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rejecting employees' contention as overbroad that other employees who engaged in "generic moral and ethical misconduct" were similarly-situated state troopers
Summary of this case from Wright v. Sanders Lead Co., Inc.Opinion
Civil Action No. 00-D-391-N
April 19, 2001
Attorney for plantiff K. David Sawyer, Pittman Hooks, Dutton Hollis Birmingham, Al
Attorney for Defendant Jack M. Curtis, William G. McKnight, Wilbert Jones Montgomery, Al
MEMORANDUM OPINION AND ORDER
Before the court is Defendants' Motion For Summary Judgment, which was filed March 15, 2001. Plaintiff filed a Response April 6, and Defendants issued a Reply April 13. After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that Defendants' Motion is due to be granted.
I. JURISDICTION AND VENUE
The court exercises subject matter jurisdiction over this civil action under 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1367 (supplemental jurisdiction).
II. SUMMARY JUDGMENT STANDARD
The court construes the evidence and makes factual inferences in the light most favorable to the nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). Summary judgment is entered only if it is shown "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." FED. R. CIV. p. 56(c). At this juncture, the court does not "weigh the evidence and determine the truth of the matter," but solely determines whether there is more than "some metaphysical doubt" about whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted); Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.s. 574, 586 (1986).
III. INTRODUCTION
The Alabama Department of Public Safety fired a state trooper who beat up two of his female acquaintances, refused to perform his work acceptably, and incurred various debts from convicted felons. That should have been the end of it, since in any sane world the police should not be required to employ persons of questionable character. But the state trooper has made a federal case of it, alleging that he was canned because of his race. His claims are now before the court on a Motion For Summary Judgment. The Motion will be granted.
"Defendant" or "the Department."
IV. FACTUAL BACKGROUND
The Department fired Terry Raybon who is a black male, in February 1999. Department Order 74 provides that officers may be disciplined for "conduct unbecoming" an officer or for engaging in "misconduct . . . which violates public morals of the common sense of morality within the community, whether criminally prosecuted or not." Prior to termination, Raybon was disciplined for violating Order 74 on numerous occasions. Raybon's misconduct included: (1) an incident of domestic violence in October 1998, when he allegedly "beat or used physical force against a woman to such extent that hospital treatment was necessary"; (2) an undated incident of willful refusal to pay a debt; and (3) an undated failure to turn over arrest, offense and vehicle inspection reports to his supervisors.
"Plaintiff" or "Raybon."
P1. Ex. 2 at 1 ¶ 2-3.
A board certified physician found that the woman suffered multiple bruises and a perforated left ear drum. (P1. Ex. 5, Report of Dr. Mihail.) Raybon denies striking the woman, who he met over the Internet using the nickname "Supertrooper," and who had come to Alabama all the way from continental Australia. Needless to say, the woman returned home shortly after this sordid affair, defeated and with a broken spirit.
Def. Ex. 12 to Raybon's Dep.
Plaintiff does not dispute that the Department followed its usual policy for determining whether to mete out discipline on these three prior occasions. The policy basically provides that an employee's supervisor can recommend that the employee be sanctioned. The division chief shall then receive such recommendations, review them, and make his own determination to the department's director. An employee who is terminated or suspended may request a due process hearing before an Administrative Review Board.
P1. Ex. 3 Parts III, VI.
Id Part VIII.
The chain-of-command above Raybon ran as follows: Directly above Raybon was Capt. Tommy Cheatham. Above Cheatham, after August 1998, was Capt. Cary Sutton, acting chief of the Highway Patrol Division. Above Sutton was Michael Sullivan, acting director of the Department of Public Safety. Sullivan passed on matters of "suspension, demotion, or dismissal" of employees.
P1. Ex. 3 Part VI.A.2; Sutton Aff; Sullivan Aff.
When Sutton became aware of the October 1998 beating, his initial reaction was to terminate Raybon immediately. However, after reviewing Raybon's file and consulting with Cheatham, Sutton busted Raybon in rank and suspended him for 30 days. Raybon never appealed this decision, which was dated November 16, 1998. The suspension letter stated in no uncertain terms that further misconduct would result in termination. Specifically, it stated, "If there is ever again even the slightest indication that you have violated one or more of the department's Dolicies or regulations, I will not have any hesitancy in ordering your immediate termination from employment with the Department of Public Safety."
Sullivan Aff.; P1. Ex. 6; Raybon's Dep. at 62-63.
P1. Ex. 6 at 2 (emphasis supplied).
Raybon sat out his thirty days. Then, less than a month after returning to work, he committed another act of domestic violence. This time, Raybon met a woman at a hotel and threw a cell phone towards her, hitting her in the face. When the woman pushed Raybon away and tried to leave the room, Raybon "brought his hand up and hit [her] hand and broke off one of [her] finger nails." Raybon had developed a romantic relationship with the woman, and it turned out that Raybon now owed her several thousand dollars. The Department subsequently learned that she was a convicted felon.
P1. Ex. 9.
Def. Ex. 1.
Id. Reap. at 5.
P1. Ex. 10.
Sutton consulted with Cheatham. They agreed that Raybon should be terminated for violating the Department's policy against "misconduct" and for engaging in "conduct unbecoming" an officer by intentionally abusing or mistreating a member of the public. Sutton's letter detailed the prior warnings given to Raybon, noted that such misconduct had "brought unfavorable attention to the department reaching as far away as Tasmania," and found that Raybon was "a danger to the public." The administrative review board concurred. Raybon appealed his suspension to the State Personnel Board, and an administrative law judge upheld the dismissal. Raybon subsequently filed this civil action.
P1. Ex. 2 Parts I.A.8, II; P1. Ex. 10; Sutton Aff.
Def. Ex. 6 to Raybon's Dep.
Sullivan Aff.
Raybon's Dep. at 35-36.
V. DISCUSSION
Raybon alleges that the Department terminated him on the basis of race, in violation of Title VII, Section 1981, and Section 1983. He also brings a state law claim of invasion of privacy, based on the Department's investigation into his relationship with the woman he assaulted in February 1999. The Section 1981 and Section 1983 claims merge, and any and all other allegations in the Complaint are deemed abandoned. See Resolution Trust Core. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (abandoned claims). The court finds that no rational jury could conclude that race motivated the Department's actions. The state law claim is equally jejune. Therefore, summary judgment is due to be granted.
Resp. at 1. Plaintiff's former position was filled by someone outside his protected class or that similarly-situated non-protected employees engaging in the same conduct avoided plaintiff's fate. See Holifeld v. Reno, 115 F.3d at 1555, 1561-62 (11th Cir. 1997).
A. Race Discrimination
The ultimate question in an employment case is whether the defendant acted with discriminatory intent. See Jones v. Gerwens, 874 F.2d 1534, 1539 (11th Cir. 1989). Raybon argues that he has produced sufficient circumstantial evidence for his claims to survive summary judgment. Thus, the McDonnell Douglas burden-shifting analysis applies. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
A plaintiff must first raise an inference of discriminatory intent. In discriminatory discharge cases, this generally requires showing that: (1) Plaintiff is a member of a protected class; (2) Plaintiff was qualified for the job from which he was discharged; (3) Plaintiff was discharged in fact; and (4)
If the plaintiff carries his burden, then the defendant must proffer a race-neutral reason for the adverse employment action. See Meeks v. Computer Assoc. Int'l, 15 F.3d 1013, 1019 (11th Cir. 1994). The burden then shifts back to the plaintiff, who must show that the employer's proffered reasons are a pretextual cover for discrimination. See Combs v. Plantation Patterns, 106 F.3d 1519, 1539 (11th Cir. 1997)
If the employee does not offer sufficient evidence showing that each and every proffered reason is pretextual, then summary judgment is mandatory. See Chapman v. AI Transp, 229 F.3d 1012, 1037 (11th Cir. 2000) (en banc) (citing Combs, 106 F.3d at 1543). If the employee meets this burden, however, then summary judgment is generally inappropriate, see id. at 1025 n.ll, and the trier of fact may then infer the ultimate fact of discrimination from the evidence presented and the falsity of the employer's explanation. See Reeves v. Sanderson Plumbincr Prods., 530 U.S. 133, 120 S.Ct. 2097, 2108-09 (2000)
The court finds that Plaintiff has not met his burden of establishing a prima facie case. It is undisputed that the Department fired Plaintiff in February 1999 because it believed that he had failed to turn in required paperwork, refused to pay his personal debts, beat a woman mercilessly, and, after receiving a suspension and last chance warning, became ensnared in an affair with a convicted felon that culminated in another incident of domestic violence. He has offered no evidence that any similarly-situated non-minority employee was disciplined differently.
"In order to satisfy the similar offenses prong, the comparator's misconduct must be nearly identical to the plaintiff's in order "to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges.'" Silvera v. Orange County Sch. Bd., ___ F.3d ___, 2001 WL 273853 at *4 (11th Cir. 2001) (quoting Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11th Cir. 1999)). In Silvera, the Court held that an employee arrested for DUI and criminal sexual abuse of a child was not similarly-situated to the plaintiff, who had three arrests for violent assaults in addition to his arrest for criminal sexual abuse of a child. Though both employees were child molestors, the comparator was dissimilar because a DUI is not a violent offense, and the DUI occurred earlier in time than the plaintiff's most recent arrest. See Id. at *4-5
A proper comparator in this case, therefore, is someone with a personnel file with misconduct of similar quantity, quality, and recency as Raybon' s. Raybon points to six other troopers, but none of them committed as many acts of documented misconduct, or any repeated acts of domestic violence. Nor is there evidence that they disregarded a "last chance warning," like the one issued by Sutton, just a few weeks after returning to work. Raybon concedes as much, stating that "each of the similarly situated employees . . . were not involved in the same incidents" of misconduct, but he maintains that the troopers are similar because they each committed acts of generic "moral and ethical misconduct."
In addition, most of the comparators were disciplined by supervisors other than Sutton. This fact that also renders them dissimilar. See Gaston v. Home DeDot USA. Inc., 129 F. Supp.2d 1355, 1369-70 (S.D. Fla. 2001).
Resp. at 21.
Raybon's argument proves too much. Taken to its logical conclusion, any state trooper who is ever disciplined would be similar to Raybon, because all troopers must comply with the Department's policies. That is not the law. The Department may believe, without violating Title VII, that there is a qualitative difference between various acts of misconduct. A state trooper who beats on women, consorts with felons, and neglects his official duties is a menace to the public who, of course, may be lawfully terminated. There being no evidence of similarly situated white troopers who avoided Raybon's fate, no rational jury could infer that the termination was based on race. See Jordan v. Warehouse Serv., Inc., 81 F. Supp.2d 1257, 1268 (M.D. Ala. 2000).
This finding is buttressed by at least one additional fact: Sutton was not the Department's final decisionmaker on this matter. Plaintiff focuses solely on Sutton's alleged racial bias. Sutton's recommendations, however, were reviewed by Sullivan, and Sullivan' s findings were upheld by an independent administrative review board. Sullivan conducted his own review of the case, and Plaintiff produces absolutely no evidence showing that either Sullivan or the board merely rubberstamped Sutton's recommendation. Thus, the court finds that any possible racial animus was neutralized by the review process. See Silvera, 2001 WL 273583 at *5 n. 4 (observing that biases by mid-level supervisor cannot be automatically impugned to the decisionmaker);Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1331-32 (11th Cir. 1999) (per curiam) (holding that officer's appeal to independent review board defeated any inference of "cat's paw" liability); Hamilton v. Montgomery County Bd. of Educ., 122 F. Supp.2d 1273, 1283-85 (M.D. Ala. 2000); (exhaustively analyzing the elements of "cat's paw" liability).
Sullivan Aff.
Even assuming that Plaintiff can establish a prima facie case of discrimination, the Department has articulated a legitimate race-neutral reason for its action, which Plaintiff has not rebutted. Sutton warned Plaintiff in November 1998 that "even the slightest indication that you have violated one or more of the Department's policies or regulations" would lead to immediate termination. Sutton had reason to believe that Plaintiff disregarded this warning, plaintiff tries to excuse his behavior, but courts "`are not in the business of adjudging whether employment decisions are prudent or fair.'" Chapman, 229 F.3d at 1030 (quoting Damon v. Fleming Super. of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999)). If an employer believes that the employee committed the violations charged, then it rebuts any allegation of discrimination. See Jones, 874 F.2d at 1540; Sweeney v. Alabama ABC Bd., 117 F. Supp.2d 1226, 1272-74 (M.D. Ala. 2000).
P1. Ex. 6 at 2.
Moreover, the court cannot see why Plaintiff is preoccupied with the fact that "similarly situated white employees were never give[n] a "final warning," as was Mr. Raybon." As noted earlier, the employees were dissimilar. Furthermore, the Department could have fired Raybon even without the warning; its abundance of caution in no way suggests that it acted on a discriminatory basis. In any event, the court refuses to even consider this evidence, for Raybon has merely pointed the court to a blanket portion of the record without indicating the specific materials on which he is relying. This violation of the court's orders will not be overlooked. See Pearson v. Prime Healthcare Corp., 2000 WL 33224801 at *4 (M.D. Ala. 2000).
Resp. at 14.
The Uniform Scheduling Order states that "evidence in the brief must be accompanied by a specific reference, by page and line, to where the evidence can be found in a supporting deposition or document. Failure to make such specific reference will result in the evidence not being considered by the court." (Doc. No. 9 § 3.)
B. Invasion of Privacy
Although all of Plaintiff's federal claims are due to be dismissed, the court exercises its discretion to rule on Plaintiff's supplemental state claim of invasion of privacy. Under Alabama law, one has "the right to be free from . . . the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities in a manner as to outrage or cause mental suffering, shame, or humiliation" to a reasonable person. Phillips v. Smalley Maint'nce Serv., Inc., 435 So.2d 705, 708 (Ala. 1983).
The court finds that Raybon had no legitimate expectation of privacy in the facts uncovered by the Department's investigation of his off-duty exploits. A law enforcement agent who tussles and brawls at a local hotel forfeits any freedom from a subsequent inquiry into his fitness to serve as a monopolist on the state's use of deadly force. Plaintiff has produced nothing to show that the Department acted unreasonably or improperly. Nor is there evidence that the Department "publicized" its findings in a manner forbidden by Alabama law. See Johnston v. Fuller, 706 So.2d 700, 703 (Ala. 1997); Johnson v. Corporate Spec. Serv., Inc., 602 So.2d 385, 387-88 (Ala. 1992).
The court further finds that all Defendants enjoy absolute immunity from liability for performing this investigation, pursuant to Article I § 14 of the Alabama Constitution of 1901. See Ex parte Cranman, 1999 WL 1065051 at *ll-12 (Ala. 1999) (plurality opinion); Byrd v. Sullivan, 657 So.2d 830, 832-33 (Ala. 1995). Summary judgment will be entered accordingly.
V. ORDER
It is hereby CONSIDERED and ORDERED that Defendants' Motion For Summary Judgment be and the same is hereby GRANTED. Any other Outstanding motions be and the same are hereby DENIED AS MOOT. An order follows