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Hicks v. City of Tuscaloosa

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

January 8, 2019




         Before 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.

         I. Background[1]

         Matthew 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).

         Pursuant 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.)

         When an 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.)

         Hicks qualified with his firearm on November 21, 2013. (Pl. Ex. 8.)[2] 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.)

         On 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. 221-24.)

         The 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.)

         Later 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.)[3] Hicks returned to his full duty in July 2015, but did not requalify at that time. (Pl. Depo. at 129-31.)

         In 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.)

         When 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.)

         On 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.)

         Although TPD asserts that the Review Board met to review candidates for the FTO position on December 4, 2015, Hicks has presented evidence[4] 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.[5] 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.)

         On 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[6] 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.)

         II. Standard of Review

         Summary 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).

         III. Discussion

         Hicks's 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 FMLA.

         A. Title VII Administrative Exhaustion

         Valid claims under Title VII must meet all requirements for administrative exhaustion. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970).[7]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).

         Defendant 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 occurred.”)[8]

         B. The McDonnell Douglas Framework

         Absent 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.

         To 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.

         To 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. 2002)).

         As part 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 Cnty.,757 ...

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