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Jackson v. Board of Commissioners of Housing Authority of City of Prichard

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

August 2, 2018




         This matter comes before the Court on defendants' Motion for Summary Judgment (doc. 49). Also pending is defendants' Motion to Strike Affidavit of Felicia A. Jackson (doc. 53). These motions have been briefed and are ripe for disposition.[1]

         I. Nature of the Case.

         Plaintiff, Donald Jackson, brought this action against his former employer, the Housing Authority of the City of Prichard (the “Housing Authority”), as well as certain related defendants, including the Board of Commissioners of the Housing Authority (the “Board”), Reginald Crenshaw (a Board member), Felicia Snow (the Housing Authority's Executive Director), Charles Pharr (former Executive Director for the Housing Authority), and Greg Harris (counsel for the Housing Authority). Jackson's Second Amended Complaint purported to assert multiple civil-rights and constitutional claims against defendants relating to the Housing Authority's termination of his employment in February 2016.[2] In summary judgment briefing, however, Jackson has markedly narrowed his theory of recovery. Indeed, plaintiff now indicates in unequivocal terms that his sole claim is that defendants violated his First Amendment right to free speech by retaliating against him, and wrongfully terminating him, for speaking with the Office of Inspector General, all in violation of 42 U.S.C. § 1983.[3] Accordingly, this Order will not address any other claims enumerated in the Second Amended Complaint (such as the due process / equal protection claims embedded in Count Three), because Jackson has disclaimed any intent to pursue any cause of action other than a § 1983 claim of retaliatory discharge for engaging in protected speech under the First Amendment.[4]

         II. Relevant Background.[5]

         A. The Biloxi Automobile Accident.

         Jackson began working for the Housing Authority in 2007, and served in the capacity of Director of Housing Management beginning in 2008. (Jackson Dep. (doc. 49, Exh. A), at 24.) In that position, Jackson had access to a Housing Authority vehicle, which he was allowed to use for non-business travel. (Id. at 59.) On the evening of Friday, June 6, 2014, Jackson was involved in an automobile accident in Biloxi, Mississippi, while driving the company car. (Id. at 55.)[6] This incident actually marked Jackson's second accident in a Housing Authority vehicle; indeed, he had previously had a car wreck in a company vehicle for which he received no discipline or reprimand. (Id. at 159.)

         The following Monday, June 9, 2014, Jackson notified the Housing Authority's then-Executive Director, Charles Pharr, that he had been involved in a “fender bender” in Biloxi. (Id. at 71-72.) Jackson gave Pharr the telephone number of the attorney who was representing Jackson in Mississippi proceedings relating to that accident. (Id. at 207-08.) It is not clear from the record precisely what Jackson told Pharr about the Biloxi accident during that June 9 conversation. Plaintiff's evidence, however, is that Jackson did not notify Pharr that he had been charged with DUI and possession of marijuana following the June 6 accident. (Id. at 207-08.) Based on their discussion and the information conveyed about the incident, Pharr took the following disciplinary action against Jackson: four weeks of suspension without pay, travel restrictions, automobile restrictions, and deferral of pay raise. (Id. at 98-99.) Jackson's testimony, which is accepted as true for summary judgment purposes, is that Pharr assured him at the time that “this was not a fireable offense” and that “[i]t could have happened to anyone.” (Id. at 170.) Nonetheless, Pharr testified that he kept Jackson's case open and instructed him to keep Pharr posted on the progress of his Mississippi case; however, Jackson “never did provide [him] with the information to close the case.” (Pharr Dep. (doc. 49, Exh. C), at 27-28.)

         B. The Brookins Termination and OIG Investigation.

         In addition to the Biloxi automobile accident, a second storyline is integral to the claims for relief that Jackson is pursuing here. Among Jackson's subordinates at the Housing Authority was a property manager named Sherry Brookins. (Jackson Dep., at 104.) Jackson believed that then-Executive Director Pharr had a personal friendship with Brookins, such that “she was treated more as a favored employee that was given benefits and perks that other managers did not receive.” (Id. at 143.)[7]

         When defendant Felicia Snow became Executive Director of the Housing Authority in January 2015, she ordered a reconciliation of the agency's bank statements. (Id. at 109.) In performing that reconciliation, the Housing Authority's finance department discovered certain discrepancies and passed that information on to Jackson. When Jackson investigated, he concluded that Brookins had “stolen money from the agency.” (Id.) As her supervisor, Jackson recommended that Brookins' employment be terminated. (Id.) At a meeting involving Jackson, Snow and the Housing Authority's counsel, defendant Greg Harris, all three of them jointly made the determination that Brookins' employment would be terminated. (Id. at 109-10.)[8]Based on that decision, Jackson mailed a letter to Brookins dated February 6, 2015, informing her that her employment at the Housing Authority had been terminated based on the discovery of discrepancies in several financial reports and her subsequent admission that she had been “taking money orders … and cashing them for [her] personal use.” (Jackson Dep., Exh. 15.) The Brookins termination letter was signed by Jackson in his capacity as Director of Housing Management, with a copy sent to Felicia Snow. (Id.)

         Immediately after the Brookins termination letter was drafted, defendants Harris and Pharr pressured Jackson to change his mind. Harris told Jackson, “you need to think about what you're doing because your situation could have been handled differently, ” referring to the Biloxi accident, and asked if Brookins could be re-assigned to a position that did not involve handling funds. (Jackson Dep., at 113-14.) Pharr was even more direct, telling Jackson “[y]ou can't terminate her, ” urging him to investigate the matter further, and inquiring if she could be reassigned elsewhere. (Id. at 115-16.) Jackson interpreted these comments as threats, intimidation and harassment. However, Jackson declined to waver from the termination decision. Jackson proceeded with Brookins' dismissal because Brookins had admitted to stealing federal funds, he had previously recommended termination for similarly situated employees, and his job duties included ferreting out and removing employees who were stealing. (Id. at 171-72.) Jackson reasoned that if he had “yielded to that kind of pressure, not do the right thing, … [n]ot to do what the agency has done historically when it came to matters of embezzlement and theft of federal funds, that [he] would be on the line with the OIG and HUD for not taking the appropriate action.” (Id. at 175.) Plaintiff's evidence is that because he stood his ground as to the Brookins termination, several individual defendants began encouraging Snow to take adverse action against Jackson based on the Biloxi accident. (Id. at 167.)

         In October 2015, eight months after Brookins' firing, the Office of Inspector General (“OIG”) visited the Housing Authority to investigate an anonymous complaint. (Doc. 49, Exh. E, ¶ 21.) As part of that investigation, the OIG interviewed Jackson. (Id.) During the course of that interview, Jackson spoke with the OIG about “a number of issues, ” including topics relating to Sherry Brookins. (Jackson Dep., at 222.) Jackson openly and honestly answered all of the OIG's questions, both as to Brookins and as to other unspecified matters. (Id. at 225-26.) Jackson confirmed that he spoke with the OIG in his capacity, and pursuant to his official job duties, as the Housing Authority's Director of Housing Management. (Id. at 222-23, 225.) Jackson's interview with the OIG was conducted in the Housing Authority's boardroom with two agents present. (Id. at 234-36.) There was no court reporter and the interview was not open to the general public. (Id.) All of Jackson's speech to the OIG agents was within the scope of his duties as Director of Housing Management. (Id. at 237.) Jackson testified that after he interviewed with the OIG in October 2015, defendants Pharr, Harris and Crenshaw resumed their previous campaign to convince Snow to take adverse action against him. (Id. at 220.) For her part, Snow was aware that Jackson had been interviewed by OIG agents, but she did not know any particulars of what was discussed during that interview. (Doc. 49, Exh. E, ¶ 21.)

         C. The Termination of Jackson's Employment.

         The two disparate storylines outlined above (namely, Jackson's automobile accident in Biloxi in June 2014, and Brookins' termination in February 2015) merge into one as possible causes for the termination of Jackson's employment in February 2016.

         Defendant Charles Pharr ceased being Executive Director of the Housing Authority in December 2014, and was succeeded by defendant Felicia Snow in January 2015. (Snow Dep. (doc. 49, Exh. B), at 31.) Snow became aware of Jackson's accident in Biloxi during her transition to Executive Director. (Id. at 15.) According to Snow, because Pharr had left the disciplinary matter against Jackson open pending the outcome of Jackson's legal proceedings in Mississippi, she was not comfortable taking further action as to Jackson until additional information about the matter was received. (Id. at 38-40.)

         On or about April 1, 2015, a lawyer representing Jackson in the Mississippi proceedings sent a letter to Snow. The letter included the following language: “Please be advised that Mr. Jackson's DUI case in Biloxi, Mississippi will be resolved in June 2015. Mr. Jackson's charges will be non-adjudicated and expunged.” (Jackson Dep., at 90 & Exh. 6.) On April 21, 2015, Snow followed up with an email to Jackson requesting certain additional information about the Biloxi accident. (Snow Dep., at 63.) Specifically, she requested that he immediately provide “[a]ny and all information related to [his] current driving restrictions, ” and that by the following day, he furnish both a “[w]ritten statement about the incident” and the “[i]mposed punishment/restrictions by [the Housing Authority].” (Id. at Exh. 1.) Jackson submitted such a written statement to Snow, in which he described the accident as a “fender bender” that occurred when the car in front of him abruptly braked, such that the other vehicle's “[r]ear right side passenger bumper encountered the front passenger bumper of the [Housing Authority] vehicle.” (Jackson Dep., at 127-28.) Jackson's written statement of April 2015 omitted any mention of pending DUI or marijuana charges as a result of the accident. (Id. at 103-04.) Jackson's statement to Snow also failed to identify any driving restrictions, including the interlock device that he was required to place on his personal vehicle. (Doc. 49, Exh. E, ¶¶ 6, 8, 9.)

         In late 2015, Jackson furnished to Snow a copy of a court order from Biloxi Municipal Court dated September 10, 2015. (Doc. 49, Exh. E, ¶ 10.) That order, styled “Order to Expunge, ” directed that all records relating to Jackson's “arrest, trial and dismissal on the charges of … DUI … should be immediately expunged, ” on the grounds that such charges had been “nolle prossed, dismissed, passed to the inactive files or otherwise not prosecuted.” (Jackson Dep., Exh. 11.) According to the Order, Jackson “shall not hereafter be found under any provisions of any law, to be guilty of perjury or otherwise ...

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