United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
case is before the court on Defendant's Motion for
Summary Judgment (Doc. # 16) and Defendant's Motion to
Strike (Doc. # 20). The parties have fully briefed the
motions (see Docs. # 17, 19-21, 23), and they are
under submission. The court held oral argument on these
motions on May 29, 2018. After careful review, and for the
reasons explained below, the court concludes that the Motion
for Summary Judgment is due to be granted in part and denied
in part. The Motion to Strike is due to be denied as moot.
Motion to Strike
asks the court to strike two exhibits filed with
Plaintiff's opposition to the summary judgment motion.
(Doc. # 20). The court has reviewed the exhibits and finds
that the statements provided in them are mostly duplicative
of Plaintiff's testimony. The court does not require any
evidence provided in the exhibits to rule on the issues
presented in the pending summary judgment motion and chooses
to not consider the challenged exhibits for purposes of
deciding this motion. Therefore, Defendant's Motion to
Strike (Doc. # 20) is due to be denied as moot. See
Porterfield v. Flowers Baking Co. of Opelika, L.L.C.,
No. 2:05-CV-937-MEF, 2007 WL 4373006, at *9 (M.D. Ala. Dec.
12, 2007) (denying motion to strike paragraph of an affidavit
as moot because the court found the testimony unhelpful and
chose not to consider it).
2014, the City of Birmingham Police Department (“Police
Department”) hired Plaintiff, a black male, as a police
officer. (Jones Deposition at 23, 26-27). Plaintiff
initially worked as a patrol officer for eight weeks, and the
Police Department then transferred him to the West Precinct
Task Force (“Task Force”). (Id. at
23-24, 95-96). Plaintiff worked on the day shift (8:00 a.m.
to 5:00 p.m.) while assigned to the Task Force. (Id.
March 2, 2015, Plaintiff bent down to converse with another
officer who was sitting at a desk. (Id. at 26).
Officer Nathan Duclos, a white male, positioned himself
behind Plaintiff and made grinding sounds and pelvic thrusts.
(Id. at 27-28). Plaintiff responded by telling
Duclos, “I don't play that gay stuff, don't do
me like that.” (Id. at 28). Duclos laughed at
Plaintiff's reaction. (Id. at 29). Plaintiff
then told him, “you think it's funny but it
ain't funny with me.” (Id.).
Julie Quigley-Vining overheard the interaction between
Plaintiff and Duclos from her office. (Quigley-Vining Deposition
at 25-26). Quigley-Vining did not observe
Duclos's actions, and Duclos was no longer present by the
time Quigley-Vining left her office. (Id. at 26).
Plaintiff has testified that Quigley-Vining yelled at him and
ordered him to come to her office. (Jones Deposition at
29-30). According to Plaintiff, Quigley-Vining discussed
Plaintiff's comment with him and explained that Plaintiff
had disrespected her family and her. (Id. at 30).
Quigley-Vining also told Plaintiff that she could not
“stand you people” and spit on his face.
(Id. at 30-31). Plaintiff recalls Quigley-Vining
using profanity during the exchange. (Id. at 31).
Ultimately, though, Quigley-Vining did not discipline
Plaintiff for his conduct that day. (See
Quigley-Vining Deposition at 41).
March 3, 2015, Plaintiff submitted a written complaint to
Lieutenant Mike Acton regarding Quigley-Vining's conduct.
(Jones Deposition at 36-37). Although the written complaint
discussed Duclos's conduct, Plaintiff only complained
about Quigley-Vining's actions. (See Doc. # 17-1
at 50). Acton told Plaintiff that a captain needed to handle
the investigation. (Jones Deposition at 37-38). The Police
Department's internal affairs department handled the
investigation, during which they questioned Quigley-Vining.
(Quigley-Vining Deposition at 38).
27, 2015, while the investigation into the March 2015
complaint was ongoing, Plaintiff addressed two sergeants who
were speaking with each other. (Jones Deposition at 39-40).
He recalls that Quigley-Vining turned her back to him and was
conversing on her cell phone when he approached the other
officers. (Id. at 39, 41). When Plaintiff clocked in
for an overtime shift, Quigley-Vining confronted him for not
respecting her. (Id. at 40-41) (discussing
allegations in the Complaint). Plaintiff did not respond to
her because Police Department personnel gave him an order to
not have direct contact with Quigley-Vining. (Id. at
41-42). Plaintiff began writing down information, and
Quigley-Vining angrily told him that she did not care what he
wrote down. (Id. at 42). Finally, Quigley-Vining
warned Plaintiff that she would write him up if he acted
similarly again. (Id.). According to Plaintiff, she
yelled, “[y]ou can take this as your verbal warning.
The next time I will write you up.” (Id. at
44). (See also Doc. # 17-1 at 54).
reported this confrontation to Sergeant Timothy McCord.
(Jones Deposition at 42). McCord advised Plaintiff to report
the confrontation to his supervisor. (Id. at 43).
Plaintiff complained to Police Department personnel that
Quigley-Vining did not threaten white officers with
discipline for disrespecting her. (Id. at 44-45). On
June 29, 2015, Plaintiff submitted his written complaint
against Quigley-Vining to Captain James Blanton. (Doc. # 17-1
same day, Quigley-Vining issued Plaintiff a letter of
counseling for his conduct and deportment during the June
27th incident discussed above. (Doc. # 17-1 at 55). According
to Plaintiff, Quigley-Vining approached him as he left the
precinct building and handed him the letter. (Jones
Deposition at 46). She reminded him of her verbal warning.
(Id.). Plaintiff refused to sign the counseling
letter. (Id. at 47). Quigley-Vining documented that
Plaintiff had refused to sign the counseling letter. (Doc. #
17-1 at 55). On June 30, 2015, Plaintiff submitted a written
complaint to Blanton about Quigley-Vining's counseling
letter. (Id. at 56).
7, 2015, Police Department Chief A.C. Roper reprimanded
Plaintiff for the March 2015 incident. (Doc. # 17-1 at
52-53). Roper reprimanded Plaintiff for his lack of courtesy,
poor manner, unkind remarks, harassment, and use of coarse
language. (Id.). To justify the reprimand, Roper
recounted Plaintiff's statement to Duclos and an
additional statement that he did not “believe in gay
marriage.” (Id. at 53). Roper explained that
several officers heard the statements and that Plaintiff
failed to “consider[ ] the diversity of [his] fellow
employees.” (Id.). That same day, Roper also
reprimanded Quigley-Vining for the March 2015 incident. (Doc.
# 17-2 at 34-35). He wrote that Quigley-Vining had lost her
temper, “berated [Plaintiff] within earshot of several
other officers and a trustee, ” and
“unnecessarily brought your domestic situation into the
30, 2015, Plaintiff submitted a discrimination charge to the
Equal Employment Opportunity Commission (“EEOC”).
(Doc. # 17-1 at 47-48). His EEOC charge discussed the March
2015 encounter, Quigley-Vining's verbal warning to him on
June 27, 2015, and the June 29, 2015 written reprimand.
(See id.). Within a few days of Plaintiff's EEOC
charge, the Police Department transferred Quigley-Vining to a
different precinct. (Quigley-Vining Deposition at 56-57;
Jones Deposition at 49).
has testified that, on August 10, 2015, Sergeant Carl Walker
asked him whether he had filed an EEOC complaint. (Jones
Deposition at 56-57). At that time, Walker was
Plaintiff's direct supervisor. (Id. at 57-58).
Plaintiff told Walker that he had filed an EEOC complaint.
(Id. at 57). Walker has confirmed that he discussed
the EEOC complaint with Plaintiff, but explains that he did
so to dissuade Plaintiff from discussing his business with
others in the office. (Doc. # 17-3 at 47-48).
August 18, 2015, the Police Department reassigned Plaintiff
from the Task Force to a patrol unit. (Doc. # 17-4 at 1).
Plaintiff asked Acton about the transfer. (Jones Transcript
at 63). Acton told him that he was being transferred because
Walker did not like him and did not want him on the Task
Force. (Id. at 63-64). According to Plaintiff, Acton
then asked him whether he had filed an EEOC complaint, and
Plaintiff affirmed that he had done so. (Id. at 64).
testified that he was scheduled to work an overnight shift
(11:00 p.m. to 7:00 a.m.) after being placed on the patrol
unit. (Id. at 72). He did not receive weekends off
while working on that unit, but had weekends off while
assigned to the Task Force. (Id. at 71). Plaintiff
was assigned to answer more calls, such as domestic
disturbances, while working for the patrol unit.
(Id. at 67). When he worked for the Task Force, his
responsibilities primarily concerned burglary calls and
stopping cars to check individuals for warrants.
(Id. at 66-67).
Plaintiff worked for the Task Force, he was able to sign up
for overtime work after his shift ended at 5:00 p.m.
(Id. at 70-71). Conversely, Plaintiff could sign up
for evening overtime shifts while he worked on the Task
Force. (Id. at 77). After his transfer to the patrol
unit, Plaintiff attempted to sign up for overtime, but he was
unable to do so, even though he observed open overtime
shifts. (Id. at 74-76). Plaintiff asked Sergeant
Pier Walker (i.e., a different officer than Sergeant
Carl Walker) why he could not sign up for overtime shifts at
the Crossplex in Birmingham. (Id. at 77-78). Carl
Walker was responsible for coordinating security at the
Crossplex. (Doc. # 17-3 at 69-70). Plaintiff explained that
Pier Walker tried to sign him up for overtime at the
Crossplex, but she could not get him approved for overtime.
(Jones Deposition at 79). According to Plaintiff, Pier Walker
confronted Carl Walker, and Carl said that Plaintiff would
not work at the Crossplex “as long as I'm over
January 6, 2016, Plaintiff submitted a second charge to the
EEOC, this one complaining of retaliation he claims to have
suffered for filing his earlier EEOC charge. (Doc. # 17-4).
Plaintiff asserted in his second charge that he had been
moved from the Task Force to a patrol unit, and that he had
been denied opportunities for “side jobs.”
(Id.). On January 18, 2016, Plaintiff asked his
supervisor for a letter of recommendation to work an overtime
detail for the “High Intensity Community-Oriented
Policing” program. (Jones Deposition at 88-89). His
supervisor refused to submit a recommendation letter, but
provided no reason for the refusal. (Id. at 90-91).
In April 2016, Plaintiff received a right-to-sue letter from
the EEOC regarding his July 2015 EEOC charge. (Doc. # 1-2).
In July 2016, Plaintiff filed this lawsuit. (Doc. # 1).
Standard of Review for ...