Thompson v. City of Meridian, Mississippi
Filing
128
Memorandum Opinion and Order denying 79 MOTION for Summary Judgment. Signed by District Judge Tom S. Lee on 2/1/12 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
DAREADELL TERRELL THOMPSON
VS.
PLAINTIFF
CASE NO. 4:10CV102TSL-MTP
CITY OF MERIDIAN, MISSISSIPPI
DEFENDANT
MEMORANDUM OPINION AND ORDER
In February 2010, plaintiff Dareadell Terrell Thompson was
terminated from his employment as a police officer with the City
of Meridian, ostensibly for fraudulently attempting to obtain
workers’ compensation benefits to which he was not entitled.
Following his termination, and after timely filing an EEOC charge,
plaintiff filed the present action against the City of Meridian
under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.
and 42 U.S.C. § 1983, alleging he was terminated on account of his
race, and further that he was denied a fair appeal of his
termination, in violation of his Fourteenth Amendment due process
rights.
Plaintiff additionally asserted a state law claim for
breach of contract.
each of these claims.
The City has moved for summary judgment on
Plaintiff Thompson has responded to the
motion and the court, having considered the memoranda of
authorities, together with attachments, submitted by the parties,
concludes that the motion must be denied for the reasons that
follow.
Turning first to his claim of race discrimination, in a case
such as this, where the plaintiff has not presented direct summary
judgment evidence of discrimination, the court applies the
burden-shifting framework in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).1
Under this
framework, the employee claiming discrimination must first
establish a prima face of race discrimination.
See Lee v. Kansas
City Southern Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009).
Once an
employee has made out a prima facie case, an inference of
intentional discrimination is raised and the burden of production
shifts to the employer, who must offer an alternative
non-discriminatory explanation for the adverse employment action.
Id.
If the employer can provide a legitimate nondiscriminatory
explanation, the inference of discrimination drops out and the
burden shifts back to the employee to prove that “(1) the
defendant's reason is not true, but is instead a pretext for
discrimination (pretext alternative), or (2) the defendant's
reason, though true, is only one of the reasons for its conduct,
and another motivating factor is the plaintiff's protected
characteristic (mixed-motives alternative).”
Davis v. Farmers
Ins. Exchange, 372 Fed. Appx. 517, 519, 2010 WL 1404000, 2 (5th
Cir. 2010).
1
Plaintiff does not contend he has any direct evidence of
discrimination.
2
The City contends that to establish a prima facie case,
plaintiff must demonstrate that (1) he is a member of a protected
class, (2) he was qualified for the position at issue, (3) he was
the subject of an adverse employment action, and (4) he was
replaced by someone outside the protected class, or was treated
less favorably because of his membership in that protected class
than were other similarly situated employees who were not members
of the protected class, under nearly identical circumstances.
Lee, 574 F.3d at 259.
See
On the present motion, the City argues that
plaintiff cannot establish his prima facie case because, in view
of the offense for which he was terminated and his record of
numerous and serious disciplinary infractions, he cannot
demonstrate that he was qualified for the position of police
officer, and neither can he identify any white officer who had a
comparable disciplinary record and was not terminated.
To satisfy the qualification element of a prima facie case, a
plaintiff need prove only that he satisfied the minimum
qualifications for the position in question.
See Taylor v.
Peerless Industries Inc., 322 Fed. Appx. 355, 357 n.1, 2009 WL
837326, 1 n.1 (5th Cir. 2009) (observing that employer’s argument
that employee lacked the minimum qualifications for the position
was “belied by the fact that [the employer] hired [the plaintiff]
in the first place,” and noting that “performance concerns are
more appropriately addressed in assessing a plaintiff's assertion
3
that an employer's articulated reason for its action was a
pretext”).
In this analysis, it does not follow from the fact
that the plaintiff repeatedly engaged in misconduct which might
have warranted his discharge that he necessarily lacked the
requisite qualifications for the position in question.
Indeed,
prior to the alleged infraction which resulted in his termination,
plaintiff had committed a number of infractions, some serious, and
yet his superiors evidently did not view him as unfit, or
unqualified to serve as a police officer.
See id.
As for comparators, plaintiff has identified eleven white
officers he contends engaged in misconduct at least as serious if
not more serious than his alleged misconduct and yet were not
terminated.
However, after thoroughly considering the admissible
summary judgment evidence,2 it is clear to the court that none of
these putative comparators asserted by plaintiff qualifies as
2
The City has filed a separate motion to strike in which
it seeks to strike among other things, testimony by plaintiff
relating to alleged comparators which is not based on personal
knowledge and/or which constitutes inadmissible hearsay. See Fed.
R. Civ. Proc. 52(c)(2) (“A party may object that the material
cited to support or dispute a fact cannot be presented in a form
that would be admissible in evidence.”); Rule 56(c)(4) (“An
affidavit or declaration used to support or oppose a motion must
be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.”). Much of
plaintiff’s evidence relating to alleged comparators is
inadmissible, so defendant’s motion to strike is well taken, in
part. In concluding there are no proper comparators, the court
has considered only admissible evidence. The basis for the
court’s conclusion on the putative comparators will be addressed
specifically when the court issues a ruling on the City’s motion
in limine to exclude evidence of the proffered comparators.
4
similarly situated to plaintiff in accordance with the standard
See Lee, 574 F.3d at 260-261
recognized by the Fifth Circuit.
(explaining how to evaluate claims that other employees were
similarly situated to plaintiff).
Nevertheless, in the court’s opinion, the fact that plaintiff
lacks comparator evidence does not doom his claim.
The Fifth
Circuit has held that in the situation of a work rule violation,
“a Title VII plaintiff may establish a prima facie case by showing
‘either that he did not violate the rule or that, if he did, white
employees who engaged in similar acts were not punished
similarly.’”
Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090
(5th Cir. 1995) (quoting Green v. Armstrong Rubber Co., 612 F.2d
967, 968 (5th Cir. 1980)).
The City’s characterization of
plaintiff’s alleged fraud in connection with the Travelers check
as violative of applicable civil service rules would seem to place
plaintiff’s offense in the work rule violation category.
And,
given plaintiff’s submission of competent evidence that he did not
commit the violation for which he has terminated, the court
concludes he has established a prima facie case.3
3
In its motion to strike, see supra note 2, the City asks
that the court strike testimony by plaintiff describing his
conversations with Travelers’ representatives in which he claims
he not only did not advise Travelers he was off work but in fact
specifically reported he was at work; and other testimony by
plaintiff in which he expressed his belief that he is the victim
of racial discrimination. Even without consideration of this
evidence, the court finds there is sufficient evidence in the
record to support plaintiff’s claim that he did not commit the
ultimate offense for which he was terminated.
5
In response, the City has obviously articulated a legitimate
nondiscriminatory reason for the decision to terminate plaintiff’s
employment.
Plaintiff maintains, and the court agrees, that he
has presented sufficient evidence to cast doubt on the
truthfulness of defendant’s proffered reason for terminating his
employment.
There is evidence from which Chief Shelbourn could
have concluded that plaintiff attempted to defraud Travelers.
Yet
it appears from evidence presented by plaintiff that while both
the head of the human resources department and the internal
affairs officer assigned by Chief Shelbourn to investigate
plaintiff’s alleged fraud initially suspected that plaintiff
committed the offense, both came to believe he did not commit the
offense.
Under the circumstances, and particularly without
evidence to show that Chief Shelbourn in fact believed plaintiff
committed the offense at issue and perhaps, as well, explaining
the basis for his arriving at a contrary conclusion to that
reached by his investigator and the head of human resources, the
court cannot conclude that the City is entitled to summary
judgment on plaintiff’s race discrimination claim.4
In addition to his race discrimination claim, plaintiff
alleges that the City violated his Fourteenth Amendment due
4
The Court recognizes that Chief Shelbourn’s decision was
upheld on appeal to the City’s Civil Service Commission. However,
the relevance of the Commission’s ruling is in doubt, given
plaintiff’s due process challenge to the appeal and the court’s
conclusion, infra, that the City has failed to establish its
entitlement to summary judgment on plaintiff’s due process claim.
6
process rights in that (1) he was punished twice for the same
alleged infraction; and (2) he was denied a fair appeal of his
termination because of ex parte communications between the City
and the Civil Service Commission.
The City acknowledges that Mississippi law permits
termination of a civil service employee only for good cause, see
Miss. Code Ann. § 21-31-71, and that therefore, plaintiff had a
property interest in his employment.
The City also acknowledges
that under Mississippi law, good cause would not exist to sustain
a civil servant’s discharge for certain misconduct if he had been
previously disciplined for that misconduct.
See Ladnier v. City
of Biloxi, 749 So. 2d 139, 153 (Miss. Ct. App. 1999).
However, in
this case, the record evidence does not support plaintiff’s
allegation he was discharged for an infraction for which he had
previously been punished.
Plaintiff’s position, as the court
understands it, is that Chief Shelbourn terminated him for prior
offenses, for which he had already been disciplined by the former
police chief; but that is not what occurred.
Rather, in
determining an appropriate disciplinary response for what he
purportedly found to be plaintiff’s attempt to defraud Travelers,
Chief Shelbourn considered plaintiff’s history of disciplinary
suspensions, demotions and warnings.
Such consideration is
expressly permitted by the City’s Civil Service Code of Rules and
Regulations, which authorize termination after “progressive
7
discipline has failed to correct unacceptable behavior.”5
As the
City notes, plaintiff has cited no authority which holds that it
is impermissible to take into account an employee’s prior
disciplinary record when determining whether good cause exists to
warrant discharge.
Accordingly, summary judgment is in order on
this claim.
Plaintiff further charges that his due process rights were
violated by the City’s ex parte communications with members of the
Civil Service Commission concerning his appeal, which he alleges
were intended to and did in fact influence the vote of Commission
member Yvette Neal.
In support of his allegation, plaintiff has
presented, first, his own testimony that he learned from Yvette
Neal’s husband, Alton Neal, that the City’s chief administrative
officer McDonald engaged in ex parte communications with Mrs.
Neal, and that Mrs. Neal, who originally intended to vote against
plaintiff’s termination, changed her vote and voted to uphold the
termination.
As the City correctly points out in its rebuttal and
in its separate motion to strike, and contrary to plaintiff’s
urging, his testimony in this regard is hearsay and not competent
summary judgment evidence.
However, in addition to his own
testimony, plaintiff has presented an affidavit from Alton Neal,
5
Specifically, Section 10.04 of the Code of Rules and
Regulations of the Civil Service Commission permits termination of
an employee “(1) After progressive discipline has failed to
correct unacceptable behavior, or (2) In response to an infraction
of such severity that a lesser action is clearly insufficient.”
8
who recites that he was present during ex parte communications
between McDonald and his wife concerning plaintiff’s appeal, which
resulted in Mrs. Neal’s voting to uphold plaintiff’s termination.
The City has moved to strike Mr. Neal’s affidavit on the basis
that it is “self-serving and unreliable,” and contends as the sole
basis for summary judgment on this claim that once Neal’s
affidavit is stricken, there is no admissible evidence to support
plaintiff’s allegation that he was denied a fair appeal based on
ex parte communications with Commission members.
In the court’s
opinion, however, the City’s motion to strike Neal’s affidavit is
not well taken.
The basis for the City’s characterization of Neal’s affidavit
as self-serving is unclear, as is the basis for its suggestion
that the affidavit is inadmissible because it is self-serving.
The City’s assertion that the affidavit is unreliable appears to
be based on Yvette Neal’s testimony that McDonald did not attempt
to influence her vote and did not influence her vote, and on her
further testimony that Alton Neal shot her four times.
Mrs.
Neal’s denial does not render Mr. Neal’s contrary testimony
unreliable; and while animosity of Alton Neal toward his wife,
evidenced by his having shot her, might bear on Mr. Neal’s
credibility, it does not render his testimony inadmissible.
In
its rebuttal on the motion to strike, the City contends
additionally that Neal’s affidavit is hearsay within hearsay;
9
however, it does not elaborate on the basis for this contention,
which is not otherwise apparent.
While Alton Neal’s affidavit is
somewhat vague, he does appear to assert that he personally
witnessed McDonald’s alleged conversations with his wife.
The
court is unable to conclude that Mr. Neal’s affidavit is
inadmissible; and therefore it is unable to conclude that the City
has demonstrated that summary judgment is necessarily in order on
this claim.6
Based on the foregoing, it is ordered that the City’s motion
for summary judgment is denied.
SO ORDERED this 1st day of February, 2012.
/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE
6
The court reiterates that the City offers the absence of
proof of ex parte communications as the sole basis for seeking
summary judgment on this due process claim. If other potential
grounds exist, in law or in fact, they have not been asserted.
The court notes, too, that the City purports to seek summary
judgment on plaintiff’s breach of contract claim on this same
basis. The motion will therefore be denied, as to that claim, as
well.
10
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