United States District Court, N.D. Alabama, Southern Division
K. KALLON, UNITED STATES DISTRICT JUDGE.
Bowman, proceeding pro se, asserts claims against the City of
Birmingham, Kevin Moore, and Jarvis Patton under 42 U.S.C.
§§ 1981 and 1983. Specifically, Bowman alleges that
the Defendants retaliated against him for complaining about
alleged mistreatment in the workplace, presumably in
violation of his rights under the First Amendment. Presently
before the court is the Defendants' Motion for Summary
Judgment, doc. 44, which is fully briefed, docs. 45, 52, 53,
ripe for review. For the reasons stated more fully below, the
motion is due to be granted.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a), summary judgment is
proper “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.” “Rule 56(c)
mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The moving party bears the initial burden of proving the
absence of a genuine dispute of material fact. Id.
at 323. The burden then shifts to the non-moving party, who
is required to go “beyond the pleadings” to
establish that there is a “genuine issue for
trial.” Id. at 324 (internal citations and
quotation marks omitted). A dispute about a material fact 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 (1986).
court must construe the evidence and all reasonable
inferences arising from it in the light most favorable to the
non-moving party. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 (1970); see also Anderson, 477
U.S. at 244 (all justifiable inferences must be drawn in the
non-moving party's favor). Any factual dispute will be
resolved in the non-moving party's favor when sufficient
competent evidence supports that party's version of the
disputed facts. But see Pace v. Capobianco, 238 F.3d
1275, 1276-78 (11th Cir. 2002) (a court is not required to
resolve disputes in the non-moving party's favor when
that party's version of events is supported by
insufficient evidence). However, “mere conclusions and
unsupported factual allegations are legally insufficient to
defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citing
Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560,
1563 (11th Cir. 1989)). Moreover, “[a] mere
‘scintilla' of evidence supporting the opposing
party's position will not suffice; there must be enough
of a showing that a jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577
(11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
because the Plaintiff is pro se, the court must construe the
complaint more liberally than it would pleadings drafted by
lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980).
“Pro se pleading are held to a less stringent
standard than pleadings drafted by attorneys and will,
therefore, be liberally construed.” Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006).
is an African American man currently employed by the City in
the Birmingham Crossplex Department. Doc. 45 at 7. In 2011,
Patton, the Chief of Operations, transferred Bowman into a
management position in charge of accounting duties within the
Crossplex Department. Id. at 8-9. Subsequently,
Moore, an African American, received a promotion to director
of the department, and became Bowman's direct supervisor.
Id. at 7-8. Bowman made a series of
complaints against Moore, which the court will outline in
sequential order. Basically, this lawsuit stems from
Bowman's contention that Moore and Patton retaliated
against him for complaining that Moore was engaging in
racially discriminatory and retaliatory employment practices.
February 2013, Bowman learned that an event caterer had not
yet received disbursements from the City, and met with Moore
to discuss this issue. Id. at 9-10. At the time, no
formal procedure existed for making payments on this
contract. Id. Bowman blamed Preston Kirk, a white
employee in charge of booking events, for the payment delay.
Id. at 10. Moore disagreed, finding instead that
disbursements to event caterers were an accounting function,
and as a result, he assigned Bowman the responsibility for
that task going forward. Id. When Moore took no
disciplinary action against Kirk, id., Bowman
accused Moore of “showing Kirk favoritism, ” and
asserted that Moore was “quick to discipline the black
employees but he refrain[ed] from disciplining the white
employees when they [did] something wrong, ” docs. 45
at 10-11; 52 at 6. As a result of this complaint, Moore
purportedly retaliated against Bowman by assigning Bowman
tasks normally done by administrative staff and other
additional tasks, admonishing Bowman for staying inside his
office during events and for leaving the office without
telling others where he was going, allowing other employees
to supervise Bowman, reducing Bowman's supervisory
authority, and downgrading Bowman's performance
evaluations. Doc. 45 at 11.
allegedly retaliatory conduct led Bowman to file a complaint
(Bowman's second complaint) with the City's human
resources department, alleging that Moore had engaged in
racial discrimination and retaliation and created a hostile
work environment. Docs. 45 at 11; 52 at 17; 52-1 at 17. The
City hired outside counsel to investigate the allegations.
Doc. 45 at 11. In the interim, Patton reassigned Bowman to
the Finance Department. Docs. 45 at 11; 52 at 17. Ultimately,
the investigation concluded in a result of “no
findings, ” and the City took no action against Moore.
Doc. 45 at 12. Patton transferred Bowman back to the
Crossplex Department after the investigation. Doc. 52 at 23.
Bowman expressed his disagreement with the “no
findings” result (Bowman's third complaint) due to
Patton's failure to give him a written copy of the
report. Docs. 52 at 22; 52-1 at 23.
Patton transferred Bowman back to the Crossplex Department,
Moore removed Bowman's supervisory duties and
decision-making authority. Doc. 52 at 23. Bowman informed
Patton that Moore was still engaging in retaliatory conduct
(Bowman's fourth complaint). Id. at 25. A month
later, Patton demoted Bowman from manager and relegated
Bowman to doing accounting work solely. Docs. 52 at 25; 52-1
at 33. This lawsuit followed.
asserts a First Amendment retaliation claim against all
Defendants and a retaliatory hostile work environment claim
against the City under §§ 1981 and 1983. Doc. 1 at
55-57. Relevant here, the Defendants seek summary judgment on
the grounds that (1) § 1981 claims do not apply to state
actors, (2) Bowman cannot show a City policy of
discrimination, and (3) Moore and Patton are entitled to
qualified immunity. Doc. 45 at 14-34. The court addresses each
issue in turn.