Young v. City of Mobile

          MEMORANDUM OPINION AND ORDER

          TERRY F. MOORER UNITED STATES DISTRICT JUDGE

         Pending 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”)

         Motion 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.

         Also 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)^[1] 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

         GRANTED IN PART AND DENIED IN PART.

         I. Jurisdiction

         The 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).

         The parties do not contest personal jurisdiction or venue, and there are adequate allegations to support both.

         II. Procedural and Factual Background

         A. Procedural 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).

         On 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^[2] 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.

         After 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).

         On 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 for review.

         B. Factual Background

         Plaintiff, 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 units. (Id.).

         In July 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).

         On 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, & 126.

         Between 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).

         III. Standard of Review

          A 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)^[3]. 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.

         The 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)).

         Once 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.

         IV. Discussion and Analysis

          The 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.

         The 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.

         A. Motions for Leave to File Affidavits and Motion to Strike

          In 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.^[4] 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).

         In the City Defendants' Motion to Strike, ^[5] 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 evaluations”).

         The 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 ...