Opinion
No. 2:97CV216-B-B.
Filed Date: February 16, 1999.
Memorandum Opinion
This cause comes before the court on the defendants' motion for partial summary judgment. The court has duly considered the parties' memoranda and exhibits and is ready to rule.
I. Introduction
The plaintiffs allege racial discrimination and due process violations in their employment pursuant to 28 U.S.C. § 1983 and pendent due process claims under the Mississippi Constitution. Plaintiff Mike Wilson is the former first African-American police chief of Sardis and plaintiff Rosa Wilson, Mike Wilson's wife, was employed by the town of Sardis as a police dispatcher and Terminal Agency Coordinator (TAC) Officer in the police department from 1991 until July, 1997. On August 6, 1996 Mike Wilson was elected in a special election to fill the unexpired term of an elected white police chief who retired after more than twenty years of employment. The term expired on July 7, 1997 at which time Mike Wilson was appointed to serve as police chief and Rosa Wilson's employment was terminated.
The plaintiffs do not plead racial discrimination under Title VII, 42 U.S.C. § 2000e et seq.
The declaration of former mayor Richard Darby states that he and the board of aldermen began considering converting the chief of police position from an elective to an appointive position prior to the 1996 special election and on August 6, 1996 passed ordinances providing for the appointment of the chief of police and the city clerk, beginning in July, 1997. On May 27, 1997, the Justice Department precleared the procedural changes prior to the June, 1997 general election. The declaration of defendant Mayor Scruggs, elected as mayor in the 1997 election, states that he recommended Mike Wilson for appointment of the police chief's position and Roy Scallorn for appointment of the city clerk's position "because they would have won their elections." The board of aldermen approved the mayor's recommendations.
The complaint alleges that Roy Scallorn is a Caucasian.
Mayor Scruggs' declaration states that the Justice Department' s preclearance "effectively made Mike Wilson's and Roy Scallo[r]n's elections moot." The general election of police chief and city clerk, as well as mayor, proceeded in spite of the preclearance of the change in the method of selecting the city clerk and police chief from election to appointment. Mike Wilson's affidavit states that he was elected in the "non-binding" June 3, 1997 election.
Mike Wilson alleges racial discrimination and due process violations in the elimination of his administrative and supervisory duties, changing the selection method for the police chief's position and the reduction of his salary. The defendants move for summary judgment on all of Mike Wilson's claims, except the due process claims based on the salary reduction and elimination of duties. Rosa Wilson alleges racial discrimination and due process violations based on her discharge. The defendants move for summary judgment as to all of Rosa Wilson's claims.
II. Law
On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 275 (1986) ("the burden on the moving party may be discharged by `showing' . . . that there is an absence of evidence to support the nonmoving party's case"). Under Rule 56(e) of the Federal Rules of Civil Procedure, the burden shifts to the nonmovant to "go beyond the pleadings and by . . . affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324, 91 L. Ed. 2d at 274. That burden is not discharged by "mere allegations or denials." Rule 56(e). All legitimate factual inferences must be drawn in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 216 (1986); Matagorda County v. Russell Law, 19 F.3d 215, 217 (5th Cir. 1994). Rule 56(c) mandates the entry of summary judgment "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., 477 U.S. at 322, 91 L. Ed. 2d at 273. Before finding that no genuine issue for trial exists, the court must first be satisfied that no reasonable trier of fact could find for the nonmovant. Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 552 (1986); Fed. Sav. Loan Ins. v. Kralj, 968 F.2d 500, 503 (5th Cir. 1992).
The defendants assert that the plaintiffs' affidavits are "replete with opinion, conjecture and speculation" and should be disregarded. Eg., Richardson v. Oldham, 12 F.3d 1373, 1378-79 (5 th Cir. 1994). In the alternative, the defendants contend that even if the affidavits are considered, summary judgment is appropriate. The court has duly considered the plaintiffs' affidavits and will disregard any conclusory statements therein asserting racial motivation and due process violations on the part of the defendants.
See Defendants' Rebuttal Memorandum at 2.
A. Mike Wilson's Racial Discrimination Claims
The plaintiffs' racial discrimination claims fall within the purview of the equal protection clause of the Fourteenth Amendment:
In order to state a claim of racial discrimination under the Equal Protection Clause and § 1983, a plaintiff must demonstrate that the governmental official was motivated by intentional discrimination on the basis of race.
See supra n. 1.
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997) (citations omitted). The plaintiffs must first prove a prima facie case which raises an inference of discrimination. Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5 th Cir. 1996) (burden of proof is essentially the same for actions under § 1983 and Title VII) (citation omitted).
Mike Wilson's equal protection claims based on alleged intentional racial discrimination are disparate treatment claims. Mahone v. Addicks Utility Dist., 836 F.2d 921, 932 (5 th Cir. 1988) ("The equal protection clause essentially requires that all persons similarly situated be treated alike.") (emphasis added). Therefore, the court looks to 42 U.S.C. § 2000e-2(a)(1) for guidance:
The disparate treatment theory has emerged in the application of 42 U.S.C. § 2000e-2(a)(1). Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981) cited in Mattern v. Eastman Kodak Co., 104 F.3d 702, 707, 708 (5 th Cir. 1997) and Dollis v. Rubin, 77 F.3d 777, 782 (5 th Cir. 1995).
It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race. . . . (Emphasis added).
The plaintiffs do not allege claims pursuant to Title VII. Title VII provides employee protection against disparate impact, as well as disparate treatment:
It shall be an unlawful employment practice for an employer —
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race. . . .42 U.S.C. § 2000e-2(a)(2). See Connecticut v. Teal, 457 U.S. 440, 448-49, 73 L. Ed. 2d 130, 137-38 (1982) (written examination had a disparate impact on black employees' promotion opportunities within the purview of § 2000e-2(a)(2)). The Supreme Court noted that § 2000e-2(a)(1) pertains to "the overall result," as distinguished from "employment opportunities" protected under § 2000e-2(a)(2). Id. at 448-49 n. 9, 73 L. Ed. 2d at 137-38 n. 9 (emphasis in original). See Mattern 104 F.3d at 708-709 (distinguishing "vague harms" proscribed in § 2000e-2(a)(2) "which merely `would tend' to affect the employee" from "ultimate employment decisions" proscribed under § 2000e-2(a)(1)).
The defendants concede that for purposes of the instant motion Mike Wilson can establish a prima facie case of racial discrimination as to his salary reduction but contend that his remaining racial claims do not rise to the level of actionable adverse employment actions. In an action involving Title VII retaliation and disparate treatment claims, the Fifth Circuit stated:
42 U.S.C. § 2000e-3(a) (prohibiting employers from discriminating against employees for taking action protected by Title VII).
Title VII was designed to address ultimate employment decisions, not to address every [interlocutory or mediate] decision made by employers that arguably might have some tangential effect upon those ultimate decisions. See Page v. Bolger, 645 F.2d 227, 233 (4 th Cir.) (en banc) (noting that Title VII [disparate treatment] cases have focused upon ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating), cert. denied, 454 U.S. 892, 102 S.Ct. 388, 70 L.Ed.2d 206 (1981).
Dollis v. Rubin, 77 F.3d 777, 781-82 (5 th Cir. 1995) cited in Mattern v. Eastman Kodak Co., 104 F.3d 702 (5 th Cir.) (defining the term "discrimination" in the anti-retaliation provision), cert. denied, 139 L. Ed. 2d 260 (1997). The threshold issue is whether the alleged elimination of duties and the change in the selection method constitute changes in "terms, conditions or privileges of employment." See Hishon v. King Spalding, 467 U.S. 69, 74-75, 81 L. Ed. 2d 59, 66-67 (1984) (the scope of "terms, conditions, or privileges of employment" is not limited to "a contractual right of employment") (emphasis in original). The Supreme Court has held that "[a] benefit that is part and parcel of the employment relationship," i.e., an incident of employment, qualifies as a privilege of employment under Title VII "even if the employer would be free under the employment contract simply not to provide the benefit at all." Id. at 75-76, 81 L. Ed. 2d at 66-67 (the benefit of "partnership consideration was a term, condition, or privilege of an associate's employment at respondent's [law] firm").
See supra note 8.
In an action brought by a food manager employed at a state hospital, the Ninth Circuit held that restriction of supervisory duties specified in the job description for the position of food manager constitutes denial of a term, condition or privilege of employment protected under § 2000e-2(a)(1). Judie v. Hamilton, 872 F.2d 919, 921-22 (9 th Cir. 1989). The court reasoned:
Supervisory responsibilities are part and parcel of a food manager's job. . . . The hospital is not obligated to permit [the plaintiff] to assume wide supervisory responsibilities. But it cannot preclude him from exercising such responsibilities on the basis of race.
Id. (the plaintiff, hired for the position of "Food Manager 1," alleged that he was not permitted to evaluate employees or to assume the duties of the absent Food Manager 3). In the instant cause, Mike Wilson states in his affidavit that after his appointment as police chief:
I was stripped of all of the supervisory/administrative duties detailed in the Chief of Police job description. More specifically, I was stripped of the authority to recommend police department applicants for hire and fire, I was stripped of the authority to purchase uniforms, I was stripped of the authority to set work schedules for police department personnel and I was stripped of the authority to supervise officers.
The defendants state: "For the purposes of this motion only, defendants admit defendants removed these duties from Mike Wilson but adamantly deny this action was based on race." The court finds that the above-referenced duties, particularly the "authority to supervise officers," are "part and parcel" of a police chief's employment and cannot be eliminated on the basis of race. Since the alleged denial of the benefit of exercising supervisory and administrative duties rises to the level of an actionable adverse employment action, the court finds that the defendants' motion as to Mike Wilson's racial claim based on elimination of duties is not well taken and should be denied.
See Defendants' memorandum in support of the instant motion at 5 n. 1.
The defendants state in the pretrial order: "As Police Chief, plaintiff was responsible for the complete operation of the Sardis Police Department." The removal of authority to supervise officers negates the function of a chief of police as the head of the police department.
The court finds that the defendants' motion as to Mike Wilson's racial claim based on the change in the selection method from election to appointment is well taken. Mike Wilson remained in his elective position until the expiration of the term he was filling at the time the change was precleared. Therefore, the change did not have the effect of removal from office. In addition, implementation of the change did not have the effect of stripping him of an elective position; he was not an elected official when the change was implemented. The procedural change did not preclude his employment as the police chief since he filled the open position upon his appointment. Therefore, it was not an adverse personnel action "to fail or refuse to hire or to discharge" him. In addition, his claim that he was stripped of authority after his appointment does not elevate the change in the selection method to a change in the conditions, terms or privileges of his employment in the racial discrimination context. Cf. Page v. Bolger, 645 F.2d at 233 ("mediate decisions such as those concerning composition of the review committees . . . that are simply steps in a process for making such obvious end-decisions as those to hire, to promote, etc." are not "[t]he proper object of inquiry in a claim of disparate treatment"). For the foregoing reasons, the court finds that the challenged change does not amount to an actionable adverse employment action for purposes of disparate treatment based on race.
The change was implemented when the board of aldermen appointed Mike Wilson as police chief after his elective term had expired.
It is undisputed that the general election in 1997 was not binding as to the position of police chief. See supra note 3.
In Page v. Bolger a black postal employee alleged racial discrimination based on the postal authorities' refusal to promote him and the absence of a minority member on the review committee. 645 F.2d at 232. The court noted that "the composition of the review committee is significant . . . but only as it relates to the pretextual nature of the reason given for the denial of promotion". Id. at 233-34 n. 11.
It is undisputed that the defendants reduced Mike Wilson's salary as police chief. Having conceded for purposes of the instant motion that a prima facie case exists as to the racial claim based on Mike Wilson's salary reduction, the defendants have the burden to rebut the inference of discrimination raised by the prima facie case by proffering "a legitimate, nondiscriminatory reason for the challenged employment action." Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992-93 (5 th Cir. 1996). On January 7, 1997 the board of aldermen voted to deduct $5,119.57 from Mike Wilson's salary over a period of 26 weeks to pay overtime salary for police officers. The defendants assert that this action was taken on the ground that Mike Wilson continued to schedule police officers for overtime work despite the lack of budgeted funds for overtime pay and objections of the mayor and board of aldermen. On November 11, 1996 the mayor and board of aldermen voted to advise each police department employee that all overtime work required their approval prior to performance of such work. Mike Wilson was repeatedly advised of the budgetary problem regarding overtime pay. The court finds that the defendants have articulated a legitimate, nondiscriminatory reason for the salary reduction.
Mike Wilson was serving as the elected police chief.
In order to avoid summary judgment on this claim, Mike Wilson must raise a genuine issue of material fact as to the ultimate issue of intentional discrimination based on race. A jury issue is presented if the evidence taken as a whole creates (1) a fact issue as to whether the limited budget actually motivated the defendants and (2) a reasonable inference that race was a determinative factor in the salary reduction. E.E.OC. v. Texas Instruments Inc., 100 F.3d 1173, 1180 (5th Cir. 1996) (quoting Rhodes, 75 F.3d at 994). Mike Wilson contends that the defendants' admission that they had not deducted the salary of any white police chief to pay employees' overtime salary precludes summary judgment. In order to show disparate treatment, the plaintiff must show that he and former white police chiefs were similarly situated, i.e., surrounding circumstances regarding overtime were "`nearly identical.'" E.g., Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5 th Cir. 1990) (sex discrimination case involving violation of the employer's non-fraternization policy) (citation omitted). Mike Wilson has failed to allege or present any evidence that a former white police chief or any other white city department head made a practice of scheduling overtime work for employees at a time when the fiscal year budget had no funds for overtime pay. The court finds that Mike Wilson has failed to raise a genuine issue of material fact as to whether the defendants' budgetary reason was a pretext for racial discrimination. Therefore, summary judgment should be entered as to the racial claim based on Mike Wilson's salary reduction.
B. Mike Wilson's Due Process Claims
Mike Wilson alleges that the conversion of the elective position of police chief to an appointive position violated his federal and state due process rights. In order to invoke due process protection, the plaintiff must establish a property interest in the election procedure. See Mahone v. Addicks Utility District, 836 F.2d at 929-31 (plaintiff's desire to have his land annexed by a utility district did not amount to a constitutionally protected property interest); Wicks v. Mississippi Valley State Univ., 536 So.2d 20 (Miss. 1988). Mike Wilson's affidavit states in part:
I expended a significant [amount] of money on my campaign and hoped for a full (4) four year term. . . .
Since the plaintiff was neither removed from an elective position nor discharged, as discussed supra, his claim amounts to only a personal preference for an elective position to an appointive position. The Supreme Court has held:
See Miss. Code Ann. § 21-3-5 (appointed municipal officers and employees "shall hold office at the pleasure of the governing authorities and may be discharged by such governing authorities at any time, either with or without cause").
To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.
Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 561 (1972). The court finds that the plaintiff has no constitutionally protected interest in the election procedure.
Even if the plaintiff had a property interest in the election procedure, the defendants obtained preclearance, as required for any change in voting procedure under 42 U.S.C. § 1973c, Section 5 of the Voting Rights Act of 1965, as amended; Mike Wilson does not allege that the defendants violated constitutional or statutory voting rights or that he is entitled to additional due process as an election candidate.
Miss. Code Ann. § 21-3-5 authorizes the mayor and board of aldermen to appoint a police chief:
From and after the expiration of the terms of office of present municipal officers, the mayor and board of aldermen of all municipalities . . . shall have the power and authority to appoint . . . any such other officers and employees as may be necessary. . . .
For the foregoing reasons, the court finds that summary judgment should be entered as to Mike Wilson's federal and state due process claims based on the selection method.
C. Rosa Wilson's Claims
Rosa Wilson alleges that she was discharged without cause in violation of her due process rights. In order to invoke due process protection, Rosa Wilson must establish that she had a property interest in or entitlement to continued employment. Moulton v. City of Beaumont, 991 F.2d 227, 230 (5 th Cir. 1993); Ishee v. Moss, 668 F. Supp. 554, 557 (N.D. Miss. 1987). She asserts that her "due process claim has merit because the defendants had no solid reason for terminating the plaintiff." Under Mississippi law, she was an at will employee. Miss. Code Ann. § 21-3-5. Under Mississippi's employment at will doctrine, "either the employer or the employee may have a good reason, a wrong reason, or no reason for terminating the employment contract." Kelly v. Mississippi Valley Gas Co., 397 So.2d 874, 874-75 (Miss. 1981). Clearly, Rosa Wilson has no constitutionally protected property interest in her continued employment in the police department. Therefore, the defendants' motion should be granted as to her due process claims.
See Plaintiffs' Response at 7.
See supra note 18.
Rosa Wilson further alleges that she was discharged on the basis of race. Her employment was terminated when her husband, Mike Wilson, was appointed police chief. Mayor Scruggs sent Rosa Wilson a letter dated July 11, 1997 stating in part:
As you are undoubtably [sic] aware, the employment of all employees with the City of Sardis terminated with the expiration of the terms of office of the prior Mayor and Board of Aldermen on Monday, July 7, 1997. As of this date no final action has been taken by the Mayor and Board to rehire you for your position with the City, and I do not at this time anticipate that any order to rehire will be adopted in the foreseeable future. Therefore, I must advise you that your employment with the City has ceased.
The defendants assume for summary judgment purposes that Rosa Wilson can establish a prima facie case of racial discrimination in her termination. The defendants have articulated a legitimate nondiscriminatory reason for their decision not to rehire her. Scruggs' declaration dated September 16, 1998 states in part:
After Mike Wilson was appointed as Police Chief, I decided it would be inappropriate for him to supervise his wife, who at the time worked as a police dispatcher. Therefore, I terminated Rosa Wilson's employment.
Rosa Wilson's affidavit states in part:
The new administration did not refuse to rehire or terminate any white employees previously working for the town of Sardis, Mississippi.
The defendants contend that Rosa Wilson offers no evidence showing that white city employees were similarly situated for purposes of disparate treatment. She neither alleges nor offers evidence that white department heads were directly supervising a spouse. The court finds that Rosa Wilson has failed to raise either a fact issue as to whether the defendants' articulated reason was a pretext or a reasonable inference that race was a determinative factor in their decision. Therefore, the court finds that the defendants' motion should be granted as to her race discrimination claim.
III. Conclusion
For the foregoing reasons, the court finds that the defendants' motion for partial summary judgment should be granted in part and denied in part. The motion is well taken and should be granted as to Rosa Wilson's claims, Mike Wilson's racial discrimination and due process claims regarding the method for selecting the police chief and Mike Wilson's racial discrimination claim based on his salary reduction. The motion should be denied as to Mike Wilson's racial discrimination claim based on the alleged elimination of his supervisory/administrative duties.
An order will issue accordingly.