United States District Court, N.D. Alabama, Western Division
MEMORANDUM OF OPINION
SCOTT COOGLER, UNITED STATES DISTRICT JUDGE.
this C ourt are Defendant City of Tuscaloosa's Motions
for Summary Judgment (docs. 43 & 44.) The motions have
been briefed and are ripe for review. For the reasons stated
below, Defendant's motions (docs. 43 & 44) are due to
be granted in part and denied in part.
Hicks (“Hicks” or “Plaintiff”) began
working for the Tuscaloosa Police Department
(“TPD” or “Defendant”) as a patrol
officer in September 2006. (Pl. Depo. at 15.) Hicks's
wife, Stephanie Hicks (“Stephanie”) also worked
for the TPD until she resigned and filed suit against TPD in
November 2013, alleging violations of the Family Medical
Leave Act (“FMLA”) and the Title VII's
Pregnancy Discrimination Act (“Title VII”), as
well as constructive discharge. See Hicks v. City of
Tuscaloosa, No. 7-13-cv-02063-TMP, 2015 WL 6123209 at *1
(N.D. Ala. 2015); Hicks v City of Tuscaloosa, 870
F.3d 1253, 1253 (11th Cir. 2017).
to Alabama Peace Officers Standards and Training Commission
(“APOSTC”) regulation 650-x-12, all police
officers are required to pass annual firearms qualification
training. Ala. Admin. Code r. 650-x-12-.03.TPD requires its
Officers to requalify annually during two training periods.
(Pl. Ex. 9.);(Pl. Ex. 38.) Officers who fail to requalify in
a timely manner are not permitted to carry a weapon or go on
patrol. (Pl. Depo. at 55, 318-19.) Officers on FMLA leave,
light duty, or approved leave are often not required to
requalify until they return to full duty. (Pl. Ex. 19 at
12-16.); (Pl. Ex. 20 at 47.);(Pl. Ex. 40 at 55-56.)
Officer returns to full duty, the Chief of Police's
assistant is notified. (Pl. Ex. 19 at 16, 57, 66, 82.) The
assistant is then tasked with communicating this information
to the training department (“Training”).
(Id.) Training is then responsible for contacting
the officer to requalify and scheduling the firing range for
requalification. (Pl. Ex. 49.); (Pl. Ex. 67.) Training often
contacted Officers about requalification through blanket
emails. (Pl. Depo. at 216- 18.) Hicks testified that although
Training was in charge of scheduling his requalification, he
could requalify anytime as long as an instructor “was
out there.” (Pl. Depo. at 56-61, 100.)
qualified with his firearm on November 21, 2013. (Pl. Ex.
On September 11, 2014, Hicks was deposed in Stephanie's
lawsuit against TPD. (Pl. Depo. at 81.) The lawsuit was
generally known among officers in the TPD. (Pl. Ex. 27.);
(Pl. Ex. 62.) On October 9, 2014, Hicks went on approved FMLA
leave for shoulder surgery. (Pl. Ex. 17.); (Pl. Ex. 102.) On
that same day, an email was sent to Internal Affairs
(“IA”) concerning Hicks failure to requalify at
that time. (Pl. Ex. 18.) Hicks's qualifications were
still valid at the time. (Id.) Hicks's
qualifications later lapsed in November 2014 because Hicks
was on FMLA leave and unable to shoot at the time. (Pl. Depo.
at 121); (Pl. Ex. 8.)
December 19, 2014, TPD posted a notice of an opening in the
Criminal Investigations Division (“CID”). (Pl.
Ex. 22.) Although he was still on leave, Hicks applied for
this position. (Pl. Ex. 81.) As Hicks was turning in his
application, he spoke with Lt. Madison, a supervisor in the
CID, about Stephanie's case. Lt. Madison's comments
indicated to Hicks that certain people at TPD believed Hicks
was disgruntled because of Stephanie's suit. (Pl. Depo.
decision regarding the CID position was made by a Review
Board pursuant to TPD policy. (Pl. Depo. at 195, 208-09.)
There is no standing Review Board. Instead, the Chief of
Police Steve Anderson (“Anderson”) selects
individuals to serve on the Review Boards for each new CID
job posting. (Pl. Ex. 40 at 15.) The Review Boards meet and
review a number of criteria including personnel files and
input from the applicant's supervisors, before ranking
the applicants. (Hart Aff.); (Powell Aff.) The Review Board
Anderson chose for this CID position included Lt. Teena
Richardson and Sgt. Sebo Sanders, who were involved in
Stephanie's suit against TPD. (Pl. Ex. 23 at 819-21.);
(Pl. Ex. 80.)The Review Board met on January 7, 2015, and
selected Officers Lamb and Akridge instead of Hicks, who was
ranked tenth out of nineteen applicants. (Hart Aff.);(Pl. Ex.
82.) Officers Lamb and Akridge were ranked lower than Hicks
in past CID rankings. (Pl. Ex 12.) Anderson ratified this
decision on January 8, 2015. (Anderson Aff.)
in January 2015, Hicks returned to work on light duty. (Pl.
Depo. at 121-23.) Hicks did not requalify at that time
because he was not released for full duty. (Id.) In
May 2015, Hicks took caregiver leave under the City's
Serious Accident and Illness Leave (“SAIL”)
program for the birth of his second child. (Pl. Depo. at
326-28, 441-43.) Hicks returned to his full duty in July
2015, but did not requalify at that time. (Pl. Depo. at
October 2015, Stephanie's case was set for trial in
February of 2016. (Pl. Ex. 35.) On November 3, 2015, TPD
posted an opening for a Field Training Officer
(“FTO”) position. (Pl. Ex. 36.) On November 12,
2015, Hicks applied for the FTO position. (Pl. Ex. 52.)
Stephanie's pre-trial conference was held four days later
on November 16, 2015. (Pl. Ex. 37.) The day after this
conference, Hick received notice that he would have to submit
an additional FTO application. (Pl. Ex. 58 at 18-20.)
Although Hicks was scheduled to requalify on November, 18,
2015, he missed this date due to a pre-scheduled day off.
(Pl. Depo. at 443-44.)
Hicks went to turn in his completed application for the FTO
position on November 25, 2015, Hicks was notified by Training
that he had not requalified. (Pl. Depo. at 104, 140.) Hicks
offered to go requalify immediately, but Sgt. Castleberry,
one of TPD's firearms instructors, advised him not to
shoot that day and instead had him fill out a request to
reschedule his qualification. (Pl. Depo. at 142-143.) Hicks
was given a requalification date of December 2, 2015, and
sent back on patrol. (Pl. Depo. at 110-11.) Later in November
2015, Hicks asked Sgt. Chronister, another firearms
instructor, to qualify him. (Pl. Depo. at 138-39.) Sgt.
Chronister denied his request. (Id.)
December 2, 2015, Hicks missed his requalification because he
had taken a sick day. (Pl. Depo. at 145-46.) Hicks's
requalification was rescheduled for December 5. (Pl. Ex. 51.)
On December 5, 2015, Hicks's scheduled requalification
date, he was called into a meeting with Capt. Palmer and
asked to write an interdepartmental memo about his reasons
for not complying with previous qualification appointments.
(Pl. Ex. 73.) Palmer then took Hicks to requalify, and Hicks
shot a 92, well above the passing requirement. (Id.)
Despite passing, Hicks was scheduled to attend additional
training on December 9, 2015. (Pl. Ex. 70.) This memo was
sent from Capt. Palmer to Maj. Gibbs on December 7, 2015.
(Pl. Ex. 73.)
TPD asserts that the Review Board met to review candidates
for the FTO position on December 4, 2015, Hicks has presented
evidence that the document containing the
candidates qualifications used by the Review Board was edited
on December 7, 2015, two days after Hicks requalified, and
sent to Anderson on December 11, 2015. The document
noted that Hicks was not willing to move shift or location,
and that he was not allowed to return to work until he had
qualified on APOSTC. (Pl. Ex. 54.) The Review Board did not
rank Hicks because of his failure to requalify under APOSTC
for two years and missing several department-mandated
trainings. (Pl. Ex. 65.) The Review Board noted that the
issue of Hicks APOSTC qualification was not known until
December 2, 2015. (Id.)
December 16, 2015, Hicks was written up for defective
workmanship for failing to requalify. (Pl. Ex. 41.) One day
later, Anderson ratified the Review Board's FTO decision
in Special Order 1348. (Pl. Ex. 42.) On December 22, 2015,
Hicks filed a grievance stating he was disciplined three
times for failing to requalify, and on the next
day, he was once again written up-this time for failing to
follow the proper procedure for filing grievances. (Pl. Ex.
107.); (Pl. Ex. 71.) On December 30, 2015, Hicks was
counseled on his grievance and he resigned, effective January
22, 2016. (Pl. Ex. 72.);(Pl. Ex. 74.) Upon turning in his
resignation notice, Hicks was put on paid administrative
leave by Anderson. (Pl. Ex. 75.) As he left the office, Hicks
was asked to return his belt and his gun along with other TPD
issued gear. (Pl. Ex. 40 at 87- 89.) After Hicks's
termination, Stephanie's suit went to trial. (Pl. Ex. 91
at 18.) During the trial, Hicks was subpoenaed to testify,
but he never gave live testimony. (Pl. Depo. at 186.) In
April 2016, Hicks filed an EEOC charge. (Pl. Ex. 43).
Following Hicks's filing of the charge, TPD created an
internal memo regarding Hicks's situation. (Pl. Ex. 19 at
94-96.); (Pl. Ex. 93.)
Standard of Review
judgment is proper “only if there is no genuine issue
of material fact and the moving party is entitled to judgment
as a matter of law.” Watson v. Drummond Co.,
436 F.3d 1310, 1313 (11th Cir. 2006) (citing Polkey v.
Transtecs Corp., 404 F.3d 1264, 1267 (11th Cir. 2005)).
The moving party has “the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the evidence] which it
believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). To meet this burden, the movant may
either present evidence showing there is no genuine dispute
of material fact, or show that the nonmoving party has failed
to present evidence in support of some element of its case on
which it bears the ultimate burden of proof.
Celotex, 477 U.S. at 322-23. In considering a motion
for summary judgment, the court must view the evidence in the
light most favorable to the nonmoving party and resolve all
reasonable doubts pertaining to the facts in his or her
favor. Fitzpatrick v. City of Atlanta, 2 F.3d 1112,
1115 (11th Cir. 1993) (citing U.S. v. Four Parcels of
Real Prop., 941 F.2d 1428, 1437 (11th Cir.1991) (en
banc) (internal quotation marks and citations omitted))). A
factual dispute 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, 242 (1986).
claims center on the following employment actions: (1) denial
of a promotion to a CID position in January 2015, (2) denial
of a promotion to a FTO positon in December 2015, and (3)
other disciplinary actions taken against him in December
2015. Hicks alleges that these actions were taken for
retaliatory reasons in violation of both Title VII and the
Title VII Administrative Exhaustion
claims under Title VII must meet all requirements for
administrative exhaustion. Sanchez v. Standard Brands,
Inc., 431 F.2d 455, 460 (5th Cir. 1970).Administrative
exhaustion under Title VII requires filing a timely charge
with the EEOC. Id. If the EEOC declines to bring its
own civil action against the employer, it will issue a Notice
of Right to Sue to the employee. 29 C.F.R. §
1601.28(b)(1). Upon receipt of this notice, the employee has
a period of ninety days to bring suit against the employer.
42 U.S.C. § 2000e-5(f)(1).
asserts, in a footnote, that the decision regarding Hicks
possible promotion to a CID position occurred more than 180
days prior to Plaintiff's EEOC Charge. Hicks was notified
that he did not receive the position in January of 2015, but
he did not file his EEOC charge until April 21, 2016. (Pl.
Ex. 43.) This passage of time exceeds 180 days. As such,
summary judgment is due against Hicks on his Title VII
retaliation claims arising out of the failure to promote him
to the CID position in January 2015. See 42 U.S.C.
§ 2000e-5(e)(1) (noting that a plaintiff must file an
EEOC charge “within one hundred and eighty days after
the alleged unlawful employment practice
The McDonnell Douglas Framework
direct evidence of retaliation, the Eleventh Circuit applies
the McDonnell Douglas burden shifting framework to
both Title VII and FMLA retaliation claims. See Brungart
v. BellSouth Telecomms., Inc., 231 F.3d 791, 798 (11th
Cir. 2000); Brown v. Ala. Dep't of Transp., 597
F.3d 1160, 1181 (11th Cir. 2010). See generally
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under this framework, the aggrieved employee must first make
out a prima facie case of retaliation.
Brown, 597 F.3d at 1181.
establish a prima facie case for retaliation under
Title VII and the FMLA, a plaintiff must show that (1) he was
engaged in statutorily protected activity; (2) he suffered an
adverse employment action; and (3) a causal link exists
between the protected activity and the adverse employment
action. See Furcron v. Mail Ctrs. Plus, LLC, 843
F.3d 1295, 1310 (11th Cir. 2016). Under both Title VII and
the FMLA participating in an investigation, proceeding, or
hearing pursuant to a charge of unlawful discrimination is
protected activity. 42 U.S.C. § 2000(e)-3(a); 29 U.S.C.
§ 2615 (a)-(b). Additionally, taking FMLA leave is
protected activity. Id.
prove an adverse action in the context of a retaliation
claim, the plaintiff must show that a reasonable employee
would have found the challenged action materially adverse,
meaning “it well might have dissuaded a reasonable
worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006); accord
Crawford v. Carroll, 529 F.3d 961, 974 (11th Cir. 2008).
An adverse employment action need not be as serious as
outright termination. It may also include “adverse
actions which fall short of ultimate employment decisions,
” such as written reprimands. Wideman v. Wal-Mart
Stores, Inc., 141 F.3d 1453, 1455-56 (11th Cir. 1998). A
failure to promote may constitute an adverse employment
action. Webb-Edwards v. Orange Cnty. Sherriff's
Office, 525 F.3d 1013, 1031 (11th Cir. 2008). See
Davis v Town of Lake Park, Fla., 245 F.3d 1232, (11th
Cir. 2001) (noting that changes in pay or compensation may
constitute adverse actions). The Eleventh Circuit has noted
that “the cumulative weight of numerous individual
incidents can be considered in determining whether the
employee experienced materially adverse action.”
Putman v Scty. Dept. of Veterans Affairs, 510 Fed.
App'x 827, 831 (11th Cir. 2013) (citing Shannon v.
Bellsouth Tele., Inc., 292 F.3d 712, 716 (11th Cir.
of his prima facie case, a plaintiff must also
establish that a causal connection exists between his
statutorily protected activity and the alleged adverse
employment actions he suffered. Furcron, 843 F.3d at
1310. To do so the plaintiff must prove that but-for the
employer's desire to retaliate, he would not have
suffered the adverse employment action. Booth v. Pasco