Phillips v. City of Birmingham

          MEMORANDUM OPINION

          JOHN E. OTT CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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).^[1] Defendant the City of Birmingham (“the City”) removed the case to this court.^[2] 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 be granted.

         I. STANDARD OF REVIEW

         Under 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.

         The 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.

         II. STATEMENT OF FACTS

         Plaintiff 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).

         Phillips 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).

         In 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).

         All 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”).^[3] (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^[4] arrests and three traffic stops, reported one FIO, and issued no^[5] 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 following:

• “Only one traffic stop in a month is not acceptable. No traffic stops = no citations. (Id. at 60).

• “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).

         There 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. at 4).

         Lt. 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.).

         On June 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).

         The 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 share. (Id.).

         At some point, Roderick Foster, who was Lyons' husband according to Phillips, ^[6] 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).

         While 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 ...