United States District Court, M.D. Alabama, Southern Division
OPINION AND ORDER
MYRON H. THOMPSON, District Judge.
Plaintiff Ivan "Keith" Gray, a former captain of the Dothan Police Department, asserts that his employer, defendant City of Dothan, Alabama, discriminated against him on the basis of his race and retaliated against him for attempting to remedy that discrimination, both in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 1981a and 2000e through 2000e-17; that the city violated his First Amendment right of association, as enforced through 42 U.S.C. § 1983; and that the city violated a consent decree prohibiting race discrimination in the City of Dothan. This court has original jurisdiction over his claims pursuant to 28 U.S.C. §§ 1331 (federal question) and 1343 (civil rights), and 42 U.S.C. § 2000e-5(f)(3) (Title VII).
The case is now before this court on the city's motions for summary judgment. For the reasons below, summary judgment will be entered in favor of the city only in part.
I. LEGAL STANDARD
"A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that 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 court must view the admissible evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Gray, an American of African descent, served in the Dothan Police Department for 28 years. At the time he was terminated, he had risen to the third-highest rank in the department, captain, and he was the only black sworn police supervisor on the force. The department itself employed only 15 black sworn officers out of a total of 165. (Notably, in 2010, the population of Dothan was 32.5 % black. See United States Census, 2010 Demographic Profile Data, http://factfinder.census.gov/faces/tableservices/jsf/pa ges/productview.xhtml?src=bkmk.)
Gray also rides motorcycles. In 2008, he formed Bama Boyz Motorcycle Club, a predominantly black motorcycle club in Dothan. As its first president, he managed the club and its affairs, which included recruiting members; maintaining peaceful relations with other area motorcycle clubs; and organizing social events and charity runs. One charity run raised money for the Dothan Police Athletic League, and the police chief accepted payment on the league's behalf. Several other Dothan police officers, black and white, were members of different area motorcycle clubs, but they were not part of Bama Boyz.
Gray describes a history of race discrimination dating back to his first days on the force. Though he applied to be a police officer, he was hired in 1985 as a jail-security officer, a less prestigious position. He was placed on a registry of candidates for an officer position, but when his name was next on the registry to be promoted to officer, the police chief abandoned the registry system. He complained to the police chief at the time, threatening suit. He was eventually promoted later that year. In 1988, he was denied the opportunity to take the corporal exam because he had not accumulated enough service years, but three white officers with the same amount of experience were permitted to take the exam. He filed a lawsuit in state court to allow him to take the exam; he won the suit; and he was promoted.
Gray continued to be denied promotional and training opportunities throughout his police career. Several times, qualifications for promotions were changed and meritless internal investigations were initiated to allow the department to promote white candidates over him; on other occasions, white candidates were scored higher than he on subjective portions of civil-service promotional exams. He repeatedly requested training that white officers had received and that had enabled their career advances, but he was denied. Gray complained formally and informally about race discrimination throughout his career, including filing two charges with the Equal Employment Opportunity Commission (EEOC) and the filing of a state-court lawsuit.
Frustrated with what he perceived to be race discrimination in scoring on promotional exams, Gray complained about the testing method. In 2006, the city agreed to implement an external assessment center in an attempt to make the exam more objective; Gray contends that, by then, other white officers had advanced in their careers at a rate faster than he had.
After the assessment center was in place, Gray once tied with a white officer for a promotion to lieutenant. The day the tied score was announced, the city placed Gray under an internal-affairs investigation for alleged misconduct. Gray successfully fought the allegations and received the promotion, becoming the first and only black lieutenant on the Dothan force. (Prior to Gray, the city had posthumously promoted another black officer to Lieutenant.) He believes that he had been targeted with these allegations because of his race.
Throughout his employment, Gray was denied numerous training opportunities that were offered to white officers, and, as a result, he was passed over for other promotional opportunities. For example, he requested to attend the FBI National Academy, but was never selected. This program was added as a "preferred qualification" for the Chief of Police position when the position was posted in 2009; the candidate ultimately selected for the position, Gregory Benton, a white officer, had attended the program. Prior to 2009, the only listed "preferred qualification" for Chief of Police had been a Master's Degree, which Gray had obtained, but Benton had not.
Gray contends that racially hostile attitudes of his fellow officers permeated the department. First, racial slurs were directed at him and used around him. Gray was called the "nigger" himself by white officers, and he heard the word used by white superiors. On one occasion, he and his white supervisor were patrolling for a young black juvenile; his supervisor remarked, while passing a convenience store, "There ain't no Niggers over there." Gray Declaration (doc no. 48-1) at 4. Another time, a white officer referred to his patrol area as the "poor black trash part of town." Id . Once, when exchanging money with a white officer on a public corner, the officer said to him, "People aren't going to know what to think with a nigger giving a white man money." Gray Deposition (doc. no. 34-3) at 110. Gray also recounts several uses of the slur by officers away from his presence; he became aware of these incidents through the internal investigations that they sparked. He also contends that superior officers developed code words to refer to people of different races.
Several officers were affiliated with organizations and viewpoints that Gray considered racially offensive. For example, Gray's direct supervisor at the time of his termination, Steve Parrish, was once a member of the Sons of Confederate Veterans, a group dedicated to memorializing the history and values of the Southern Confederacy. Parrish named his son after Nathan Bedford Forrest, a confederate general and first national leader and "Grand Wizard" of the Ku Klux Klan; Parrish's office was decorated with confederate memorabilia. Several other city police officers were members of the Sons of Confederate Veterans, including the officer who replaced Gray after his termination. Gray complained about Parrish's association with the group in an internal race-discrimination complaint described below.
Gray also witnessed other racially offensive private behavior from his fellow officers. For example, he once viewed a picture on Officer Michael Woodside's Facebook page depicting the partially charred face of President Obama and derogatory comments about the President. Moreover, Gray submitted a picture of eleven white men-nine of whom are current or former officers on the city police force, including Parrish and Gray's replacement-posing behind a large Confederate flag, and he avers that this photo was widely circulated within the Department.
Parrish became Gray's supervisor in 2010. Over the next four years, he scrutinized and nitpicked Gray's performance; gave more deference and respect to white officers and command staff than to Gray; and attempted to embarrass Gray and defame his character. For example, Parrish accused Gray of "micromanaging" officers under his command; publicly questioned Gray's whereabouts on work days; chastised Gray for delays in paperwork and reports; lodged critical reviews of Gray on an internal-communications system; and wrote positive reviews for white officers while failing to make favorable entries for Gray when they were deserved.
In February 2012, Gray was put under three separate internal-affairs investigations. One of those investigations stemmed from assistance he gave to a black dispatcher-trainee in filing a race-discrimination complaint; another was due to an incident that arose at a nightclub between Gray and another officer in Gray's off-duty hours; and the third had to do with counseling he had given to an inferior officer. Gray was put on a "performance improvement plan, " which he felt demeaned and undermined his character. In May 2012, he complained to Chief Benton that Parrish's treatment and the performance plan were based on race. Gray was removed from the performance plan the next day.
In December 2012, Gray complained about the city's targeting and treatment of minority citizens-specifically, an arrest of two young black men, an arrest that Gray believed to be illegal, based on trumped up charges, and discriminatory. Parrish discouraged Gray from investigating the matter and told him to "move on." Not long after these complaints, Gray was reassigned from Field Operations Bureau to Administrative Services Bureau, a lower-status position with less supervisory authority, though with the same pay and at the same rank. Parrish posted Gray's transfer publicly in the Police Department office, which Gray contends was both unusual and humiliating. Gray complained directly to Parrish about the transfer; Parrish, in turn, reported to Chief Benton that Gray had made a "faintly veiled discrimination claim." January 23, 2013 Internal Memo (doc. no. 40-11) at 29. Gray also complained to the department's Equal Employment Opportunity (EEO) Officer Darryl Matthews, but was told that his complaint would have to wait until another race-discrimination allegation lodged by another officer had been resolved.
In May 2013, the department removed Gray's supervisory authority by creating a new position and placing a lower-ranked white officer, Michael Etress, between Gray and the staff he commanded. Gray previously had directly supervised 60 employees; he now supervised only two: Etress and the Police Department's only black secretary. Parrish continued to scrutinize Gray's supervision of Etress. He warned Gray that he was "watching" him, and he accused Gray of "micromanaging" Etress. Gray Declaration (doc. no. 48-1) at 7.
In June 2013, Gray filed a complaint on the internal-communications system in response to a critical review he had received from Parrish. His complaint alleged race discrimination by Parrish; accused Parrish of treating white officers more favorably; requested to be removed from Parrish's supervision due to his affiliation with the Sons of Confederate Veterans; and notified his supervisors that he planned to file EEOC charges. The next day, Gray brought his complaint to Delvick McCay, the Personnel Board Director; after requests from McCay, Parrish, and Chief Benton, EEO Officer Mathews began an investigation. While this investigation was pending, Gray filed a charge of race discrimination with the EEOC on August 2, 2013, which was amended on October 4 to add a charge of retaliation.
EEO Officer Mathews's internal-investigation report was released a few days before Gray was terminated. Mathews determined that Gray's allegations of race discrimination were unsubstantiated. He also reported that the Sons of Confederate Veterans group was not a racist organization, relying on his finding that the group is not listed as a hate group by the Southern Poverty Law Center, though Gray has submitted evidence that the group has been tracked by the Southern Poverty Law Center's "Hate Watch" blog for its sponsorship of various pro-Confederacy events and causes.
Three weeks after Gray filed his EEOC charge, Officers Parrish and Woodside responded to an assault at a clubhouse run by the local chapter of a black motorcycle club, Outcast. Outcast was known to be an "outlaw" organization, a term used to describe motorcycle clubs that operate as conduits for criminal enterprise-for example, to traffic drugs or commit violence. The parties dispute whether Outcast is also a "one-percenter" club, that is, a group of motorcyclists who identify as law-breakers. The term "one-percenter" is "derived from an American Motorcycle Association official's remark in the 1950s that 99 percent of all bikers were law-abiding, and thus only' one percent of the motorcycles on the roads belonged to persons who were trouble-makers." Piscottano v. Murphy, 511 F.3d 247, 255 (2d Cir. 2007).
At the clubhouse, Woodside questioned a local firefighter and affiliate of Outcast, Willie McGuire. Woodside asked McGuire whether he knew any other firefighters or police officers involved with Outcast. Woodside specifically described Gray and asked if McGuire had seen him around.
McGuire stated that he had seen Gray at several charity events and that Gray's group, the Bama Boyz, sometimes hung around Outcast events, though the Bama Boyz were not formally affiliated with Outcast. McGuire also reported that another Dothan officer was a member of a different black motorcycle club that was an official "support" group for Outcast.
Six Outcast members were brought back to the station for questioning regarding the extent of Gray's and the other officer's association with their group. Gray contends that these suspects were offered lenience in their criminal charges in exchange for providing information about Gray's involvement with their motorcycle club.
The chapter president reported that he had once asked Gray whether the Dothan Police Department was investigating Outcast. Gray denied any investigation, but the president explained that he knew Gray was lying because a different black officer had told him otherwise. The president also told the police that Bama Boyz fell under the "guidance" of Outcast. Other members reported they had seen Gray around the Outcast clubhouse during various functions, and some stated that they had seen Gray in the presence of marijuana, though none had seen him smoking. At least two of these members had criminal records.
Later that evening, Gray was brought into the police department for questioning. Gray admitted that Bama Boyz had a "blessing" from Outcast, which meant that the group could ride in Outcast's territory without being harassed, but he denied that there were strings attached to the blessing or that the two groups were formally affiliated. Gray also stated that he sought other blessings from other outlaw clubs when he opened up another branch of the Bama Boyz in Anniston, Alabama. Gray admitted that he had been to the Outcast clubhouse on occasion for social events, and he identified himself in a photograph standing alongside Outcast members.
After this interview, the police department placed Gray on paid administrative leave for four weeks while it investigated the allegations. Gray reports that, throughout his 28-year career, he had never known of such a long internal-affairs investigation. Most investigations, he reports, last for about a week or less. While on leave, Gray was questioned once more for over five hours. He contends that both interviews resembled criminal interrogations more than an internal-affairs investigations. For example, the questioning officers wore their firearms during the interview, in violation of departmental policy and despite the "firearm dropbox" kept outside the interrogation room.
Through the investigation, the Police Department learned several other things about Gray that it ultimately used to bolster the basis for his termination. First, the department asserted that Gray's city-issued cell phone had been used to access pornography. The cell phone has been the subject of much discovery litigation before the magistrate judge, and Gray vehemently denies the credibility of the city's allegation. However, the city failed to preserve the cell phone, so Gray could not conduct independent forensic testing of the phone.
Second, the department determined that Gray had used the police database to access the personal information of other officers for non-work-related reasons.
Finally, it determined that Gray had been evasive during his internal-affairs interviews.
The investigation concluded in mid-September. The Police Department determined that Gray was associated with the Outcast motorcycle club and submitted its report to Chief Benton. After receiving the report, Benton decided to terminate Gray. Though Gray's notice of termination cited several policy violations behind his discharge, the primary reason for Gray's termination, according to Benton, was his association with outlaw motorcycle ...