United States District Court, M.D. Alabama, Northern Division
H. RENEE JAMES, Plaintiff,
v.
CITY OF MONTGOMERY, Defendant.
MEMORANDUM OPINION AND ORDER
ANDREW
L. BRASHER UNITED STATES DISTRICT JUDGE.
Plaintiff
H. Renee James brought this employment discrimination action
against her former employer, the City of Montgomery (the
“City”), [1] alleging (1) race and sex discrimination
under Title VII of the Civil Rights Act, as amended, 42
U.S.C. §§ 2000e et seq. (“Title
VII”), and 42 U.S.C. § 1983 (“§
1983”); (2) race discrimination under 42 U.S.C. §
1981 (“§ 1981”); and (3) retaliation under
Title VII and § 1981.[2] (Doc. 85). This matter comes before the
Court on the City's Motion for Summary Judgment. (Doc.
114). For the reasons stated below, the motion is due to be
granted.
BACKGROUND
James,
an African American female, was employed by the City as a
police officer for fourteen years. From June 2010 until June
2015, James worked as a detective in the Criminal
Investigations Division (“CID”). Specifically,
from June 2010 until approximately February 2015, James was a
Robbery detective in the Major Crimes Bureau and was the only
African American female assigned to that bureau. From
approximately February 2015 until June 2015, James was a
detective in the General Crimes Bureau.[3] And in June 2015,
James was reassigned to the Patrol Division as a Corporal and
eventually promoted to Sergeant.[4] While employed by the City,
James was subject to multiple disciplinary actions, which,
under the City's progressive discipline policy,
ultimately led to her termination in November 2017.
I.
James's Relevant Discipline History
A.
2013 Suspension
On
April 16, 2013, when James was on her way to work, she
received a call from her daughter, who was on the school bus.
James's daughter informed James that a boy hit her during
a fight on the bus. After receiving her daughter's call,
James activated her emergency equipment on her patrol
vehicle, pulled her vehicle in front of the bus to stop it on
its route, entered the bus and removed the boy, and detained
him in the back of her vehicle until a county deputy arrived
at the scene.[5] This incident occurred while James was off
duty and outside of the police jurisdiction of the City of
Montgomery. According to James, immediately after the
incident, she fully disclosed the details to her supervisor,
Sergeant Hall (white male), [6] but Sgt. Hall failed to notify
CID Command[7] of the incident and told the Commander of
the CID, Major Bryan Jurkofsky (white male), that James did
not fully disclose the incident.
James's
conduct related to this incident violated multiple policies
established by the City and the Police Department. As a
result, James was charged with violating the following
policies: (1) Article II, Section 2.102 Duties of Responsible
Employment (Engaging in any activity which may reflect
negatively on the integrity, competency, or ability of the
individual to perform his/her duty, or may reflect negatively
on the Department); (2) Article II, Section 2.111 Duty in Off
Duty Arrest; and (3) Article II, Section 2.102 Duties of
Responsible Employment (Prompt and accurate reporting of all
official matters).
Under
the City's progressive discipline policy, James's
offense was considered a Category B-Major Violation. A
Category B violation can begin at any of the five discipline
steps. Though this was James's first Category B offense,
due to the seriousness of the offense, the recommended
disciplinary action began at Step 3 under the policy, which
has a punishment range of a five (5) to fifteen (15) day
suspension. Major Jurkofsky recommended to Chief of Police
Kevin Murphy that James be suspended for 120 working hours
and required to attend mandatory counseling for anger
management. Chief Murphy upheld Major Jurkofsky's
recommendation and made the same recommendation to Director
of Public Safety Christopher Murphy (“Director
Murphy”). James waived her right to a hearing before
the Mayor, and on June 12, 2013, the Mayor issued his
decision to suspend James for 120 working hours. James was
suspended from July 10 until July 30, 2013.
Sometime
later in 2014, James observed an African American male, who
had been arrested and appeared to have been beaten, being
brought into the CID. According to James, in relation to this
incident, Detective Christopher Hogan (white male) was
suspended for violating the Use of Excessive Force policy in
some way.[8]
B.
2015 Suspension
On
February 8, 2015, 15-year-old Marquise Woodward was arrested
by another officer and encountered James during the booking
process. Woodward's father was convicted in 2008 of
murdering a Montgomery police officer. When Woodward claimed
that the police framed his father, James told Woodward that
his father had killed a cop and that he was a loser. The next
day, Woodward's mother contacted Sergeant Bruce Thornell
(white male), James's supervisor at the time, to file a
complaint against James regarding the incident.[9]
On
February 19, 2015, Sgt. Thornell met with James to discuss
the February 8, 2015 incident and to discuss James being
tardy that day without notifying him. But in the meeting,
James, who had previously been counseled for disrespectful
behavior toward her supervisors, became hostile and
disrespectful. Sgt. Thornell contacted another sergeant,
Sergeant T.D. James (black male), to come to his office to
serve as a witness. After the incident, Lieutenant C.J.
Coughlin obtained statements from James, Sgt. Thornell, and
Sgt. James. According to Sgt. James's statement, Sgt.
James informed Sgt. Thornell after the incident that
James's behavior was inappropriate and needed to be
addressed. In addition, Sgt. James stated that James
exhibited a lack of respect for Sgt. Thornell during the
entire conversation and that, during his time with the
department, he had never witnessed that type of interaction
between a supervisor and subordinate. In James's
statement, she admitted that she lacked tact and diplomacy
and used a “less than amicable disposition and tone
when expressing matters of concern with Sgt. Thornell.”
She also described her discussion with Sgt. Thornell as
“extremely argumentative” and stated that
Woodward's father was “in fact the
‘loser' [she] categorized him as.” James was
briefly relieved of her duties, [10] but she was reinstated by
Chief of Police Ernest N. Finley within the hour on the same
day.
Based
on these two incidents, James was ultimately charged with
several violations of departmental and city handbook
policies, including: (1) Article I, Section 1.401 Human
Relations, (2) Article II, Section 2.102 Duties of
Responsible Employment (Respect to the Public), (3)
Insubordination or lack of cooperation, (4) Abuse of
authority over employees or citizens, (5) Acting in conflict
with the interests of the City, and (6) Boisterous or
disruptive activity. Due to the nature of James's
offenses, they were again classified as Category B
violations, which moved her to Step 4 under the City's
progressive discipline policy. The punishment range for a
Category B, Step 4, violation is 16 to 29 days. For each
incident-the February 8 incident and the February 19
incident-Major William Simmons, the Commander of the CID at
the time, recommended a 232-hour, or 29-working day,
suspension to Chief Finley.
On June
4, 2015, James was served with a statement of disciplinary
charges for these incidents, and on June 24, 2015, Chief
Finley met with James. On July 7, 2015, Finley overturned the
recommendation and reduced the recommended suspension from
464 cumulative hours to 232 cumulative hours, also noting
that effective June 5, 2015, James had been transferred to
the Patrol Division. Chief Finley forwarded the
recommendation to Director Murphy. After James's hearing
before the Mayor, the Mayor issued a decision to suspend
James for 232 hours, or 29 working days.[11] Prior to
James serving her suspension, Chief Finley was advised that,
based on practice, James's suspension should have been 29
calendar days, not working days. Thus, James's suspension
was ultimately reduced to 29 calendar days, which she served
from November 23, 2015, until December 21, 2015.
According
to James, James's February 19, 2015 discussion with Sgt.
Thornell was not the first hostile discussion between them.
James claims that Sgt. Thornell shouted at and treated her in
a hostile manner almost daily in 2013, and that during this
time period, Sgt. Thornell told her that she was “just
like his wife” and that women “are all the
same.” James did not report any of these incidents to
her superiors until 2015. James also claims that Sgt.
Thornell was difficult to work with for everyone and that he
treated other subordinates in a hostile manner, including
Corporal G. Schnupp (white male), who she claims had
similarly heated or more heated conversations with Sgt.
Thornell but was never charged with insubordination or
boisterous and disruptive activity.
C.
2017 Termination
On
September 20, 2017, James sent an email to Captain Albert
Wheeler, which was solicited, regarding her opinion related
to retention issues in the Police Department. On September
26, 2017, James sent a different, unsolicited email to Chief
Finley, Chief of Operations John Bowman, and Chief of Staff
Chris Wingard regarding her opinion related to retention
issues “just in case Wheeler didn't forward [her]
message through to any of [them].” After receiving
James's email and contacting Mickey McInnish, Senior
Staff Attorney in the City's Legal Department, Chief
Bowman requested that Major Shannon Youngblood, Commander of
Sector B at the time, review the email and recommend
disciplinary action based on the content of the email. For
instance, the email stated, in part: “This department
is being run like a dictatorship in a small Middle Eastern
country.”
Major
Youngblood determined that James's email violated Article
II, Section 2.102 Duties of Responsible Employment (Respect
to Superior Officers). Aware of James's pending lawsuit
alleging disparate treatment, Major Youngblood contacted the
Legal Department to determine how to proceed with
disciplinary action. Major Youngblood was advised that, in
her complaint, James referenced a white detective, Detective
Geier, who was allegedly charged with violating the same
policy when he was disrespectful to his African-American
female supervisor, so Major Youngblood pulled Det.
Geier's disciplinary action and confirmed that the
detective had been charged with the same violation-Respect to
Superior Officers. In that case, the violation was treated as
a Category B violation. Given the parallel nature of the
offenses, Major Youngblood determined that James's
offense was a Category B violation.
This
was James's third Category B violation, and based on her
previous disciplinary actions, this placed her at Category B,
Step 5, under the progressive discipline policy, which is
termination. Following the progressive discipline policy, on
October 16, 2017, Major Youngblood recommended to Chief
Finley that James be terminated. After reviewing the evidence
and meeting with James per her request under the progressive
discipline policy, Chief Finley upheld Major Youngblood's
recommendation and likewise recommended to Director Murphy
that James be terminated. The Mayor issued his decision to
terminate James on November 21, 2017, and James was
terminated on November 28, 2017.
II.
James's Complaints of Race and Sex
Discrimination
On
January 23, 2015, James met with Deputy Chief Ron Cook and
verbally complained about alleged hostility-specifically from
Sgt. Thornell-and incidents that she felt were clear race and
sex discrimination “handed down by the CID Command,
” including being denied a transfer from Robbery to
Homicide. At two times during this meeting, James claims that
Deputy Chief Cook made inappropriate sexual comments
regarding her clothing while seductively licking and biting
his lips. When asked by Deputy Chief Cook whether she wanted
him to have CID Command investigated or whether she wanted
him to handle it discreetly by speaking with Major Jurkofsky,
James told him she did not mind if he spoke with Major
Jurkofsky-she just wanted it to be handled. On February 5,
2015, James contacted Chief Deputy Cook to see if he had
spoken with Major Jurkofsky because she claimed Sgt.
Thornell's treatment toward her had worsened. Deputy
Chief Cook advised her that he had not contacted anyone
regarding their conversation.
According
to James, after she made complaints of race and sex
discrimination, she received letters of reprimand for
“miniscule things” and her performance was
“nitpicked.” Specifically, on March 4, 2015,
Sergeant Hudson, who was James's supervisor in the
General Crimes Bureau, asked James to provide a doctor's
excuse because she called in sick with less than 40 hours of
accumulated sick time available. Because James failed to
provide a written excuse, she received a Written Warning.
This was the first time James had been asked by CID
supervisors to provide a doctor's excuse after being out
sick.
In
addition, James claims that at some point she was
“repeatedly” passed over or not considered for a
transfer to the Homicide unit.[12] According to James, the
Homicide unit asserted that James's transfers were denied
because a letter of transfer must be submitted through the
CID Chain of Command to be considered. But James claims that
the policy regarding transfer letters is generally only true
for officers who are assigned to other bureaus, such as the
Patrol Division, not for officers who are assigned to the CID
as an investigator or in an investigative capacity. She
claims the latter are shown courtesy by being allowed to
inter-divisionally transfer without a letter of transfer.
On
March 13, 2015, James provided a written complaint-a 23-page
letter- to Chief Finley outlining what she believed to be
racially and sexually discriminatory behavior as well as
retaliation. One of her complaints was that CID Command finds
a way to rectify complaints without involving Internal
Affairs or written discipline when the officer is part of
their “clique” or “one of their white
counterparts” but not when the officer is black.
On
March 17, 2015, Rudy Martinez was appointed, with the
assistance of another investigator, to conduct an
investigation regarding James's allegations that the CID
discriminated against individuals with respect to how they
were disciplined, promoted, and moved within the department.
Martinez was selected by the Director of City Investigations
because he did not know any of the participants and did not
answer to anyone involved in the incident. His investigation
included interviews of co-workers and supervisors in
James's department, a review of documents and case files
related to other complaints made by James to City
Investigations, a review of case files of investigations
James conducted in her capacity as a detective, and an
examination of the race and sex of individuals recently
promoted and in current positions within the Police
Department. Neither the Director of City Investigations nor
the Police Department Command Staff ordered or directed the
outcome of Martinez's investigation.
James
filed her initial EEOC Charge on May 8, 2015, alleging race
and sex discrimination and retaliation based on her
complaints of discrimination. James filed her second EEOC
Charge on November 30, 2015, again alleging race and sex
discrimination and retaliation. The EEOC issued James's
Notice of Right to Sue letter on May 8, 2017, and James filed
this action on August 4, 2017.
STANDARD
OF REVIEW
Summary
judgment is appropriate when the “movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party “has the burden of
either negating an essential element of the nonmoving
party's case or showing that there is no evidence to
prove a fact necessary to the nonmoving party's
case.” McGee v. Sentinel Offender Servs., LLC,
719 F.3d 1236, 1242 (11th Cir. 2013).
If the
moving party meets its burden, the nonmoving party must then
“go beyond the pleadings and by her own affidavits, or
by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that
there is a genuine issue for trial.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (internal
quotations omitted). A genuine dispute of material fact
exists when the nonmoving party produces evidence allowing a
reasonable fact finder to return a verdict in its favor.
Waddell v. Valley Forge Dental Assocs., 276 F.3d
1275, 1279 (11th Cir. 2001). But “unsubstantiated
assertions alone are not enough to withstand a motion for
summary judgment.” Rollins v. TechSouth, Inc.,
833 F.2d 1525, 1529 (11th Cir. 1996). The Court views the
evidence, and all reasonable inferences drawn therefrom, in
the light most favorable to the nonmoving party.
Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th
Cir. 2010).
DISCUSSION
I.
Preliminary Matters
For the
most part, James has failed to create a factual record on
which the Court can evaluate the claims in her Complaint. The
only evidence she submitted in opposition to summary judgment
is her own declaration (Doc. 122-1), which generally
reasserts her Complaint's allegations. But that
declaration is full of inconsistencies, speculation,
ambiguities, and statements made without personal knowledge.
See Larken v. Perkins, 22 Fed.Appx. 114, 115 (4th
Cir. 2001) (noting that plaintiff's “self-serving
affidavit containing conclusory ...