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Polion v. City of Greensboro

United States District Court, S.D. Alabama, Northern Division

June 10, 2014

THE CITY OF GREENSBORO, et al., Defendants

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For Morris Polion, Plaintiff: Roderick Twain Cooks, LEAD ATTORNEY, Lee D. Winston, Winston Cooks, LLC, Birmingham, AL; Mintrel D. Martin, The Martin Law Firm, LLC, Birmingham, AL.

For The City of Greensboro, Defendant: Randall Morgan, LEAD ATTORNEY, Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, AL; Dennis Steverson, Sr., Law Office of Dennis Steverson, LLC, Tuscaloosa, AL.

For Chief Willie Hudson, Michael Hamilton, Defendants: Randall Morgan, LEAD ATTORNEY, Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, AL.

For Alabama Department of Public Safety, Non-Party: J. Haran Lowe, LEAD ATTORNEY, Alabama Department of Public Safety, Montgomery, AL.

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This matter is before the Court on the defendants' motion for summary judgment. (Doc. 33). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 34-36, 42, 45), and the motion is ripe for resolution.[1] After careful consideration, the Court concludes that the motion is due to be granted in part and denied in part.


According to the amended complaint, (Doc. 19), the plaintiff was employed as a police officer by the defendant City of Greensboro (" the City" ). Defendants Willie Hudson and Michael Hamilton were the chief and assistant chief, respectively, of the City police department. The plaintiff complained to the mayor and two city council members about ineptitude, malfeasance and possible unlawful behavior by Hudson and Hamilton. At some point, Hudson and Hamilton learned of the plaintiff's complaints and began retaliating against him with respect to various working conditions. In the summer of 2012, the plaintiff's employment was terminated.

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The amended complaint includes four counts, all of which name the City as a defendant and all but the last of which also name Hudson and Hamilton as defendants. Count One alleges that the defendants terminated the plaintiff in retaliation for his exercise of First Amendment rights.[2] Count Two alleges that the defendants violated the plaintiff's equal protection and due process rights. Count Three alleges that the individual defendants committed the tort of outrage under Alabama law and that the City authorized, ratified and/or condoned their conduct. Count Four alleges that the City negligently or maliciously retained, supervised and trained Hudson and Hamilton. The defendants seek summary judgment as to all counts.


Summary judgment should be granted only if " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The party seeking summary judgment bears " the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its burden in either of two ways: (1) by " negating an element of the non-moving party's claim" ; or (2) by " point[ing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden." Id. " Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial." Id.; accord Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).

" When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial. [citation omitted] In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof, no reasonable jury could find for the nonmoving party." United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc) (emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).

" If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made." Fitzpatrick, 2 F.3d at 1116; accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.

" If, however, the movant carries the initial summary judgment burden ..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact." Fitzpatrick, 2 F.3d at 1116. " If the nonmoving party fails to make 'a sufficient showing on an essential element of her case with respect to which she has the burden of proof,' the moving party is entitled to summary judgment." Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)) (footnote omitted); see also Fed.R.Civ.P. 56(e)(2) (" If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as

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required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion ...." ).

In deciding a motion for summary judgment, " [t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant ...." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003).

There is no burden on the Court to identify unreferenced evidence supporting a party's position.[3] Accordingly, the Court limits its review to the exhibits, and to the specific portions of the exhibits, to which the parties have expressly cited. Likewise, " [t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment," Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995), and the Court accordingly limits its review to those arguments the parties have expressly advanced.

I. First Amendment.

In the spring of 2012, the plaintiff responded to a domestic disturbance call at an apartment complex, which ended with the plaintiff moving a television from the apartment to another apartment across the hall. The female occupant claimed the television was hers and ultimately lodged a complaint with Hamilton. Hudson investigated the incident and recommended that the plaintiff be terminated. At the plaintiff's request, a pre-disciplinary hearing was held before a three-person grievance committee. After hearing testimony from the complainant, the plaintiff and Hudson, the grievance committee recommended termination, and the city council accepted the recommendation. The plaintiff asserts that Hudson's recommendation and testimony were in retaliation for the exercise of his free speech rights. (Doc. 42 at 15).

For a public employee to sustain a claim of retaliation for protected speech under the First Amendment, the employee must show by a preponderance of the evidence these things:
(1) the employee's speech is on a matter of public concern; (2) the employee's First Amendment interest in engaging in the speech outweighs the employer's interest in prohibiting the speech to promote the efficiency of the public services it performs through its employees; and (3) the employee's speech played a substantial part in the employer's decision to demote or discharge the employee.

Battle v. Board of Regents, 468 F.3d 755, 760 (11th Cir. 2006) (internal quotes omitted). " Once the employee succeeds in showing the preceding factors, the burden then shifts to the employer to show, by a preponderance of the evidence, that it would have reached the same decision ... even in the absence of the protected conduct." Id. (internal quotes omitted); accord Bryson v. City of Waycross, 888 F.2d 1562, 1565-66 (11th Cir. 1989). The defendants argue the plaintiff cannot establish any of the three listed elements and that they have established the plaintiff would have been fired regardless of his speech.

The plaintiff identifies his protected speech as addressing the following matters. First, that Hudson, immediately following a fatal shooting by the grandson of his good friend, declared the shooting to be in self-defense and thereafter obstructed

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an investigation into the shooting, including by advising the shooter (and the person who supplied him the gun) to leave town. Second, that Hudson and Hamilton found marijuana in a car, kept the marijuana but released the vehicle's driver, and thereafter failed to file a report accounting for the marijuana they had seized. Third, that Hudson on multiple occasions acted unnecessarily aggressively, including by striking several citizens (on the head and elsewhere) with his flashlight and by using pepper spray on high school students. The plaintiff states that he reported this conduct to the mayor and to two city council members. (Doc. 42 at 3-4, 11; Plaintiff Deposition at 48-49, 60-61, 64-67, 69, 77-78, 127-30, 146-56, 167-68).

A. Public Concern.

Whether a plaintiff was speaking as a citizen on a matter of public concern is a question of law for the Court to decide. Vila v. Padron, 484 F.3d 1334, 1339 (11th Cir. 2007). But the Court must do so in light of the evidence presented, the arguments raised and supported, and with due regard for the threshold burden that Rule 56 places on the defendants.

The defendants first invoke Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), which " hold[s] that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 421. With no analysis or explanation, the defendants posit that " such was the case with Polion." (Doc. 35 at 18). The defendants offer neither an evidentiary rendition of what the plaintiff's official duties were nor a legal analysis of what constitutes speaking " pursuant to [one's] official duties" under Garcetti. [4] The defendants' raw ipse dixit is wholly inadequate to carry their initial burden, or to cast any burden on the plaintiff to respond or on the Court to develop and support an argument on their behalf.

To determine whether [a] statement receives First Amendment protection we must decide whether [the plaintiff] spoke ... as a citizen on a matter of public concern or as an employee upon matters of personal interest. [citation omitted] To do this, we look to the content, form, and context of a given statement, as revealed by the whole record. [citation omitted] We ask whether the main thrust of the speech in question is essentially public in nature or private, whether the speech was communicated to the public at large or privately to an individual, and what the speaker's motivation in speaking was.

Vila, 484 F.3d at 1340 (internal quotes omitted). Since " [a]n employee's speech will rarely be entirely private or entirely public[, ...] we consider whether the speech at issue was made primarily in the employee's role as citizen, or primarily in the role of employee." Morgan v. Ford, 6 F.3d 750, 755 (11th Cir. 1993) (internal quotes omitted).

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According to the defendants, these factors reflect that the plaintiff spoke primarily as an employee on matters of personal interest. They say the plaintiff was " complaining about his work environment," that he spoke only privately, and that he was motivated by self-interest because " he was angry over the job assignment change, occurring several years back, and it was in his personal interest for the chief to be displaced." (Doc. 35 at 16-18).

1. Content.

As noted above, the plaintiff bases his claim on statements he made concerning alleged obstruction of justice, mishandling of contraband, and use of excessive force. The defendants do not explain how these matters could possibly be viewed as mere complaints by the plaintiff about his work environment.[5] In Fikes v. City of Daphne, 79 F.3d 1079 (11th Cir. 1996), the Court held that a complaint alleged speech on a matter of public concern when it alleged the plaintiff " was fired because he reported police misconduct (i.e., failure to terminate a dangerous, high-speed chase, and improper use of a confiscated vehicle)." Id. at 1084. " Certainly, the question of whether police officers are properly performing their duties, as a public safety issue, must be considered an issue of political or social concern." Id. [6] Likewise, " [t]here can be no doubt that corruption in a police department is an issue of public concern." Cooper v. Smith, 89 F.3d 761, 765 (11th Cir. 1996). The plaintiff relies on Fikes and Cooper, (Doc. 42 at 10-11), yet the defendants ignored these cases in their reply brief. They did so at their peril.

" Content is undoubtedly the most important factor in assessing whether particular speech touches on a matter of public concern." Mitchell v. Hillsborough County, 468 F.3d 1276, 1284 (11th Cir. 2006). However, " when context and motivation are considered, even speech that, content-wise, lies near the core of the First Amendment's protection -- archetypical public speech -- may be deemed private speech." Id. Thus, even when, as here, defendants start out in a rather deep hole, context and motivation might in a proper case dig them out.

2. Context.

The plaintiff made his statements to the mayor and to two city council members, individually. While, as the defendants note, (Doc. 35 at 18), the plaintiff did not go the media or address the city council in open session, " [n]either the [First] Amendment itself nor our decisions indicate that this freedom [of speech] is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public. We decline to adopt such a view of the First Amendment." Givhan v. Western

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Line Consolidated School District, 439 U.S. 410, 415-16, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979). " Many citizens do much of their talking inside their respective workplaces, and it would not serve the goal of treating public employees like any member of the general public ... to hold that all speech within the office is automatically exposed to restriction." Garcetti, 547 U.S. at 421 (citations and internal quotes omitted). " We have ... held that speech relates to a matter of public concern in numerous instances where the speech was relayed only to decisionmakers and not to the general public." Rodin v. City of Coral Springs, 229 F.App'x 849, 856 (11th Cir. 2007) (citing, inter alia, Fikes, where the plaintiff reported police misconduct only to the Alabama Bureau of Investigation). Thus, " the fact that [the plaintiff city employee's] expression was directed to [the mayor] privately does not render his speech outside the purview of the first amendment." Berdin v. Duggan, 701 F.2d 909, 912 (11th Cir. 1983). As the defendants acknowledge, the plaintiff's reporting to the mayor and city council members privately " is not a decisive factor." (Doc. 35 at 18).

3. Motivation.

" [A]n employee's motive for speech, while not dispositive, is a factor that must be considered in determining whether speech is a matter of public concern." Mitchell, 468 F.3d at 1283-84 (internal quotes omitted). Thus, for example, a " clear personal animus motivating [speech] may have been sufficient to render that speech essentially private ...." Id. at 1284.

The defendants have presented evidence that Hudson transferred the plaintiff from investigations to patrol after a local judge notified Hudson he had been forced to dismiss 44 warrants due to errors by the plaintiff. (Hudson Affidavit, ¶ 4; Doc. 35 at 14). From this, the defendants surmise that the plaintiff's motivation in speaking about Hudson was anger over this transfer and a desire to have Hudson removed as chief. ( Id. at 16-18).

Such a motivation is theoretically possible but unlikely for a number of reasons. First, the defendants admit that the move from investigations to patrol was " no demotion" but a " simple transfer." Second, they admit that " [t]here was no change in rank" and " no decrease in pay or benefits." Third, they admit this innocuous transfer " occurred much more than two years before [the plaintiff] was terminated." Fourth, they admit the plaintiff knew the change was initiated because the judge had told Hudson the plaintiff did not need to be in the investigations department. (Hudson Affidavit, ¶ 7). Fifth, they can point to no other evidence (for example, statements by the plaintiff) to support their theory.

" In the cases where we have found no matter of public concern, we have concluded that the motivation behind the employee's speech was purely private." Rodin, 229 F.App'x at 855 (emphasis added). The defendants' speculation cannot establish that the plaintiff reported Hudson's conduct simply to retaliate for an ancient, neutral employment decision. At least in part if not in full, " in alleging police misconduct, [the plaintiff] sought to bring to light actual or potential wrongdoing or breach of public trust on the part of government officials." Fikes, 79 F.3d at 1084.

4. Summary.

The content of the plaintiff's speech addressed core public concerns. There is no evidence that the plaintiff's motivation in speaking was purely or even partially personal revenge, and the ...

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