MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS, United States District Judge.
Plaintiff Heath Jones ("Mr. Jones") initiated this retaliatory discharge case arising under Title VII of the Civil Rights Act of 1964 against Defendant City of Heflin (the "City") on March 17, 2014. (Doc. 1). Mr. Jones claims in his lawsuit that the City fired him as a police officer in retaliation for: (i) refusing to falsely report to the husband of a female police officer who had sued the City for gender discrimination that his wife was having an affair; and (ii) supporting that female police officer's allegations of gender discrimination, including offering to be a witness in her case. The rather bizarre set of facts further reveal that Mr. Jones has, for a number of years, been living with a convicted felon and his refusal to end that relationship is the reason the City has given for his firing. The retaliatory twist is that, according to Mr. Jones, his supervisor was aware of the
Pending before the court is the City's Motion for Summary Judgment (Doc. 18) (the "Motion") filed on December 10, 2015. The parties have briefed and filed evidence relating to the Motion, including additional briefing that was ordered (Doc. 29) by the court on July 19, 2016. (Docs. 19, 24-25, 32, 33). The Motion is now under submission and, for those reasons explained below, the Motion is
A. Summary Judgment
Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). A dispute is genuine "if 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, 2510, 91 L.Ed.2d 202 (1986). "Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to `come forward with specific facts showing that there is a genuine issue for trial.'" International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir.2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). Finally "[i]f the movant bears the burden of proof on an issue, because, as a defendant, it is asserting an affirmative defense, it must establish that there is no genuine issue of material fact as to any element of that defense." International Stamp, 456 F.3d at 1274 (citing Martin v. Alamo Community College Dist., 353 F.3d 409, 412 (5th Cir.2003)).
B. Title VII Retaliation
Title VII prohibits "[r]etaliation against an employee who engages in statutorily protected activity." Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1257 (11th Cir.2012). The Supreme Court originally established the basic allocation of burdens and order of proof in a Title VII disparate treatment case in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). When relying upon circumstantial evidence
Statutorily protected activity triggering coverage under Title VII's antiretaliation provision comes in two forms-opposition-based or participation-based conduct.
Under binding Eleventh Circuit precedent:
Little v. United Technologies, 103 F.3d 956, 960 (11th Cir.1997) (emphasis by underlining added).
Concerning the broad coverage afforded under the participation clause the Eleventh Circuit has explained:
Clover, 176 F.3d at 1353.
Finally, as a divided Supreme Court held, Title VII retaliation requires proof of customary but-for causation, rather than the less burdensome motivating-factor standard applicable to Title VII discrimination claims:
Univ. of Texas Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013) (emphasis added); cf. id., 133 S.Ct. at 2522-23 ("An employee who alleges status-based discrimination under Title VII need not show that the causal link between injury and wrong is so close that the injury would not have occurred but for the act."); id. at 2523 ("It suffices instead to show that the motive to discriminate was one of the employer's motives, even if the employer also had other, lawful motives that were causative in the employer's decision.").
C. Evidentiary Rulings
"All evidentiary decisions are reviewed under an abuse-of-discretion standard." See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997). "An abuse of discretion can occur where the district court applies the wrong law, follows the wrong procedure, bases its decision on clearly erroneous facts, or commits a clear error in judgment." United States v. Estelan, 156 Fed.Appx. 185, 196 (11th Cir.2005) (citing United States v. Brown, 415 F.3d 1257, 1266 (11th Cir.2005)).
Moreover, as the Eleventh Circuit has made clear, not every incorrect evidentiary ruling constitutes reversible error:
Haygood v. Auto-Owners Ins. Co., 995 F.2d 1512, 1515 (11th Cir.1993). Therefore, even the existence of many evidentiary errors does not guarantee an appealing party relief from an adverse final judgment. Instead, such erroneous rulings by a district court must "affect the substantial rights of the parties" in order for reversible error to occur.
III. FACTUAL BACKGROUND 3
In February of 2010, Mr. Jones, began a relationship with Constance Scott ("Ms. Scott") while he was working as a law enforcement officer for the Alabama State Alcohol Beverage Control ("ABC") Board. AF No. 2.1.
Mostly through the efforts of his childhood friend, Captain A.J. Benefield ("Captain Benefield"), the City of Heflin Police Department (the "HPD") hired Mr. Jones as a police officer. AF No. 3.1. Mr. Jones was eventually promoted to lieutenant and Captain Benefield was made acting chief of the HPD. AF No. 3.2. During the events made the basis of this lawsuit, Mr. Jones was one of the highest supervisory officers of the HPD, second only to Captain Benefield. AF No. 3.3.
HPD policy (that was never formally passed by the City Council, but nonetheless followed as personnel policy according to former police chief Robert Pittman's ("Mr. Pittman") and Mayor Rudy Rooks's ("Mayor Rooks") testimony at Mr. Jones's termination hearing (Doc. 18-19 at 13-14 at 48-49; id. at 15 at 54))
Mr. Jones was the superior officer of Susan Young ("Officer Young"). AF No. 5.1. In a March 8, 2011, response to a critical evaluation by Mr. Jones, Officer Young indicated that she believed (i) that she suffered injustice at the hands of Mr. Jones and the HPD, (ii) that "Jones is over zealous 99% of the time," (iii) that Mr. Jones set her up for failure, (iv) that Mr. Jones was deceitful and mean to her, (v) that "the whole time [she] worked with Jones he was just trying to gather dirt on [her]," and (vi) that "not being able to find any dirt, [Jones] settled for making [her] look and sound like an incompetent police officer." AF No. 5.2.
On February 28, 2012, Officer Young filed a federal lawsuit against the City, alleging Title VII gender discrimination and other claims. AF No. 6.1. Officer Young asserted in her lawsuit that she was treated less favorably than one of the HPD's male officers-Josh Horn ("Officer Horn"). On May 16, 2012, Officer Young amended her initial disclosures to identify Mr. Jones as an adverse witness. AF No. 6.2. Specifically, her disclosure stated that Mr. Jones "made untrue statements about [Officer Young's] training and performance" in his capacity as her superior officer. AF No. 6.3.
When being questioned by Captain Benefield about the merits of Officer Young's lawsuit, Mr. Jones claims that he corroborated her contention that Captain Benefield treated Officer Horn better than her "with respect to substantially similar conduct." (Doc. 25-3 at 3).
Mr. Jones claims that a few days after Captain Benefield gave his deposition, while working school traffic at Cleburne County High School in early December 2012,
On December 7, 2012, Ms. Scott rode in Mr. Jones's patrol car during the City Christmas parade. AF No. 11.1. In the days following, Captain Benefield received more than one anonymous call criticizing the City for allowing officers to live with felons and allowing felons to ride in patrol cars during the Christmas parade. AF No. 11.2. Captain Benefield deduced that the felon being referred to in these calls might be Ms. Scott. AF No. 11.3.
Captain Benefield confronted Mr. Jones about the anonymous calls. AF No. 12.1. Mr. Jones told Captain Benefield that Ms. Scott had only been in criminal trouble from an incident with her ex-husband's girlfriend at a football game, that the charges were dismissed, and that someone from the HPD was probably just trying to cause trouble. AF No. 12.1. Captain Benefield took Mr. Jones at his word. AF No. 12.2.
On Friday, December 18, 2012, Officer Eric Winslett ("Officer Winslett"), who was in charge of doing warrant checks on the criminal computer database, returned to work after a two week absence. AF No. 14.1. Officer Winslett performed a criminal background check on a social security number left in the area for warrant checks, determined the identify of the number was for Ms. Scott, and discovered her numerous felony and misdemeanor convictions. AF No. 14.2. On Monday, December 31, 2012, Captain Benefield provided the criminal information about Ms. Scott to Mr. Jones and told him that, in his opinion, Ms. Scott's continuing to live in Mr. Jones's home constituted conduct unbecoming of an officer under the above HPD policy. AF No. 15. Mr. Jones responded that he needed two weeks to end his relationship with Ms. Scott. AF No. 16.1. Captain Benefield agreed to give Mr. Jones until January 14, 2013, to do that. AF No. 16.2.
On 3:20 p.m. the following Monday, January 7, 2013, Captain Benefield sent Mr. Jones a text message, asking "what's the status on what we talked about last Monday?" AF No. 17.1. Mr. Jones responded that the situation was "in the process of being handled... on schedule as we talked about for the coming Monday," which was January 14, 2013. AF No. 17.2. On January 8, 2013, at 6:49 p.m., Mr. Jones texted Captain Benefield, stating that Ms. Scott had left that night and taken some of her stuff to her mother's house. AF No. 18.1. He also texted Captain Benefield, "thank you for standing up for me." AF No. 18.2.
On January 9, 2013, Ms. Scott scheduled a meeting with Mayor Rooks to try to get Mayor Rooks to get Captain Benefield to change his mind. AF No. 19.1. The meeting started at 3:37 p.m. with Mr. Jones, Ms. Scott, Mayor Rooks, and Captain Benefield present. AF No. 19.2. Unbeknownst to Mayor Rooks or Captain Benefield, Mr. Jones and Ms. Scott were recording the meeting. AF No. 20.1.
By far, Ms. Scott did most of the talking during the meeting. AF No. 21.1. She admitted to the felony convictions, but claimed that they should not matter because she was no longer involved in criminal activity and she was not a bad person. AF No. 21.2 Ms. Scott also admitted to calling Mr. Jones at work and telling him she would blow her brains out if he did not come home. AF No. 22.
After listening to Ms. Scott and Mr. Jones for some time, Captain Benefield stated that it was inappropriate for an officer to be living with a felon, that it was an embarrassment to the HPD, that his stance was grounded in his interpretation of HPD policy, that he had to look out for the whole HPD and not just Mr. Jones, and that he was not going to change his
Mayor Rooks stated that he was not going to override Captain Benefield's decision, that he had to maintain the integrity of the HPD, that the HPD had to be looked at as professionals, and that Ms. Scott's living with Mr. Jones would cause a hardship on the HPD. AF No. 25. After Ms. Scott was repeatedly told that Captain Benefield and Mayor Rooks would not change their minds, Ms. Scott stated that she would move out to protect Mr. Jones's career. AF No. 26. Mr. Jones and Ms. Scott asked for more time for Ms. Scott to move out, and Mayor Rooks and Captain Benefield agreed to extend the deadline two-and-a-half more weeks until February 1, 2013. AF No. 27. However, Captain Benefield told Mr. Jones that if he did not abide by the new deadline that he would be terminated. AF No. 28.1. Not once during this lengthy meeting did Ms. Scott or Mr. Jones insinuate, much less state, that Captain Benefield was retaliating against Mr. Jones for supporting Officer Young and refusing to retaliate against her. AF No. 29.
On January 24, 2013, Mayor Rooks attended a mediation in Officer Young's case and was told by Officer Young's attorney that an unnamed HPD officer had approached her, wanting to testify on behalf of Officer Young. AF No. 31.
On February 1, 2013, Captain Benefield saw Ms. Scott's vehicle parked at Mr. Jones's house on his way into work. AF No. 32.1. After not reaching Mr. Jones by phone, he sent text messages at 9:41 a.m. for Mr. Jones to call him. AF No. 32.2. Mr. Jones called Captain Benefield back within a few minutes. AF No. 33.1. Captain Benefield reminded Mr. Jones of the deadline and asked Mr. Jones to meet with him at Mayor Rooks's office later in the day to tell them what he was going to do. AF No. 34.1. Mr. Jones asked if they could meet on February 4, 2013, and Captain Benefield said "no" because that was the day everyone agreed upon. AF No. 34.2. Mr. Jones asked whether his attorney could be present, and Captain Benefield said "yes." AF No. 34.3.
By 1:36 p.m. on February 1, 2013, Mr. Jones still had not called Captain Benefield, so Captain Benefield called him again. AF No. 35.1. Mr. Jones indicated to Captain Benefield that he had not yet spoken with his attorney and could not speak for him as for a meeting time. AF No. 35.2. Captain Benefield then asked Mr. Jones whether Ms. Scott was moving out. AF No. 35.3. Mr. Jones stated that Ms. Scott was not moving out and that he was not resigning. AF No. 35.4. Captain Benefield told Mr. Jones that they needed to meet on the following Monday, February 4, 2013, and that he needed to know what time Mr. Jones's attorney could meet. AF No. 35.5. Mr. Jones asked Captain Benefield if he had read Mr. Jones's attorney's letter, and Captain Benefield stated that he had not seen any letter. AF No. 35.6.
Starting at 3:25 p.m. on February 1, 2013, Mr. Jones began sending Captain Benefield a total of eighty-five text messages, which appeared to Captain Benefield to be parts of a letter from Mr. Jones's lawyer. AF No. 36. Captain Benefield called Mayor Rooks and asked if he had received a letter from Mr. Jones's attorney, and Mayor Rooks told him he had received an electronic copy of a letter from Mr. Jones's lawyer dated January 31, 2013. AF No. 37.
The two-page letter dated January 31, 2013, addressed to Mayor Rooks and Patrick Casey, Esq. states in part that:
(Doc. 18-15 at 2-3)
Mr. Jones testified regarding his recollection of this exchange with Captain Benefield concerning Officer Young:
(Doc. 18-2 at 42 at 161).
On February 4, 2013, Mayor Rooks and Captain Benefield met with the City's Personnel Committee and they recommended Mr. Jones's dismissal from the HPD on account of his living with a convicted felon, but the Committee did not make a decision at that time. AF No. 40. There is no evidence in the record that the Personnel Committee was made aware of Mr. Jones's claim of retaliatory conduct when Mayor Rooks and Captain Benefield made this joint recommendation.
On February 6, 2013, at 6:34 p.m., Mr. Jones called Mayor Rooks in response to an earlier voice mail message left by Mayor Rooks. AF No. 41. Mayor Rooks told Mr. Jones that the Personnel Committee was in session and they wanted to hear his side of the story. AF No. 42.1. Although Mayor Rooks told Mr. Jones that it was not a due process hearing, Mr. Jones refused to meet with the Personnel Committee without his attorney present, even though Mayor Rooks begged him to come in and talk. AF No. 42.2.
Although he would not talk to the Personnel Committee, Mr. Jones agreed to meet Mayor Rooks and City Clerk Shane Smith a few minutes later at City Hall. AF No. 43.1. Mayor Rooks again begged Mr. Jones to meet with the Personnel Committee, which was still in session, they could hear his story, and Mr. Jones again refused. AF No. 43.2. At the end of their meeting, Mayor Rooks handed Mr. Jones a letter that placed him on administrative leave with pay, pending suspension or termination, and that informed him he would be terminated if he did not request a hearing before the City Council in ten days. AF No. 44; (see also Doc. 18-16 at 2 ("Notice of Suspension/Termination — Lamar Heath Jones")).
(Doc. 18-16 at 2).
On February 7, 2013, Officer Young served a third supplement to her initial disclosures that completely changed Mr. Jones's adverse witness status; now Mr. Jones and Ms. Scott were disclosed as supporting witnesses for Officer Young. AF No. 45. In this disclosure, Officer Young's lawyer certified that she had "only become aware of the above referenced subjects of knowledge within the last 30 days." AF No. 47. While Mr. Jones never talked directly to Officer Young about his anticipated testimony, he testified that he shared with her lawyer in December 2012 his belief that Officer Young had been treated unfairly. AF No. 46.1.
Mr. Jones admitted in his deposition that he never told any City employee or official that he called Officer Young's attorney, that Captain Benefield allegedly told him to call Officer Young's husband, that he supported Officer Young, or that he allegedly felt he was being retaliated against before his attorney's January 31, 2013, letter was sent to the City. AF No. 48.
On February 15, 2013, Mr. Jones hand-delivered to Mayor Rooks his written request for a hearing before the City Council. AF No. 49.1. Mr. Jones told Mayor Rooks that Captain Benefield was retaliating against him. AF No. 49.3. Mayor Rooks responded by stating that Mr. Jones never told him that before he received his attorney's letter. AF No. 49.3.
On February 22, 2013, Mr. Jones was served with a notice of hearing. AF No. 50. On March 19, 2013, a termination hearing was held before the City Council. AF No. 51.1. Mr. Jones's attorney appeared and defended Mr. Jones, who was present. AF No. 51.3. After the City presented evidence supporting its grounds for termination, Mr. Jones's attorney cross-examined Captain Benefield. AF No. 52.1. Captain Benefield conceded that Mr. Jones had the best arrest statistics in the HPD and was a good officer; however, he testified that Mr. Jones had the worst emotional state of all his officers. AF No. 52.2.
Mr. Jones's attorney called Mr. Pittman as a witness. AF No. 53. Mr. Pittman testified that he "would be concerned" about a ranking officer's association with a convicted felon having a criminal background comparable to Ms. Scott. (Doc. 18-19 at 19 at 72). Mr. Pittman further indicated that he would focus on whether that person would be "in a position of having or being currently involved in any type of criminal activity, ongoing criminal activity or involvement with people with criminal backgrounds." (Doc. 18-19 at 20 at 73). Mr. Pittman additionally opined that, "[i]f there was nothing there to give indication that this was an ongoing criminal activity or criminal involvement on that person's part, then I would really have to balance that information with a right to association, which every officer has[.]" (Id. at 74). The City has characterized Mr. Pittman's testimony to mean that the decision to enforce this association-based HPD policy is a subjective one. (See Doc. 19 at 13 ¶ 53 ("[I]t is a judgment call whether an officer living with a felon is grounds for termination.")).
The focus of the hearing was largely limited to the validity of the charges brought against Mr. Jones for violating HPD policy. (See generally Doc. 18-19 (transcript of termination hearing)). While Mr. Jones's counsel attempted to ask some questions about his client's retaliation allegations,
Mayor Rooks testified that he and Captain Benefield were the decision-makers who recommended Mr. Jones's termination. AAF No. 39. The City does not contest that Mr. Jones's employment was terminated on March 19, 2013, as a result of the recommendation that Captain Benefield made to Mayor Rooks.
A. Mr. Jones Has Established a
Prima Facie Case of Retaliation.
1. Mr. Jones Has Shown Sufficient Protected Activity in Opposing Retaliation Against Officer Young.
COH contends that Mr. Jones's retaliation claim is facially deficient for two reasons — he cannot show cognizable protected conduct in the form of opposition or participation and he cannot demonstrate causation. (Doc. 19 at 14). The court addresses the sufficiency of Mr. Jones's protected activity evidence first.
In its initial brief, the City contends that "[i]t is undisputed that Jones never opposed any of the City's employment practices ... until 1/31/13, the date his attorney sent his letter to the City." (Doc. 19 at 15). However, reading the record in the light most favorable to Mr. Jones, which the court must do on summary judgment, a reasonable jury could conclude that Mr. Jones's negative reaction to and decision to disregard Captain Benefield's directive in or around December 7, 2012, to anonymously contact Officer Young's husband and report that she was having an affair because of all the pain she had caused him with her gender-discrimination lawsuit, are sufficient to satisfy the opposition clause.
The court reaches this conclusion after studying the cases relied upon by the parties in their briefs. In Crawford v. Metro. Gov't of Nashville & Davidson Cty., 555 U.S. 271, 277, 129 S.Ct. 846, 851, 172 L.Ed.2d 650 (2009), the Supreme Court declined to adopt the Sixth Circuit's more narrow view on the scope of cognizable Title VII opposition:
Crawford, 555 U.S. at 277-78, 129 S.Ct. at 851 (emphasis added).
Additionally, the Supreme Court clarified in Robinson v. Shell Oil Co., 519 U.S. 337, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997), "that former employees [like Officer Young] are included within [Title VII's] coverage [prohibiting retaliation]." Id. at 346, 117 S.Ct. at 849. Further, Mr. Jones could have had an objective reasonable belief that what Captain Benefield instructed him to do was an unlawful employment practice, i.e., retaliatory against Officer Young under Burlington Northern's material adversity standard. See id., 548 U.S. at 63, 126 S.Ct. at 2412 ("An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace." (emphasis in original) (citing Berry v. Stevinson Chevrolet, 74 F.3d 980, 984, 986 (10th Cir. 1996) ("finding actionable retaliation where employer filed false criminal charges against former employee who complained about discrimination"))).
The City relies upon Brush v. Sears, 466 Fed.Appx. 781 (11th Cir.2012), and contends that Mr. Jones's opposition-based retaliation claim falls within the "manager rule." "In essence, the `manager rule' holds that a management employee that, in the course of her normal job performance, disagrees with or opposes the actions of an employer does not engage in `protected activity.'" Brush, 466 Fed.Appx. at 787 (citing McKenzie v. Renberg's Inc., 94 F.3d 1478 (10th Cir.1996)); id. (concluding differently from other courts that Crawford did not foreclose applicability of the "manager rule" because "[i]t did not address whether a disinterested party to a harassment claim could use that harassment claim as its own basis for a Title VII action").
To the extent that the Eleventh Circuit decides to apply the "manager rule" in a binding decision, the facts of this case are significantly distinguishable. In particular, Brush involved a plaintiff claiming retaliatory discharge on the basis that she had "disagree[d] with the way in which Sears conducted its internal investigation into [another employee's] allegations [about sexual harassment and rape]." 466 Fed. Appx. at 786. Thus, "Ms. Brush was neither the aggrieved nor the accused party in the underlying allegations. Instead, she was one of the Sears employees tasked with conducting the internal investigation." Id.
Unlike the Brush plaintiff, what Captain Benefield asked Mr. Jones to do-anonymously reporting an affair to Officer Young's husband-was not part of an investigation into Officer Young's claims or
Because the court finds that Mr. Jones's falsely-reporting-an-affair facts satisfy protected activity under the opposition clause, it does not reach the more doubtful issue of whether Mr. Jones has additionally shown cognizable protected conduct "when he told [Captain] Benefield that [Officer] Young's claims were factual regarding [her] being treated less favorably than [Officer] Horn", as suggested in Mr. Jones's opposition brief. (Doc. 24 at 27). Also, to the extent that Mr. Jones's complaint contains a participation-based retaliation claim premised upon his support of Officer Young's lawsuit in the form of agreeing to be listed as a favorable witness in her case, the court finds that he has abandoned that claim on summary judgment.
More specifically, in opposing the City's argument that he lacked cognizable protected activity, Mr. Jones identifies only two examples of protected conduct — (i) his refusal to contact Officer Young's husband and falsely report to him that she was having an affair and (ii) his opinion expressed to Captain Benefield that Officer Young's claims of gender discrimination had factual merit. (Doc. 24 at 26, 27). See, e.g., Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir.2001) (finding claim abandoned when argument not presented in initial response to motion for summary judgment); Bute v. Schuller Int'l, Inc., 998 F.Supp. 1473, 1477 (N.D.Ga.1998) (finding unaddressed claim abandoned); see also Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995) ("We decline to exercise our discretion to entertain this argument which was not fairly presented to the district court."); Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir.2000) (failure to brief and argue issue at the district court is sufficient to find the issue has been abandoned); Hudson v. Norfolk S. Ry. Co., 209 F.Supp.2d 1301, 1324 (N.D.Ga.2001) ("When a party fails to respond to an argument or otherwise address a claim, the Court deems such argument or claim abandoned."); cf. Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir.1994) (concluding that a district court "could properly treat as abandoned a claim alleged in the complaint but not even raised as a ground for summary judgment"); McMaster v. United States, 177 F.3d 936, 940-41 (11th Cir.1999) (claim may be considered abandoned when district court is presented with no argument concerning a claim included in the plaintiff's complaint). Thus, the City's Motion is
2. Mr. Jones Has Shown Sufficient Causation.
Mr. Jones also has adequate proof of causation. "To establish that causal connection, a plaintiff need only show `that the protected activity and the adverse action were not wholly unrelated.'" Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir.1985) (quoting Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th Cir.1999)). "[A] plaintiff satisfies this element if he provides sufficient evidence that the decision-maker became
In opposition, Mr. Jones points to Captain Benefield as the person within the decision-making process who was first aware of his protected conduct — opposing reasonably perceived retaliatory conduct — in or around December 7, 2012, when he resisted Captain Benefield's demand to contact Officer Young's husband and falsely report to him that she was having an affair. Mr. Jones testified that he was concerned about his job after having that exchange with Captain Benefield. AAF No. 16; (see also 18-2 at 41 at 160 (Mr. Jones's responding that he first feared retaliation "when he[, i.e., Captain Benefield] started talking to [him] about how he had covered for [him] with [Ms. Scott], and he asked [him] that about [Officer] Young")). Further, there is no evidence to show that Captain Benefield was contemplating a recommendation that Mr. Jones should be fired if he did not end his relationship with Ms. Scott
This differing factual pattern means that the causation holding in Jackson v. City of Homewood, No. 2:13-CV-00737-AKK, 2015 WL 5011230 (N.D.Ala. Aug. 24, 2015) and the other similar cases upon which the City relies (Doc. 19 at 18-20) are inapplicable. Cf. Jackson, 2015 WL 5011230, at *9 ("Jackson wants the court to allow him to create causation based on his decision to file a charge
However, the City also contends that Captain Benefield was without any power to fire Mr. Jones and that any chain of causation was broken by Mayor Rooks's independent role in the process. As substantiated by the City in the parties' supplemental briefing, Mayor Rooks, pursuant to Ala. Code § 11-43-81,
Three days later, on February 4, 2013, Mayor Rooks and Captain Benefield met with the City's Personnel Committee to jointly recommend Mr. Jones's dismissal. There is no indication in the record that either Mayor Rooks or Captain Benefield made the Personnel Committee aware that Mr. Jones was claiming that the recommendation to end his employment was allegedly tainted with a retaliatory animus. Further, five days later, Mr. Jones was formally placed on administrative leave by Mayor Rooks on February 6, 2013, and ultimately discharged on March 19, 2013, after the City Council held a termination hearing. A review of the transcript from the termination hearing confirms that the focus of the hearing was whether Mr. Jones had violated HDP policy.
Based upon these facts, the City contends that Mr. Jones's efforts to show cognizable causation by virtue of Captain Benefield's retaliatory recommendation implicitly invokes the cat's paw theory. (Doc. 28 at 9).
"When the biased recommender and the actual decisionmaker are not the same person or persons, a plaintiff may not benefit from the inference of causation that would arise from their common identity. Instead, the plaintiff must prove that the discriminatory [or retaliatory] animus behind the recommendation, and not the underlying employee misconduct identified in the recommendation, was an actual
In Sims, supra, the Eleventh Circuit explained in a discrimination case arising under the Age Discrimination in Employment Act ("ADEA"), which like Title VII retaliation uses a but-for standard of causation, that a plaintiff relying upon a discriminatory recommender must have sufficient evidence to show that the recommender's animus was a but-for cause of, or a
Here, the circumstances surrounding Mayor Rooks's decision to discharge Mr. Jones based upon Captain Benefield's recommendation is much different than the facts facing the Eleventh Circuit in Sims. Importantly, in Sims, the evidence of independence from the biased recommender's influence over the decision to fire the plaintiff included the decisionmaker's "own five-month long [reduction-in-force] evaluations," his "own independent judgment that Sims was at the bottom of the list on performance," and "the unanimous opinion of all persons consulted (except for Sims himself)" that he should be fired. Sims, 704 F.3d at 1337.
In an effort to prevail on the cat's paw issue, the City states that "Mayor Rooks met with Jones on multiple occasions, and independently investigated the information supporting [Captain] Benefield's recommendation." (Doc. 32 at 8). However, the City's position is conclusory — it gives no concrete examples of Mayor Rooks's independent actions. Further, several facts support a reasonable inference otherwise. At the onset of his involvement, Mayor Rooks stated that he was not going to override Captain Benefield's requested employment action. Mayor Rooks never met with Mr. Jones without Captain Benefield present. Additionally, Mayor Rooks never personally investigated or asked the Personnel Committee to consider the legitimacy of Mr. Jones's retaliation allegations against Captain Benefield.
Importantly, even after Mayor Rooks became aware on February 1, 2013, that Mr. Jones was claiming retaliation with respect to Captain Benefield's recommendation to fire him if he did not end his relationship with Ms. Scott, Mayor Rooks, without any hesitation, continued to support Captain Benefield's plan by (i) meeting with the Personnel Committee on February 4, 2013, about the recommended discharge of Mr. Jones for violating HPD policy (and without mentioning anything about the possibility of retaliation) and (ii) formally placing Mr. Jones on administrative leave on February 6, 2013.
Further, the court acknowledges but is not persuaded by the City's strained characterization of the Personnel Committee's involvement and the City Council's 5 to 1 post-hearing vote approving Mayor Rooks's decision to fire Mr. Jones as independent intervening acts sufficient to sever any retaliatory causation as a matter of law. (Doc. 32 at 8-10). Importantly, there is no indication that either body ever considered the merits of Mr. Jones's retaliation allegations and/or had the authority to set aside the decision to discharge Mr. Jones. Instead, the narrower inquiry for both was limited to whether Mr. Jones had violated HPD policy as charged. The City Council's lack of independence is further reflected by Mayor Rooks's active control over how the hearing was conducted and his participation in the post-hearing voting process. (See Doc. 32 at 5 ¶ 22 ("The following council members voted in favor of termination: Travis Crowe, Elvin Henson, Shannon Robert[s], Rhonda Green, Mayor Rudy Rooks."));
In making this particular lack of causation argument, the City acknowledges the comparable constitutional retaliation case of Hitt v. Connell, 301 F.3d 240 (5th Cir. 2002), in which the Fifth Circuit discussed and distinguished the scope of Eleventh Circuit's decision in Stimpson, supra. The City maintains that this court should not be persuasively guided by the reasoning and outcome in Hitt.
The plaintiff in Hitt "alleged, and a jury found, that his employment [as a constable] was terminated because [his supervisor, constable] Connell disapproved of Hitt's involvement with two affiliated labor unions...." Hitt, 301 F.3d at 244. Further background to the plaintiff's firing by Connell included a supposed "bomb threat" made by the plaintiff to another officer over the telephone. 301 F.3d at 245. After learning about this incident, "Connell delivered a proposed notice of termination to Hitt" writing that "such `unprofessionalism... cannot and will not be tolerated.'" Id. Subsequently, "Connell informed Hitt that his employment was terminated. Hitt appealed his dismissal to the Bexar County Civil Service Commission, but the commissioners who heard the appeal voted to uphold Constable Connell's decision." Id.
After losing at trial on the plaintiff's federal claim, Connell contended that the vote by the commission to uphold the plaintiff's discharge meant that "the causal connection between Hitt's constitutionality protected activity and the adverse employment action [wa]s broken...." Id. at 247-48; see also id. at 246 (5th Cir.2002)
As the Fifth Circuit framed the causation issue before it:
Id. at 247-48 (citations omitted) (emphasis added).
The court then explained why the "Commission's decision upholding Hitt's termination did not break the causal connection between the protected activity and the adverse employment action[.]" Id. at 243.
Hitt, 301 F.3d at 248-49 (emphasis by underlining added); see also Stimpson, 186 F.3d at 1332 ("We need not announce a bright line at which an independent investigation becomes a rubber stamp to resolve this case, because the record before us does not contain any hint of a cat's paw arrangement."); Quinn v. Monroe Cty., 330 F.3d 1320, 1327 (11th Cir.2003)
Here, this court finds that the City Council's termination hearing is more akin to the quasi-judicial review done by the civil service commission in Hitt than the civil service board's three-day comprehensive hearing in Stimpson. In the City's supplemental briefing, for example, it does not claim to be organized like the City of Tuscaloosa with a free-standing civil service board that has "the sole power and discretion to terminate police officers[.]" Stimpson, 186 F.3d at 1332. Instead, the City refers to Ala. Code § 11-43-81 as the statutory basis giving
The only appreciable way that the City distinguishes Mr. Jones's case from Hitt is in the applicable causation standard. As the City states, "the plaintiff [in Hitt] was required only to show that his protected activity was a `substantial or motivating factor' in the adverse employment action, a standard which is far less strenuous than the `but-for' standard in the case at hand." (Doc. 32 at 9-10). While the City is correct about this statement of law, Hitt does not reflect that a less demanding causation standard made a difference when deciding whether the plaintiff's evidence was sufficient to show discriminatory causation — the civil service commission's review in Hitt did not break the chain of causation because the motivating-factor standard applied, but rather because that body lacked any indicia of actual final decision-making authority. The same is true of the City Council here. Moreover, under Sims, supra, a plaintiff is not precluded from invoking the cat's paw theory under but-for causation cases within the Eleventh Circuit even though the determinative influence standard is a more demanding one to prove. In sum, the court adheres to the cat's paw permission granted in Sims, disregards the causation reasoning in Stimpson as inapplicable on these facts, adopts Hitt as persuasive authority, and concludes that Mr. Jones has adduced sufficient evidence for a jury to decide whether Captain Benefield's retaliatory animus had a determinative influence on Mayor Rooks's decision to fire Mr. Jones.
B. Mr. Jones Has Shown Sufficient Evidence of Pretext.
The City has undoubtedly articulated a legitimate reason for firing Mr. Jones-his refusal to end his relationship with Ms. Scott, a convicted felon, in violation of HPD policy. Given this non-retaliatory reason for Mr. Jones's firing, the City alternatively argues that his case fails at the pretext stage.
The Supreme Court has made it clear that "[a] plaintiff's prima facie case, combined with sufficient evidence to find that
Instead, "[t]o survive summary judgment, the employee must come forward with evidence sufficient to permit a reasonable fact finder to conclude that the legitimate reasons given by the employer were not its true reasons, but were a pretext for discrimination [or retaliation]." Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 771 (11th Cir.2005) (citing Reeves, 530 U.S. at 143, 120 S.Ct. at 2106). A plaintiff can prove pretext by showing "such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer's proffered legitimate reasons for its actions that a reasonable fact-finder could find them unworthy of credence." Vessels, 408 F.3d at 771 (internal quotation marks omitted) (quoting Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir.2004), overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457, 126 S.Ct. 1195, 1197, 163 L.Ed.2d 1053 (2006)).
Mr. Jones's evidence of pretext includes his testimony that Captain Benefield was aware of and did not have any problems with Mr. Jones's relationship with Ms. Scott, despite her criminal record, when Mr. Jones was hired. As Mr. Jones testified about the information that he shared with Captain Benefield during the summer of 2010:
(Doc. 18-2 at 18 at 66-67). In another part of his deposition, Mr. Jones similarly testified:
(Doc. 18-2 at 37 at 143-44).
While Captain Benefield disputes that this conversation about Ms. Scott's criminal history ever took place or that he otherwise ever had any prior knowledge of
Oftentimes sufficient pretext is shown by comparing how a supervisor has treated similarly situated subordinates (i.e., who violated the same rule or policy, but who did not oppose discriminatory or retaliatory practices) more favorably than the plaintiff. See, e.g., Damon v. Fleming Supermarkets Of Florida, Inc., 196 F.3d 1354, 1363 (11th Cir.1999) ("[T]he `work rule' defense is arguably pretextual when a plaintiff submits evidence ... that if he did violate the rule, other employees out-side the protected class, who engaged in similar acts, were not similarly treated."). Mr. Jones lacks this type of evidence.
At the same time, and
At the same time, this peculiar selective-enforcement evidence straightforwardly discredits or makes implausible the City's stated reason for discharging Mr. Jones — if the City truly had a "zero-tolerance" approach when dealing with associational violations of the HPD policy (as Mr. Gossage's affidavit indicates Captain Benefield pronounced when reacting to the report in 2010 that Ms. Scott was a felon), then Mr. Jones never should have been hired by the City in the first place, or, alternatively, Mr. Jones should have been fired in 2010 after the meeting involving Captain Benefield and Mr. Gossage occurred. Cf. E.E.O.C. v. Kohler Co., 335 F.3d 766, 775 (8th Cir.2003) ("Kohler's
Therefore, based on the combined weight of the foregoing pieces of evidence, the court concludes that Mr. Jones has adduced sufficient evidence of pretext. Alternatively, to the extent that the above evidence does not satisfy the conventional McDonnell Douglas framework, the court finds that Mr. Jones has, nonetheless, "present[ed] circumstantial evidence that creates a triable issue concerning the [City's retaliatory] intent." Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir.2011) (citing Holifield, 115 F.3d at 1562); Smith, 644 F.3d at 1328 ("[E]stablishing the elements of the McDonnell Douglas framework is not, and never was intended to be, the sine qua non for a plaintiff to survive a summary judgment motion in an employment discrimination [or retaliation] case."); see also Ortiz v. Werner Enterprises, Inc., No. 15-2574, 834 F.3d 760, 765, 2016 WL 4411434, at *4 (7th Cir. Aug. 19, 2016) ("That legal standard, to repeat what we wrote in Achor and many later cases, is
"The only issue to be considered by the judge at summary judgment is whether the plaintiff's evidence has placed material facts at issue." Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 921 (11th Cir. 1993); see also MacPherson v. University of Montevallo, 922 F.2d 766, 776 (11th Cir.1991) (This court must determine
C. The Inchoate Evidentiary Issues Raised by the City in its Reply Brief Do Not Change the Outcome on Summary Judgment.
The court acknowledges that, within its reply brief the City, citing to Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1315 (11th Cir.2010) ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." (internal quotation marks omitted) (quoting Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007))), argues that the court "should strike all of [Mr.] Jones's deposition and affidavit testimony that he allegedly told [Captain] Benefield about [Ms.] Scott's felonies long before December 2012." (Doc. 28 at 4). The City also seeks to strike Mr. Gossage's affidavit on the basis that Mr. Jones did not timely disclose him as a witness and "the late tender of [him]" violates Rule 37(c)(1) and the parties' scheduling order. Id.
Procedurally, the court is not obligated to take up either one of these buried and undeveloped evidentiary issues, given the City's failure to file a motion that would have unambiguously put the court and opposing counsel on notice of a
FED. R. CIV. P. 7(c)(1) (emphasis by underlining added).
Turning to Mr. Gossage's affidavit first, the City faults Mr. Jones for not providing any justification for waiting to disclose Mr. Gossage as a material witness. (Doc. 28 at 4). If the City had properly filed a motion, then Mr. Jones would have been required to explain his position for tendering such a late witness under the briefing requirements of Appendix III. However, the court is unwilling to simply assume in the City's favor that Mr. Jones lacks substantial justification without first being given an opportunity to respond to the City's claim on the record.
Finally, Rule 37(c)(1) allows a court to fashion a lesser sanction than precluding a witness's testimony even if the two exceptions do not apply. For example, if the City had sought to reopen discovery for the limited purpose of taking Mr. Gossage's deposition, the court could have ordered Mr. Jones to cover all the fees and costs incurred on account of that deposition. For all these reasons, the City's requested relief under Rule 37(c)(1) is
Concerning Mr. Jones's challenged testimony, the court finds that the City has not met Scott's blatantly-contradicted standard. To the extent that the tape-recorded conversations are in conflict with Mr. Jones's testimony that Captain Benefield was aware of Ms. Scott's criminal history before he was hired, the jury will have to sort out those credibility issues. Alternatively, even without Mr. Jones's testimony about Captain Benefield's prior knowledge of Ms. Scott's criminal history, Mr. Gossage's affidavit creates a material issue about this critical fact. In sum, for both procedural and substantive reasons the evidentiary issues superficially presented in the City's reply brief are all
The City's Motion is