Edwards v. City of Selma

          ORDER

          JEFFREY U. BEAVERSTOCK UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant the City of Selma's (“Selma”) Motion for Summary Judgment (“Motion”) and Brief in Support (Doc. 15 & Doc. 16), Plaintiff Franklin Edwards' Response in Opposition (Doc. 18), and Selma's Reply. (Doc. 19). The Motion is ripe for review. After careful consideration, the Court GRANTS Selma's Motion for the reasons set forth herein.

         BACKGROUND

         This is a civil rights case. Plaintiff (“Edwards”), an African American man, works in the Selma Fire Department. Plaintiff alleges that his former supervisor, former Fire Chief Toney Stephens (“Stephens”), also an African American man, implemented racially discriminatory promotional procedures that precluded Plaintiff's advancement within the fire department in violation of the 42 U.S.C. § 1981 and the Equal Protection Clause of the Fourteenth Amendment. Specifically, Plaintiff alleges that Stephens carried out a policy whereby promotions to various “Chief-level” positions in the Department were done on a racially consistent basis; when one position was vacated by a member of one race, Stephens would recommend a candidate of the same race to fill that vacancy. For instance, if a position was vacated by a white person, Stephens would recommend a white applicant to fill that position, eliminating Plaintiff from consideration for the position due to his race. Plaintiff also alleges that the City violated his Fourteenth Amendment Due Process rights when he was twice suspended without pay and was not afforded an appellate procedure to dispute his alleged misconduct. Plaintiff argues that the instances of misconduct resulting in his suspension were the result of Stephens abusing his power as Fire Chief and that they were used as pretext to prevent him from receiving a promotion within the Selma Fire Department.

         SUMMARY JUDGMENT STANDARD

         “‘Summary judgment is appropriate only if 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.' Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11^th Cir. 2012) (quotation marks omitted). If that standard is met, the burden shifts to the nonmoving party to ‘come forward with specific facts showing that there is a genuine issue for trial.' Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quotation marks omitted).

         To prevent summary judgment, a factual dispute must be both material and genuine. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is ‘material' if it has the potential of ‘affect[ing] the outcome' of the case. Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1303 (11^th Cir. 2016) (quotation marks omitted). And to raise a ‘genuine' dispute, the nonmoving party must point to enough evidence that ‘a reasonable jury could return a verdict for [him].' Id.” Shaw v. City of Selma, 884 F.3d 1093, 1098 (2018).

         DISCUSSION

         I. PLAINTIFF'S BARE-BONES “§ 1981” CLAIM CAN BE TRANSFORMED INTO A VALID 28 U.S.C. § 1983 CLAIM BECAUSE IT “BEARS THE HALLMARKS OF A § 1983” CLAIM.

         Selma argues it is due summary judgment because Plaintiff's claim for racial discrimination is under the Equal Protection Clause and 42 U.S.C. § 1981, which provide no viable cause of action. Specifically, Selma argues that because Plaintiff failed to invoke 42 U.S.C. § 1983, and relies only on § 1981, he cannot move forward on his discrimination claims. Selma directs the Court to, inter alia, Taliaferro v. Conecuh County, 2005 WL 8158706 (S.D. Ala. 2005), from which it highlights the following excerpt: “Both the Equal Protection Clause and § 1981 claims can only be brought and enforced through 42 U.S.C. § 1983.” Ultimately, Selma's argument here is unpersuasive and, as Plaintiff points out, the Eleventh Circuit has more recently spoken to this precise issue.

         In King v. Butts County, 576 Fed.Appx. 923, *930 (11^th Cir. 2014), the Eleventh Circuit also faced a pleading issue concerning a § 1981 claim that should have been brought under § 1983.

         Like Edwards, the plaintiff in that case failed to cite § 1983 as the statutory provision under which he sought redress. The district court dismissed those claims for the reasons argued by Selma now. However, on appeal, the Eleventh Circuit reversed, analogizing the plaintiff's claims to his other Title VII claims in that lawsuit, noting that the plaintiff had complained that the defendant's conduct was

. . . accomplished under the color of state and local law and that those actions affected his federally-protected rights - both of which are hallmarks of a § 1983 claim. Thus, because King gave Butts County fair and sufficient notice of the nature of and grounds for his § 1983 claim, . . . he may proceed under § 1983 . . .

Id. at 931.

         In his Complaint, Plaintiff makes several allegations in an attempt to hold Selma liable for racial discrimination, including:

Plaintiff was employed as a firefighter by the Selma Fire Department beginning in 2004, and thereafter, was promoted to Engineer and Captain in 2004 and 2007, respectively;

The Mayor of Selma is responsible for making five (5) appointments in the Selma Fire Department, those being: Fire Chief, Assistant Chief, and three Battalion Chief positions. The Selma Fire Department's Fire Chief's recommendations are significantly influential to the mayor's ultimate decisions in these appointments;

That former Fire Chief Toney Stephens made promotional recommendations based upon the race of those vacating positions and applicants, effectively “keep[ing] the racial demographics of the appointments intact; and

In 2016, Plaintiff was passed over for a battalion chief position for a less qualified white applicant. The exiting battalion chief was white. In the summer of 2017, Plaintiff was again passed over for an Assistant Chief position for a less qualified white employee. The exiting Assistant Chief was White. In [sic] or about March 2018, two battalion chief positions came [sic] available. One was previously held by a Caucasian. Plaintiff was not hired . . . The position which was previously held by the Caucasian employee was filled by a Caucasian on or about May 29, 2019. These were consistent with the Chief's unwritten policy of maintaining the racial demographic status quo. Since the Chief Stephens's hiring [sic], every vacancy of appointment positions [sic] has been filled in this manner.

(Doc. 1 at 1 - 3). From these allegations, it is clear that Plaintiff claims that Stephens made promotional recommendations to the Mayor based on a racially discriminatory policy and did so under the color of state and local law. Notwithstanding Selma's objections (Doc. 19 at 4), ^[1]

         Plaintiff's Complaint bears the hallmarks of a § 1983 claim and puts Selma on notice of the nature of and grounds for his claim, i.e., that Selma allowed Stephens to set municipal policy and make final decisions for the Fire Department's promotions and that Selma is liable for Stephens' action. Additionally, Plaintiff's allegations are akin to those found sufficient by courts in this Circuit and elsewhere. See, e.g., Willingham v. City of Valparaiso, 97 F.Supp.3d 1345, 1352 (N.D. Fla. 2015) (“From these facts, the City was on notice that Mr. Willingham believed it liable for the actions of the Mayor . . .”); Reynolds v. Ark. Dep't of Corr., No. 5:07CV00168 JLH, 2008 U.S. Dist. LEXIS 55667, at *8 (E.D. Ark. July 21, 2008) (“Similarly, this Court liberally construes Reynolds's complaint as alleging violations of § 1981 under § 1983.”); Dockery v. Unified Sch. Dist. No. 231, 406 F.Supp.2d 1219, 1224-25 (D. Kan. 2006) (“The court finds defendants' argument that the court should dismiss this claim solely for that reason to be without merit in light of the liberal notice pleading standards of the Federal Rules of Civil Procedure. [. . .] § 1983 creates no substantive rights, but rather creates only a remedy against those who, acting under color of law, violate rights secured by federal statutory or constitutional law. [. . .] § 1981 creates the statutory right for Mr. Dockery's discriminatory discharge claim and § 1983 provides the exclusive remedy for the alleged violation of his statutory right.”) (internal citations and quotations omitted).

         The issue of whether Plaintiff has satisfied the McDonnell Douglas standard for establishing a prima facie case of discrimination, and other issues concerning whether Stephens was a final policymaker related to Fire Department promotions, are addressed below. At this point, the Court only concludes that the facts contained in the Complaint provide Selma notice that Plaintiff sought to vindicate his rights under § 1983. In sum, based on the foregoing allegations, Plaintiff's Complaint is imbued with the hallmarks of a § 1983 claim as described in King and his Complaint should be treated as one in which he seeks redress of a violation of § 1981 "under" § 1983.

         II. DEFENDANT IS DUE SUMMARY JUDGMENT ON PLAINTIFF'S EQUAL PROTECTION CLAIM.

         It is undisputed that Plaintiff has no direct evidence of discrimination. (See, e.g., Doc. 18 at 14). Therefore, in order the prevail on his Equal Protection claims, Plaintiff must make a showing of circumstantial evidence that satisfies the test in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which identified the necessary elements to establish a prima facie violation when an employee "loses out" to another applicant competing for a promotion. See also Crawford v. Western Electric Co., 614 F.2d 1300, 1315 (5th Cir. 1980).

         The elements of a prima facie showing include:

(1) [plaintiff] is a member of a protected class;

(2) he sought and was qualified for positions that [the defendant employer] was attempting to fill;

(3) that despite his qualifications he was rejected; and (4) that after his rejection [the defendant employer] either continued to attempt to fill the positions or in fact filled the positions with [persons outside the plaintiffs' protected class].

Harrington v. Disney Reg'l Entm't, Inc., 276 Fed.Appx. 863, 872-73 (11th Cir. 2007); see also Walker v. Mortham, 158 F.3d 1177, 1187 (11th Cir. 1998) (noting that erroneous dicta requiring a plaintiff to show that the promoted employee had "equal or lesser qualifications" had entered the Eleventh Circuit's articulation of the standard, and reiterating that Crawford governs); see also Harrington, 276 Fed.Appx. 863, 874 (“Appellants argue, correctly, that Harrington and Laney should not have been required to prove that the successful applicant for the promotion, Heinzman, was less or equally qualified. Rather, Heinzman's alleged superior qualifications should have been understood instead as a rebuttal to the initial presumption of discrimination that appellants would then need to show to be pretextual.”).^[2]

         If a plaintiff establishes a prima facie case, then the burden "shifts to the employer to articulate a legitimate, nondiscriminatory reason for [the adverse employment action]. [. . .] If the employer does so, the burden shifts back to the plaintiff to ‘introduce significantly probative evidence showing that the asserted reason is merely a pretext for discrimination.'" Zaben v. Air Prods. & Chems., 129 F.3d 1453, 1457 (11th Cir. 1997) (internal citations omitted).

         Furthermore, the City of Selma cannot be held liable for the acts of Stephens based on a theory of respondeat superior. See Oladeinde v. City of Birmingham 230 F.3d 1275, 1295 (11^thCir. 2000). If Plaintiff is to hold Selma liable, Plaintiff must prove that his claims resulted from one of the following: “(1) an official government policy; (2) a custom or practice so pervasive and well-settled that it assumes the force of law; or (3) the actions of an official fairly deemed to represent government policy.” Oladeinde 230 F.3d at 1295 (citing Denno v. School Bd. Of Volusa County, 218 F.3d 1267, 1276 (11^th Cir. 2000)(citing Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)).

         Selma argues Plaintiff's Equal Protection claims fail as a matter of law because Plaintiff cannot prove municipal liability under this applicable § 1983 framework.

         A. The undisputed facts foreclose any material issue concerning an “official government policy.”

         Selma argues that the first of the three alternatives for holding a municipality liable, i.e. proof of an “official government policy, ” is foreclosed by the undisputed fact^[3] that its official promotional practices are governed by an equal opportunity and non-discrimination policy. The Court agrees. The undisputed fact of Selma's equal opportunity and non-discrimination policy prevents Plaintiff from basing liability on an “official government policy.”

         B. There is no genuine issue of material fact of a custom or practice so pervasive and well-settled as to assume the force of law.

         To establish a custom or practice so pervasive and well-settled that it assumes the force of law, a plaintiff must show: (1) a persistent and wide-spread practice, and (2) actual or constructive knowledge of the custom by the governmental entity. Guardino v. Halifax Health, No. 6:18-cv-2035-Orl-41KRS, 2019 U.S. Dist. LEXIS 19338, at *9 (M.D. Fla. Jan. 10, 2019). To the extent Plaintiff's Equal Protection claims are based on the theory that Stephens' “demographic” rule of promotion constituted a custom or policy that was “so pervasive and well-settled that it assumed the force of law, ” those claims fail as a matter of law because there is no substantially probative evidence that Selma had actual or constructive knowledge of it. Plaintiff's relevant allegations include the following:

There are five appointments made by the mayor of Selma. Those are chief, assistant chief, and three battalion chief positions. The chief, once appointed, gives recommendations and has significant influence on the appointment of other positions. In or about Summer of 2015, Toney Stephens became chief of the Selma Fire Department. Shortly after his employment, he stated that he would keep the racial demographics for the appointments intact. The stated, but unwritten policy, for promotion to these appointments was that when an appointment position was vacated, it would be filled with an applicant of the same race as the existing employee (“white for white” and “black for black”). In 2016, plaintiff was passed over for a battalion chief position for a less qualified white applicant. The existing battalion chief was white. In the summer of 2017, Plaintiff was again passed over for an Assistant Chief position for a less qualified white employee. The existing Assistant Chief was white. In or about March, 2018, two Battalion Chief positions came [sic] available. One was previously held by a Caucasian. And the other position was previously held by an African American. Plaintiff was not hired for either position. The position which was previously held by the Caucasian employee was filled by Caucasian on or about May 29, 2018. These were consistent with the Chief's unwritten policy of maintaining the racial demographic status quo. Since the [sic] Chief Stephens's hiring, every vacancy of appointment positions [sic] has been filled in this manner.

(Doc. 1 at 2, 3). Plaintiff's allegations, taken in the light most favorable to him as the non-movant, can be construed to allege that the policy in place that “assumed the force of law” was Stephens' unwritten rule that “Chief-level” positions would be filled by applicants of the same race as the person leaving. Stephens would, allegedly, base his recommendations on race alone, and the Mayor would approve Stephens' recommendation without any consideration. However, absent from Plaintiff's allegations - and the record - is any indicia that the Mayor or any other Selma official had actual or constructive knowledge of Stephens' unwritten rule. Instead, it is doubtful that the Mayor actually listened to Stephens' recommendations.^[4] It appears formal protocol was only loosely followed in the Mayor's office.^[5] Given these undisputed facts, there can be no material question of fact that Selma had no knowledge of any sort of “demographic” promotion rule implemented by Stephens. Moreover, there is no evidence that the Mayor and Stephens were operating in concert. Accordingly, Plaintiff cannot proceed on his Equal Protection claims under this theory of liability.

         C. There is no genuine issue of material fact of any action by Stephens that could be fairly deemed to represent City of Selma policy.

         A municipality can be held liable for an official's actions where, inter alia, that official's actions are fairly deemed to represent government policy. Oladeinde, 230 F.3d at 1295.

         However, a government official's actions can only be fairly deemed to represent government policy where that person has “final policymaking authority.” Hernandez v. City of Thomson, No. CV 113-079, 2016 U.S. Dist. LEXIS 4966, at *7 (S.D. Ga. Jan. 14, 2016). Final policymaking authority is “a matter of state law to be determined by the trial judge, ” and such authority cannot be had if one's decisions on a particular issue are “subject to meaningful administrative review.” Doe v. Sch. Bd., 604 F.3d 1248, 1264 (11th Cir. 2010) (finding no final policymaking authority where school officials' recommendations could be overruled by the district superintendent or school board) (emphasis added); Scala v. City of Winter Park, 116 F.3d 1396, 1401 (11^th Cir. 1997) (finding no final policymaking authority where decisions of a city manager and public safety director could be reversed by a city civil service board); see also Martinez v. City of Opa-Locka, Fla., 971 F.2d 708, 714 (11^th Cir. 1992) (finding final policymaking authority where “the City Manager's decision to hire or fire administrative personnel is completely insulated from review”); Hernandez v. City of Thomson, No. CV 113-079, 2016 U.S. Dist. LEXIS 4966, at *7 (S.D. Ga. Jan. 14, 2016). Where meaningful administrative review is not available, final policymaking authority can be deemed vested in an official where it otherwise would not exist. Willingham v. City of Valparaiso, 97 F.Supp.3d 1345, 1353-54 (N.D. Fla. 2015) (“Imposing a three-day detention, by itself, did not convert the principal into a final policymaker. Had graduation not been looming, Holloman could have employed the review process before serving his detention. This presumably would have stripped the principal of final policymaking authority. However, . . . Holloman could not, ‘as a practical matter, take advantage' of the review process without some aspect of the punishment . . . becoming irreversible.”). The relevant question here, then, is whether administrative review of Stephens' decisions was available.

         i. Stephens' Recommendations Subject to Meaningful Administrative Review.

         "Final policy making authority over a particular subject area does not vest in an official whose decisions in the area are subject to meaningful administrative review." Id. (quoting Scala v. City of Winter Park, 116 F.3d 1396, 1401 (11th Cir.1997)). The opportunity for meaningful review will suffice to divest an official of any policy making authority. See Id. 218 F.3d at 1276. It is undisputed that Stephens undertook the following activities when making departmental promotions:

(1) reviewed applicants' submitted materials;

(2) reviewed applicants' disciplinary records and the amount of time they spent with the fire department;

(3) provided each applicant's materials to the mayor;

(4) made recommendations to the Mayor based on how well the candidates' résumés corresponded to the position's requirements and that candidate's disciplinary record.^[6]

         According to the record, Stephens could not remember a time where the Mayor did not follow his recommendation. (Doc. 16-2, supra note 5).^[7] However, nothing in the record indicates that the Mayor did not make the decisions of his own volition. In fact, the record shows that the Mayor had a chance to see every applicant's information and form his own opinion. (Id.). While Plaintiff argues these facts warrant a finding of “cat's paw” liability (i.e., because the Mayor was unable to determine whether a recommended candidate was the most qualified for the position, he relied on Stephens' recommendations [all of which were consistent with his alleged scheme of racial replacement], essentially rubber-stamping those recommendations), the Court does not agree. The Court does not find any question of fact that the Mayor had a full opportunity to review Stephens' recommendations.

         ii. The City's Charter^[8]

         Selma's City Charter grants the Mayor exclusive authority to make certain appointments. Nothing in the City Charter concerning the Fire Chief's responsibilities state that he or she is authorized to make intra-departmental appointments. The City's Charter, therefore, establishes that Stephens was not authorized to make promotions within the Fire Department. As for custom, Stephens only recommended certain candidates to the Mayor. While Plaintiff insists that this behavior was more insidious, and that Stephens played a larger role in the promotional decision-making chain, the fact is that the Mayor made (and was the only official authorized to make) the appointments at issue. Nothing in the record indicates the contrary. Thus, Plaintiff's claims fail under this theory.

         D. Even assuming Plaintiff may state a Prima Facie Case of Discrimination under a “Cat's Paw” theory, Defendant is entitled to Summary Judgment.

         Despite the foregoing, Plaintiff insists that he can move forward on his Equal Protection claims by pursuing them under a “cat's paw theory” of liability. According to Plaintiff, Stephens' actions essentially represented government policy because his nomination of “Chief-level” candidates were “rubber-stamped” by the Mayor without any meaningful review. (Doc. 18 at 17, 21 - 24). In response, Selma reiterates that Plaintiff failed to satisfy the necessary prerequisites for carrying his claims (Doc. 19 at 6 - 10) and further argues that Plaintiff's “cat's paw theory” is inapplicable because the Eleventh Circuit does not recognize it as a viable theory of liability. (Doc. 19 at 5).

         Under such a theory of liability, the underpinning prejudices of a subordinate's actions adopted by an unwitting superior officer can create municipal liability. About three months before the parties filed dispositive motions in this case, the Eleventh Circuit articulated that a party could proceed with such claims under this theory via an unpublished opinion:^[9]

The cat's paw theory is typically understood to create employer liability under either § 1981 or § 1983 when the employer relies on an improperly motivated recommendation by a subordinate and does not independently investigate the recommendation. Under this theory of liability, an employer found to have acted in a nondiscriminatory manner can still face liability for "rubber stamp[ing]" its employee's discriminatory recommendation. [. . .] ("A decision-maker may serve as the conduit of the ...