory reason for the challenged employment
action.”116 This burden is “exceedingly light”: It is one of production rather than
persuasion.117 Talton need only offer “a clear and reasonably specific non‐
discriminatory basis” for his decision.118
Here, Sheriff Talton now claims that Plaintiff’s termination was based, in part, on
his prior incidents of misconduct ‐ including the Dooly County arrest years earlier and
those incidents included in Holt’s recommendation – i.e., Plaintiff’s use of force on an
inmate, the dispute with his subordinate Daryl Foster, and his subordinate’s failure to
discover contraband on inmates during intake. He also refers to another incident when
Plaintiff was suspected of having unnecessarily deployed his taser. Sheriff Talton thus
now contends that, while it was the Lucky Cabin incident that actually precipitated
Plaintiff’s termination, that incident ‐ when coupled with the identified prior
misconduct ‐ provides a legitimate, nondiscriminatory reason for his termination. 119 In
so doing, Sheriff Talton has satisfied his burden of production.
3. Pretext
Accordingly, Plaintiff’s case now turns on his evidence of pretext. A plaintiff
may make a showing of pretext “by either directly persuading the Court that a
Evans v. McClain of Ga., Inc., 131 F.3d 957, 963 (11th Cir. 1997).
Smith v. Horner, 839 F.2d 1530, 1537 (11th Cir. 1988).
118 Vessels, 408 F.3d at 770.
119 Defendant’s Brief in Support at 13‐16.
116
117
26
discriminatory reason was more likely what motivated the employer or indirectly
showing that the employerʹs proffered explanation is unworthy of credence.”120 In this
case, Plaintiff attempts to prove pretext by showing that Sheriff Talton’s proffered
reasons for his termination are not worthy of credence. To prevail, Plaintiff must
demonstrate “such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employerʹs proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of credence.”121
Here, although Sheriff Talton now contends that his decision to terminate
Plaintiff was based on both the Lucky Cabin incident and past incidents of misconduct,
Plaintiff has presented ample evidence contradicting this claim. There is also evidence
of a post hoc attempt by Holt and Talton to bolster the grounds for termination.
Contradictory and inconsistent statements related to the cause of termination are
sufficient to support a finding of pretext.122 Here, in their depositions, Chief Deputy
Rape and Sheriff Talton both provide testimony inconsistent with Talton’s proffered
reasons for Plaintiff’s termination. Rape stated that Plaintiff’s Dooly County arrest “was
Daniel v. Dekalb County School Dist., ‐‐‐ F. App’x ‐‐‐‐, 2014 WL 7271347, at *4 (11th Cir. 2014) (citing
Jackson v. Ala. State Tenure Commʹn, 405 F.3d 1276, 1289 (11th Cir. 2005)).
120
121
Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1275 (11th Cir. 2008) (quoting Combs v. Plantation Patterns,
106 F.3d 1519, 1538 (11th Cir. 1997) (internal quotation marks and citation omitted).
122 See Howard v. BP Oil Co., 32 F.3d 520, 526 (11th Cir.1994) (“defendantʹs contradictory and inconsistent
statements . . . were sufficient to show pretext”); Walker v. St. Josephʹs/Candler Health Sys., Inc., 506 F.
Appʹx 886, 889 (11th Cir. 2013) (“Pretext may also be established by proof of inconsistent statements . . . ,
suggesting that the articulated reasons are recently fabricated or false.”).
27
not a factor” in his decisions. Talton likewise admitted that he had no problem with
that arrest; he even gave Plaintiff a raise shortly after.123 Rape and Talton additionally
made statements indicating that the allegations of excessive force, argument with
Foster, and failure to detect contraband were actually not factors in the termination. 124
A reasonable fact‐finder could also view Sheriff Talton’s post hoc identification
of past misconduct supporting Plaintiff termination as evidence of pretext.125 Neither
Rape nor Talton had any knowledge of Plaintiff’s prior misuse of his taser until after
Holt learned that Plaintiff intended to file an EEOC charge.126 It is undisputed that,
upon learning of the charge, Holt produced a “Taser file that had not been used in any
prior incident or [action]” against Plaintiff.127 Sheriff Talton also admitted that he never
read Major Holt’s recommendation listing the prior incidents of misconduct now
identified and stated that he had no knowledge the excessive force allegations when
Pl.’s SF ¶ 13; Pl.’s Resp. to Defs.’ SF ¶ 81; Talton Dep. 119‐1‐5
Pl.’s SF ¶ 184‐185; Rape Dep. 91:10‐21, 129:20‐23. One other incident involving Plaintiff’s use of a Taser
on an inmate was raised by Defendants as cause for his termination, though it was not included in Holt’s
recommendation. Holt on raised the issue after he learned that Plaintiff planned to file an EEOC charge.
Pl.’s SF ¶¶ 34‐37, Holt Dep. 166:23‐167:7. Rape said he did not know about the incident, and it was not a
factor in his decision either. Rape Dep. 129:20‐23.
125 “Evidence of a post‐hoc attempt to justify an employment decision may be evidence of pretext.” Keaton
v. Cobb Cnty., 545 F. Supp. 2d 1275, 1303 (N.D. Ga. 2008) affʹd sub nom, No. 08‐11220, 2009 WL 212097
(11th Cir. Jan. 30, 2009) (citing Zarnegar v. St. Paul Fire & Marine Ins. Co., No. 93–C–7744, 1995 WL 656675,
at *7 n. 5 (N.D. Ill. Nov.6, 1995) (“After‐the‐fact attempts to provide documentation justifying an
employment decision may be evidence of pretext.”); Rosenfield v. Wellington Leisure Prods., Inc., 827 F.2d
1493, 1496 (11th Cir.1987) (decision to obtain evidence after the fact suggested pretext); Metzler v. Fed.
Home Loan Bank of Topeka, 464 F.3d 1164, 1177 (10th Cir.2006) (“suspicious timing of ... documentation—
after the fact and in anticipation of litigation—reasonably gave rise to an inference of pretext”)).
126 Pl.’s SF ¶¶ 186‐187
127 Id.
123
124
28
Plaintiff was terminated. Sheriff Talton further made no mention of poor job
performance. In his deposition, Talton in fact stated that no one ever told him Plaintiff’s
job performance was unsatisfactory prior to his termination.128 Plaintiff always received
“fully satisfactory” or “superior” performance reviews.129
As to the Lucky Cabin incident, a finding of pretext is supported by the fact that
no one at HCSD ever questioned Plaintiff about the incident (or other instances of
misconduct alleged) and that Sheriff Talton provided somewhat inconsistent testimony
on that issue as well. Talton testified that, because there are “two sides to every story,”
he believed “it was important to get [an officer’s] side of the story before making any
[disciplinary] decision.” There is evidence that he indeed provided a white officer with
this opportunity when he was accused of comparable misconduct.130 Yet, Sheriff Talton
did not make any independent inquiry into the accuracy of any of the allegations
against Plaintiff before terminating him. Nor did he question whether anyone else had
spoken to Plaintiff or attempt to speak with Plaintiff himself.
Furthermore, as discussed above, Plaintiff has produced sufficient evidence to
support a claim against Sheriff Talton under a cat’s paw theory. On this point, Plaintiff
has shown that Holt knowingly accepted the allegations of people he knew were
involved in an unlawful gambling enterprise (and even a former HCSD inmate) and
Talton’s Dep. 58:21‐24.
Pl.’s SF ¶ 1
130 Pl.’s SF ¶ 72‐74
128
129
29
then recommended Plaintiff’s termination without ever speaking to his own officer.131
Major Holt then gave selective information to his superiors about past incidents of
misconduct, though Plaintiff had not been questioned or disciplined as a result of
events either. Holt, however, was quick to question white officers, giving them more
favorable treatment when accused of comparable misconduct.132 Major Holt’s past use
of racial slurs and viewing of racist internet websites may also ‐ when combined with
Plaintiff’s other evidence – be used as evidence of pretext.133
The Court thus finds that there are genuine issues of material fact in this case that
are better left for a jury to decide. Defendantʹs Motion for Summary Judgment is thus
DENIED with respect to Plaintiffʹs Title VII claims against Sheriff Talton.
B. Talton’s Affirmative Defenses of Sovereign and Qualified Immunity
Defendant Sheriff Talton next contends that summary judgment must be granted
in his favor with respect to Plaintiff’s §§ 1981 and 1983 claims because he is entitled to
both qualified and sovereign immunity.
Pl.’s SF ¶ 165‐167, Holt Dep. 138:20‐23, 278‐1‐13, 280:1‐10.
Plaintiff also identified another African‐American officer who was treated less favorably than a
similarly situated white officer. This type of “me, too” evidence is generally suspect. See Bell v. Crowne
Mgmt., LLC, 844 F. Supp. 2d 1222, 1236 (S.D. Ala. 2012). Such evidence, however, has been found relevant
as to pretext and admissible to show intent to discriminate under Rule 404(b) when the situations involve
the same decision‐maker, see King v. CVS Caremark Corp., 2 F. Supp. 3d 1252, 1275 (N.D. Ala. 2014) (citing
Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261 (11th Cir. 2008)), and the same type of discrimination,
Bell, 844 F. Supp. 2d at 1236 (citing Lewis v. Deparment of Transp., 187 F. App’x 961, 961–62 (11th Cir.
2006)). Here, the Court finds sufficient other evidence to raise a genuine issue as to pretext, the Court will
thus reserve ruling on the relevance and admissibility of the “me too” evidence in this case.
133 Rojas v. Florida, 285 F.3d 1339, 1342‐43 (11th Cir. 2002). See also Scott v. Suncoast Beverage Sales, Ltd., 295
F.3d 1223, 1229 (11th Cir. 2002)
131
132
30
1. Qualified Immunity
When a government official is sued in his individual capacity under either § 1981
or § 1983, he may raise the defense of qualified immunity. “The doctrine of qualified
immunity insulates government agents from personal liability for money damages for
actions taken in good faith pursuant to their discretionary authority.”134 When invoked,
the government official must prove that he was acting within the scope of his
discretionary authority at the time of the challenged conduct.135 If he meets this burden,
the burden shifts to the plaintiff to prove both a constitutional violation and that the
right violated was clearly established at the time of the violation.136
In this case, there is no dispute that Sheriff Talton was acting within the scope of
his discretionary authority when he terminated Plaintiff. Defendants likewise do not
dispute that “the equal protection right to be free from intentional race discrimination”
in the context of wrongful termination has been clearly established.137 The only issue
therefore is whether Plaintiff has presented sufficient evidence of a constitutional
violation. Because, as stated above, the test and evidentiary burdens for establishing
claims of intentional discrimination under the Title VII, § 1981 and § 1983 are the same –
Smith v. State of Alabama, 996 F. Supp. 1203, 1211 (M.D. Ala. 1998) (citing Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982); Greason v. Kemp, 891 F.2d 829, 833 (11th Cir.1990)).
135 Sims v. Metropolitan Dade County, 972 F.2d 1230, 1236 (11th Cir. 1992).
136 See id
137 See Williams v. Consol. City of Jacksonville, 341 F.3d 1261, 1272 (11th Cir. 2003) (“[I]it was clearly
established in 1999 that it was unlawful for a public official to make a race–or gender‐based decision
concerning hiring, termination, promotion, or transfer to or from an existing position.”).
134
31
and the Court has found that Talton’s liability under Title VII involves questions of fact
that must be reserved for a jury – the Court must now also find that Plaintiff has created
genuine issues of material fact with respect to his §§ 1981 and 1983 claims as well.
2. Sovereign Immunity
Sheriff Talton also argues that he is entitled to sovereign immunity with respect
to the claims brought against him in his “official capacity.” This argument is based on a
recent decision of the Eleventh Circuit Court of Appeals which held that a Georgia
sheriff enjoyed Eleventh Amendment immunity against his employee’s wrongful
termination claims when sued in his official capacity. 138 Plaintiff does not dispute the
validity of Defendants’ legal argument, but he does contend that such immunity applies
only to Plaintiff’s claims for damages and not to his claims for prospective injunctive
relief, i.e., reinstatement. Defendants did not put forth any argument to the contrary.139
Summary Judgment is thus GRANTED in favor of Sheriff Talton with respect to
Plaintiff’s §§ 1981 and 1983 claims for damages in his official capacity. Defendants’
Motion is DENIED as to Plaintiff’s claims against Sheriff Talton in his individual
capacity and claims for injunctive relief against Talton in his official capacity.
138
139
Pellitteri v. Prine, 776 F.3d 777, 783 (11th Cir. 2015)
See Alden v. Maine, 527 U.S. 706, 710 (1999).
32
CONCLUSION
Defendants’ Motion for Summary Judgment is GRANTED in part and DENIED
is part: The Motion shall be GRANTED as to (1) Plaintiff’s claims against Houston
County and (2) Plaintiff’s §§ 1981 and 1983 claims for damages against Sheriff Talton in
his official capacity. As to all other claims, Defendants’ Motion is DENIED.
SO ORDERED, this 29th day of September, 2015.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
33
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