Sprinkle v. City of Douglas, Georgia et al
Filing
99
ORDER denying 41 Motion for Partial Summary Judgment; granting in part and denying in part 60 Motion for Summary Judgment. Signed by Judge Lisa G. Wood on 11/21/2008. (csr)
In the United States District Court for the Southern District of Georgia Waycross Division
ROBERT
SPRINKLE,
:
CIVIL
ACTION
Plaintiff,
:
v.
:
CITY
OF
DOUGLAS, THOMAS, and OLIVIA
GEORGIA, in his
:
CLIFFORD individual capacity, her
official PEARSON, in
:
individual JACKIE
and
official in her
:
capacity,
WILSON,
individual capacity, his and
and TONY and
official PAULK, in
:
individual
official
:
capacity, : Defendants. No. CV507-056
ORDER
Plaintiff
Robert
Sprinkle
filed
the
above-captioned
case
against
Defendants,
the
City
of
Douglas,
Georgia,
Clifford
Thomas,
Olivia
Pearson,
Jackie
Wilson,
and
Tony
Paulk,
alleging
that
he
was
denied
a
promotion,
and
otherwise
discriminated
against,
because
of
his
race.
Plaintiff
asserts
claims
for
wrongful
denial
of
promotion,
hostile
work
environment,
and
retaliation
under
Title
VII
of
the
Civil
Rights
Act
of
1964,
42
U.S.C.
§§
2000e,
et
seq.
("Title
VII"),
and
42
U.S.C.
§
1983;
violations
of
Equal
Protection,
intentional
race
discrimination,
and
conspiracy
to
deprive
plaintiff
of
his
civil
rights
under
§
1983;
and
violations
of
the
Family
and
Medical
Leave
Act,
29
U.S.C.
§§
2601
et
seq.
("FMLA")
.
Plaintiff
also
asserts
a
claim
for
attorney's
fees
under
42
U.S.C.
§
1988.
Presently
before
the
Court
are
cross
motions
for
summary
judgment.
Plaintiff
has
moved
for
partial
summary
judgment
on
his
FMLA
claim.
Defendants
have
moved
for
summary
judgment
on
all
of
Plaintiff's
claims.
For
the
reasons
set
out
below,
Plaintiff's
motion
for
partial
summary
judgment
will
be
DENIED,
and
Defendants'
motion
for
summary
judgment
will
be
GRANTED
in
part
and
DENIED
in
part.
The
Court
has
endeavored
not
to
turn
a
summary
judgment
order
into
a
law
review
article.
The
heft
of
what
follows
is
not
due
to
theoretical
musings
or
scholarly
asides.
Rather,
this
Court
is
keenly
aware
of,
and
seeks
to
fulfill,
the
responsibilities
imposed
upon
District
Courts
to
address
thoroughly
and
methodically
all
facts,
claims
and
defenses
presented
in
connection
with
summary
judgment
motions
in
employment
discrimination
cases.
See
Davis
v.
Coca-Cola
Bottling
Co.
Consolidated,
516
F.3d
955,
979-84
(11th
Cir.
2008)
.
These
responsibilities
attain
all
the
more
so
when,
as
-2-
in
the
present
case,
there
is
a
second
amended
complaint
presenting
twelve
separate
counts
each
of
which
relates
to
the
others
to
some
extent-against
five
different
defendants-some
of
whom
are
sued
in
their
official
and
individual
capacities,
and
it
is
not
always
extremely
clear
which
count
relates
to
which
defendant.
The
fifty-plus
pages
that
follow
are
no
homage
to
verbiage,
instead
they
are
a
fulfillment
of
the
Davis
command.
BACKGROUND
I.
The
Parties
Plaintiff
Robert
Sprinkle
is
a
Caucasian
male
who
has
been
employed
with
the
City
of
Douglas
Police
Department
since
March
1990.
Plaintiff's
Second
Amended
Complaint
at
¶
13.
Plaintiff
is
currently
the
most
senior
Corporal
within
the
police
department,
having
held
that
rank
for
several
years.
Id.
Defendant
City
of
Douglas
is
a
political
subdivision
of
the
State
of
Georgia
located
in
Coffee
County,
Georgia.
Id.
at
¶
7.
The
City
of
Douglas
employs
in
excess
of
fifteen
persons
in
various
departments,
including
its
police
department.
Id.
Defendant
Thomas
is
the
Chief
of
Police
for
-3-
the
City
of
Douglas.
Id.
at
¶
8.
Defendant
Paulk
is
the
Mayor
of
the
City
of
Douglas.
Id.
at
¶
9.
Defendant
Pearson
is
a
member
of
the
Douglas
City
Commission
and
is
also
the
Police
Commissioner
for
the
City
of
Douglas.
Id.
at
¶
10.
Defendant
Wilson
was
at
all
times
relevant
hereto
the
City
Manager
for
the
City
of
Douglas.
Id.
at
¶
11.
II.
The
Promotion
The
uncontroverted
evidence
shows
that,
in
July
2006,
Plaintiff,
and
three
other
officers,
applied
for
promotion
to
the
rank
of
Sergeant
within
the
Douglas
Police
Department.
Id.
at
¶
16.
Of
the
four
applicants
for
the
position,
Plaintiff
had
the
most
experience
with
the
police
department
and
had
the
highest
score
on
the
sergeant's
exam.
Id.
at
¶
17.
According
to
Plaintiff,
he
also
had
the
recommendations
of
his
shift
sergeant,
Jerome
Perkins,
and
his
shift
commander,
Lt.
Bart
McCullough,
among
others.
Id.
On
August
9,
2006,
the
promotion
was
awarded
to
Officer
Stacy
Williams.
Id.
at
¶
18.
Officer
Williams
is
African-
American.
Id.
at
¶
24.
Officer
Williams
had
substantially
less
seniority
within
the
police
department,
having
been
employed
with
the
department
for
six
years
at
the
time
of
his
-4-
promotion,
and
having
held
the
rank
of
corporal
for
less
than
one
year.
Id.
at
¶
19.
It
is
also
undisputed
that
Officer
Williams
had
a
lower
score
on
the
sergeant's
exam
than
Plaintiff.
Id.
at
¶
20.
Plaintiff
alleges
that
he
was
denied
the
promotion
in
question
because
of
his
race.
Id.
at
¶
25.
Plaintiff
also
alleges
that
Defendant
Thomas
was
in
part
motivated
to
deny
Plaintiff
the
promotion
in
retaliation
for
Plaintiff's
having
sought
legal
counsel
to
pursue
a
Title
VII
race
discrimination
claim
in
connection
with
a
prior
promotion.
Id.
at
¶
85.
Further,
Plaintiff
claims
that
Thomas
improperly
considered
the
fact
that
Plaintiff
had
previously
taken
FMLA-qualifying
leave
in
awarding
Officer
Williams
the
promotion.
Defendants,
on
the
other
hand,
offer
more
benign
reasons
for
denying
Plaintiff
the
promotion,
and
promoting
Officer
Williams
instead.
First,
in
response
to
Plaintiff's
suggestion
that
he
was
more
deserving
of
the
promotion
due
to
his
higher
score
on
the
sergeant's
exam,
Defendants
note
that
the
test
scores
were
not
used
for
comparison
of
individual
scores
between
applicants
but,
rather,
were
used
on
a
"pass/fail"
basis
to
determine
which
applicants
had
scored
a
sufficiently
high
score
to
continue
on
in
the
promotion
-5-
process.
Defendants'
Motion
for
Summary
Judgment
at
7;
Judy
Carter
Dep.
23-26;
Clifford
Thomas
Dep.
42-43.
Defendant
Thomas
who,
as
Chief
of
Police,
had
the
authority
to
decide
who
would
be
promoted
to
sergeant,
testified
that
he
interviewed
both
Plaintiff
and
Officer
Williams
and
that
while
he
considered
both
candidates
"equally
qualified,"
he
thought
Officer
Williams
"would
be
the
better
choice."
Thomas
Dep.
54.
Chief
Thomas
provided
several
reasons
for
his
decision.
First,
he
testified
that
during
Plaintiff's
interview,
Plaintiff
answered
some
of
the
questions
in
a
way
that
suggested
to
the
Chief
that
Plaintiff
would
be
"too
aggressive"
and
"confrontational,"
and
would
be
unable
to
diffuse
certain
situations
that
he
might
be
confronted
with
as
sergeant.
Id.
at
44-45.
Chief
Thomas
also
stated
that
some
of
Plaintiff's
responses
were
"disrespectful"
toward
the
Chief.
Id.
at
44.
Thomas
also
testified
that
he
was
"not
exactly
pleased"
with
Plaintiff's
physical
appearance
at
the
interview,
because
Plaintiff
showed
up
with
a
goatee
and
long
sideburns,
both
violations
of
departmental
policy.
Id.
at
46.
In
contrast,
Thomas
testified
that
Officer
Williams'
responses
to
his
interview
questions
suggested
that
Williams
-6-
was
"more
resourceful"
and
less
confrontational
than
Plaintiff.
Id.
at
48.
Chief
Thomas
also
stated
that
Officer
Williams
presented
a
better
demeanor
and
conduct
than
did
Plaintiff.
Id.
at
1 56. Further,
Thomas
testified
that
Officer
Williams
had,
more
so
than
Plaintiff,
shown
"his
initiative
and
his
overall
support
of
the
police
department,"
by
making
himself
"available
to
help
out
whenever
[the
department]
need[ed]
volunteers."
Id.
at
122.
According
to
Thomas,
this
included
Officer
Williams'
working
ball
games,
"standing
over
to
help
out
when
another
shift
is
caught
up
in
the
paperwork
and
they
need
an
extra
man,"
and
volunteering
to
fill
in
on
shifts
when
another
officer
was
out
sick.
Id.
at
123.
Overall,
Thomas
considered
Plaintiff
"less
of
a
team
player"
than
Officer
Williams.
Id.
at
64.
Apart
from
these
personal
characteristics,
Chief
Thomas
also
testified
that
he
considered
the
candidates'
education
in
making
his
promotion
decision.
Id.
at
56-57.
Plaintiff
had
a
G.E.D.,
while
Officer
Williams
had
a
high
school
diploma.
Id.
at
57.
Further,
Thomas
considered
the
fact
that
in
the
seventeen
years
he
had
been
with
the
police
department,
1
Chief
Thomas' the
insights
regarding other
Plaintiff's
personality instance,
are Lt.
supported
by
testimony
of
witnesses.
For
McCulloch, another member of the Douglas Police Department, testified that Plaintiff "likes to stir stuff up." Bart McCulloch Dep. 15.
-7-
Plaintiff
had
"not
attempted
to
advance
his
education
any
further,"
while
Officer
Williams
was
"seeking
to
go
further
with
his
education."
Id.
Thomas
testified
that
Officer
Williams
indicated
to
him
that
he
"was
checking
into
going
to
college
courses
at
the
local
college"
at
the
time
of
his
interview.
Id.
at
122.
According
to
Chief
Thomas,
Plaintiff
did
not
indicate
that
he
had
similar
plans.
Id.
Importantly,
however,
Thomas
has
not
denied
that
he
considered
Plaintiff's
use
of
sick
leave
as
a
factor
in
deciding
who
would
be
promoted.
Quite
the
opposite,
Thomas
admits
a
number
of
times
in
his
deposition
testimony
that
Plaintiff's
use
of
sick
leave
was
taken
into
consideration
in
denying
him
the
promotion.
See,
e.g.,
Thomas
Dep.
58
("I
looked
at
[Plaintiff's]
attendance.
There
have
been
a
number
of
sick
days
used
-
after
17
years
with
the
department
in
the
City
of
Douglas,
I
think
that
employee
should
have
at
least
a
maximum
number
of
sick
days
accumulated.
He
doesn't.
And
at
that
time
he
didn't
have
compared
to
Stacey
Williams,
who
had
the
maximum
number
of
days
at
that
time
accumulated.").
Defendants
also
admitted
this
fact
in
their
letter
to
the
EEOC,
submitted
in
response
to
Plaintiff's
charge
of
discrimination:
"The
attendance
records
of
both
officers
were
-8-
considered.
It
appears
that
since
January
2005
Robert
Sprinkle
used
36
days
sick
time,
part
of
which
was
due
to
an
injury
sustained
while
he
was
physically
exerting
himself
to
apprehend
a
suspect.
Stacy
Williams
used
16
days
sick
time
.
.
.
."
Exhibit
1
to
Plaintiff's
Motion
for
Partial
Summary
Judgment
at
¶
7.
Plaintiff
argues
that
this
is
direct
evidence
of
a
FMLA
violation.
III.
Procedural
Histo
On
November
30,
2006,
Plaintiff
filed
a
Charge
of
Discrimination
with
the
EEOC.
On
the
form
filed
with
the
EEOC,
in
the
section
entitled
"discrimination
based
on,"
Plaintiff
checked
the
box
for
"race."
See
Charge
of
Discrimination,
Attachment
to
Original
Complaint.
Doc.
No.
1.
In
the
charge,
Plaintiff
alleges
that
he
was
wrongfully
denied
the
promotion
based
on
his
race
and
that
he
was
subjected
to
a
hostile
work
environment,
both
in
violation
of
Title
VII.
Id.
On
April
27,
2007,
the
EEOC
issued
Plaintiff
a
Notice
of
Right
to
Sue.
Plaintiff
filed
his
original
complaint
on
July
9,
2007.
On
March
7,
2008,
Plaintiff
amended
his
complaint
for
the
first
time.
In
his
amended
complaint,
Plaintiff
added
claims
-9-
for
retaliation
in
violation
of
Title
VII
and
§
1983
(in
these
retaliation
claims,
Plaintiff
alleges
that
he
was
retaliated
against
for
filing
his
complaint
in
this
case),
and
claims
for
violation
of
his
rights
under
the
FMLA.
On
April
29,
2008,
Plaintiff
amended
his
complaint
once
again.
In
his
second
amended
complaint,
Plaintiff
added
another
claim
for
retaliation
in
violation
of
Title
VII.
In
this
new
retaliation
claim,
Plaintiff
alleges
that
Defendants
denied
him
the
promotion
in
retaliation
for
Plaintiff's
having
sought
legal
counsel
to
pursue
a
Title
VII
race
discrimination
claim
in
connection
with
a
prior
promotion.
Plaintiff's
Second
Amended
Complaint
at
¶
85.
On
May
29,
2008,
Plaintiff
filed
his
motion
for
partial
summary
judgment
as
to
his
FMLA
claims.
In
support
of
this
motion,
Plaintiff
points
to
Defendants'
letter
to
the
EEOC--in
which
they
admit
that
Plaintiff's
use
of
sick
time
was
considered
in
making
the
promotion
decision.
Plaintiff
also
points
to
the
deposition
testimony
of
Defendant
Thomas--who
admits
that
he
took
Plaintiff's
use
of
sick
leave
into
consideration.
Finally,
Plaintiff
points
to
the
deposition
testimony
of
Judy
Carter,
Human
Resources
Manager
for
the
City
-10-
of
Douglas--who
Plaintiff
claims
admitted
that
Plaintiff's
sick
leave
was
covered
by
the
FMLA.
2
Plaintiff
argues
that
this
evidence,
taken
together,
"makes
it
clear
that
the
Defendants
considered
the
Plaintiff's
use
of
leave
authorized
by
the
FMLA
as
a
negative
factor
in
the
consideration
of
whether
Plaintiff
should
be
promoted
to
Sergeant."
Plaintiff's
Memorandum
in
Support
of
Motion
for
Partial
Summary
Judgment
at
6.
Accordingly,
Plaintiff
asserts
that
no
genuine
issue
of
material
fact
exists
as
to
his
FMLA
claim
and,
therefore,
that
the
Court
should
grant
summary
judgment
on
this
claim.
Id.
at
10-11.
On
June
30,
2008,
Defendants
responded
to
Plaintiff's
motion
for
partial
summary
judgment,
and
filed
their
own
motion
for
summary
judgment
as
to
all
of
Plaintiff's
claims.
In
their
response
to
Plaintiff's
motion
for
partial
summary
judgment,
Defendants
take
issue
with
Plaintiff's
characterization
of
Ms.
Carter's
testimony.
Defendants
claim
that
Ms.
Carter
did
not
testify
that
Plaintiff's
sick
leave
was
covered
under
the
FMLA.
Defendants'
Response
at
1-2.
Further,
while
acknowledging
that
Chief
Thomas
did
take
Plaintiff's
use
of
sick
leave
into
consideration
when
making
2
It is questionable as to whether Ms. Carter actually admitted this
fact. The Court will discuss Ms. Carter's testimony infra.
-11-
his
promotion
decision,
Defendants
claim
that
this
was
only
one
of
many
factors
considered
by
Thomas.
Id.
at
2.
Therefore,
Defendants
argue
that
Plaintiff
cannot
prove
that
he
would
have
received
the
promotion
"but
for"
Thomas'
consideration
of
Plaintiff's
use
of
sick
leave.
Id.
at
10-11.
In
their
own
motion
for
summary
judgment,
Defendants
argue
that
there
are
no
genuine
issues
of
material
fact
and
that
they
are
entitled
to
judgment
as
a
matter
of
law
as
to
all
of
Plaintiff's
claims.
First,
Defendants
assert
that
Defendants
Paulk,
Pearson,
and
Wilson
are
entitled
to
summary
judgment
as
to
Plaintiff's
wrongful
denial
of
promotion
claims,
as
well
as
the
FMLA
claims,
because
these
particular
Defendants
were
not
involved
in
the
promotion
decision.
Defendants'
Brief
at
12-15.
Defendants
next
argue
that
the
remaining
Defendants
--
the
City
of
Douglas
and
Chief
Thomas
-
are
entitled
to
summary
judgment
as
to
Plaintiff's
Title
VII
claims
because
Defendants
have
provided
legitimate,
non-discriminatory
reasons
for
Thomas'
decision,
and
Plaintiff
has
failed
to
provide
any
evidence
that
these
reasons
were
pretextual.
Id.
at
15-23.
Defendants
state
that
"[t]here
is
no
evidence
from
which
a
reasonable
juror
could
conclude
that
Chief
Thomas'
-12-
decision
was
made
because
Sprinkle
is
white.
Accordingly
Chief
Thomas
and
the
City
are
entitled
to
summary
judgment
on
Sprinkle's
promotion
claim."
Id.
at
24.
Next,
Defendants
argue
that
they
are
entitled
to
summary
judgment
on
all
of
Plaintiff's
claims
alleging
a
hostile
work
environment.
Defendants
assert
that
Plaintiff
has
failed
to
allege
the
type
of
facts
required
by
law
to
establish
a
hostile
work
environment
cause
of
action.
Id.
at
24-27.
In
particular,
Defendants
note
that
Plaintiff
has
retained
his
rank
within
the
police
department,
received
a
raise,
and
has
received
uniformly
good
evaluations
after
being
denied
the
promotion.
Id.
at
24.
Defendants
also
point
to
Plaintiff's
deposition
testimony,
where
he
could
not
think
of
anything
that
had
harmed
his
ability
to
perform
his
job.
Id.
Defendants
claim
that
Plaintiff's
allegations
-
that
the
department
no
longer
"feels
like
home,"
that
he
is
not
comfortable
at
work,
and
that
the
work
environment
has
become
"real
tense"
-
are
not
sufficient
to
establish
a
cause
of
action
for
hostile
work
environment
in
violation
of
Title
VII
and
§
1983.
Defendants
also
move
for
summary
judgment
on
all
of
Plaintiff's
retaliation
claims.
Defendants
claim
that
the
-13-
retaliation
claims
are
barred
because
Plaintiff
did
not
first
file
those
claims
with
the
EEOC,
as
is
required
by
law.
Id.
at
27.
Defendants
claim
that
because
Plaintiff
did
not
check
the
box
for
retaliation
on
his
EEOC
Charge
for
Discrimination,
and
because
he
did
not
mention
anything
in
the
Charge
about
any
claim
for
retaliation,
these
claims
are
barred
as
a
matter
of
law.
Id.
at
29.
In
the
alternative,
Defendants
claim
that
they
are
entitled
to
summary
judgment
on
all
of
Plaintiff's
retaliation
claims
because
the
alleged
acts
of
retaliation
do
not
constitute
grounds
for
recovery
as
a
matter
of
law.
Id.
at
30.
Defendants
argue
that
most
of
the
incidents
cited
by
Plaintiff
in
support
of
his
retaliation
claims
related
to
his
filing
of
the
EEOC
charge
and
complaint
actually
predate
the
filing
of
these
documents
and,
therefore,
could
not
be
a
result
of
retaliation
for
pursuing
his
claims.
Id.
at
31.
Defendants
also
argue
that
certain
statements
made
by
Chief
Thomas
to
Plaintiff,
which
Plaintiff
claims
constitute
retaliation
for
his
filing
the
EEOC
charge
and
complaint,
are
not
"protected
activity"
within
Title
VII's
anti-retaliation
provision.
Id.
at
32.
-14-
Finally,
Defendants
assert
that
they
are
entitled
to
summary
judgment
on
Plaintiff's
FMLA
claims.
First,
Defendants
claim
that
the
FMLA
does
not
cover
accrued,
paid
sick
leave.
Id.
at
38.
Next,
Defendants
assert
that
Plaintiff
cannot
make
a
claim
for
retaliation
under
the
FMLA
because
he
cannot
establish
that
he
suffered
an
"averse
employment
decision"
within
the
contemplation
of
the
FMLA.
Id.
Lastly,
Defendants
contend
that
even
if
Plaintiff
has
some
sort
of
retaliation
claim
under
the
FMLA,
they
are
still
entitled
to
summary
judgment
because
Chief
Thomas
did
not
consider
Plaintiff's
use
of
sick
leave
as
a
negative
factor
against
him,
but
instead
considered
it
a
positive
factor
for
Williams.
Id.
at
41.
SUMMARY
JUDGMENT
STANDARD
Federal
Rule
of
Civil
Procedure
56(c)
provides
for
summary
judgment
"if
the
pleadings,
depositions,
answers
to
interrogatories,
and
admissions
on
file,
together
with
the
affidavits,
if
any,
show
there
is
no
genuine
issue
as
to
any
material
fact
and
the
moving
party
is
entitled
to
judgment
as
a
matter
of
law."
Celotex
Corp.
v.
Catrett,
477
U.S.
317,
322
(1986)
.
Facts
are
"material"
if
they
could
affect
the
outcome
-15-
of
the
suit
under
the
governing
substantive
law.
Anderson
v.
Liberty
Lobby,
Inc.,
477
U.S.
242,
248
(1986).
The
Court
must
view
the
facts
in
the
light
most
favorable
to
the
non-moving
party,
Matsushita
Elec.
Indus.
Co.
v.
Zenith
Radio
Corp.,
475
U.S.
574,
587
(1986),
and
must
draw
"all
justifiable
inferences
in
his
favor."
United
States
v.
Four
Parcels
of
Real
Prop.,
941
F.2d
1428,
1437
(11th
Cir.
1991)
(en
banc)
(internal
quotation
marks
omitted).
DISCUSSION
I.
FMLA
Claims
Plaintiff
claims
that
by
taking
into
consideration
Plaintiff's
use
of
FMLA-qualifying
sick
leave
in
deciding
who
would
be
promoted
to
sergeant,
Defendants
violated
the
FMLA
(Count
VII)
.
Plaintiff
further
claims
that,
because
Defendants
acted
under
the
color
of
state
law
in
violating
the
FMLA,
they
are
also
liable
under
§
1983
(Count
IX)
.
Both
parties
have
moved
for
summary
judgment
on
these
claims,
alleging
that
there
are
no
genuine
issues
of
material
fact.
Plaintiff
alleges
that
Defendants
retaliated
against
him
for
taking
FMLA-qualifying
sick
leave.
In
Martin
v.
Brevard
-16-
County
Public
Schools,
the
Eleventh
Circuit
Court
of
Appeals
stated
the
standard
for
proving
FMLA
retaliation:
To
prove his
FMLA
retaliation,
an
employee
must
show
that
employer for
intentionally an FMLA
discriminated Unlike an a of
against
him
exercising claim, an
right.
interference retaliation showing by an that
employee
"bringing burden
claim his
faces
the
increased were
employer's
actions or
motivated
impermissible
retaliatory
discriminatory
animus."
No.
07-11196,
2008
U.S.
App.
LEXIS
20580,
at
*13-14
(11th
Cir.
Sept.
30,
2008)
(Per
curiam)
(internal
citations
omitted).
Defendants
argue
that
Plaintiff
"cannot
make
a
claim
for
retaliation
under
the
FMLA
because
he
cannot
establish
that
he
suffered
an
`adverse
employment
decision'
within
the
contemplation
of
the
FMLA."
Defendants'
Brief
at
38.
Defendants
further
assert
that
"the
FMLA
entitles
a
covered
employee
to
reinstatement,
not
to
promotion."
Id.
at
39.
While
the
FMLA
does
not
require
an
employer
to
promote
an
employee
who
would
otherwise
not
be
entitled
to
a
promotion,
the
Act
specifically
makes
it
unlawful
for
an
employer
to
consider
an
employee's
use
of
FMLA-qualifying
leave
in
making
employment
decisions.
The
FMLA
provides,
"[i]t
shall
be
unlawful
for
any
employer
to
discharge
or
in
any
other
manner
discriminate
against
any
individual
for
opposing
any
practice
made
unlawful
-17-
by
this
title."
29
U.S.C.
§
2615
(emphasis
added).
Even
more
applicable
to
the
facts
of
this
case,
one
federal
regulation
promulgated
pursuant
to
the
FMLA
provides,
"employers
cannot
use
the
taking
of
FMLA
leave
as
a
negative
factor
in
employment
actions,
such
as
hiring,
promotions
or
disciplinary
actions
.
.
.
."
29
C.F.R.
§
825.220(c)
(emphasis
added).
The
standard
of
proof
in
an
FMLA
retaliation
case
differs
based
on
whether
the
plaintiff
relies
upon
direct
or
circumstantial
evidence
to
support
his
or
her
claim.
When
circumstantial
evidence
is
relied
upon,
the
Eleventh
Circuit
has
directed
courts
to
apply
the
traditional
burden-shifting
framework
for
Title
VII
cases
announced
by
the
United
States
Supreme
Court
in
McDonnell
Douglas
Corp.
v.
Green,
411
U.S.
792
(1973).
Graham
v.
State
Farm
Mutual
Ins.
Co.,
193
F.2d
1274,
1283
(1999)
.
However,
where
the
plaintiff
presents
direct
evidence
of
retaliation,
the
trial
court
must
assess
the
FMLA
claim
as
follows:
"The
trial as
judge to
must
initially or is not to a
make
a
credibility proffered . . . The to
finding direct trial
whether . . .
plaintiff's be believed of
evidence must not
court or
also the
make
finding maker in
fact
as
whether
decision
`relied coming to
upon its must
[impermissible] decision.' determine a In
considerations words, the
other
fact
finder
whether part court
[the in an
impermissible employment credits the
factor] .
played . . .
motivating the trial
decision direct
If
both
evidence
-18-
and role
finds in
that
the
evidence
played at
a
substantial then the
the
employment avoid made
decision
issue, by
defendant it not would
can
liability same
only
proving if
that had
have
the
decision to
even a
it
allowed
such
discrimination
play
role."
Peters
v.
Cmty.
Action
Comm.,
Inc.,
977
F.
Supp.
1428,
1434
(M.D.
Ala.
1997)
(quoting
Haynes
v.
W.C.
Caye
&
Co.,
Inc.,
52
F.3d
928,
932
(11th
Cir.
1995))
.
3
The
parties
disagree
as
to
which
approach
the
Court
should
follow
in
this
case.
Plaintiff
claims
that
he
has
presented
direct
evidence
of
an
FMLA
violation
and,
therefore,
the
"motivating
factor"
standard
from
Price
Waterhouse
should
apply.
Defendants,
on
the
other
hand,
argue
that
the
Court
should
apply
the
McDonnell
Douglas
burden-shifting
framework.
The
Eleventh
Circuit
defines
"direct
evidence"
as
"evidence
which
reflects
`a
discriminatory
or
retaliatory
attitude
correlating
to
the
discrimination
or
retaliation
complained
of
by
the
employee.'"
Wilson
v.
B/E
Aerospace,
Inc.,
376
F.3d
1079,
1086
(11th
Cir.
2004)
(quoting
Damon
v.
3 This standard has been referred to as the "motivating factor" standard, and originates from the United States Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989) (plurality opinion). Although the standard was developed by the Supreme Court in Price Waterhouse in the context of a trial on the issue of liability for a Title VII claim, courts have used the same standard to decide motions for summary judgment on FMLA retaliation claims. See, e.g., Peters. Further, although the standards set forth in Price Waterhouse have been superceded by statute, see Landgraf v. USI Film Prods., 511 U.S. 244 (1994), this only affects the "motivating factor" standard's application to Title VII cases, and not FMLA cases such as this one.
-19-
Fleming
Supermarkets
of
Fla.,
Inc.,
196
F.3d
1354,
1358
(11th
Cir.
1999))
.
"Direct
evidence
is
`evidence,
that,
if
believed,
proves
[the]
existence
of
[a]
fact
without
inference
or
presumption.'"
Id.
(quoting
Burrell
v.
Bd.
of
Trustees
of
Ga.
Military
Coll.,
125
F.3d
1390,
1393
(11th
Cir.
1997).
Eleventh
Circuit
precedent
illustrates
that
"only
the
most
blatant
remarks,
whose
intent
could
mean
nothing
other
than
to
[retaliate]
on
the
basis
of
some
impermissible
factor
constitute
direct
evidence
of
[retaliation]."
Id.
(quoting
Rojas
v.
Florida,
285
F.3d
1339,
1342
n.2
(11th
Cir.
2001)).
Plaintiff
in
this
case
has
presented
direct
evidence
of
retaliation
under
the
FMLA.
First,
Plaintiff
points
to
Defendants'
letter
to
the
EEOC,
submitted
by
Defendants
in
response
to
Plaintiff's
Charge.
In
this
letter,
in
an
attempt
to
rebut
Plaintiff's
claims
of
racial
discrimination,
Defendants
admit
that
Chief
Thomas
considered
Plaintiff's
use
of
sick
leave
as
a
factor
in
deciding
who
would
be
promoted
to
sergeant.
Exhibit
1
to
Plaintiff's
Motion
for
Partial
Summary
Judgment
at
¶
7.
Plaintiff
also
points
to
the
fact
that,
numerous
times
throughout
his
deposition
testimony,
Chief
Thomas
acknowledges
that
he
took
Plaintiff's
use
of
sick
time
-20-
into
consideration
when
making
his
decision.
See,
e.g.,
Thomas
Dep.
58.
This
evidence
reflects
a
"retaliatory
attitude"
correlating
to
the
retaliation
complained
of
by
Plaintiff.
Wilson,
376
F.3d
at
1086.
It
is
evidence
that,
if
believed,
proves
the
existence
of
retaliation
without
inference
or
presumption.
Id.
Further,
it
is
a
"blatant
remark,
whose
intent
could
mean
nothing
other
than
to
[retaliate]
on
the
basis
of
some
impermissible
factor."
Id.
Therefore,
Plaintiff
has
presented
direct
evidence
of
FMLA
retaliation.
4
Defendants
argue
that
Plaintiff's
use
of
sick
time
was
not
covered
by
the
FMLA
and,
therefore,
the
fact
that
Chief
Thomas
considered
it
in
making
his
decision
does
not
violate
the
Act.
The
uncontroverted
evidence,
however,
suggests
otherwise.
In
their
letter
to
the
EEOC,
Defendants
acknowledge
that
Chief
Thomas
took
into
consideration
the
fact
that
Plaintiff
took
sick
leave
after
he
was
injured
on
the
job
while
apprehending
a
suspect.
Exhibit
1
to
Plaintiff's
Motion
for
Partial
Summary
Judgment
at
¶
7.
In
both
Plaintiff's
4 While evidence of
the an
Court FMLA
believes
that and,
Plaintiff therefore,
has
presented the
direct
violation
that
"motivating
factor" test from Price Waterhouse applies, the Court also believes that the outcome would be the same if it found that this evidence is instead circumstantial in nature and, therefore, applied the McDonnell Douglas burden-shifting framework.
-21-
deposition
testimony
and
in
a
sworn
affidavit
submitted
by
Plaintiff
to
the
Court,
Plaintiff
claims
that
he
took
this
sick
leave
as
a
result
of
injuries
he
sustained
to
his
back
while
attempting
to
apprehend
a
suspect,
and
that
during
this
time,
Plaintiff
was
unable
to
work
or
perform
other
regular
daily
activities
and
was
under
the
continuing
treatment
of
a
physician.
Robert
Sprinkle
Dep.
26-28;
Sprinkle
Aff.
¶¶
18-
19.
Defendants
have
presented
no
evidence
to
suggest
that
this
is
untrue.
The
FMLA
provides
that
"an
eligible
employee 5
shall
be
entitled
to
a
total
of
12
workweeks
of
leave
during
any
12-
month
period
.
.
.
[ b ] ecause
of
a
serious
health
condition
that
makes
the
employee
unable
to
perform
the
functions
of
the
position
of
such
employee."
29
U.S.C.
§
2512
(a)
(1)
(D)
.
The
FMLA
defines
"serious
health
condition"
as
"an
illness,
injury,
impairment,
or
physical
or
mental
condition
that
involves
.
.
.
continuing
treatment
by
a
health
care
provider."
29
U.S.C.
§
2611(11).
Because
Plaintiff
has
presented
credible
evidence
establishing
that
his
injury
involved
"continuing
treatment
by
a
health
care
provider,"
because
the
evidence
shows
that
this
injury
made
him
unable
to
5 Defendant employee."
does
not
contest
that
Plaintiff
is
an
"eligible
-22-
perform
the
functions
of
his
position
as
an
employee,
and
because
Defendants
have
presented
no
evidence
to
the
contrary,
the
Court
finds
that
this
leave
was
covered
by
the
FMLA.
Further,
the
fact
that
neither
Plaintiff
nor
Defendants,
at
the
time
Plaintiff
took
this
leave,
classified
it
as
FMLA-
qualifying
leave
is
inapposite.
A
federal
regulation
promulgated
pursuant
to
the
FMLA
states:
"An
employee
shall
provide
at
least
verbal
notice
sufficient
to
make
the
employer
aware
that
the
employee
needs
FMLA-qualifying
leave,
and
the
anticipated
timing
and
duration
of
the
leave.
The
employee
need
not
expressly
assert
rights
under
the
FMLA
or
even
mention
the
FMLA
.
.
.
The
employer
should
inquire
further
of
the
employee
if
it
is
necessary
to
have
more
information
about
whether
FMLA
leave
is
being
sought
by
the
employee,
and
obtain
the
necessary
details
of
the
leave
to
be
taken."
28
C.F.R.
§
825.302(c)
(emphasis
added).
There
is
no
indication
here
that
Plaintiff
failed
to
provide
notification
sufficient
to
make
the
department
aware
of
the
reasons
for
his
leave.
In
fact,
the
evidence
suggests
that
the
department
knew
of
the
reasons
for
Plaintiff's
leave.
Because
it
qualified
as
FMLA
leave,
it
does
not
matter
whether
or
not
Plaintiff
invoked
the
FMLA
by
name.
If
the
police
-23-
department
required
more
information
to
determine
whether
Plaintiff's
request
fell
under
the
FMLA,
it
was
the
department's
duty
to
investigate
further.
Next,
Defendants
argue
that,
because
Plaintiff's
leave
was
classified
as
"paid
sick
leave,"
it
was
not
covered
by
the
FMLA.
Defendants'
Response
at
4.
The
Court
rejects
this
argument.
In
Strickland
v.
Water
Works
&
Sewer
Board,
the
Eleventh
Circuit
held
that
the
district
court
had
"misinterpreted
the
FMLA
as
permitting
employers
with
paid
sick
leave
policies
to
choose
whether
an
employee's
FMLA-
qualifying
absence
will
be
either
unpaid
but
protected
by
the
Act,
or
paid
but
unprotected."
239
F.3d
1199,
1204
(11th
Cir.
2001)
.
The
court
in
Strickland
went
on
to
hold
that
"an
employer
cannot
escape
liability
under
the
Act
for
the
period
during
which
the
employee,
whose
leave
qualifies
under
the
FMLA,
is
receiving
his
wages
in
the
form
of
sick
(or
other)
pay."
Id.
at
1205.
The
court
further
stated:
Neither have FMLA leave work
Congress . .
nor .
the
Department
of
Labor
could the
intended by
to
allow
employers
to
evade paid
providing
their
employees when an
with
sick
benefits. for an
Otherwise, that leave to
employee under the
misses his his as
illness sick
qualifies policy the FMLA
both FMLA,
employer's employer paid then of
paid
and
could
elect
have than him
absence leave
count
sick be
leave to
rather
and
would afoul
free
discharge
without
running
the
Act.
-24-
Id.
Defendants
ask
this
Court
to
adopt
the
same
interpretation
of
the
FMLA
that
was
expressly
rejected
by
the
Eleventh
Circuit
in
Strickland.
The
Court,
therefore,
rejects
Defendants'
argument
that
paid
sick
leave
is
not
covered
by
the
FMLA.
Having
found
direct
evidence
in
support
of
Plaintiff's
FMLA
claims,
the
Court
will
apply
the
"motivating
factor"
standard
set
forth
in
Price
Waterhouse
and
applied
by
the
Eleventh
Circuit
in
Haynes.
First,
the
Court
must
decide
whether
the
proffered
direct
evidence
is
to
be
believed.
Haynes,
52
F.3d
at
932.
There
is
no
indication
in
the
record
that
the
evidence-consisting
of
Defendants'
own
statements
and
testimony-is
not
truthful.
Of
course,
at
trial,
Defendants
will
have
ample
opportunity
to
prove
to
the
fact-
finder
that
Plaintiff's
proffered
evidence
is
untruthful.
Next,
the
Court
must
determine
"whether
or
not
the
decision
maker
relied
upon
[impermissible]
considerations
in
coming
to
its
decision."
Id.
As
discussed,
the
FMLA
and
federal
regulations
expressly
prohibit
an
employer
from
considering
an
employee's
FMLA-qualifying
leave
"as
a
negative
factor
in
employment
actions,
such
as
hiring,
promotions
or
disciplinary
actions
.
.
.
."
29
C.F.R.
§
825.220(c).
It
is
-25-
clear
in
this
case
that
Defendant
Thomas
considered
Plaintiff's
FMLA
leave
as
a
negative
factor
in
making
his
promotion
decision,
in
violation
of
the
law.
6
Although
Plaintiff
has
presented
direct
evidence
that
Chief
Thomas
impermissibly
considered
his
FMLA
leave
in
making
his
promotion
decision,
thereby
precluding
summary
judgment
in
favor
of
Defendants
on
these
claims,
summary
judgment
in
favor
of
Plaintiff
is
also
inappropriate.
Instead,
Plaintiff's
FMLA
claims
should
be
submitted
to
a
jury
to
decide
whether
Thomas'
consideration
of
this
impermissible
factor
played
a
"substantial"
or
"motivating"
factor
in
his
promotion
decision.
Price
Waterhouse,
490
U.S.
at
250;
Haynes,
52
F.3d
at
932;
Peters,
977
F.
Supp.
at
1434.
7
Further,
even
if
Plaintiff
can
prove,
at
trial,
that
Chief
Thomas'
impermissible
consideration
was
a
"substantial"
or
"motivating"
factor
in
his
employment
decision,
Defendants
6 Defendants claim that Chief Thomas did not use Plaintiff's FMLAqualifying leave as a negative factor against Plaintiff, but instead used it as a positive factor in favor of Officer at Williams 10. in making his
promotion
decision.
Defendants'
Response
Binding
precedent,
Aristotelian logic, and plain-old common sense unite to enable the Court to roundly reject Defendants' argument in this regard.
7 The plurality opinion in Price Waterhouse explained what it meant by a consideration being a "motivating" factor in an employment decision: "In saying that [the impermissible consideration] played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be [the impermissible consideration]." 490 U.S. at 250.
-26-
can
still
avoid
liability
"by
proving
that
it
would
have
made
the
same
decision
even
if
it
had
not
allowed
[the
impermissible
consideration]
to
play
a
role."
Price
Waterhouse,
490
U.S.
at
250;
Haynes,
52
F.3d
at
932;
Peters,
977
F.
Supp.
at
1434.
Defendants
claim
that
Defendant
Wilson,
who
at
the
time
of
the
promotion
was
the
Douglas
City
Manager,
is
entitled
to
summary
judgment
on
Plaintiff's
FMLA
claims
because
she
played
absolutely
no
role
in
Defendant
Thomas'
promotion
decision
and,
therefore,
cannot
be
said
to
have
violated
the
FMLA.
As
Plaintiff
notes
in
his
brief,
however,
there
is,
in
fact,
evidence
that
Wilson
played
a
role
in
the
promotion
decision.
In
fact,
in
her
deposition
testimony,
Wilson
admits
that,
pursuant
to
department
policy,
she
was
required
to
approve
the
Chief's
promotion
decisions,
and
that
she
did,
in
fact,
review
and
approve
the
Chief's
decision
to
promote
Officer
Williams
over
Plaintiff.
Jackie
Wilson
Dep.
21-23.
Therefore,
Defendant
Wilson
is
not
entitled
to
summary
judgment
on
Plaintiff's
FMLA
claims.
However,
Defendants
Thomas
and
Wilson
are
entitled
to
summary
judgment
on
Plaintiff's
FMLA
claims
insofar
as
they
are
being
sued
in
their
individual
capacities.
This
is
-27-
because,
in
this
Circuit,
"a
public
official
sued
in
his
individual
capacity
is
not
an
`employer'
subject
to
individual
liability
under
the
[FMLA]
."
Wascura
v.
Carver,
169
F.3d
683,
686
(11th
Cir.
1999)
.
8
Finally,
because
there
is
absolutely
no
evidence
suggesting
that
Defendants
Paulk
or
Pearson
played
any
role
in
Chief
Thomas'
impermissible
consideration
of
Plaintiff's
FMLA-
protected
activity, 9
these
Defendants
are
entitled
to
summary
judgment
on
Plaintiff's
FMLA
claims.
II. Race Discrimination under Title VII and Section 1983
Plaintiff
next
claims
that
Defendants
wrongfully
denied
him
the
promotion
in
question
on
the
basis
of
his
race
in
violation
of
Title
VII
and
§
1983
(Counts
I
and
III).
Plaintiff
further
claims
that
Defendants
violated
§
1983
by
8 Although Defendants have not raised this issue, it is appropriate for the Court to do so sua sponte. This is because "where a defendant in an FMLA suit does not meet the statutory definition of `employer,' there is no federal subject matter jurisdiction over the claim against that defendant." Wascura, 169 F.3d at 685 (citing Douglas v. E.G.
Baldwin & Assocs., Inc., 150 F.3d 604, 608 (6th Cir. 1998)). District Courts are obligated to address subject matter jurisdiction sua sponte. See, e.g., Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004).
9 Contrary to Defendants' contentions, there is, in fact, evidence that Defendants Paulk and See Pearson played II, a role in Chief Thomas' their
promotion
decision.
Section
infra.
However,
participation, if any, relates to race discrimination and had nothing to do with Plaintiff's FMLA leave.
-28-
depriving
Plaintiff
of
Equal
Protection
(Count
VI),
by
intentionally
discriminating
against
Plaintiff
on
the
basis
of
race
(Count
V)
,
and
by
conspiring
to
deprive
Plaintiff
of
his
civil
rights
(Count
VI)
.
Defendants
assert
that
they
are
entitled
to
summary
judgment
on
all
of
these
claims.
Although
these
claims
actually
make
up
five
separate
counts
in
Plaintiff's
complaint,
the
Court
will
analyze
them
as
one.
This
is
because
"the
analysis
of
disparate
treatment
claims
under
§
1983
is
identical
to
the
analysis
under
Title
VII
where
the
facts
on
which
the
claims
rely
are
the
same."
Crawford
v.
Carroll,
529
F.3d
961,
970
(11th
Cir.
2008)
.
See
also
Abel
v.
Dubberly,
210
F.3d
1334,
1338
(11th
Cir.
2000)
(holding
that
Title
VII
and
§
1983
claims
have
the
same
elements
where
the
claims
are
based
on
the
same
set
of
facts).
Title
VII
prohibits
discrimination
in
employment
against
any
individual
"because
of
such
individual's
race,
color,
religion,
sex
or
national
origin."
42
U.S.C.
§
2000e(2)
(a)-
(m)
.
Title
VII
applies
to
all
persons
regardless
of
their
race.
See,
e.g.,
McDonald
v.
Santa
Fe
Trail
Transp.
Co.,
427
U.S.
273,
286-87
(1976)
.
A
violation
of
Title
VII
can
also
serve
as
a
basis
for
liability
under
§
1983,
if
the
plaintiff
proves
that
the
defendant
violated
Title
VII
while
acting
-29-
under color of state law See, e.g., Hafter v. Melo, 502 U.S.
21,
25
(1991).
Specifically,
Plaintiff's
Title
VII
claims
are
claims
for
disparate
treatment.
"The
framework
for
analyzing
.
.
.
Title
VII
disparate
treatment
claim[s]
is
well-settled."
Denney
v.
City
of
Albany,
247
F.3d
1172
(11th
Cir.
2001)
.
In
Denney,
the
Eleventh
Circuit
held:
Disparate
treatment intent
claims either . may the .
require through .
proof direct
of or
discriminatory circumstantial evidence, a
evidence
Absent
direct
plaintiff through for
prove
intentional McDonnell claims.
discrimination Douglas Paradigm
familiar
circumstantial
evidence
247
F.3d
at
1182-83
(internal
citations
omitted).
Here,
Plaintiff
has
not
provided
any
direct
evidence
of
intentional
race
discrimination.
Therefore,
the
Court
will
analyze
Plaintiff's
race
claims
under
the
burden-shifting
framework
of
McDonnell
Douglas
v.
Green.
The
Court
in
Denney
described
the
appropriate
analysis:
Under
the
rubric a prima
of
[McDonnell case of must
Douglas],
"to
establish failure he is a to
facie a
discriminatory prove: (2) (1) he that was (3) or the
promote, of a
plaintiff
member for
protected applied and
class; the
that
qualified that less he
and
for
promotion; other
was
rejected;
(4)
that
equally of
qualified
employees were
who
were
not
members these the
protected are
class
promoted."
Once has
elements of
established, a
the
defendant
burden
producing for the
legitimate,
non-discriminatory action . . .
reason If such
challenged
employment
-30-
a
reason
is
produced, of
a
plaintiff the
then
has to
the a
ultimate pretext
burden
proving
reason
be
for
unlawful
discrimination.
247
F.3d
at
1183
(internal
citations
omitted).
Here,
Plaintiff
has
established
a
prima
facie
case
of
discriminatory
failure
to
promote,
by
proving
that
he
is
a
member
of
a
protected
class,
was
qualified
for
and
applied
for
the
promotion,
was
rejected,
and
that
another
equally
qualified
employee
who
was
not
a
member
of
the
protected
class
was
promoted.
In
fact,
Defendants
admit
that
Plaintiff
meets
the
prima
facie
requirements.
Defendants'
Motion
for
Summary
Judgment
at
16.
Next,
under
McDonnell
Douglas,
the
burden
shifts
to
Defendants
to
produce
a
legitimate,
non-discriminatory
reason
for
the
challenged
employment
action.
Defendants
have
met
this
burden
by
providing
several
legitimate,
non-
discriminatory
reasons
for
Chief
Thomas'
promotion
decision.
Therefore,
the
burden
shifts
back
to
Plaintiff
to
prove
that
the
reasons
offered
by
Defendants
are
pretextual.
"To
avoid
summary
judgment,
[the
plaintiff]
must
introduce
significantly
probative
evidence
showing
that
the
asserted
reason
is
merely
a
pretext
for
discrimination."
Brooks
v.
County
Comm'n,
446
F.3d
1160,
1163
(11
th
Cir.
2006)
-31-
To
establish
pretext,
Plaintiff
points
to
the
statements
of
several
department
officials,
indicating
their
belief
that
the
promotion
decision
was
motivated
by
race.
For
instance,
in
his
deposition,
Assistant
Chief
of
Police
Danny
Fussell
testifies
that
Chief
Thomas
was
pressured
to
make
the
promotion
decision
based
on
race.
The
following
is
an
exchange
between
Plaintiff's
counsel
and
Fussell:
Q. by
Do
you
believe
that
[Chief Olivia
Thomas]
was
pressured
Tony
[Paulk]
and/or
[Pearson]
concerning
this A. Q. by A. Q. a
promotion I do.
decision?
Do
you
believe
that
they
were
motivated
in
part
race? Yes. Do you believe that they and were to motivated promote to see
black
person he was
promoted white?
not
Robert
because A. Yes.
Danny
Fussell
Dep.
58-59.
Further,
in
his
sworn
affidavit
to
the
Court,
Plaintiff
alleges
that
both
Human
Resources
Director
Judy
Carter
and
City
Counsel
member
Josey
admitted
to
Plaintiff
that
the
promotion
decision
was
made
on
the
basis
of
race.
Sprinkle
Aff.
¶¶
2-4.
In
Bass
v.
Board
of
County
Commissioners,
the
Eleventh
Circuit
held
that,
although
statements
made
by
a
non-decision
maker
indicating
that
a
promotion
was
based
on
race
do
not
rise
to
the
level
of
direct
evidence,
they
can
provide
-32-
significant
circumstantial
support
for
Plaintiff's
claims.
256
F.3d
1095,
1105
(11th
Cir.
2001)
.
Such
circumstantial
evidence
of
race
discrimination
is
enough
to
satisfy
Plaintiff's
burden
of
establishing
pretext,
thereby
defeating
summary
judgment.
In
Bass,
the
plaintiff
introduced
evidence
"of
county
officials'
emphasis
on
hiring
and
promoting
based
on
race."
Id.
This
evidence
consisted
of
testimony
suggesting
that
the
chief
of
the
fire
department
was
pressured
by
county
officials
to
promote
women
and
African-American
applicants.
Id.
at
1106-7.
Based
on
this
evidence,
the
court
in
Bass
concluded
that
"a
jury
could
reasonably
find
that
[the
defendant]
had
a
policy
of
racial
discrimination."
Id.
at
1107.
Here,
Plaintiff
has
provided
the
same
type
of
evidence
that
was
deemed
sufficient
in
Bass.
Although
the
testimony
relied
upon
by
Plaintiff
is
that
of
a
non-decision
maker,
this
testimony
provides
sufficient
circumstantial
evidence
of
racial
discrimination.
Accordingly,
the
Court
finds
that
Plaintiff
has
presented
"significantly
probative
evidence
showing
that
[Defendants']
asserted
reason[s]
[are]
merely
a
pretext
for
discrimination,"
and,
therefore,
summary
judgment
-33-
is
not
proper
as
to
Plaintiff's
race-based
Title
VII
and
§
1983
claims.
Brooks,
446
F.3d
at
1163.
1°
As
with
the
FMLA
claims,
Defendants
claim
that
Defendants
Paulk,
Pearson,
and
Wilson
are
entitled
to
summary
judgment
on
Plaintiff's
wrongful
denial
of
promotion
claims
because
they
were
not
involved
in
the
promotion
decision.
The
Court
rejects
this
argument.
First,
as
already
discussed,
Defendant
Wilson
has
admitted
that,
pursuant
to
department
policy,
she
was
required
to
approve
the
Chief's
promotion
decisions,
and
that
she
did,
in
fact,
review
and
approve
the
Chief's
decision
to
promote
Officer
Williams
over
Plaintiff.
Wilson
Dep.
21-
23.
Therefore,
Defendant
Wilson
is
not
entitled
to
summary
judgment
on
these
claims.
Further,
Plaintiff
has
presented
evidence
that
Defendants
Paulk
and
Pearson
pressured
Thomas
to
make
his
promotion
decision
based
on
race.
See
Fussell
Dep.
58-59.
In
fact,
Fussell's
testimony
suggests
that
Thomas
would
not
have
made
such
a
decision
if
it
were
not
for
Paulk
and
Pearson's
influence.
While
Defendants
will
have
the
opportunity,
at
trial,
to
rebut
this
testimony,
or
to
call
into
question
Fussell's
credibility,
this
evidence
raises
a
1°
Plaintiff asserts several alternative arguments in order to prove
pretext. Having already found sufficient evidence of pretext to defeat summary judgment, however, the Court need not deal with these alternative arguments.
-34-
genuine
issue
of
material
fact
as
to
Paulk
and
Pearson's
involvement
in
the
promotion
decision.
Therefore,
Defendants
Paulk
and
Pearson
are
not
entitled
to
summary
judgment
on
these
claims.
Finally,
Defendants
Thomas,
Pearson,
Wilson,
and
Paulk
assert
that,
insofar
as
Plaintiff
attempts
to
recover
against
them
individually,
they
are
entitled
to
summary
judgment
on
qualified
immunity
grounds.
"Qualified
immunity
offers
complete
protection
for
government
officials
sued
in
their
individual
capacities
if
their
conduct
does
not
violate
clearly
established
statutory
or
constitutional
rights
of
which
a
reasonable
person
would
have
known."
Wood
v.
Kesler,
323
F.3d
872,
877
(11th
Cir.
2003)
.
The
process
for
analyzing
a
defense
of
qualified
immunity
is
well
established:
To
be
eligible first
for
qualified that at
immunity, he was
the
official a
must
establish
performing the
"discretionary violation official of
function" federal
the
time
alleged the in a
law
occurred. he was
Once
has
established function,
that the that
engaged bears is
discretionary burden of
plaintiff the
the not to to
demonstrating to qualified the
official In
entitled
immunity. is
order
demonstrate qualified things:
that
official the
not
entitled show
immunity, that
plaintiff
must
two a
(1)
the
defendant and (2)
has the
committed
[statutory] right the
violation
that
[statutory] "clearly
defendant at the time
violated he did it.
was
established"
Crosby
v.
Monroe
County,
394
F.3d
1328,
1332
(11th
Cir.
2004).
-35-
First,
the
Court
must
determine
whether
the
officials
here
were
performing
a
"discretionary
function"
at
the
time
the
alleged
violation
of
federal
law
occurred.
"To
determine
whether
an
official
was
engaged
in
a
discretionary
function,
we
consider
whether
the
acts
the
official
undertook
`are
of
a
type
that
fell
within
the
employee's
job
responsibilities.'"
Id.
(quoting
Holloman
v.
Harland,
370
F.3d
1252,
1263
(11th
Cir.
2004))
.
There
is
no
question
that
Defendants
Thomas
and
Wilson
were
engaged
in
discretionary
functions
in
this
case.
Department
policy
specifically
put
Thomas,
as
Chief
of
Police,
in
charge
of
promotion
decisions,
subject
to
review
and
approval
by
Wilson,
as
City
Manager.
Although
the
analysis
as
to
Defendants
Pearson
and
Paulk
is
less
obvious,
the
record
supports
the
conclusion
that
they
too
were
engaged
in
discretionary
functions.
As
Police
Commissioner
and
Mayor,
these
defendants
played
a
role,
albeit
a
less
direct
role,
in
the
policy
decisions
of
the
police
department,
including
promotion
decisions.
In
fact,
as
discussed
above,
testimony
has
been
presented
which
indicates
that
Pearson
and
Paulk
exercised
a
large
degree
of
influence
over
Chief
Thomas
in
his
promotion
decisions.
Therefore,
all
of
the
individual
defendants
were
engaged
in
discretionary
functions
for
-36-
purposes
of
qualified
immunity.
See
Foster
v.
McGrail,
844
F.
Supp.
16,
23-24
(D.
Mass.
1994)
(the
phrase
"discretionary
function"
is
broad
enough
to
include
both
"high-level
decisionmakers"
and
"lower
level
officials.").
However,
they
are
only
entitled
to
qualified
immunity
if
their
conduct
did
not
violate
"clearly
established
statutory
rights
of
which
a
reasonable
person
would
have
known."
Harlow
v.
Fitzgerald,
457
U.S.
800,
818
(1982)
.
"A
right
is
clearly
established
if,
in
light
of
preexisting
law,
the
unlawfulness
of
the
official's
conduct
is
`apparent'
.
.
.
This
standard
does
not
require
that
the
specific
conduct
in
question
was
previously
found
to
be
unlawful;
the
state
of
the
law
need
only
give
an
offic[ial]
`fair
warning'
that
his
conduct
is
unlawful."
Cooper
v.
Dillon,
403
F.3d
1208,
1220
(11th
Cir.
2005).
In
this
case,
the
rights
allegedly
violated
by
Defendants
were
"clearly
established"
at
the
time
of
their
actions
and,
therefore,
they
are
not
entitled
to
qualified
immunity.
It
is
"patently
obvious"
that
intentional,
race-based
discrimination
in
public
employment
is
prohibited.
See,
e.g.,
Smith
v.
Lomax,
45
F.3d
402,
407
(11th
Cir.
1995)
.
As
the
Eleventh
Circuit
has
recently
held,
"the
right
to
be
free
from
racial
-37-
discrimination
in
the
public
workplace
[is]
a
clearly
established
constitutional
right
of
which
a
reasonable
official
would
have
known."
McMillan
v.
Dekalb
County,
211
Fed.
App'x
821,
823-24
(11th
Cir.
2006).
Therefore,
Defendants
are
not
entitled
to
qualified
immunity
at
this
time.
III.
Title
VII
Hostile
Work
Environment
Claims
Next,
Plaintiff
claims
that
Defendants
violated
Title
VII,
as
well
as
§
1983,
by
creating
a
"work
environment
that
is
hostile
to
white
employees."
Complaint
at
¶
33.
Plaintiff
further
alleges
that
"said
hostile
environment
has
significantly
altered
the
terms
and
conditions
of
Plaintiff's
employment
and
unreasonably
interfered
with
his
job
performance."
Id.
The
employee
has
the
burden
of
proving
a
hostile
work
environment
under
Title
VII.
Edwards
v.
Wallace
Cmty.
College,
49
F.3d
1517,
1521
(11th
Cir.
1995)
.
To
establish
a
hostile
work
environment,
Plaintiff
must
demonstrate
that:
(1)
he
belongs to
to
a
protected
group;
(2)
he
has (3)
been the
subjected
unwelcome was (4) based the
harassment; on the was
harassment characteristic; severe or
protected sufficiently of and a
harassment alter
pervasive of
to
the
terms
conditions
employment
and
thus
create
-38-
discriminatorily the employer a is
abusive
work
environment; for that or
and
(5)
responsible of either
environment vicarious
under
theory
direct
liability.
Godoy
v.
Habersham
County,
211
Fed.
App'x
850,
853-54
(11th
Cir.
2006)
(citing
Miller
v.
Kenworth
of
Dothan,
Inc.,
277
F.3d
1269,
1275
(11th
Cir.
2002)).
The
following
factors
are
important
in
analyzing
whether
harassment
objectively
altered
an
employee's
terms
or
conditions
of
employment:
"(1) of
the
frequency conduct;
of
the
conduct;
(2)
the
severity was mere
the
(3)
whether or
the
conduct or a
physically offensive
threatening utterance;
humiliating, (4) whether the
and
the
conduct job
unreasonably performance."
interfere[d]
with
employee's
Id.
(quoting
Miller,
277
F.3d
at
1276)
.
Additionally,
the
Eleventh
Circuit
has
held
that
courts
should
"consider
the
alleged
conduct
in
context
and
cumulatively,
looking
at
the
totality
of
the
circumstances,
to
determine
if
an
environment
is
hostile.
Teasing,
offhand
comments,
and
isolated
incidents
do
not
constitute
discriminatory
changes
in
the
terms
and
conditions
of
employment."
Jones
v.
City
of
Lakeland,
No.
07-
12720,
2008
U.S.
App.
LEXIS
12355,
at
*13-14
(11th
Cir.
June
6,
2008)
(internal
citations
omitted).
-39-
In
support
of
his
hostile
work
environment
claims,
Plaintiff
first
alleges
that
department
officials,
including
Chief
Thomas,
showed
favoritism
toward
African-American
officers
in
discipline
and
other
matters.
For
instance,
Plaintiff
points
to
the
deposition
of
Assistant
Chief
Fussell,
in
which
he
testifies
that
Thomas
failed
to
cooperate
with
other
supervisors
in
disciplining
Officer
Williams.
Fussell
Dep.
68.
According
to
Plaintiff,
this
testimony
suggests
that
African-American
officers
received
special
treatment.
Id.
Plaintiff
also
points
to
the
deposition
testimony
of
Sergeant
Jerome
Perkins
as
evidence
that
another
African-American
officer,
Mac
Anthony,
had
violated
department
policy,
yet
was
not
subject
to
discipline.
Jerome
Perkins
Dep.
16-22,
35.
Plaintiff
also
focuses
on
several
alleged
instances
where
African-American
officers
were
allowed
to
disregard
the
chain
of
command
and
report
directly
to
the
chief,
and
where
African-American
officers
were
allowed
to
wear
plain
clothes
to
football
games,
in
violation
of
department
policy.
Fussell
Dep.
62-63;
66-67.
Next,
Plaintiff
claims
that
the
"single
greatest
contributor
to
the
hostile
environment
suffered
by
white
employees
was
the
pervasive
involvement
of
Defendants
Pearson
-40-
and
Paulk
in
operational
and
personnel
decisions
within
the
police
department
and
other
departments
within
the
city."
Plaintiff's
Reply
at
40.
Plaintiff
cites
testimony
indicating
that
Pearson
"had
a
strong
interest
in
advancing
minority
participation
in
city
government
and
employment,"
and
that
she
"wanted
more
minorities
hired
as
city
employees."
Id.
at
41.
Plaintiff
points
to
three
occasions
where
Pearson
allegedly
intervened
on
behalf
of
city
employees
because
they
were
African-American.
Plaintiff
asserts
that
"[t]hese
and
other
actions
by
Defendants
Pearson
and
Paulk
had
a
considerable
negative
impact
on
the
morale
of
white
officers."
Id.
at
43.
It
is
important
to
note
that
none
of
these
alleged
instances
of
interference
by
Pearson
on
behalf
of
African-American
employees
involved
the
police
department.
At
most,
Plaintiff's
evidence
shows
that
Defendants
have
displayed
favoritism
to
African-American
officers
on
isolated
occasions.
However,
Plaintiff
does
not
point
to
one
instance
where
Defendants
acted
in
a
manner
that
could
reasonably
be
interpreted
as
"sufficiently
severe
or
pervasive
[as]
to
alter
the
terms
of
and
conditions
of
employment."
Godoy,
211
Fed.
App'x
at
854.
Instead,
Plaintiff
has
admitted
that
he
has
retained
his
rank
as
Corporal,
received
a
raise,
and
has
-41-
received
uniformly
good
evaluations.
Sprinkle
Dep.
44-45.
In
fact,
Plaintiff
could
not
think
of
anything
in
particular
that
has
harmed
his
ability
to
perform
his
job.
Id.
at
45-46.
When
given
a
chance
at
his
deposition
to
articulate
how
the
isolated
incidents
he
lists
as
constituting
a
hostile
work
environment
have
impacted
his
job,
Plaintiff
responded:
Well,
the
way this
it to I
is
or
used
to
be
up of
there, other
I've
expressed with as I the am
[Fussell] to
and be not
some as
people there there and
city home
advised . .
comfortable
.
I'm
comfortable that it are
anymore. don't know
Some me
of
the
officers I'm it sure a
new
very
well,
affected uneasy speak
their
opinion
of
me.
It's
made
real to
working me, the and
environment. until ones its Q. A. this
Officers up,
that
used speak are
with Even
come
don't them up
anymore.
that never
do,
some
of
real
standoffish . . .
been
that
way
until
now
Anything Not that
else? I can think of right off.
Sprinkle
Dep.
56-57.
Complaints
by
a
plaintiff
that
the
atmosphere
of
the
work
environment
is
"real
tense"
or
that
he
had
been
made
to
feel
unwelcome
by
fellow
employees
are
insufficient
to
constitute
a
hostile
work
environment
as
a
matter
of
law.
See,
e.g.
McGhee
v.
City
of
Forsyth,
No.
5:06-CV-397,
2007
U.S.
Dist.
LEXIS
90116,
*11-12
(M.D.
Ga.
Dec.
7,
2007)
.
In
McGhee,
the
plaintiff,
an
African-American
employee
claiming
hostile
work
environment,
alleged
that
she
was
discriminatorily
disciplined
-42-
and
that
white
employees,
in
general,
had
a
more
satisfactory
work
environment
than
African-American
employees.
Id.
The
court
in
McGhee
granted
summary
judgment
in
favor
of
the
defendant,
because
the
plaintiff
failed
to
prove
that
the
workplace
was
so
"permeated
with
discriminatory
intimidation,
ridicule,
and
insult,
that
it
[was]
sufficiently
severe
or
pervasive
to
alter
the
conditions
of
the
victim's
employment
and
create
an
abusive
working
environment."
Id.
at
*12
(quoting
Miller
v.
Kentworth
of
Dothan,
Inc.,
277
F.3d
1269,
1275
(11th
Cir.
2002)).
Similar
to
McGhee,
there
is
no
evidence
in
this
case
that
the
alleged
incidents
of
racial
favoritism
have
risen
to
the
point
of
being
so
severe
and
pervasive
as
to
alter
the
terms
of
Plaintiff's
employment.
Further,
the
fact
that
African-
American
officers
might
have
made
offhand
jokes
and
remarks
of
an
insulting
nature
toward
white
officers
does
not
change
the
equation.
As
already
discussed,
"[t]easing,
offhand
comments,
and
isolated
incidents
do
not
constitute
discriminatory
changes
in
the
terms
and
conditions
of
employment."
Jones,
2008
U.S.
App.
LEXIS
12355,
at
*13-14.
See
also
Davis
v.
Town
of
Lake
Park,
Fla.,
245
F.3d
1232,
1242
(11th
Cir.
2001)
("Hurt
feelings
are
not
sufficient
to
establish
a
cause
of
-43-
action
.
.
.
the
protections
of
Title
VII
simply
do
not
extend
to
everything
that
makes
an
employee
unhappy.");
Baldwin
v.
Blue
Cross/Blue
Shield
of
Ala.,
480
F.3d
1287,
1302
(11th
Cir.
2007)
("Title
VII
does
not
enact
a
general
civility
code
for
the
workplace.").
Because
Plaintiff
has
failed
to
satisfy
his
burden
of
showing
that
the
actions
of
Defendants
were
"sufficiently
severe
or
pervasive
to
alter
the
terms
of
and
conditions
of
employment
and
thus
create
a
discriminatorily
abusive
work
environment,"
Defendants
are
entitled
to
summary
judgment
on
Plaintiff's
hostile
work
environment
claims.
IV.
Title
VII
Retaliation
Claims
In
his
complaint,
Plaintiff
asserts
two
separate
retaliation
claims.
First,
Plaintiff
claims
that
Defendant
Thomas
was,
in
part,
motivated
to
deny
Plaintiff
the
promotion
in
question
in
retaliation
for
Plaintiff's
having
sought
legal
counsel
to
pursue
a
Title
VII
race
discrimination
claim
in
connection
with
a
prior
promotion
(Count
XI)
.
Specifically,
Plaintiff
alleges
that
he
"had
sought
counsel
to
pursue
a
claim
of
race
discrimination
arising
out
of
the
prior
sergeant's
promotion
in
which
Sgt.
Tony
Ward,
who
is
African-
-44-
American,
was
promoted
instead
of
Plaintiff.
.
.
.
Defendant
Thomas
was
aware
of
Plaintiff's
having
sou
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