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Bowman v. City of Birmingham

United States District Court, N.D. Alabama, Southern Division

February 7, 2019




         Calvin Bowman, proceeding pro se, asserts retaliation claims under Title VII of the Civil Rights Acts of 1964, 42 U.S.C. § 2000e-2 (“Title VII”), against the City of Birmingham. Doc. 29. More specifically, Bowman alleges that the City retaliated against him through five discrete acts after he filed a prior lawsuit against the City and two employees, see Bowman v. City of Birmingham, et al., No. 2:17-cv-00255-AKK (“Bowman III”). The City has now moved for summary judgment arguing, among other things, that the alleged retaliatory acts fail to rise to an adverse action, and that Bowman cannot show that the City's articulated reasons for the challenged conduct are pretextual. See doc. 32. For his part, Bowman has moved for partial summary judgment on two of the five discrete acts of retaliation - the threat of termination and a written reprimand. See doc. 35. Based on the evidence and consideration of relevant law, Bowman's motion is due to be denied, and the City's motion is due to be granted except as to the written reprimand.


         The court turns first to the parties' motions to strike evidence, docs. 41 and 49, they each rely on in support of their respective summary judgment motions. The court sets aside the somewhat unsettled question of whether a motion to strike is the procedurally correct vehicle to challenge an evidentiary attachment to a motion. See Jeter v. Montgomery Cty., 480 F.Supp.2d 1293, 1296 (M.D. Ala. 2007) (declining to strike exhibits because motions to strike are only properly granted with respect to pleadings). But see Thomas v. Ala. Counsel on Human Relations, Inc., 248 F.Supp.2d 1105, 1112 (M.D. Ala. 2003) (explaining that “[a]ffidavits which fail to meet the standards set forth in Rule 56(e) may be subject to a motion to strike”). Regardless of whether a motion to strike is proper here, the court may only consider the evidence so long as “the statement[s] could be reduced to admissible evidence at trial.” Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999). Given that the court's role at summary judgment is to require the non-movant to show “that she can make good on the promise of the pleadings by laying out enough evidence that will be admissible at trial to demonstrate that a genuine issue of material fact exists, ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), there is a difference between considering evidence that does not strictly conform to the rules of evidence, at least as presented, but has some probative value and a statement that lacks any indicia of reliability at all.

         A. The City's Motion

         The City moves to strike portions of Bowman's November 2018 affidavit, doc. 36 at 29, asserting that paragraphs 12-18 reference statements that are “private, confidential, and privileged from process and discovery” pursuant to the court's mediation order, doc. 33-1, and Federal Rule of Evidence 408, and that paragraphs 13-15 and 17-18 contain inadmissible hearsay. Doc. 41. Although the City is correct that mediation proceedings are generally confidential, the bulk of the statements in Bowman's affidavit reference matters that are in the record independent of the mediation proceeding - paragraph 12 references the parties engaging in a second mediation, see doc. 33 in Bowman III; paragraphs 13, 14, 16 reference Bowman's violations of the City's email policies, see docs. 33-2 and 33-3; and paragraph 18 references Bowman's personal observation of alleged violations of the City's computer policies which he later describes in his December 2018 affidavit, see doc. 47-1.

         The City notes correctly, however, that paragraphs 15 and 17 reference comments the mediator purportedly relayed to Bowman from the Bowman III defendants, in particular that these individuals threatened to discharge Bowman if he rejected their settlement offer. Generally, the disclosure of the specific settlement offer would violate the mediation order and Rule 408's protection of confidential negotiations. However, the comment is prominently featured in Bowman's complaint and amended complaints, docs. 1 at 35, 2 at 35, and 29 at 7, and are already in the public record. Moreover, although the Eleventh Circuit has not ruled on this issue precisely, other circuit courts have held that Rule 408 does not exclude negotiation statements of “alleged threats to retaliate for activity protected” which “serve to prove liability . . . for making . . . the threats, ” see Uforma/Shelby Bus. Forms, Inc. v. N.L.R.B., 111 F.3d 1284, 1294 (6th Cir. 1997), or negotiation statements that “involved a different claim than the one at issue in the current trial, ” see Broadcort Capital Corp. v. Summa Med. Corp., 972 F.2d 1183, 1194 (10th Cir. 1992).[1]

         Nonetheless, Bowman must still demonstrate that the discharge threats satisfy a hearsay exception. Because paragraphs 15 and 17 contain hearsay within hearsay (i.e. the mediator's relay of the defendants' purported statements), the court must determine if “each part of the combined statements conforms with an exception to the rule.” Fed.R.Evid. 805. The mediator's statement to Bowman about the City's purported threats to discharge him fails to satisfy any hearsay exception. The court is not convinced by Bowman's contention that the mediator's statements are not hearsay under Federal Rule of Evidence 801(d)(2)(C) because “the City . . . authorized the mediator to make the statements” to Bowman. See doc. 43 at 3. A mediator is not by definition an agent of any party. Rather, the “mediator facilitates discussions among litigants to assist them in identifying the underlying issues and in developing a creative and responsive settlement package.” See ALND Alternative Dispute Resolution Plan, Sec. IV Mediation. Similarly, Bowman's contention that the mediator's statements are not hearsay because he is offering them “solely for the purpose of proving that the statement (i.e., adverse action) was made, not for the truth of the statement, ” doc. 43 at 3, is unavailing. In light of Bowman's contention that the City retaliated against him by threatening him with termination, there is no other reason for him to offer the evidence except to establish the truth of what the mediator asserted. Therefore, because the mediator is unable to testify at trial, the statements are inadmissible. United States v. Dotson, 821 F.2d 1034, 1035 (5th Cir. 1987) (“The mere fact that one level of a multiple-level statement qualifies as ‘nonhearsay' does not excuse the other levels from rule 805's mandate that each level satisfy an exception to the hearsay rule for the statement to be admissible.”). Accordingly, Bowman's references to the specific settlement offer terms and the alleged threat to discharge Bowman are due to be stricken. See Rowell v. BellSouth Corp., 433 F.3d 794, 800 (11th Cir. 2005) (“On motions for summary judgment, we may consider only that evidence which can be reduced to an admissible form.”).

         B. Bowman's Motion

         Bowman moves to strike new arguments regarding a pay increase the City raises in its reply brief. Doc. 49. The City contends that it did not raise this argument initially because Bowman failed to plead in his second amended complaint that the City denied him a pay raise for violating the City's computer policy, and only raised this contention in his response to the City's motion. Doc. 50. Bowman is correct that, generally, “[a]rguments raised for the first time in a reply brief are not properly before a reviewing court.” United States v. Coy, 19 F.3d 629, 632 n. 7 (11th Cir. 1994). However, in his second amended complaint, Bowman alleges broadly that the City issued him a written reprimand, among other retaliatory acts, which collectively led to “pecuniary harm.” Doc. 29 at 13. Bowman only described the alleged pecuniary harm - a purported a denial of a “5% pay raise . . . in October 2017” - in his response to the City's motion for summary judgment. Doc. 42 at 15. “Liberal pleading does not require that, at the summary judgment stage, defendants must infer all possible claims that could arise out of facts set forth in the complaint.” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). Where, as here, Bowman waited until his summary judgment briefing to describe the pay issue, despite possessing the information when he filed this lawsuit, the City properly used its reply brief to rebut Bowman's clarified contention that the written reprimand influenced Oates' decision to deny him a pay raise. See San Francisco Residence Club, Inc. v. Baswell-Guthrie, 897 F.Supp.2d 1122, 1202 (N.D. Ala. 2012) (citing Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 975 (11th Cir. 2008)).

         Bowman also moves to strike Faye Oates' December 2018 affidavit, doc. 46-1, contending that the City failed to obtain leave to file evidentiary materials after the deadline. Docs. 28 and 49. Upon review, paragraphs 1-4 of the affidavit reference testimony that Oates provided in a prior deposition about the Crossplex event assignment policy, and paragraphs 5-10 attempt to clarify why Bowman did not receive a pay raise in October or November 2017. Doc. 37-2 at 8. As explained above, the City properly used Oates' affidavit in its reply brief to rebut new arguments Bowman raised in his response brief. Accordingly, Bowman's motion to strike, doc. 49, is due to be denied.


         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “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.” Fed.R.Civ.P. 56. “Rule 56[] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (alteration in original). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324 (citation and internal quotation marks omitted). A dispute about a material fact 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.

         On summary judgment motions, the court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255. Any factual disputes will be resolved in the non-moving party's favor when sufficient competent evidence supports the non-moving party's version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002) (a court is not required to resolve disputes in the non-moving party's favor when that party's version of events is supported by insufficient evidence). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).

         The simple fact that both parties have filed partial motions for summary judgment does not alter the ordinary standard of review. See Chambers & Co. v. Equitable Life Assurance Soc., 224 F.2d 338, 345 (5th Cir. 1955) (explaining that cross-motions for summary judgment “[do] not warrant the granting of either motion if the record reflects a genuine issue of fact”). Rather, the court will consider each motion separately “‘as each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.'” 3D Med. Imaging Sys., LLC v. Visage Imaging, Inc., 228 F.Supp.3d 1331, 1336 (N.D.Ga. 2017) (quoting Shaw Constructors v. ICF Kaiser Eng'rs, Inc., 395 F.3d 533, 538-39 (5th Cir. 2004)). The court notes that although cross-motions “‘may be probative of the non-existence of a factual dispute'” they “‘will not, in themselves, warrant [the granting of] summary judgment.'” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984) (quoting Bricklayers Int'l Union, Local 15 v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir. 1975)).


         Since 1999, Bowman has worked for the City as an accountant and more recently as a business officer in its Crossplex Department. Doc. 42 at 36. In February 2017, Bowman filed his third lawsuit[2] against the City. Id. at 37. During their second mediation session in October 2017, Bowman became upset over the City's settlement offer and purported threat to discharge him. Id. at 38. Bowman argues that the City engaged in four other discrete acts of retaliation allegedly in response to his rejection of the settlement offer - (1) a little over a week after mediation, the City issued Bowman, through his supervisor Faye Oates (Director of the Birmingham Crossplex), a written reprimand for violating the City's computer use policy.[3] Docs. 33-3, 33-5 at 2, 37-1 at 9, 33-4 at 7; (2) under its assignment policy, [4] the City denied Bowman the opportunity to work at events as a maintenance manager. Docs. 33-4 at 13-15, 46-1 at 17-18; (3) the City denied Bowman the opportunity to work as “Overall Manager” during events. Docs. 33-4 at 14, 46-1 at 23; and (4) after initially assigning Bowman to work as a cashier at the 2018 NCAA Indoor Track & Field Championship, the City informed Bowman that it no longer needed him for the event due to lower than projected attendance rates and ticket sales. Doc. 46-1 at 18, 20-21. These alleged retaliatory acts are the basis for this lawsuit.

         IV. ANALYSIS

         The City has moved for summary judgment fully, doc. 32, and Bowman has moved on two of the five alleged retaliatory acts - the threats to discharge him and issuance of a written reprimand regarding misuse of work computers, doc. 35. However, because Bowman's contention regarding the discharge threat is based on inadmissible hearsay, this claim fails.[5] As such, the court will only consider the City's motion on the four remaining acts and Bowman's motion on the written reprimand.

         Title VII prohibits employers from retaliating against employees who oppose an unlawful employment practice. 42 U.S.C. § 2000e-3(a). Where, as here, the evidence of retaliation is entirely circumstantial, the burden of proof shifts between the employee and employer according to the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972), analytical framework. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1310 (11th Cir. 2016). Initially, the employee must show: (1) that she engaged in statutorily protected expression; (2) that she suffered an adverse employment action; and (3) that the adverse employment action would not have occurred but for the protected activity. Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). If the employee establishes a prima facie case, the burden shifts to the employer to “proffer a legitimate, non-discriminatory reason for the adverse employment action, ” but this burden is “exceedingly light.” Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1021 (11th Cir. 1994) (quoting Tipton v. Canadian Imperial Bank of Commerce, 872 F.2d ...

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