Husk v. City of Talladega

          MEMORANDUM OPINION

          ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE

         The City of Talladega Police Department fired Plaintiff Joel Husk after he violated Department policy by posting racially insensitive material on his personal Facebook account. Mr. Husk, proceeding pro se, filed this lawsuit against the City of Talladega (“Talladega”) alleging that Talladega treated him differently than another employee who violated the same policy but was not fired. He brings his claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and 42 U.S.C. § 1981.

         Currently before the court is Talladega's motion for summary judgment. (Doc. 18). The court entered an order directing Mr. Husk to file his response in opposition on or before October 25, 2018. (Doc. 21). The court instructed Mr. Husk that his response to the motion must conform to the requirements set forth under Federal Rule of Civil Procedure 56 and advised him of the possible consequences if he failed to adequately respond. (Id. at 1-2). Finally, a copy of Rule 56 along with instructions regarding the preparation and submission of briefs and evidentiary materials was attached to the order. (Id. at 3-12). Despite this clear instruction, Mr. Husk has failed to file a response to Talladega's motion for summary judgment.

         Though Mr. Husk failed to oppose Talladega's motion, the court “cannot base the entry of summary judgment on the mere fact that the motion [is] unopposed but, rather, must consider the merits of the motion.” United States v. One Piece of Real Property Located at 5800 SW 74th Ave., Miami, 363 F.3d 1099, 1101 (11th Cir. 2004) (citing Dunlap v. Transamerica Occidental Life Ins. Co., 858 F.2d 629, 632 (11th Cir. 1988)). This is because, even when a motion for summary judgment is not opposed, “the movant is not ‘absolved of the burden of showing that it is entitled to judgment as a matter of law.'” Reese v. Herbert, 527 F.3d 1253, 1268-69 (11th Cir. 2008).

         In evaluating whether an unopposed summary judgment motion should be granted, the court is not required to perform a “sua sponte review of all the evidentiary materials on file, ” but must only “ensure that the motion itself is supported by evidentiary materials.” One Piece, 363 F.3d at 1101-02. Therefore, the court's review of the record is limited to “the materials submitted by [Talladega] in support of its motion.” Reese, 527 F.3d at 1269 n.26.

         Upon review of the motion and supporting evidentiary materials, and for the reasons explained below, the court WILL GRANT summary judgment in favor of Talladega.

         I. BACKGROUND

         The court views the evidence in the light most favorable to the nonmoving party. Baas v. Fewless, 886 F.3d 1088, 1091 (11th Cir. 2018). The Talladega Police Department (“TPD”) is a subdivision of the City of Talladega, Alabama. (Doc. 8 at 6; Doc. 21-1 at 4-5; Doc. 20-3 at 2). Mr. Husk, a Caucasian male, began working as a TPD police officer in July 2014. (Doc. 20-1 at 4-5; Doc. 8 at 2). Throughout his employment, Mr. Husk actively maintained a personal Facebook page. (Doc. 20-1 at 7). On his Facebook page, Mr. Husk posted photographs wearing his TPD uniform and was Facebook friends with several city employees. (Id. at 12-13, 15; Doc. 20-3 at 2-3).

         The use of social media by a Talladega police officer is governed by the City's Policy and Procedures Manual, which Mr. Husk received on the day he was hired. (See Doc. 20-1 at 16). The “Code of Conduct and Social Media Policy, ” requires officers to “adhere to conduct that does not reflect negatively on the Police Department, its members, or members of other agencies or the City of Talladega.” (Doc. 20-3 at 3-4). The Manual defines conduct unbecoming of a sworn officer as “that which brings the department into disrepute or reflects discredit on the sworn officer as a member of the department, or that which impairs the operation or efficiency of the department or its officers.” (Id.).

         In the fall of 2016, Talladega became aware that one of its police officers shared a racially insensitive post on Facebook. Talladega referred the matter to the City Manager, who is authorized to discipline, suspend, or terminate city employees. (Id. at 2, 5-6). The City Manager determined that Mr. Harris, a TPD police officer of Native American ancestry, shared a post on his own Facebook page that included a photograph of fallen soldiers lying on a battlefield with the words, “Over 620, 000 white people died to free black slaves and still to this day not even 1 thank you.” (Doc. 20-1 at 57; Doc. 20-4 at 3-4, 9). The City Manager immediately scheduled a pre-disciplinary meeting with Mr. Harris. (Doc. 20-3 at 5-6). During the meeting, Mr. Harris apologized for sharing the material and agreed to remove the post from his Facebook page within the hour. (Id. at 5; Doc. 20-4 at 5). The City Manager punished Mr. Harris for this violation with a six-day suspension without pay. (Doc. 20-3 at 5). The City Manager later testified that he did not know Mr. Harris was of Native American ancestry. (Id. at 6).

         A couple of months later, Mr. Husk shared on his own Facebook page the same racially insensitive post previously circulated by Mr. Harris. (Id. at 5, 8, 9). He also shared the following posts:

• A photograph of Barack Obama next to a photograph of a Black Lives Matter protest with the words, “Was Dallas a terrorist attack? Yes! Carried out by Obama's own homegrown terrorist group!” (Doc. 20-1 at 56).

• A photograph of Klansmen carrying a Confederate flag next to a photograph of a Black Lives Matter protest with the words, “The KKK is a hate group right? Isn't it about time we start being honest in America . . . and admit that #blacklivesmatter is also a hate group?” (Id. at 55).

• A photograph of Melania Trump with the words, “Fluent in Slovenia, English, French, Serbian, and German, ” next to a photograph of Michelle Obama with the words, ...