United States District Court, S.D. Alabama, Northern Division
JEFFREY U. BEAVERSTOCK UNITED STATES DISTRICT JUDGE
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.
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
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
(11th 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
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 (11th 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,
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.
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
King v. Butts County, 576 Fed.Appx. 923, *930
(11th Cir. 2014), the Eleventh Circuit also faced
a pleading issue concerning a § 1981 claim that should
have been brought under § 1983.
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.
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
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
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.
DEFENDANT IS DUE SUMMARY JUDGMENT ON PLAINTIFF'S EQUAL
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).
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'
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
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).
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 (11thCir. 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 (11th Cir. 2000)(citing Monell
v. Dept. of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978)).
argues Plaintiff's Equal Protection claims fail as a
matter of law because Plaintiff cannot prove municipal
liability under this applicable § 1983 framework.
The undisputed facts foreclose any material issue concerning
an “official government policy.”
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
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.”
There is no genuine issue of material fact of a custom or
practice so pervasive and well-settled as to assume the force
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
(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. It appears formal protocol was
only loosely followed in the Mayor's
office. 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.
There is no genuine issue of material fact of any action by
Stephens that could be fairly deemed to represent City of
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.
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 (11th 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 (11th 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.
Stephens' Recommendations Subject to Meaningful
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
to the record, Stephens could not remember a time where the
Mayor did not follow his recommendation. (Doc. 16-2,
supra note 5). 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'
The City's Charter
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
Even assuming Plaintiff may state a Prima Facie Case
of Discrimination under a “Cat's Paw” theory,
Defendant is entitled to Summary Judgment.
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).
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
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