United States District Court, N.D. Alabama, Eastern Division
ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
review of the motion and supporting evidentiary materials,
and for the reasons explained below, the court WILL
GRANT summary judgment in favor of Talladega.
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).
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.).
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).
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
• 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, ...