United States District Court, N.D. Alabama, Southern Division
E. OTT CHIEF UNITED STATES MAGISTRATE JUDGE
Michael Phillips filed a complaint in the Circuit Court of
Jefferson County, Alabama, alleging he was discriminated
against by his former employer, the City of Birmingham,
because of his race in violation of Title VII of the Civil
Rights Act of 1964 and 42 U.S.C. §§ 1981 and 1983.
(Doc. 1-1 at 5-9). Defendant the City of Birmingham
(“the City”) removed the case to this
court. Now before the court is the motion for
summary judgment filed by the City. (Doc. 13). The motion has
been fully briefed, (docs. 13-1, 14, 15), and is now ripe for
decision. For the reasons that follow, the motion is due to
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(c), summary judgment is
proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The party asking for
summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and
identifying those portions of the pleadings or filings which
it believes demonstrate the absence of a genuine issue of
material fact. Id. at 323. Once the moving party has
met its burden, Rule 56(e) requires the non-moving party to
go beyond the pleadings and by his own affidavits, or by the
depositions, answers to interrogatories, and admissions on
file, designate specific facts showing there is a genuine
issue for trial. See Id. at 324.
substantive law identifies which facts are material and which
are irrelevant. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). All reasonable doubts about the
facts and all justifiable inferences are resolved in favor of
the non-movant. See Fitzpatrick v. City of Atlanta,
2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. If the evidence is merely
colorable, or is not significantly probative, summary
judgment may be granted. See id. at 249.
STATEMENT OF FACTS
Michael Phillips is a white male who was employed by the City
of Birmingham as a police officer from 2008 until May 2018.
(Doc. 13-2 (“Phillips Dep.”) at 11-13).
Phillips' last assignment was at the North Police
Precinct, where he worked for approximately seven years as a
patrol officer. (Id. at 12-13). As a patrol, or
beat, officer, he was assigned to certain areas of the city,
answered calls, and attended community meetings, among other
things. (Id. at 14). Patrol officers were required
to attend the monthly neighborhood community meetings where
the officer would give a report to the residents.
(Id. at 28-29). Officers had to complete a report
after the community meetings stating the date, attendance
numbers, community concerns, and how the officer planned to
address those concerns. (Id. at 30).
was also designated at a Field Training Officer
(“FTO”) in 2013 or 2014. (Id. at 16-17).
As an FTO, Phillips would help train new officers as they
came into the North Precinct. (Id. at 17). FTOs are
expected to be a role model for new officers and ensure those
new officers understand the expectations of the job, the
policies of the department, and correct application of the
concepts and procedures learned at the police academy. (Doc.
13-4 (“Gary Aff.”) at 2). The FTO designation
gave Phillips a five percent pay increase, which amounted to
approximately $160.00 per month additional pay. (Phillips
Dep. at 17, 25-26).
February 2017, Lieutenant Donald Gary, an African American
male, was assigned as the Unit Commander of the North Police
Precinct and became Phillips' supervisor. (Gary Aff. at
2). Shortly after his arrival, Lt. Gary met with each officer
in the North Precinct, including Phillips, and communicated
his performance expectations. (Id.; Phillips Dep. at
33). Lt. Gary discussed with Phillips his “standard for
high officer productivity” which included engagement in
the community by attending the designated neighborhood
meetings, providing residents with useful information,
completing monthly reports documenting resident concerns,
inquiring about those concerns, and providing follow-up with
any complaints. (Gary Aff. at 3).
police officers are required to fill out daily reports which
included information regarding the activity that occurred
each day. (Phillips Dep. at 32). Those activity reports were
then used by the sergeants to complete monthly reports
regarding officer activity. (Id. at 32; Gary Aff. at
3-4). The reports included the number of traffic stops,
citations, arrests, and Field Intelligence Observations
(“FIO”). (Gary Aff. at 3-4). Lt. Gary used these
reports to measure an officer's level of activity.
(Id.). In Lt. Gary's first five months at the
North Precinct, the reports show that Officer Phillips made
three arrests and three traffic stops, reported
one FIO, and issued no citations. (Doc. 13-2 at 60-65). The
reports are signed by the sergeant, lieutenant and captain.
(Id.). Some of the forms are also initialed, but it
is unclear whether those initials are those of Phillips or
someone else. (Id.). Additionally, some of the forms
contain comments. (Id.). The comments include the
• “Only one traffic stop in a month is not
acceptable. No traffic stops = no citations. (Id. at
• “Officer Phillips worked 21 days. Need more
FIOs, Good Morning Cards and Traffic Stops. Needs to show
activity, training required action to teach.”
(Id. at 62).
• “Poor Performance for FTO training rookie
officer.” (Id. at 64).
is nothing in the record establishing that these comments
were communicated to Phillips or otherwise discussed with him
in any way. Based on these reports, Lt. Gary concluded that
Phillips “was not an active officer.” (Gary Aff.
Gary also received reports that Phillips was not attending
the required community meetings in Fountain Heights, his
designated area. (Id.; see doc. 13-2 at
68-70). Lt. Gary reviewed the quarterly community concerns
reports compiled by Captain Stevens of the North Precinct to
see what information had been reported by Phillips. (Gary
Aff. at 5-6). The first two quarterly reports from 2017
contained the exact same information. (Id. at 6).
“The fact that the information reported from the
monthly community meetings did not change over the course of
6 months, indicated [to Lt. Gary] that Phillips was either
not attending the meetings as required or disengaged and not
putting forth the effort to take the community's concerns
[seriously] nor address the concerns.” (Id.).
9, 2017, Phillips was sent on a call in the Fountain Heights
area regarding an incident between Bonderia Lyons, the vice
president of the Fountain Heights community association, and
her son. (Phillips Dep. at 20-21). According to Phillips,
Lyons wanted him to arrest her son, but Phillips refused
because the son had not done anything wrong. (Id. at
20). As Phillips was explaining this fact to Lyons, Lyons
began using “all kinds of racial slurs. . . . So after
a rant of cussing and screaming and hollering in the streets,
we had to arrest her for disorderly conduct.”
(Id. at 21).
next day was the monthly community meeting for Fountain
Heights. (Id.). Sergeant Lockett, Lt. Gary, and
Jerry Mason attended the meeting with Phillips because they
knew “tensions were going to be high.”
(Id.). When Phillips was asked to speak at the
meeting, Lt. Gary interpreted Phillips' behavior as
“not interested in being there.” (Gary Aff. at
5). Phillips stated that he did not have any information to
point, Roderick Foster, who was Lyons' husband according
to Phillips,  came to the meeting. (Phillips Dep. at
21). Because Foster had outstanding warrants, Phillips had
been instructed to arrest him if he appeared at the meeting.
(Id.). Therefore, Phillips approached Foster who
pulled out a gun and told Phillips that “he was sent
from God to kill [Phillips] that day.” (Id. at
21-22). Foster was arrested and charged with attempted
murder. (Gary Aff. at 5).
Phillips detained Foster, Lt. Gary and Lyons approached
Phillips. (Phillips Dep. at 22). Lyons stated that
“everything was fine until [Phillips] brought his
cracker *ss to Fountain Heights, and, . . . that [Phillips]
needed to go back over the hill with the rest of them.”
(Id.). Lt. Gary was standing next to Lyons as she
spoke, and others from the Fountain Heights community were
also present. (Id. at 23). Phillips contends Lt.
Gary was “nodding along” to what Lyons said.
(Id.). After this confrontation, Foster, who was
under arrest, refused to ride ...