United States District Court, S.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
F. MOORER UNITED STATES DISTRICT JUDGE
before the Court is Defendants City of Mobile's (the
“City”), Mayor William Sandy Stimpson's
(“Stimpson”), Chief of the Mobile Police
Department James Barber's (“Barber”), and
Lieutenant Rodney Greeley's (“Greeley”)
(collectively, the “City Defendants”)
for Summary Judgment and Incorporated Memorandum of Law
(“Motion for Summary Judgment”) (Doc. 49, filed
Aug. 29, 2018). The motion has been fully briefed (Docs. 49,
61, & 65) and is ripe for review. Having considered the
motion and relevant law, the Court finds the Motion for
Summary Judgment is due to be GRANTED.
pending before the Court is Plaintiff Jerone Young's
(“Plaintiff” or “Young”)
Affidavit Motion for Leave of Court to File This
Affidavit (Doc. 60, filed November 14,
2018) and Affidavit Number 2 Motion for
Leave of Court to File This Affidavit (collectively, the
“Motions for Leave to File Affidavits”) (Doc. 62,
filed November 30, 2018), and the City Defendants'
Motion to Strike Portions of Plaintiff Jerone Young's
“Affidavit Number 2” (“Motion to
Strike”) (Doc. 66, filed January 28, 2018). Having
considered the motions and relevant law, the Court finds the
Motions for Leave to File Affidavits should be
GRANTED, and the Motion to Strike should be
IN PART AND DENIED IN PART.
district court has subject matter jurisdiction over the
claims in this action pursuant to 28 U.S.C. § 1331
(federal question); Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e; 42 U.S.C. § 1983; and 28
U.S.C. § 1367 (supplemental jurisdiction).
parties do not contest personal jurisdiction or venue, and
there are adequate allegations to support both.
Procedural and Factual Background
Plaintiff filed his original pro se Complaint in
this Court on January 13, 2017, in which he brought claims
against the City for employment discrimination pursuant to
Title VII of the Civil Rights Act of 1964. (Doc. 1).
Plaintiff's Motion to Proceed Without Prepayment of Fees
(Doc. 3, filed Jan. 20, 2017) as amended (Doc 4, filed
February 10, 2017) was granted by the Court on February 13,
2017 (Doc. 5). The City filed on March 9, 2017, its Motion to
Dismiss or, in the Alternative, Motion for More Definite
Statement and Incorporated Memorandum of Law (“the
City's first motion to dismiss”) pursuant to
Fed.R.Civ.P. 12(b)(6) and (e). (Doc. 9).
March 13, 2017, an attorney entered a notice of appearance on
behalf of Plaintiff (Doc. 12) and filed an Amended Complaint
as a matter of course pursuant to Fed.R.Civ.P. 15(a)(1) (Doc.
15), which rendered moot the City's first motion to
dismiss (Doc. 16). Plaintiff's Amended Complaint brought
claims against the City Defendants for violations of Fourteenth
Amendment procedural due process, First Amendment free speech
and right to petition, Title VII, 42 U.S.C. § 1981,
state law due process, and for breach of contract and
negligence. (Doc. 15). On April 4, 2017, the City filed its
Motion to Dismiss Count VII of Plaintiff's Complaint
(“the City's second motion to dismiss”)
pursuant to Fed.R.Civ.P. 12(b)(6) (Doc. 17), and on the same
day, filed its Answer to Amended Complaint (Doc. 18), which
did not include its response to Count 7 of Plaintiff's
Amended Complaint since the City's second motion to
dismiss solely addressed Count 7. The Court denied the
City's second motion to dismiss (Doc. 28) after the
parties briefed their arguments (Docs. 22 & 23). The City
filed its Answer to Count 7 of Plaintiff's Amended
Complaint (Doc. 29) on May 16, 2017, and the remaining City
Defendants filed their answers (Docs. 30-32) on May 19, 2017.
the Court entered its Scheduling Order (Doc. 34), it granted
a motion to withdraw that was filed by Plaintiff's
counsel (Docs. 38 & 39). After a status conference, the
Court suspended the deadlines in the Scheduling Order to
afford Plaintiff the opportunity to retain alternate counsel
by November 7, 2017 (Doc. 43). Plaintiff failed to retain
alternate counsel by the prescribed date, so the Court held
another status conference and again extended the time in
which Plaintiff could retain alternate counsel (Doc. 45).
Plaintiff still failed to retain alternate counsel, so the
Court entered new deadlines (Docs. 45-46).
August 29, 2018, the City Defendants filed their instant
Motion for Summary Judgment (Doc. 49) to which Plaintiff
filed his response (Doc. 61) and the City Defendants filed
their reply (Doc. 65). The motion is fully briefed and ripe
an African-American male, was hired in August 2000 by the
City as a “Maintenance Mechanic” (Doc. 15,
¶¶ 9 & 15). As a Maintenance Mechanic,
Plaintiff was responsible for various groundskeeping
activities that included trimming trees, bushes, and hedges;
cultivating and weeding flower beds; and trimming the grass.
(Id., ¶ 16). After a six-month working test
period, Plaintiff became a permanent classified services
employee with the City and was assigned to the Mobile Police
Department (“MPD”) at its headquarters building.
(Id., ¶ 15). Plaintiff's responsibilities
at the MPD headquarters included general building maintenance
(Id., ¶ 16). Specifically, Plaintiff maintained
machinery such as boilers, air conditioners, and heating
facilities; plumbing fixtures; carpentry; and electrical
2008, Plaintiff applied for and received the position of
Building Maintenance Supervisor. (Id., ¶¶
17-18). By August 2009, Plaintiff completed a one-year
probationary placement for the position, which became
permanent. (Id., ¶¶ 18-19). As Building
Maintenance Supervisor, in addition to his general building
maintenance responsibilities, Plaintiff was given supervisory
responsibilities over two Maintenance Mechanics,
contracted-for janitorial services, Public Service workers,
and court-ordered community service workers. Plaintiff also
retained maintenance responsibilities for the facilities'
machinery and equipment. (Id., ¶ 20).
November 27, 2013, Plaintiff filed his first lawsuit in this
Court, in which he alleged racial discrimination, among other
claims for relief, against the City, the Mayor of the City,
the former Mayor of the City, and the former Police Chief of
the City (“Young I lawsuit”). Young v. City
of Mobile, No. 1:13-cv-00586-KD-B (S.D. Ala. Nov. 27,
2013). Plaintiff filed his complaint after the Mobile County
Personnel Board (the “MCPB”) reversed the
decision to demote Plaintiff (Doc. 15, ¶ 25) because of
the MCPB's “inability or unwillingness to address
Plaintiff's racial discrimination charges”
(Id., ¶ 26). This Court granted summary
judgment pursuant to Fed.R.Civ.P. 56 in favor of Defendants
and against Plaintiff. Young I, Docs. 110 & 111.
After Plaintiff's Motion to Alter, Amend or Vacate
pursuant to Fed.R.Civ.P. 59(e) was denied by this Court,
Plaintiff appealed its decision, which was dismissed for lack
of jurisdiction. Id. at Docs. 112, 117, 118, &
October 2015 and March 2016, Defendant Greeley was the
Commander of the Property Unit for the MPD and
Plaintiff's direct supervisor. Defendant Greeley was
succeeded by Christopher Levy as the Commander of the
Property Unit and held that position until July 2017.
Following the decision of the appeals court, Plaintiff
maintained his position as Building Maintenance Supervisor;
however, while his official duties were not modified, his
duties would vary based on the needs of the department. (Doc.
49-1, ¶ 4; Doc. 49-2, ¶ 4). For example, Defendant
Greeley stated, during his tenure, the community service
detail was moved to a different department and was no longer
administered by the Property Unit, which occurred around
April 2015. (Doc. 49-1, ¶ 4; Doc. 15, ¶ 33). Mr.
Levy stated, during his tenure, he handled some of
Plaintiff's duties because Plaintiff failed to perform
them. (Doc. 49-2, ¶ 4). Both Defendant Greeley and Mr.
Levy stated they were not aware of Plaintiff's previous
lawsuit for racial discrimination. (Doc. 49-1, ¶ 5; Doc.
49-2, ¶ 5).
Standard of Review
party in a lawsuit may move a court to enter summary judgment
before trial. Fed.R.Civ.P. 56(a) and (b). Summary judgment is
appropriate when the moving party establishes there is no
genuine dispute as to any material fact and the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(a); see also Greenberg v. BellSouth Telecomms.,
Inc., 498 F.3d 1258, 1263 (11th Cir. 2007)
(“Summary judgment is appropriate ‘if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show there is no genuine [dispute] as to any material fact
and that the moving party is entitled to judgment as a matter
of law.'”). “[T]he substantive law will
identify which facts are material.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
2510, 91 L.Ed.2d 202 (1986); see also Ritchey v. S.
Nuclear Operating Co., Inc., 423 Fed.Appx. 955 (11th
Cir.) (quoting Anderson). At the summary judgment
juncture, the court does not “weigh the evidence and
determine the truth of the matter, ” but solely
“determine[s] whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249, 106 S.Ct.
at 2511. Only disputes about the material facts will preclude
the granting of summary judgment. Id.
movant bears the initial burden of proof. Celotex,
477 U.S. at 323, 106 S.Ct. at 2552. A party must support its
assertion that there is no genuine issue of material fact by
“citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .
admissions, interrogatory answers, or other materials”
or by “showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Fed.R.Civ.P. 56(c)(1). The
admissibility of evidence is subject to the same standards
and rules that govern admissibility of evidence at trial.
Clemons v. Dougherty County, 684 F.2d 1365, 1369 n.5
(11th Cir. 1982) (citing Pan-Islamic Trade Corp. v. Exxon
Corp., 632 F.2d 539, 556 (5th Cir. 1980)).
the movant meets its burden under Fed.R.Civ.P. 56, the
non-movant must go beyond the pleadings and designate
specific facts showing there is a genuine issue for trial.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986). “A genuine issue of material fact
exists when ‘the evidence is such that a reasonable
jury could return a verdict for the nonmoving
party.'” Moore ex rel. Moore v. Reese, 637
F.3d 1220, 1232 (11th Cir. 2011) (quoting Anderson,
477 U.S. at 248, 106 S.Ct. at 2510). The court must view the
facts and draw all reasonable inferences in favor of the
nonmoving party. Id. (citing Rosario v. Am.
Corrective Counseling Servs, Inc., 506 F.3d 1039, 1043
(11th Cir. 2007)); Greenberg, 498 F.3d at 1265
(“We view the evidence and all factual inferences
therefrom in the light most favorable to the party opposing
the motion.”). However, to avoid summary judgment, the
nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material
facts.” Matsushita, 475 U.S. at 586, 106 S.Ct.
at 1356 (citations omitted). Conclusory assertions,
unsupported by specific facts, presented in affidavits
opposing the motion for summary judgment are likewise
insufficient to defeat a proper motion for summary judgment.
Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871,
888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).
“Speculation does not create a genuine issue
of fact.” Cordoba v. Dillard's, Inc., 419
F.3d 1169, 1181 (11th Cir. 2005) (citation omitted) (emphasis
in original). If the evidence is merely colorable or is not
significantly probative, summary judgment may be granted.
See Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511
(citations omitted). In short, summary judgment is proper
after adequate time for discovery and upon motion against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case.
Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.
Discussion and Analysis
City Defendants move the Court for summary judgment on all
eight (8) claims that are brought by Plaintiff: violation of
Fourteenth Amendment due process pursuant to 42 U.S.C. §
1983; violation of the First Amendment right to free speech
pursuant to 42 U.S.C. § 1983; violation of the First
Amendment right to petition pursuant to 42 U.S.C. §
1983; violation of Title VII, 42 U.S.C. § 2000e-3;
violation of 42 U.S.C. § 1981; violation of due process
under the Constitution of Alabama of 1901; breach of
contract; and negligence.
Court will address the claims in turn after it addresses
Plaintiff's Motions for Leave to File Affidavits and the
City Defendants' Motion to Strike.
Motions for Leave to File Affidavits and Motion to
Plaintiff's Motions for Leave to File Affidavits (Docs.
60 & 62) he requests the Court's leave to file his
affidavits (Doc. 60, at 1-14; Doc. 62, ¶¶ 1-4) and
attachments in support (Doc. 60, at 16-42) to oppose the City
Defendants' Motion for Summary Judgment (Doc. 49). A
response in opposition to Plaintiff's motions was not
filed. Therefore, Plaintiff's Motions for
Leave to File Affidavits (Doc. 60 & 62) are
GRANTED and the Court will take under
submission Plaintiff's affidavits (Doc. 60, at 1-14; Doc.
62, ¶¶ 1-4) and attachments in support (Doc. 60, at
16-42) to oppose the City Defendants' Motion for Summary
Judgment (Doc. 49).
City Defendants' Motion to Strike,  they argue
certain parts of Plaintiff's second affidavit should be
struck because they contain statements that are not factually
supported. “An affidavit or declaration used to support
or oppose a motion[ for summary judgment] must be made on
personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent
to testify on the matters stated.” Fed.R.Civ.P.
56(c)(4). “If a party fails to properly support an
assertion of fact . . . as required by Rule 56(c), the court
may . . . issue any other appropriate order.”
Fed.R.Civ.P. 56(e)(4). The City Defendants argue the Eleventh
Circuit has consistently struck affidavit statements that
were conclusory and speculative. See, e.g., Evans v.
Books-A-Million, 762 F.3d 1288, 1295 (11th Cir. 2014)
(upholding the district court's decision to strike
affidavit statements that were conclusory and speculative
because the affidavit statements “did not provide
specific, supporting facts regarding, for example, the amount
of other employees' salaries compared to hers, the
details of other employees' financial advancement, or Mr.
Dickson's job performance, duties and
City Defendants challenge the following statements from
Plaintiff's second affidavit:
1. I hereby confirm verify via this Affidavit Number 2 that
each of these duties were taken away without due process of
law or hearing and were designed to inflict harm on me, both
physically and psychologically, which I also confirm - and
was executed by the Defendants in retaliation for me having
attempted to vindicate my rights guaranteed by the 1st and
14th Amendments to the United States Constitution, Alabama
Constitution, and various laws. (Doc. 62, ¶ 3).
2. Based on my understanding, the merit system act that
created the Mobile County Personnel Board (MCPB) is
tantamount to a contract that also includes guarantees
secured by law that cannot be seized or taken away without
due process of law. (Doc. 62, ¶ 3).
3. There are procedures that mandate and dictate without
discretion what an Appointing Authority shall do prior to
demotion, suspension, or termination. These procedures carry
the force and effect of law. Once granted, they cannot be
taken away without due process of law. Therefore, the State
procedure as mandated therein, when violated does implicate
the 14th Amendment as the denial of ...