United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE.
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.
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.
SUMMARY JUDGMENT STANDARD
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
Mr. Minnifield's Employment History with the City and
his First Grievances, EEOC Charge, and Lawsuit
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).
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.
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).
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). On December 26, 2011, the City awarded
Officer Larry Phillips, who is white, the TSA K-9 position.
(Doc. 58-12, p. 1).
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).
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).
Mr. Minnifield's Subsequent Efforts to Receive a K-9
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).
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).
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). 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).
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).
2012 Patrol K-9 Vacancies
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).
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).
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). 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,
Mr. Minnifield's EEOC Charge Regarding the 2013
Patrol K-9 Position
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).
The 2015 TSA K-9 Position
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.
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).
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).
Mr. Minnifield's Present Lawsuit
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.
The Defendants' Motion to Strike
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. 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).
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,
Affidavits of Ron Jennings and Alex Thomas (Doc.
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.
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.
Affidavit of James Lyons (Doc. 58-18)
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).
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.
Affidavit of Ronald Jennings (Doc. 58-19)
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