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Minnifield v. City of Birmingham

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

March 30, 2018

MONTAGUE MINNIFIELD, Plaintiff,
v.
CITY OF BIRMINGHAM, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE.

         Montague Minnifield worked as a police officer for the Birmingham Police Department. According to Mr. Minnifield, the City of Birmingham and Sergeant Heath Boackle, the defendants in this case, discriminated against him because he is African-American, and they retaliated against him for filing multiple internal grievances and charges of discrimination with the EEOC. Mr. Minnifield brings Title VII claims of disparate treatment, retaliation, and hostile work environment against the City. Mr. Minnifield brings § 1983 claims of disparate treatment and retaliation in violation of § 1981 against the City and Sgt. Boackle in his individual capacity.

         Pursuant to Rule 56 of the Federal Rules of Civil Procedure, the defendants ask the Court to enter judgment in their favor on all of Mr. Minnifield's claims against them. (Doc. 41). The defendants also ask the Court to strike all or part of six affidavits which Mr. Minnifield submitted in response to the motion for summary judgment. (Doc. 65). For the reasons explained below, the Court denies the defendants' motion to strike, and the Court grants in part and denies in part the defendants' motion for summary judgment.

         I. SUMMARY JUDGMENT STANDARD

         “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). To demonstrate that there is a genuine dispute as to a material fact that precludes summary judgment, a party opposing a motion for summary judgment must cite “to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3). When considering a summary judgment motion, the Court must view the evidence in the record in the light most favorable to the non-moving party and draw reasonable inferences in favor of the non-moving party. White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015). The Court describes the evidence in the summary judgment record accordingly.

         II. FACTUAL BACKGROUND

         A. Mr. Minnifield's Employment History with the City and his First Grievances, EEOC Charge, and Lawsuit

         Mr. Minnifield started working as a police officer for the Birmingham Police Department (BPD) in 1997. (Doc. 57-1, p. 11). In 2009, Mr. Minnifield applied for transfer to the Tactical Unit within BPD. (Doc. 57-1, pp. 12-13). The Tactical Unit is “comprised of Solo Motorscouts, Mounted Patrol, Freeway Patrol, Hit and Run, Patrol K-9 Teams, Airport (TSA) K-9 Teams, and Warrant Details.” (Doc. 57-11, p. 1). Because the City denied him a position in the Tactical Unit, Mr. Minnifield filed a grievance with the Personnel Board of Jefferson County. (Doc. 57-1, p. 13; Doc. 58-13, p. 1).

         On October 26, 2009, the City transferred Mr. Minnifield to the Tactical Unit. (Doc. 57-1, p. 32; Doc. 48, p. 26). As a member of the Tactical Unit, Mr. Minnifield tried repeatedly to obtain particular assignments within the unit. This lawsuit pertains to his efforts in 2013, but a brief review of Mr. Minnifield's previous efforts helps set the stage for the events in 2013.

         In 2009, Mr. Minnifield selected the TSA K-9 Unit as his first choice and the Motorscout Unit as his second choice for assignment in the Tactical Unit. (Doc. 57-1, p. 33). The City assigned him to the Freeway Unit instead. (Doc. 57-1, p. 33). On August 13, 2010, BPD certified that Mr. Minnifield completed a course in basic police motorscout school, but BPD did not honor the certification. (Doc. 57-1, p. 34; Doc. 58-11). On August 11, 2011, based on his inability to obtain an assignment in the motorscout section or the K-9 section of the Tactical Unit, Mr. Minnifield filed a second grievance with the Personnel Board. (Doc. 57-1, p. 34).

         Just before Mr. Minnifield filed his second grievance, the Commander of the Tactical Unit announced a vacancy in the TSA K-9 Unit. (Doc. 58-13, p. 2). On December 8, 2011, Sgt. Heath Boackle sent Mr. Minnifield a memo which stated that BPD placed Mr. Minnifield on a list of eligible candidates and was considering him for the TSA K-9 position. (Doc. 59-19).[1] On December 26, 2011, the City awarded Officer Larry Phillips, who is white, the TSA K-9 position. (Doc. 58-12, p. 1).

         Mr. Minnifield filed an EEOC charge of race discrimination and retaliation based on the City's promotion of Officer Phillips to the TSA K-9 position and the City's failure to honor Mr. Minnifield's motorscout certification. (Doc. 58-12, p. 1). In 2014, after the EEOC sent Mr. Minnifield a right to sue letter, he brought a lawsuit in which he asserted Title VII and § 1983 claims of racial discrimination and retaliation against the City. Minnifield v. City of Birmingham, No. 2:14- cv-789-KOB. The presiding judge entered judgment for the City on Mr. Minnifield's § 1983 and Title VII disparate treatment claims and denied summary judgment on Mr. Minnifield's Title VII retaliation claim regarding the City's failure to give Mr. Minnifield a motorscout position. (Doc. 65-1, pp. 1, 22).

         The parties reached a settlement agreement in which Mr. Minnifield released “[a]ny and all claims which were made or which could have been made in [the lawsuit].” (Doc. 14-2, p. 3, ¶ 6.a). Pursuant to the settlement agreement, Mr. Minnifield reserved “the right to pursue claims and/or file suit for any acts and omissions, and any related consequences and/or damages, for all acts or omissions not alleged in [the lawsuit].” (Doc. 14-2, p. 1, ¶ 2).

         B. Mr. Minnifield's Subsequent Efforts to Receive a K-9 Assignment

         After Mr. Minnifield lost the available TSA K-9 position to Officer Phillips in December 2011, Mr. Minnifield pursued another K-9 position. (Doc. 57-1, p. 37). On January 5, 2012, Mr. Minnifield met with Chief Roper and Captain Henry Irby and complained because he had been waiting two years in the Tactical Unit for a TSA K-9 position. (Doc. 57-13, p. 1). On January 6, 2012, Mr. Minnifield met with Captain Richard Davis and Sgt. Boackle. (Doc. 57-13, p. 1). At the meeting, Capt. Davis and Sgt. Boackle offered Mr. Minnifield a dual purpose K-9, meaning a dog trained in both apprehension and explosives detection. (Doc. 57-13, p. 1). Ordinarily, police dogs are trained either for patrol to apprehend and bite suspects, (Doc. 58-5, p. 126), or for explosives detection, (Doc. 58-5, p. 124). In theory, the dual purpose K-9 position would provide a 5% pay increase for Mr. Minnifield because every officer who handles an explosives dog receives a 5% raise. (Doc. 57-13, p. 1; Doc. 58-5, pp. 143-44).

         The dual purpose K-9 position was hypothetical. (Doc. 57-1, pp. 142, 175). In January 2012, no dog in the K-9 unit could work both patrol and detect explosives. (Doc. 58-5, p. 126). Though it is possible to train a patrol K-9 to detect explosives, no dog in the K-9 unit served both purposes under Sgt. Boackle's supervision because of liability concerns. (Doc. 58-5, p. 126). BPD did not post a vacancy announcement for a dual purpose K-9, and Chief Roper did not approve a dual purpose K-9. (Doc. 57-1, p. 142).

         Mr. Minnifield rejected the offer for the dual purpose K-9 because he was not interested in handling a patrol K-9. (Doc. 57-13, p. 1).[2] Instead, Mr. Minnifield wanted the TSA K-9 position the City had promised him but gave to Larry Phillips. (Doc. 57-1, pp. 142-43; Doc. 57-13, p. 1). Mr. Minnifield felt that the TSA K-9 was his “rightful position” because he had been waiting two years for the position. (Doc. 57-13, p. 1). Mr. Minnifield asked that BPD give the hypothetical dual purpose K-9 position to Larry Phillips and give him (Mr. Minnifield) the TSA K-9 position. (Doc. 57-1, pp. 176-77; Doc. 57-13, p. 1). Capt. Davis refused Mr. Minnifield's request and ordered him to report to the K-9 unit's abbreviated handler's course on January 9, 2012. (Doc. 57-1, p. 176; 57-13, p. 1).

         In an email sent to Chief Roper on January 8, 2012, Mr. Minnifield described the meeting with Capt. Davis and Sgt. Boackle:

Hello Chief Roper. This is an update from the meeting I had with Capt. Richard Davis and Sgt. Heath Boackle on 01/06/2012 at 1200hrs. Capt. Richard Davis stated that this meeting was in reference to the meeting between you and me on 1/05/2012 at 1130hrs in the presence of Capt. Henry Irby. In the meeting with Capt. Richard Davis and Sgt. Heath Boackle I was given two options for a K-9 position[:] (A) Sgt. Heath Boackle would try to get me into the same TSA K-9 school with Officer Larry Phillips, but if that fails I would have to wait on the next TSA school and would also have to wait on a 6th TSA position to be created whenever the airport does an expansion at an unknown date or possibly never. (B) To take a dual purpose dog (Patrol and Bomb capable) with the 5% pay increase for the bomb distinction and attend a TSA handler class for the TSA certification, but not actually work the airport. I was also informed that I would have to attend and pass an abbreviated handler class conducted by Sgt. Heath Boackle which is not a requirement for the TSA Handler position. I informed Capt. Richard Davis and Sgt. Heath Boackle that both options were unacceptable and at the present time I have no interest in handling a patrol K-9 at this time, and advised the two that they should assign Officer Larry Phillips the dual purpose K-9 and allow me to assume my rightful position as a TSA K-9 Handler which I have awaited assignment to for over 2 years in the Tactical Swat Unit. Sgt. Heath Boackle stated that you had informed him that you would attempt to add a 6th TSA slot immediately by contacting TSA and making the request. At this time I was given an order by Capt. Richard Davis to report to the K-9 unit at the range on 01/09/2012, for a change in assignment to the K-9 Unit to begin the abbreviated K-9 Handler class instructed by Sgt. Heath Boackle.

(Doc. 57-13, p. 1). As it turns out, there was no formal dog training that week. (Doc. 58-5, p. 112). Instead, Mr. Minnifield trained with the K-9 Unit on at least two occasions for approximately four hours. (Doc. 58-5, pp. 111-12). After working with Sgt. Boackle's K-9 unit for approximately one week, Mr. Minnifield returned to the freeway unit. (Doc. 57-1, pp. 51, 97).

         C. 2012 Patrol K-9 Vacancies

         In the fall of 2012, Sgt. Boackle posted to all Tactical Unit members an announcement of a vacant patrol K-9 position. (Doc. 57-2). The announcement stated that eligible candidates must be assigned to the Tactical Unit. (Doc. 57-2). The announcement did not state that eligible candidates must train with the K-9 unit. (Doc. 57-2). Mr. Minnifield applied for the position. (Doc. 57-1, p. 156; Doc. 58-5, p. 152). Sgt. Boackle left the position vacant through the end of 2012. (Doc. 58-5, p. 175).

         In February 2013, Lieutenant James Blanton, the commander of the Tactical Unit, posted to all commands an announcement of vacancies within the Tactical Unit. (Doc. 57-9, p. 1). The announcement included TSA K-9 and Patrol K-9 positions. (Doc. 57-9, p. 1). The announcement stated that eligible candidates “[m]ust be able to complete the Tactical Unit's physical assessment . . .” and “[m]ust be able to successfully pass the Birmingham Tactical Unit's Basic SWAT school.” (Doc. 57-9, p. 1). In March 2013, Lt. Blanton posted to all commands a nearly identical announcement of vacancies that listed the same eligibility criteria. (Doc. 57-10, p. 1).[3]

         At some point before March 1, 2013, Sgt. Boackle sent a memo to Chief Roper in which he recommended Officers Justin Rosomme, Charles Hayes, Terry Davis, Jonathan Evans, and Metz Davis, all of whom are white, for patrol K-9 positions. (Doc. 57-22, p. 2; Doc. 58-5 pp. 193-94).[4] In June or July 2013, Chief Roper, who made the ultimate hiring decisions for BPD, selected Officers Charles Hayes, Justin Rosomme, and Metz Davis for the available patrol K-9 position. (Doc. 50, p. 4). None of the three officers passed a Birmingham SWAT school. (Doc. 57-25, p. 10; Doc. 58-1, p. 20; Doc. 58-2, p. 31). None of the three officers passed the Tactical Unit's physical assessment. (Doc. 57-25, p. 10; Doc. 58-1, p. 20; Doc. 58-2, p. 28).[5]

         D. Mr. Minnifield's EEOC Charge Regarding the 2013 Patrol K-9 Position

         On December 19, 2013, Mr. Minnifield filed a charge of discrimination with the EEOC. (Doc. 15-1, p. 2). In this charge, Mr. Minnifield alleged that the City discriminated against him based on his race by failing to promote him to a patrol K-9 position and by promoting three white males to patrol K-9 positions. (Doc. 15-1, p. 3). In addition, Mr. Minnifield alleged that the City failed to promote him to a patrol K-9 position in retaliation for his previously filed grievances, EEOC charges, and “federal complaints for race discrimination and retaliation.” (Doc.15-1, p. 3).

         E. The 2015 TSA K-9 Position

         While his EEOC charge was pending, in January 2014, Mr. Minnifield suffered injuries from a motorcycle accident. (Doc. 57-1, p. 20). After the accident, Mr. Minnifield could not work as a motorscout or “go out in the field.” (Doc. 57-1, p. 21). The City placed Mr. Minnifield on limited duty because he could perform only administrative functions as a desk officer. (Doc. 57-1, p. 21). Mr. Minnifield remained disabled until he retired from BPD on July 9, 2015.

         14). Therefore, to become a member of the K-9 unit, an officer had to complete the Tactical Unit's physical assessment and pass a Birmingham SWAT school. (Doc. 57-1, p. 116; Doc. 57-3, p. 1, ¶¶ A.1 & 3; Doc. 58-3, pp. 14-15; Doc. 58-23, pp. 18, 40). The defendants argue that under the K-9 Unit's own rules and regulations, K-9 handlers did not have to pass the Tactical Unit's physical assessment or SWAT school. (Doc. 43, pp. 4-6, ¶¶ 12-15; Doc. 50, p. 14; Doc. 58-5, p. 273; Doc. 59-23, pp. 134-35, 139). (Doc. 57-1, p. 22).

         On January 12, 2015, the K-9 unit separated from the Tactical Unit. (Doc. 57-1, p. 148; Doc. 58-5, pp. 78, 208). In April 2015, Sgt. Boackle selected Officer Larry McGhee, who is white, for a vacant TSA K-9 position. (Doc. 57-1, p. 139; Doc. 58-5, pp. 206-07). No. vacancy announcement for a 2015 TSA K-9 position appears on the record, though Sgt. Boackle posted a vacancy announcement for a separate patrol K-9 position in 2015. (Doc. 48, p. 107).[6]

         F. Mr. Minnifield's Present Lawsuit

         On November 4, 2015, following his retirement, the EEOC sent Mr. Minnifield a right to sue letter regarding his 2013 charge. (Doc. 15-2, p. 2). Mr. Minnifield filed this lawsuit on February 2, 2016. (Doc. 1). Mr. Minnifield amended his complaint on June 3, 2016. (Doc. 15). He asserts claims related to both the 2013 K-9 openings and the 2015 TSA K-9 opening. Following discovery, the defendants filed their motion for summary judgment. (Doc. 41). Mr. Minnifield filed his brief in opposition to the motion for summary judgment. (Doc. 56). The defendants filed a motion to strike exhibits attached to Mr. Minnifield's opposition brief (Doc. 65). The defendants' motion for summary judgment and their motion to strike are ripe for disposition.

         III. ANALYSIS

         A. The Defendants' Motion to Strike

         The defendants ask the Court to strike all or part of six affidavits which Mr. Minnifield submitted in support of his opposition to the defendants' motion for summary judgment. (Doc. 65, p. 1). The defendants should have raised their objections in their reply brief.[7] The Court construes the defendants' motion to strike as an objection under Rule 56(c)(2). See Taylor v. City of Gadsden, 958 F.Supp.2d 1287, 1291 (N.D. Ala. 2013), aff'd, 767 F.3d 1124 (11th Cir. 2014) (treating motion to strike as an objection).

         Objections under Rule 56(c)(2) function like trial objections adjusted for the pretrial setting, and “[t]he burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.” Fed.R.Civ.P. 56(c)(2) advisory committee's note (2010 amendments). Rule 56(c)(2) enables a party to submit evidence that ultimately will be admissible at trial in an inadmissible form at the summary judgment stage. Under the Rule, a district court may for example “consider a hearsay statement in passing on a motion for summary judgment if the statement could be reduced to admissible evidence at trial or reduced to admissible form.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1293-94 (11th Cir. 2012) (quoting Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999)). A district court has broad discretion to determine at the summary judgment stage what evidence it will consider pursuant to Rule 56(c)(2). See Green v. City of Northport, 2014 WL 1338106, at *1 (N.D. Ala. March 31, 2014).

         1. Affidavits of Ron Jennings and Alex Thomas (Doc. 58-9)

         The defendants object to the identical affidavits of Officers Ron Jennings (Doc. 58-9, p. 1) and Alex Thomas (Doc. 58-9, p. 2) on the grounds that the affidavits are inadmissible hearsay and irrelevant. (Doc. 65, p. 4, ¶ 3). In the affidavits, Officer Jennings and Officer Thomas state that on November 21, 2011, they heard Chief Roper tell Mr. Minnifield that he should have a TSA K-9 position when the position is open if “they” told him he could have it. (Doc. 58-9, pp. 1-2).

         Mr. Minnifield may avoid a hearsay objection at trial by calling Officer Jennings, Officer Thomas, or Chief Roper as witnesses. Moreover, the statements from Chief Roper may be admissible at trial as an opposing party's statements or on cross-examination as prior statements. See Fed. R. Evid. 801(d). The statements could demonstrate Mr. Minnifield's standing to receive a position in the K-9 Unit relative to other candidates and could thus make a material “fact more or less probable than it would be without the evidence . . . .” Fed.R.Evid. 401. Therefore, the Court overrules the defendants' objections to the affidavits of Ron Jennings and Alex Thomas.

         2. Affidavit of James Lyons (Doc. 58-18)

         Next, the defendants object to the affidavit of Officer James Lyons (Doc. 58-18) on the grounds that statements in the affidavit are inadmissible hearsay, irrelevant, and pertain to a previous lawsuit. (Doc. 65, pp. 4-7, ¶¶ 1-14). In the affidavit, Officer Lyons states that he heard supervisors discuss Mr. Minnifield's potential assignment to the K-9 Unit, how they needed to control the amount of grievances filed, and the administrative standing of the K-9 Unit. (Doc. 58-18, pp. 1-3, ¶¶ 3-6, 9-14). Officer Lyons states that he heard Officer Metz Davis discuss his inability to pass SWAT school. (Doc. 58-18, p. 3, ¶ 15). Officer Lyons states that he heard Officer Laquinte Louis discuss training with the K-9 Unit. (Doc. 58-18, pp. 3-4, ¶ 16).

         Mr. Minnifield may avoid a hearsay objection at trial by calling Officer Lyons, Officer Davis, Officer Louis, or any of the supervisors mentioned in Officer Lyons's affidavit as witnesses. Moreover, the statements made by the supervisors may be admissible at trial as an opposing party's statements or on cross-examination as prior statements. See Fed. R. Evid. 801(d). While Officer Lyons's affidavit could have constituted evidence in Mr. Minnifield's prior lawsuit, the affidavit could provide background information about the supervisors' knowledge of Mr. Minnifield's grievances, a material issue. Officer Davis's and Officer Louis's statements are relevant to their qualifications, a material issue. Therefore, the Court overrules the defendants' objections to the affidavit of James Lyons.

         3. Affidavit of Ronald Jennings (Doc. 58-19)

         Next, the defendants argue that paragraphs 3, 5, 6, 11, 12, and 13 of Officer Ronald Jennings's affidavit (Doc. 58-19) are identical to paragraphs in James Lyons's affidavit (Doc. 58-18) and should thus be stricken. (Doc. 65, p. 7, ¶ 1). Because the Court overruled the defendants' objections to James Lyons's affidavit, the Court ...


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