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Green v. City of Northport

United States District Court, N.D. Alabama, Western Division

March 9, 2018

ROBERT W. GREEN, Plaintiff,
v.
CITY OF NORTHPORT, et al., Defendants.

          MEMORANDUM OF OPINION

          L. SCOTT COOGLER UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendants', City of Northport (“City”) and Scott Collins (“Collins”) (collectively “Defendants”), Motion for Summary Judgment. (Doc. 42.) Likewise before the Court are Defendants' Motion to Admit Evidence (doc. 40), Motion for the Court to Take Judicial Notice (doc. 41), Motion to Strike Exhibit K (doc. 60), and Plaintiff Robert W. Green's (“Plaintiff”) Motion to Strike (doc. 52). This case caps what has been a lengthy dispute between Plaintiff and Defendants concerning Plaintiff's former employment as Chief of Police of the City of Northport. Following allegations of racial discrimination by Plaintiff against Defendants and exhaustion of administrative remedies, Plaintiff instituted suit in the Northern District of Alabama in the case styled Green v. City of Northport (“Green I”), 7:11-cv-2354-SLB, 2014 WL 1338108 (N.D. Ala. Mar. 31, 2014). This action is related to, and arises from issues addressed in Green I. Specifically, Plaintiff claims that Defendants retaliated against him for filing his EEOC charges and later instituting Green I; Defendants later escalated such retaliation, created a hostile work environment, and constructively discharged Plaintiff in 2012.

         Defendants deny that any of their actions were done in retaliation for Plaintiff's litigation activities in Green I. They instead point to a slew of complaints by various city officials and employees about Plaintiff's management style and the atmosphere he created in the City Police Department. Defendants state that they determined it was necessary for the safety of city officials and employees to audit the City Police Department and place Plaintiff on paid administrative leave. After receiving the results of the audit, which were negative towards Plaintiff, Defendants determined that Plaintiff should be allowed to resign, or alternatively terminated from his position. Following a meeting between the parties on May 29, 2012, Plaintiff resigned his position and then filed the administrative charges with the EEOC that eventually led to this suit. As set out in further detail below, Defendants' Motion for Summary Judgment is due to be granted.

         I. Background

         a. Relevant Facts Leading to Green I

         Plaintiff first became employed as Police Chief for the City of Northport on April 17, 2006. When Plaintiff was first hired, Charles Swann (“Swann”) was the City Administrator. Collins was a member of the Northport City Council when Plaintiff was hired. Collins voted to hire Plaintiff as Police Chief because he believed Plaintiff was the most qualified candidate for the job. (Doc. 46 Ex. B Collins Depo. at 135.) While Plaintiff was Police Chief and Swann was the City Administrator, Plaintiff did not receive any criticism regarding his job performance. (Doc. 44 Ex. A Green Depo. at 276-77.) Likewise, throughout his tenure as Mayor of the City of Northport starting in November 2008, Bobby Herndon (“Herndon”) never learned of any problems the City had with Plaintiff. (Doc. 51 Ex. B Herndon Depo. at 17, 20.)

         At the end of 2008, Swann became the City Engineer, and on December 15, 2008, Scott Collins became employed as City Administrator. (Doc. 46 Ex. B Collins Depo. at 136.) As City Administrator, Collins was responsible for nine departments within the City: police, fire, IT, public works, utilities, HR, planning, legal, and retail development. As part of his duties, Collins worked closely with Plaintiff. At all times relevant to the instant lawsuit, Plaintiff reported to Collins. Collins had authority to discipline all city employees, including department heads; however, Collins needed approval from the City Council to terminate a department head.

         Plaintiff filed an EEOC charge against the City of Northport on May 14, 2009 and later filed an Amended EEOC charge against the City on June 2, 2009. Plaintiff continued to do his job as Police Chief; however, he testified that he felt he was being subjected to hostile working conditions because of Collins's discrimination and retaliation. For example, on December 16, 2009, Collins stormed into Plaintiff's office, slammed the door behind him, and screamed at Plaintiff. On December 21, 2009, Plaintiff sent a letter to the City Council which outlined Collins's violation of the anti-harassment policy and his alleged unprofessional conduct based on that incident. Collins was not disciplined for that incident.

         After investigating Plaintiff's two charges, the EEOC issued a dismissal and Notice of Right to Sue on April 1, 2011. On June 29, 2011, Plaintiff filed a Complaint in the United States District Court for the Northern District of Alabama alleging race discrimination and retaliation against the City of Northport and Collins, Green I. Plaintiff remained Police Chief until his voluntary resignation on May 31, 2012.

         While Plaintiff testified that he and Collins had a “strained and rocky relationship, ” Plaintiff admitted that he and Collins routinely spoke, met, discussed department needs and purchases, and deferred to one another in the time period from 2011-2012. One example of such deference occurred in an October 21, 2011 e-mail exchange with the City Council and Plaintiff. In that e-mail, Collins indicated that a pumper truck, requested by the Fire Department, was too expensive and recommended getting a less expensive ladder truck. In the same email, Collins asked Plaintiff for his input concerning the number of police vehicles the department needed. Plaintiff testified that he believed he got all the police vehicles he requested in 2011, although Collins ordered vehicles that were different from the ones Plaintiff and the police department preferred.

         b. Defendants Order External Audit of the Police Department

         Collins testified that “a number of incidents in the Police Department” led him to believe that the City needed an external audit of the Police Department by an independent expert. (Doc. 51 Ex. A at Ex. 213-14). He specifically referred to the following:

         On June 24, 2011, Plaintiff requested copies of psychological reports for all department employees. (Doc. 44 Ex. A Green Depo. at 106.) In his e-mail to the Northport City Council President, Plaintiff stated that he had “an officer who is about to go off the deep end” and that “[t]he officer in question is capable of showing up at a City Council meeting and shooting up the council chambers.” (Id.) Plaintiff also explained in the e-mail that he had access to officers' psychological reports for many years, but that Collins had stopped providing him with the reports. Collins testified that the threat of an officer shooting up City Hall concerned him and that Plaintiff's statement was “alarming.” Collins attempted to discuss the matter with Plaintiff verbally and further attempted to schedule two meetings with Plaintiff, but never received a response. Collins did not document these attempts, nor did he discipline Plaintiff for not meeting with him. (Doc. 46 Ex. B Collins Depo. at 243-44.) Collins later sent Plaintiff a follow-up e-mail three months later requesting to meet regarding the office safety issue.

         On November 1, 2011, Collins received a complaint from IT Director Michael Ramm (“Ramm”), another department head, that Plaintiff had been threatening and disrespectful towards him in an e-mail exchange. Ramm and Plaintiff had corresponded regarding the location of new computers for the police department, and they did not agree on where the computers would be placed. Plaintiff sent Ramm an e-mail on November 1, 2011 insisting that Ramm follow Plaintiff's plan for the computers, telling Ramm that he (Plaintiff) “was trying to be civil about this matter” and warning Ramm “don't make waves.” Collins testified that Ramm was offended by Plaintiff's e-mail. After receiving Ramm's complaint, Collins forwarded the information to Rodger Fisher, then-Human Resources Director. On November 9, 2011, after Fisher responded to Collins, Collins issued a written warning to Plaintiff concerning the November 1, 2011 email. In the warning, Collins instructed Plaintiff that he was to be professional and respectful to all city employees, including in instances of disagreement. Plaintiff refused to sign the warning, but was not penalized in any way for his refusal to sign it.

         Plaintiff also recalled an incident in which a female police officer, Carrie Summers (“Summers”), accused Lt. Jason McKinney (“McKinney”) of sexual harassment. Plaintiff testified that he did not remember the details of Summers's complaint. Plaintiff did not recall whether McKinney was placed on paid administrative leave while the City investigated the allegations. However, Plaintiff admitted that placing an individual on leave so an investigation could be conducted is a legitimate practice. (Doc. 44 Ex. A Green Depo. at 139-40). During the investigation into Summers's complaint about McKinney, the Northport Incident Investigation Team (“I.I. Team”) interviewed another female police officer, Kelly McCarley, on December 5, 2011. In the interview, McCarley complained about the lack of morale in the police department, the high turnover rate, the lack of confidentiality, and how when they take complaints to a supervisor or to Plaintiff, nothing ever gets done. (Doc. 46 Ex. B Collins Depo. at 213-18.) Collins received a report from the group that was compiled to investigate McCarley's complaint and was also told that McCarley felt safer in a dangerous area of Northport unarmed than at the Police Department. (Id. at 215.)

         On or about December 5, 2011, in a meeting with the I.I. Team, legal, and various City Council members, Collins verbalized the idea of bringing in independent auditors to “tell us what we need to do or don't need to do.” (Doc. 46 Ex. B Collins Depo. at 476.) Collins also stated in his deposition that “[t]here were some things that we needed to address and I felt it was best to have someone from the outside to take a look and tell us are we operating right, are we not operating right.” Collins first called Chief Cooley at the police academy for a recommendation for a person to conduct the audit. Collins testified that Cooley gave him the name Robert Pastula (“Pastula”) at the University of North Alabama. Collins sent an e-mail to Pastula on December 8, 2011, explaining that the City is “looking into some operational issues within our police department and are considering requesting for an outside independent consultant or consulting firm to conduct a management study and review of the department.”

         On December 13, 2011, five days after he contacted Pastula, Collins received a written complaint from Captain Tim Frazier (“Frazier”) in which he alleged Plaintiff harassed and treated him unfairly. Frazier wrote in the complaint that in a December 12, 2011 meeting with Plaintiff, Plaintiff called Frazier a “hostile captain and a mad captain.” Further, Plaintiff refused to give Frazier the schedule to which he was entitled according to his shift preference. Frazier wrote that he told Plaintiff he felt he was being singled out by Plaintiff. Frazier later filed an EEOC charge against Plaintiff, stating “I believe Chief Green [Plaintiff] created a hostile work environment.” (Doc. 44 Ex. A. Ex. 26.)

         Collins thereafter recommended the audit to the Northport City Council, and the City Council unanimously approved it.[1] (Doc. 46 Ex. B Collins Depo. at 247.) Collins testified that he thought Plaintiff's presence in the department might influence the study, so he placed Plaintiff on paid administrative leave. (Id. at 249.) The City Council agreed. (Id. at 248.) Collins testified that he offered to also go on leave for the duration of the audit, but the City Council declined to place Collins on leave, saying it was not necessary. (Id. at 247-48.)

         On February 20, 2012, Collins met with Plaintiff and informed Plaintiff he was being placed on leave. (See Doc. 45 Ex. B Ex. 27.)Plaintiff testified that Collins told him in the meeting that he had done nothing wrong. (Doc. 44 Ex. A Green Depo. at 316.) Plaintiff testified that he had been fearful of retaliation by Collins, and that the audit of the Police Department was a complete shock. (Id. at 393.) At the end of the meeting, Collins took Plaintiff's city-owned firearm, keys, and cards. Collins testified that he similarly took a white department head's city-owned keys and cards when that department head was placed on leave. (Doc. 46 Ex. B Collins Depo. at 228-29.)

         Plaintiff was embarrassed when he was put on paid leave, but admitted that the purpose of placing an employee on paid administrative leave is to enable the City to fairly investigate a matter. (Id. at 191.) Plaintiff also admitted that he considered this practice legitimate protocol and “standard procedure.” (Id. at 139-40, 190.) Plaintiff also admitted that during his tenure as police chief, he had placed at least one employee on paid administrative leave to investigate accusations against that employee. (Id. at 186-191.)

         Also on February 21, 2012, Collins met with the Police Department staff. Collins testified that “[t]here was a lot going on in the police department, ” and his purpose in speaking to the staff was “to make sure that everyone understood the status of the police department, come to work, do your job, there's going to be a study that takes place, be honest, tell the truth, make it effective, don't leave anything on the table, follow through what you're supposed to do to make your department better whatever that is.” (Doc. 46 Ex. B Collins Depo. at 253-254.) Collins informed the employees at the meeting that he had placed Plaintiff on administrative leave. (Id. at 254.) Further, Collins testified that he discussed Plaintiff's EEOC charges in the meeting, including incidents regarding a BMW and an incident with an officer named Crowder; however, Collins stated that he believed the mentioning of the BMW incident and other complaints from the department was in response to a specific question asked by members of the Police Department during the meeting. (Id. at 261-63.) Collins further testified that he stated in the meeting that Plaintiff had filed his lawsuit in Green I eighty-eight days after receiving his Notice of Right to Sue from the EEOC. (Id. at 291.) Collins denied that he was trying to influence the audit/study, other than having staff “tell the truth and do what they need to do.” (Id. at 254.)

         In March 2012, the City Council chose CWH Research of Lone Tree, Colorado to conduct the audit of the Police Department. (Doc. 45 Ex. A at Ex. 35; Doc. 46 Ex. B Collins Depo. at 475.) Regarding the cost of the audit, Collins testified that $46, 000 “sounded about right.” (Id.) Collins testified that 2010 and 2011 were the worst times for city budgeting and there was not money for pens, pencils, and garbage pickup; however, Collins further testified that the budget had improved by the time the audit was to be conducted. (Id. at 447-48, 475.)

         On Monday, April 23, 2012, the audit began with Collins being interviewed. (Id. at 472.) The auditors reviewed, among many other items, the “Complaint and Case of Robert Green vs. City of Northport and Scott Collins”, aka Green I. (Doc. 51 Ex. A at Ex. 27 at 8.) Plaintiff testified that he met with the auditors for only ten to twelve minutes, (Doc. 44 Ex. A Green Depo. at 416), although the audit agenda reflects that the auditors set aside three hours to meet with Plaintiff. (Doc. 51 Ex. A at Ex. 27 at 72.) Auditors interviewed fifty-six Police Department employees as part of the audit. Not all employees were interviewed. According to the audit report, the auditors conducted on-site visits from April 23 through April 26, 2012; May 15, 2012; and May 18, 2012. (Id. at 8.) Further, CWH Research e-mailed survey invitations to all sworn officers, desk officers, and dispatchers on May 14, 2012. (Id. at 8-9.) According to the audit report, sixty-two responses were returned as of May 28, 2012. (Id. at 9.)

         c. The Parties Hold a “Mediation” Conference

On May 29, 2012, the parties in Green I conducted an informal mediation conference. In the meeting, the City offered to settle all pending claims by Plaintiff, which consisted of Plaintiff dismissing Green I, resigning his position, and accepting a financial settlement of $43, 000. Plaintiff testified that Collins also represented that the City would not release the audit results in exchange for Plaintiff's retirement and the settlement of Green I.[2] (Id. at 52-53.) Collins on the other hand testified that the City did not have the option to keep the study private because it was a publicly funded audit. (Doc. 46 Ex. B Collins Depo. at 429-30.) Plaintiff also testified that Collins said the study was negative for Plaintiff, and if Plaintiff did not dismiss Green I and retire by May 31, 2012, the City would release the results of the audit. (Doc. 44 Ex. A Green Depo. at 212-13.) According to Plaintiff, Collins told him that if he did not retire, he would be fired at the next City Council meeting on June 4, 2012. (Id. at 212-13, 225-26.) Plaintiff also testified that in additions to the results of the study, Collins identified other issues in the Police Department, including a sexual harassment complaint, although it was not directed at Plaintiff, and a complaint regarding manipulation of payroll. (Id. at 213.) Plaintiff testified that Courtney Crowder, an attorney representing the Defendants, told him that “sometimes the team wants to change the coaches.” (Id. at 214.)

         On May 31, 2012, Plaintiff submitted his resignation via e-mail to Collins, copying his attorneys. Plaintiff admitted in his deposition that he knew he could have waited to see what would happen or what action the City Council might take. (Id. at 225-29.) Plaintiff also knew he could have appealed to the Northport Civil Service Board (“CSB”) if he were terminated. (Id. at 230.) Plaintiff chose to make his resignation to be effective July 1, 2012, meaning that Plaintiff gave over one month's notice of his retirement; however, Plaintiff testified that he was required to give thirty days' notice to the Retirement System of Alabama to receive retirement benefits. (Doc. 45 Ex. A Green Depo. at Ex. 34.)

         After his resignation Plaintiff filed two EEOC charges against the City of Northport. Then on July 18, 2012, seventeen days after his resignation was effective, Plaintiff filed EEOC charge No. 420-2012-02762. (Doc. 45 Ex. A Green Depo. at Ex. 7.) On August 17, 2012, Plaintiff filed an Amended EEOC charge. (Id. at Ex. 8.) Green I was dismissed on March 31, 2014, and Plaintiff filed the complaint in the instant case on October 22, 2015.

         II. Motion for Summary Judgment Standard

         A motion for summary judgement is appropriate when “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). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1294 (11th Cir. 2013). A genuine dispute as to a material fact exists “if the nonmoving party has produced evidence such that a reasonable factfinder could return a verdict in its favor.” Greenberg v. BellSouth Telecommunications, Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (quoting Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The trial judge should not weigh the evidence but must simply determine whether there are any genuine issues to be resolved at trial. Anderson, 447 U.S. at 249.

         In considering a motion for summary judgment, trial courts must give deference to the non-moving party by “view[ing] the materials presented and all factual inferences in the light most favorable to the nonmoving party.” Animal Legal Def. Fund v. U.S. Dep't of Agric., 789 F.3d 1206, 1213-14 (11th Cir. 2015) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). However, “unsubstantiated assertions alone are not enough to withstand a motion for summary judgment.” Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). Conclusory allegations and “mere scintilla of evidence in support of the nonmoving party will not suffice to overcome a motion for summary judgment.” Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016) (per curiam) (quoting Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004)). “[T]he moving party has the burden of either negating an essential element of the nonmoving party's case or showing that there is no evidence to prove a fact necessary to the nonmoving party's case.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013). Although the trial courts must use caution when granting motions for summary judgment, “summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

         III. ...


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