RODRIQUEZ v. MOULTRIE GEORGIA et al
ORDER granting 14 Motion for Summary Judgment. Ordered by U.S. District Judge HUGH LAWSON on 9/10/2014. (nbp)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
Civil Action No. 7:13-CV-60 (HL)
CITY OF MOULTRIE, GEORGIA and
MOULTRIE POLICE DEPARTMENT,
This case is before the Court on Defendants’ Motion for Summary
Judgment. (Doc. 14). After reviewing the pleadings, briefs, affidavits, and other
evidentiary materials presented, and determining that there is no genuine dispute
of the material facts, the Court finds that Defendant is entitled to judgment as a
matter of law and grants Defendants’ motion.
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56 requires that summary judgment be
granted “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled the judgment as a matter of law.” Fed.R.Civ.P.
56(a). “The moving party bears ‘the initial responsibility of informing the . . . court
of the basis for its motion, and identifying those portions of the pleadings,
depositions, answer 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.’” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir.
2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal
quotations omitted)). Where the moving party makes such a showing, the burden
shifts to the non-movant, who then must go beyond the pleadings and present
affirmative evidence to show that a genuine issue of material fact does exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
In resolving a motion for summary judgment, the court must view all
evidence and draw all reasonable inferences in the light most favorable to the
non-moving party. Patton v. Trial Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th
Cir. 2002). But, the court is bound only to draw those inferences which are
reasonable. “Where the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no genuine issue for trial.” Allen v.
Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “If the evidence is
merely colorable, or is not significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249-50 (internal citations omitted).
Local Rule 56
In compliance with Local Rule 56, Defendants filed a separate statement of
material facts in which Defendants contend there is no genuine issue to be tried.
(Doc. 15). Defendants properly numbered each factual statement and provided
the support of a specific citation to the record. See M.D. Ga. L.R. 56.
Both Local Rule 56 and Federal Rule of Civil Procedure 56(e) require
Plaintiff as the non-moving party to respond to each of the movants’ numbered
material facts. “All material facts contained in the moving party’s statement which
are not specifically controverted by specific citation to the record shall be deemed
to have been admitted, unless otherwise appropriate.” M.D. Ga. L.R. 56. Plaintiff
neglected to file any response to the statement of material facts. Accordingly, the
facts contained in Defendants’ statement are deemed admitted.
The Court notes that Defendants’ filed the pending motion on January 21,
2014. After receiving no response from Plaintiff, the Court entered an order
granting summary judgment on March 7, 2014. (Doc. 20). That same date,
Plaintiff filed a Motion to Set Aside Order (Doc. 22), informing the Court that
neither Plaintiff nor Plaintiff’s counsel received a copy of Defendants’ motion and
requesting the opportunity to respond. Even after the Court agreed to vacate the
order and afforded Plaintiff time to file a response, Plaintiff failed outright to
respond to the Defendants’ statement of material facts or to provide a wellresearched, well-articulated defense to Defendants’ motion supported by precise
citations to the record, which, in the Court’s opinion, is equivalent to filing no
response at all. The Court cautions Plaintiff’s counsel to remember his duty
under Federal Rule of Civil Procedure Rule 11 to refrain from making frivolous
arguments to the Court and wasting valuable time and resources.
Even in the absence of a response, the Court “cannot base the entry of
summary judgment on the mere fact that the motion was unopposed, but rather,
must consider the merits of the motion.” United States v. One Piece of Real Prop.
Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1011 (11th Cir.
Defendant "continues to shoulder the initial burden of production in
demonstrating the absence of any genuine issue of material fact, and the court
must satisfy itself that the burden has been satisfactorily discharged." Reese v.
Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008). The Court must "review the
movant's citations to the record to determine if there is, indeed, no genuine issue
of material fact." Id. at 1269 (quotation and internal quotation marks omitted). The
Court has so reviewed the record, and viewed in the light most favorable to
Plaintiff, finds the facts for purposes of summary judgment to be as follows.
Relevant Factual Background
Plaintiff is a Hispanic male. He was hired by the City of Moultrie in
January of 2006 to work as a police officer. Plaintiff resigned his employment
with the City on March 3, 2013.
Hope Allen is an African-American female. She began working for the
City as a police officer on July 9, 2012. Shortly after Ms. Allen was hired,
she was placed on a shift supervised by Sergeant Daniel Lindsay. Plaintiff
also worked on Sergeant Lindsay’s shift at this time. Corporal Rocky
Hancock was assigned as Ms. Allen’s field training officer and direct
supervisor. Corporal Hancock and Sergeant Lindsay are both Caucasian
On or about July 25, 2012, Ms. Allen submitted a letter to Frank Lang,
the Chief of Police. In the letter, Ms. Allen complained that Corporal Hancock
exchanged racial comments with Shunell Borders, an African-American
female police officer. Ms. Allen also stated that Corporal Hancock showed her
videos of a Caucasian female impersonating an African-American female
working at a hamburger restaurant and as a flight attendant. She further
indicated in the letter that Corporal Hancock showed her a photograph of Ms.
Borders holding a box of Cracker Jacks that had been altered to read
“Nigger Jacks.” Ms. Allen additionally submitted a memorandum to Chief
Lang regarding an incident between Ms. Allen and John Vickers, who was
working as a police officer for the City at the time, during which Mr. Vickers
allegedly called Ms. Allen a bitch.
After receiving the letter and memorandum from Ms. Allen, Chief
Lang assembled a panel of City employees to investigate the allegations made
by Ms. Allen. Plaintiff was interviewed by the panel. During his interview,
Plaintiff told the panel that he had altered a bag of Cracker Jacks so that it read
“Nigger Jacks” or “Nigga Jacks.” Plaintiff altered the bag while at work at the
Police Department, and presented the altered bag to Ms. Borders in, or
immediately outside, the briefing room at the Police Department. Ms.
Borders was then photographed holding the bag while wearing her police
On August 10, 2012, Chief Lang notified Plaintiff by letter that he
was being placed on Decision Making Leave for one day. Chief Lang wrote in
relevant part that “your level of participation in this pervasive and
disrespectful behavior played a major role in creating a hostile work
environment. . . . In your interview you admitted to writing on the Cracker Jack
bag to cross out the letters C-R-A-C-K and wrote in N-I-G-G to have the bag
read ‘Nigger Jacks’. . . .Your actions clearly crossed the line when you
engaged in the disgusting and racist acts, and the fact that you openly
participated in creating the environment, leads me to question if the law
enforcement profession is right for you. . . . After much consideration, I have
decided to place you on Decision-Making Leave (DML), with pay on
Tuesday, August 14, 2012.” Sergeant Lindsay, Corporal Hancock, Mr.
Vickers, and Ms. Borders were all also placed on Decision Making Leave for
one day by Chief Lang.
On December 4, 2012, Plaintiff signed a Charge of Discrimination in
which he alleged that the Police Department discriminated against him on the
basis of his race. The basis of the Charge of Discrimination was Plaintiff’s
placement on Decision Making Leave. On February 12, 2013, the EEOC
issued a Notice of Right to Sue with respect to the Charge.
On April 29, 2013, Plaintiff filed his complaint in this case. Plaintiff
alleges that Defendants violated 42 U.S.C. § 2000e and 42 U.S.C. § 1981
by discriminating against him on the basis of his race. Defendants now move
for summary judgment on all claims raised in Plaintiff’s complaint.
Claims against the Moultrie Police Department
Defendants move to dismiss all claims against the Moultrie Police
Department because it is not an entity capable of being sued. The Court agrees.
The issue of whether an entity is capable of being sued is determined by the law
of the state in which the district court is located. Fed.R.Civ.P. 17(b)(3). Thus, in
this case, Georgia law controls. The Georgia Supreme Court has explained that
“[i]n every suit there must be a legal entity as the real plaintiff and the real
defendant. This state recognizes only three classes of legal entities, namely (1)
natural persons; (2) an artificial person (a corporation); and (3) such quasiartificial persons as the law recognizes as being capable to sue.” Georgia
Insurers Insolvency Pool v. Elbert County, 258 Ga. 317, 318 (1988) (quotation
omitted). A police department does not fall into any of these categories, and
therefore is not capable of being sued. Dean v. Barber, 951 F.2d 1210, 1214
(11th Cir. 1992) (“Sheriff’s departments and police departments are not usually
considered legal entities subject to suit.”); Presnell v. Pauling County, 454
F.App’x 763, 768 (11th Cir. 2011). Accordingly, all claims against the Moultrie
Police Department are dismissed.
Title VII Claim
To make a prima facie case for Title VII race discrimination, Plaintiff must
show (1) that he is a member of a protected class, (2) that he suffered an
adverse employment action; (3) that the employer treated similarly situated
employees outside his classification more favorably, and (4) that he was qualified
for the position. Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir. 1997). The City
does not dispute that Plaintiff is a member of a protected class, that he suffered
an adverse employment action, or that he was qualified for his job. The City does
dispute that Plaintiff was subjected to disparate treatment.
During his deposition, Plaintiff testified that Travis Stokes, Kizzie Richard,
and Tamika Scott were all treated more favorably than him. In response, the City
contends that none of these individuals are proper comparators for purposes of
establishing a prima facie case.
To determine whether employees are similarly situated for purposes of
establishing a prima facie case, “it is necessary to consider whether the
employees are involved in or accused of the same or similar conduct and are
disciplined in different ways.” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.
1999). To properly evaluate comparator evidence, “the quantity and quality of the
comparator’s misconduct [must] be nearly identical to prevent courts from
second-guessing employers’ reasonable decisions and confusing apples and
In McCann v. Tillman, the Eleventh Circuit analyzed a plaintiff’s Title VII
discrimination claim and applied the “nearly identical” standard for comparators.
526 F.3d 1370, 1374 (11th Cir. 2008). The court adopted this standard over the
objection of the plaintiff, who argued for a “similar” standard for comparators. In
adopting the stricter “nearly identical” standard, the Eleventh Circuit recognized
the difficulty faced by the plaintiff in meeting the standard but stated that “we are
bound by precedent to adhere to the ‘nearly identical standard.’” Id. at 1374 n. 4.
Thus, the “nearly identical” standard applies in the present case.
All three of the purported comparators identified by Plaintiff are AfricanAmerican. Plaintiff testified based primarily on hearsay and rumors that Ms. Scott
was involved in two domestic disturbances; that Ms. Richard committed perjury
on two occasions; and that Mr. Stokes was part of a motorcycle gang that was
involved in a disturbance and also fled from a Georgia State Patrol officer while
riding a motorcycle. Plaintiff believed that these officers were not punished for
any of this alleged conduct but offered no direct evidence to support this
As correctly pointed out by the City, none of the alleged incidents involving
Mr. Stokes, Ms. Richard, or Ms. Scott involved participating in an offensive, race9
based “joke” while on duty at the police station. The other three officers’
misconduct is in no way nearly identical to Plaintiff’s misconduct. In fact, the
proper comparator, Ms. Borders, was treated in exactly the same manner as
Plaintiff, in that she also was given one day of Decision Making Leave.
In the Eleventh Circuit, “[i]f a plaintiff fails to show the existence of a
similarly situated employee, summary judgment is appropriate where no other
evidence of discrimination is present.” Coar v. Pemco Aeroplex, Inc., 372 F.App’x
1, 3 (11th Cir. 2010) (quoting Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,
1092 (11th Cir. 2004)). Here, Plaintiff has shown no other evidence of
discrimination. Therefore, the Motion for Summary Judgment on Plaintiff’s Title
VII claim is granted.
42 U.S.C. § 1981 Claim
As the Moultrie Police Department has been dismissed from the case,
Plaintiff’s § 1981 claim remains against the City of Moultrie alone. The City
argues that Plaintiff’s § 1981 claim should be dismissed because such claims
must be brought pursuant to 42 U.S.C. § 1983, as § 1983 provides the exclusive
remedy against state actors for violations of the rights contained in § 1981, and
Plaintiff did not assert a § 1983 claim in his complaint.
The Court agrees with the City that Plaintiff’s § 1981 claim fails as a matter
of law. See Butts v. County of Volusia, 222 F.3d 891, 892-95 (11th Cir. 2000)
(explaining that a claimant cannot proceed with a cause of action against a state
actor based solely on § 1981); Rioux v. City of Atlanta, 520 F.3d 1269, 1273 n. 3
(11th Cir. 2008). Plaintiff cannot bring an independent claim under § 1981
against the City. Thus, the City is entitled to summary judgment on this claim.
For the foregoing reasons, the Court grants Defendant’s Motion for
Summary Judgment. (Doc. 14). The Clerk of Court is directed to enter judgment
in favor of Defendant and to close this case.
SO ORDERED, this 10th day of September, 2014.
s/ Hugh Lawson_______________
HUGH LAWSON, SENIOR JUDGE
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