VICKERS v. Moultrie, City of et al

Filing 23

ORDER granting 15 Motion for Summary Judgment. Ordered by U.S. District Judge HUGH LAWSON on 8/11/2014. (nbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

JOHN VICKERS,
Plaintiff,
Civil Action No. 7:13-CV-29 (HL)

v.
CITY OF MOULTRIE, GEORGIA, AND
MOULTRIE POLICE DEPARTMENT,
Defendants.

ORDER
Before the Court is the Motion for Summary Judgment (Doc. 15) filed by
Defendants City of Moultrie, Georgia (“City of Moultrie”) and the Moultrie Police
Department (“MPD” or “the Department”) (collectively “Defendants”). For the
following reasons, the motion is granted.
I.

Summary Judgment Standard
Summary judgment is appropriate when “the pleadings, the discovery and

disclosure materials on file, and any affidavits show there is no genuine issue as
to any material fact and … the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact
arises only when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must evaluate all of the
evidence, together with any logical inferences, in the light most favorable to the
nonmoving party. Id. at 254-55. The court may not, however, make credibility
determinations or weigh the evidence. Id. at 255; see also Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105
(2000).
The

party

seeking

summary

judgment

“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 a material fact.” Celotex,
477 U.S. at 323 (internal quotation omitted). If the movant meets this burden, the
burden shifts to the party opposing summary judgment to go beyond the
pleadings and present specific evidence showing that there is a genuine issue of
material fact, or that the movant is not entitled to judgment as a matter of law. Id.
at 324-26. This evidence must consist of more than conclusory allegations. See
Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). Summary judgment must
be entered “against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

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Under Local Rule 56, the facts listed in the movant’s statement of material
facts will be deemed admitted as undisputed unless the non-movant denies each
specific fact and provides a supporting citation to the factual record. M.D. Ga.
L.R. 56. However, even if the non-movant fails to offer adequate objections under
Local Rule 56, a court may not accept at face value the movant’s depiction of the
facts. United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave.,
Miami, Fla., 363 F.3d 1099, 1101-02 (11th Cir. 2004). A court must review the
record to determine for itself whether the motion for summary judgment is
supported by the evidence and that there is no genuine issue of material fact. Id.;
see also Reese v. Herbert, 527 F.3d 1253, 1268-69 (11th Cir. 2008).
II.

Factual Summary
Although Plaintiff John Vickers (“Plaintiff”) has filed a statement of facts in

support of his response to Defendants’ motion for summary judgment, he has not
provided specific record citations to contest each fact listed in their statement of
undisputed material facts. Therefore, any fact in the Defendants’ statement of
undisputed material facts that Plaintiff has not properly challenged is deemed
admitted to the extent it is supported by some evidence.
This race discrimination lawsuit arises from Plaintiff’s employment as a
police officer with the MPD. Plaintiff, a Caucasian male, was hired as a police
officer by the MPD in January 2011. In July 2012, Plaintiff worked on a shift that

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was under the supervision of Sgt. Daniel Lindsay (“Lindsay”). On July 9, 2012, an
African-American woman named Hope Allen (“Allen”) began working as a police
officer with the MPD. Allen was placed on Lindsay’s shift. Corporal Rocky
Hancock (“Hancock”) was designated as Allen’s field training officer (“FTO”) and
tasked with familiarizing her with the layout of the City of Moultrie and the
Department’s policies and procedures. As Allen’s FTO, Hancock was her
supervisor, and both he and Lindsay are Caucasian. (Defendants’ Statement of
Undisputed Material Facts (“DSMF”), Doc. 16, ¶¶1-2, 5-11).
In late July 2012, Allen provided a letter to Frank Lang (“Chief Lang”), the
chief of the MPD, in which she complained of comments and behavior by MPD
officers that she considered racially offensive. According to the letter, Hancock
had shown Allen racial videos and exchanged racial comments with Shunell
Borders (“Borders”), another African-American female police officer with the
MPD. The letter also claimed that Hancock had shown Allen a photograph of
Borders holding a Cracker Jack box whose lettering had been altered to read
“Nigger Jacks.” Allen additionally complained that Lindsay had made comments
to her about her race. (Id. at ¶¶12-13).
Around the same time that Allen submitted the letter, she also delivered a
memorandum to Chief Lang describing an incident she had had with Plaintiff.
According to the memorandum, on July 15, 2012, she had been using the

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computer in the MPD’s briefing room but then left to go to the sergeant’s office.
When she returned to the briefing room, Plaintiff was sitting at the computer. He
asked if Allen wanted to use the computer again, but she declined. Plaintiff then
said, “’cause if you did I was gone call you a bitch.” Allen replied, “[N]o you
weren’t going to call me a bitch, I was gone push your ass out that chair.” As
detailed in the memorandum, Plaintiff and Allen then repeated the “bitch” and
“ass” comments for good measure. (Id. at ¶¶14-15).
After getting Allen’s letter and memorandum, Chief Lang formed a panel of
city employees to investigate her claims. Seth Walters, a commander with the
MPD, was among those who served on the panel. During the interview with the
panel on July 30, 2012, Plaintiff said that he had joked with Allen since she had
begun working with the MPD. He admitted to being in the briefing room with Allen
on July 15, and he did not deny calling her a “bitch.” Plaintiff told the panel that
he simply did not recall whether or not he had done so. After appearing before
the panel, Plaintiff submitted a written statement to Commander Walters in which
he reiterated that, although he could not deny making the comment to Allen, he
did not remember whether he had. On August 1, Plaintiff submitted a second
statement to Walters which related that Chris Tucker (“Tucker”), a MPD officer,
may have been in the briefing room when Plaintiff supposedly called Allen a
“bitch.” (Id. at ¶¶16-25).

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Chief Lang decided to place Plaintiff on decision-making leave (“DML”) for
one day, along with Lindsay, Hancock, and Borders, and Chief Lang informed
Plaintiff of this decision in a letter on August 10, 2012. Chief Lang had watched
video recordings of the interviews conducted by the investigative panel, and he
concluded that Allen was being truthful in claiming that Plaintiff had called her a
“bitch.” In the DML letter to Plaintiff, Chief Lang suspended him for one day to
afford an opportunity to decide whether he wished to continue working in the
MPD. If Plaintiff wished to stay in the MPD, he would have to provide a plan of
action for how he could correct the type of behavior reported by Allen. Plaintiff
evidently satisfied Chief Lang’s conditions because he continued working for
several months. (Id. at ¶¶26-27, 47-49; Affidavit of Frank Lang, Senior, Doc. 18,
¶¶25-29; Deposition of Plaintiff, Doc. 20, pp. 27, 69-71, 74-75).
At some point after being placed on DML, Plaintiff had a conversation with
Tucker and learned that the other officer had indeed been in the briefing room on
July 15 during the incident with Allen. Tucker said that he had not overheard
Plaintiff call Allen a “bitch.” At Plaintiff’s request, Tucker prepared a written
statement summarizing his memory of what had occurred in the July 15 incident,
and Plaintiff placed the statement in a personal file. He never gave Tucker’s
statement to a superior officer in the MPD. (Id. at 66-69; DSMF, ¶¶28-31).

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Plaintiff’s lawsuit alleges that by placing him on DML the MPD has treated
him differently than similarly-situated African Americans, but he does not know of
any African-American officers who have been accused of calling someone a
“bitch” or using similarly inappropriate language. (Id. at ¶¶36-38; Plaintiff Depo.,
pp. 82-85). Departmental policy requires MPD officers who enter a romantic
relationship with another officer to

disclose this to the Department’s

administration, but the undisputed record does not show any non-Caucasian
officers who violated this policy. LaToya Bell (“Bell”) and Elvin Kerr (“Kerr”) are
African-American officers in the Department. After they began working in the
MPD, Chief Lang learned of a photograph of them which indicated they might be
in a romantic relationship. Because Bell and Kerr had not disclosed any such
relationship, the nature of their relationship was investigated. The investigation
uncovered that the officers were nothing more than friends, and neither one was
disciplined.1 (DSMF, ¶¶39-46).
Even though Plaintiff voluntarily resigned from the MPD in November 2012
and took a position with the Colquitt County Sheriff’s Office that paid a higher
hourly wage than he had earned with the Department, he filed this lawsuit
against Defendants on March 12, 2013. (Plaintiff Depo., pp. 23-24, 27, 75-79;
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Plaintiff, in his deposition, testified that Kerr was Bell’s FTO, that they had engaged in
a sexual relationship, and that Kerr had impregnated Bell. (Plaintiff Depo., pp. 83-84).
However, Plaintiff has conceded Defendants’ depiction of Bell and Kerr’s relationship
and the results of MPD’s investigation because he did not contest their statement of
undisputed material facts as required by Local Rule 56.
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Complaint, Doc. 1, ¶¶5, 27). His Complaint alleges that Defendants have violated
Title VII of the Civil Rights Act of 1964 (“Title VII”) and 42 U.S.C. § 1981(a). (Id.
at ¶5). Broadly construed, the Complaint claims that Plaintiff has suffered racial
discrimination in the form of 1) disparate treatment based on the assignment to
DML; 2) a hostile work environment; and 3) retaliation. (Id.; Plaintiff Depo., pp.
82-85; Plaintiff’s Brief in Support of his Response to Defendants’ Motion for
Summary Judgment, Doc. 22, p. 4).
III.

Legal Analysis
The motion for summary judgment is granted because the undisputed

material facts show that Defendants are entitled to judgment as a matter of law.
A.

Claims against the Moultrie Police Department

Because Georgia law does not recognize the MPD as an entity capable of
being sued, all of the claims against it are dismissed. See Smith v. City of
Unadilla, 510 F. Supp. 2d 1335, 1342 (M.D. Ga. 2007) (citing Dean v. Barber,
951 F.2d 1210, 1214 (11th Cir. 1992) and Lovelace v. Dekalb Cent. Prob., 144 F.
App’x 793, 795 (11th Cir. 2005)).
B.

Claims against the City of Moultrie

Plaintiff’s claims against the City of Moultrie are also dismissed. Plaintiff
bases his claims on Title VII and § 1981. As amended, Title VII makes it illegal
for employers “to discriminate against any individual with respect to his

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compensation, terms, conditions, or privileges of employment, because of such
individual’s race….” 42 U.S.C. § 2000e-2(a). Section 1981 similarly prohibits
racial discrimination. 42 U.S.C. § 1981(a). Title VII and § 1981 claims are subject
to the same analysis if they are based on the same set of facts. Standard v.
A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). Although the
Complaint only generally alleges unlawful “discrimination and retaliation,”
Defendants reasonably inferred the discrimination claim was for disparate
treatment and focused their summary judgment motion on that claim. In
responding to the summary judgment motion, plaintiff crafted his argument, to the
extent one was made at all, in terms of a hostile work environment claim, which
appears to be the first time this specific allegation has been made. The Court will
assume, in an abundance of caution, that claims of disparate treatment, a hostile
work environment, and retaliation have been adequately pled.
1.

Disparate Treatment

Plaintiff has not established a claim of discrimination in the form of
disparate treatment. Among other things, such a claim requires Plaintiff to show
that Defendants “treated similarly situated employees outside his [racial]
classification more favorably.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.
1997). There is no evidence that non-Caucasian police officers engaged in
behavior comparable to Plaintiff’s conduct, and there is certainly no evidence that

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the MPD was more tolerant of non-Caucasian officers. The disparate treatment
claim is dismissed.
2.

Hostile Work Environment

Summary judgment is also granted for the hostile work environment claim.
To support such a claim Plaintiff must, among other things, provide evidence that
he was subjected to unwelcome harassment based on his race and that the
harassment was “severe or pervasive enough to alter the terms and conditions of
employment and create a hostile … working environment.” Edwards v. Prime,
Inc., 602 F.3d 1276, 1300 (11th Cir. 2010). The record does not indicate that
Plaintiff experienced harassment at the MPD because of his race or that he was
working in a racially hostile environment.
3.

Retaliation

The retaliation claim is also dismissed. As with the hostile work
environment claim, Defendants’ motion for summary judgment does not
expressly refer to retaliation, even though they clearly move to dismiss all of
Plaintiff’s claims. Nothing in the record supports a retaliation claim under Title VII.
There is no evidence that Plaintiff reported or opposed an employment practice
by Defendants that he reasonably believed violated Title VII, nor is there any
evidence they retaliated against him for engaging in activity protected by that

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statute. See Dixon v. The Hallmark Cos., 627 F.3d 849, 856-57 (11th Cir. 2010)
(providing the elements of a Title VII retaliation claim).
IV.

Conclusion
For the reasons provided above, the Motion for Summary Judgment (Doc.

15) by the City of Moultrie and the MPD is granted, and this case is dismissed.

SO ORDERED, this the 11th day of August, 2014.

s/ Hugh Lawson_______________
HUGH LAWSON, SENIOR JUDGE

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