James v. City of Montgomery

          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 ...