HENRY

v.

CITY OF TALLAHASSEE

(Docs.45, 57). Defendant moved to strike Plaintiffs request for judicial notice and supporting documentation, as well as the affidavits of Plaintiff and Plaintiffs counsel (Docs.70-72) and Plaintiff responded (Docs.75-76). The Court has taken the motion for summary judgment under advisement (Doc. 50), and is now prepared to rule on all pending motions. For the reasons stated below, Defendant’s motion for summary judgment is GRANTED.

I.Statement of the Case

A. Background

For purposes of ruling on Defendant’s motion for summary judgment, the following facts are viewed in a light most favorable to Plaintiff, the nonmoving party.

1

Since April 1997, Walter McNeil has been the Tallahassee Police Department (TPD) Chief of Police (Doc. 44, p. 10). The two Chiefs that preceded McNeil were Thomas Coe (1994-1997) and Melvin Tucker (1979-1994)

(Id.).

Under Tucker and Coe, disciplinary measures were not clearly articulated

(Id.).

2

However, McNeil has worked to codify disciplinary procedures, to gather information from supei-visors and the Police Benevolent Association about officers’ truthfulness during investigations, to incorporate these principles into the Police Benevolent Association contract, and to set forth specific disciplinary standards

(Id.).

Plaintiff is a black law enforcement officer employed by TPD. Prior to filing this action, Plaintiff filed suit against Defendant in state court alleging discrimination and retaliation. The case went to trial and concluded in July 1999 in Plaintiffs favor.³

On November⁶, 1999, Plaintiff and another TPD officer, Leon Sapp, contracted to provide off-duty security at a teen dance at Club Ground Zero in Tallahassee, Florida (Doc. 44, pp. 2-3). As promoter, Travis Burroughs was responsible for paying Plaintiff and Sapp for their services

(Id.).

Shortly after midnight, Burroughs decided to close the dance early

(Id.).

Burroughs told the officers that he was dissatisfied with their performance and that he might not pay the officers at all or only for one hour of work (Doc. 44, p. 3). Plaintiff stated that he told Burroughs, “All I wanted was to be paid and the police would be out of the way”

(Id.).

Plaintiff and Burroughs dispute whether BuiToughs then became disorderly and threatening

(Id.).

Plaintiff handcuffed Burroughs and escorted him to a small office within the club

(Id.).

Plaintiff radioed TPD dispatch and requested transport of a prisoner

(Id.).

The dispatch, which went out to the dispatcher and on-duty officers, was interpreted by some officers as a request for emergency support leading some officers to respond in emergency mode (Doc. 44, p. 3). Officers Robert Hamby, Brian Reeder, and Daniel Augus-tyniak arrived within a minute of Plaintiffs dispatch

(Id.

at 4-5). At their arrival,

*1305

Burroughs and Plaintiff were outside the office and Plaintiff had removed the handcuffs from Burroughs

(Id.

at 5). Burroughs claimed that Plaintiff would only remove the handcuffs after Burroughs agreed to pay Plaintiff and Sapp

(Id.).

Plaintiff claimed that he removed the handcuffs after Burroughs agreed to calm down

(Id.).

After being paid by Club Ground Zero owner Charles Watzke, Plaintiff left while the other officers remained on scene (Doc. 44, p. 5). Burroughs told Officer Hamby that he wanted to file a formal complaint, and Burroughs was interviewed by Lt. Ken Bergstrom telephonically and by Sgt. Maurice Laws at the scene

(Id.).

The other officers wrote contemporaneous memoranda that were included in the investigative file

(Id).

After leaving Club Ground Zero, Plaintiff contacted TPD dispatch (Doc. 44, p. 6). The transmission provides in relevant part:

Dispatch: Good morning, Tallahassee Police Department, Jermai-na [sic]. How may I help you?

Henry: Yeah Jermaina [sic], this is Sgt. Henry. How you doing?

Dispatch: Good, how are you?

Henry: I’m doing fine. I’m 10-8 (available) from this place over here. This Signal 80 (off-duty employment).

Dispatch: All right. What’s your ID?

Henry: 201 (badge ID).

Dispatch: All right.

Henry: O.K. What is [Officer] Ham-by’s cell phone number?

Dispatch: Wait. Your [sic] 9201 (off-duty, badge ID). You’re out on a²³ (miscellaneous call for service)?

Henry: Yeah I was out, I’m 10-8 (available) from that²³ (miscellaneous call for service).

Dispatch: O.K., how do you want me to clear it?

Henry:

Go ahead uh, uh B-Boy

(no report written).

He paid me finally. I was gonna lock him up.

Dispatch: O.K.

Henry:

Yeah he trying, he trying to, trying to abscond from paying me and Leon Sapp from working today. Guy that had this party.

Dispatch: Uh huh.

Henry:

So I, that’s why I called for a unit for transport. I was gonna charge him with defrauding.

Anyway, uh give me uh Hamby’s phone number. Dispatch: O.K., at home?

Henry: No, no, no. Hamby got a mobile phone. He was on scene. I just left there.

Dispatch: O.K., hold on. Let me get the red sheet.

(Id.

at 6-7) (emphasis in Defendant’s statement).

On November⁸,1999, Burroughs lodged a complaint with Internal Affairs (IA)

(Id.).

Because the conduct at issue was potentially criminal, the IA investigation was suspended and TPD’s Criminal Investigation Division (CID) commenced an investigation

(Id).

Pending the outcome of the CID investigation, Chief McNeil suspended Plaintiff with pay and suspended Plaintiffs abilities to take law enforcement action, to work secondary employment, and to carry a concealed weapon without a permit

(Id

at 7-8).

On November³⁰, 1999, the CID investigation culminated in a Probable Cause affidavit charging Plaintiff with felony false imprisonment and misdemeanor perjury (Doc. 44, p. 8). Florida Circuit Judge John Crusoe reviewed the affidavit and found sufficient probable cause to sign warrants for Plaintiff

(Id).

Plaintiff turned himself in that day.

Following the CID investigation, on December⁶, 1999, Florida Department of

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Law Enforcement (FDLE) contacted Chief McNeil and requested a complete copy of all documentation relating to “the referenced misconduct (false imprisonment)” to determine “whether or not a basis exists for pursuit of any disciplinary action by the Criminal Justice Standards Training Commission” (Doc. 44, p. 16; Doc. 48, Ex. 02).

The IA investigation renewed after the CID investigation concluded, and IA re-interviewed Plaintiff under oath on January¹², 2000 (Doc. 44, p. 8). IA collected documents and conducted²³ interviews (including the backup officers and two interviews with Officer Sapp) in its investigation

(Id.

at 8-9).

On February³, 2000, the State Attorney’s Office for Florida’s Second Judicial Circuit issued an information charging Plaintiff with felony false imprisonment and misdemeanor perjury (Doc. 45, Ex. A).

4

The IA investigation culminated in March 2000 with a 79-page investigative report

(Id.

at 9-10; Doc. 48, Ex. P).

5

The report, which was ultimately adopted by Chief McNeil, recommended sustaining²⁶ counts of improper conduct and one count of improper procedure against Plaintiff, and exonerating Plaintiff of one court of improper conduct (Doc. 48, Ex. P., pp. IA 79-80).

6

After reviewing the IA and CID investigations, Chief McNeil spoke with the City

*1307

Manager and decided to terminate Plaintiff based on his belief that Plaintiff had been untruthful in the IA and CID investigations and had committed a crime (Id; Doc. 48, Ex. 0, ¶ 6). On March²⁰, 2000, Chief McNeil advised Plaintiff of his intent to terminate Plaintiff, effective March²⁷, 2000 (Doc. 44, p. 12). On the day of his pre-termination meeting, Plaintiff tendered his written resignation (Id).

On April¹⁰, 2000, TPD’s director of Employee Resources responded to FDLE’s December⁶, 1999 request for a .complete record of documentation (Id at 16). Pursuant to Florida law, TPD forwarded materials to FDLE (Id at 17; Doc. 45, Ex. D). FDLE decertified Plaintiff in August 2001 (Doc. 44, p. 17).

B. Procedural History

On September²¹, 1999, Plaintiff filed a Charge of Discrimination with the Florida Department of Human Resources claiming race discrimination and retaliation. On March²⁴, 2000, Plaintiff filed an addeiK dum to his Charge of Discrimination again charging race discrimination and retaliation with the additional claim that “Plaintiff is also subject to termination and will likely be terminated due to malicious, false and contrived charges” (Doc. 48, Ex. L⁶).

7

On February¹⁵, 2001, Plaintiff filed this action álleging (1) race discrimination and (2) retaliation in violation of Chapter 760, Florida Statutes; Title 42, United States Code, Section 2000e

et seq.;

and Title 42, United States Code, Section 1981(a).

8

-The parties completed discovery. Thereafter, Defendant filed this motion claiming (1) Plaintiffs claims are

res judicata

barred, (2) Plaintiff cannot satisfy a

prima facie

case of race discrimination or retaliation, and (3) even if Plaintiff could satisfy a

prima facie

case, Defendant has proffered legitimate non-discriminatory reasons that Plaintiff cannot establish are pretextual.

9

II. Motion to Strike

Defendant moves to strike much of Plaintiffs affidavit on various grounds.

10

Compounding the issue is that Plaintiff attempts to use his affidavit to serve the dual purpose of complying with this Court’s local rule, which mandates that

*1308

Plaintiff file a statement of the genuine issues of material fact to be tried.

See

N.D. Fla. Loe. R. 56.1(A). Defendant requests that the Court strike the deficient portions and&#x²⁷; — due to Plaintiffs failure to properly comply with the local rule — deem Defendant’s statement of undisputed facts admitted for the purpose of summary judgment. For the reasons stated below, Defendant’s motion to strike plaintiffs affidavit is GRANTED in part and DENIED in part.

11

A. Affidavit Deficiencies

The Court has discretion under Rule 12(f) to grant a motion to strike any redundant, immaterial, impertinent, or scandalous matter. See

Fed. R. Civ. P. 12(f). In

Ward v. State of Fla., Dept. of Juvenile Justice,

816 So. 2d 637, 2002 WL 942240, 15 Fla. L. Weekly Fed. D233 (N.D.Fla. April⁹, 2002), an order with which Plaintiffs counsel should be intimately familiar, Magistrate Judge William C. Sher-rill detailed the standard for a motion to strike.

12

The Court adopts Magistrate Judge Sherrill’s reasoning and addresses the challenged portions of the affidavit.

Many of the statements in the affidavit are properly stricken as arguments, improper opinions, conclusions, are not based on personal knowledge, or are^ inadmissible hearsay. Therefore, Plaintiffs motion to strike is GRANTED as to the challenged portions of paragraphs², 9, 10, 11, 12, 13, 14, and 16.

13

Further, at

*1309

tachments to Plaintiffs affidavit suffer from similar deficiencies.

14

B. Local Rule 56.1(A) statement

Local Rule 56.1(A) provides:

Any motion for summary judgment filed pursuant to Fed.R.Civ.P. 56 ... shall be accompanied by a

separate, short and concise

statement of the

material facts

as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement constitutes grounds for denial of the motion.

The statement shall reference the appropriate deposition, affidavit, interrogatory, admission or other source of the relied upon material fact, by page, paragraph, number, or other detail sufficient to permit the court to readily locate and check the source.

The party opposing a motion for summary judgment shall, in addition to other papers or matters permitted by the rules, file and serve

a separate, short and concise

statement of the

material facts

as to which it is contended that there exists a genuine issue to be tried,

in the format set forth above.

All material facts set forth in the statement required to be served by the moving party %mll be deemed admitted unless controverted by the statement required to be filed and served by the opposing party.

N.D. Fla. Loo. R. 56.1(A) (emphasis added). The obligations delegated to each

*1310

party under this rule are clear and unambiguous. When filing a motion for summary judgment, the moving party, in a

separate, short and concise statement,

is required to designate which

material facts

are not in conflict. The moving • party must then cite to the record evidence,

by page, paragraph, number of other detail,

that confirms this lack of dispute. Thereafter, the non-moving party is obligated to highlight which

material facts

are in conflict, and to cite to the appropriate record evidence

by page, paragraph, number, or other detail,

that confirms this dispute.

Cf. Waldridge v. Am. Hoechst Corp.,

24 F. 3d 918, 921-22 (7th Cir.1994). If the non-moving party, does not controvert the

material facts

set forth in the moving party’s statement then they will be deemed admitted by the Court.

15

Local rules have the force of law.

See Weil v. Neary,

278 U.S. 160, 169, 49 S.Ct. 144, 148, 73 L.Ed. 243 (1929);

Calmaquip Eng’g W. Hemisphere Corp. v. West Coast Carriers Ltd.,

650 F. 2d 633, 636 (5th Cir. Unit B 1981) (stating that the requirements of Southern District of Florida Local Rule 10(J)(2) are “mandatory and may not be waived”).

16

Local Rule 56.1(A) was designed to facilitate the resolution of summary judgment motions by requiring each party to direct the Court’s attention to the

material facts

at issue in what otherwise might amount to a complex and voluminous record.

Cf. Jackson,

101 F. 3d at 150-51, 153 (stating that “Rule 108(h) assists the district court to maintain docket control and to decide motions for summary judgment efficiently and effectively”);

Waldridge,

24 F. 3d at 922. A fact question either exists or it does not. Even so, when a party fails to file a proper Rule 56.1(A) statement, district courts are not obligated to search for a fact question by sifting through the record.

See Jackson,

101 F. 3d at 154 & n. 7;

see also Dunlap v. Transamerica Occidental Life Ins. Co.,

858 F. 2d 629, 631-32 (11th Cir.1988).

17

If a non-moving party fails to controvert a material fact contained in a moving party’s statement, that material fact will be deemed admitted for the purpose of ruling on the motion for summary judgment. While this rule may be, at times, unforgiving, and sometimes fatal, it “substantially facilitates [a] district court’s task of deciding whether a trial is indeed necessary.”

Waldridge,

24 F. 3d at 924.

In the instant case, Defendant submitted a forty-six page Rule 56.1 statement of facts (“Defendant’s statement”) in support of its motion for summary judgment. Defendant’s statement details the material facts that make up the extensive factual and procedural background of the

*1311

instant case. Almost every substantive sentence includes support by a pinpoint citation to depositions, exhibits, or judicially-notieeable documents.

18

Plaintiff, however, filed his affidavit, also labeling it as his “Statement of Material Facts.” The “statement” is riddled with speculative and conclusory allegations that characterize the legal nature of the voluminous record that he has submitted in opposition to summary judgment.

See supra

Part II.A. For example, Plaintiffs statement states:

9. I have attached as Exhibit “F” my sworn testimony offered during my state trial ... showing the disparity and retaliation to which I have been subjected over at least the past 10 years within TPD. Files admitted into evidence in the 1999 state cause [sic] for my similarly situated coworkers who were treated more favorably than I was treated have been filed herewith under a Notice of Filing to show the level of disparity and retaliation to which I have been subjected over the past 10 years.

(Doc. 56, ¶ 9). This paragraph is almost entirely conclusory allegations.

19

Further, Plaintiffs Exhibit F alone comprises over 600 pages. Plaintiff neither provides facts for the Court to verify with this exhibit nor provides a “page, paragraph, number, or other detail sufficient to permit the court to readily locate and check the source.” N.D. Fla. Loo. R. 56.1(A). Much of the statement suffers from similar deficiencies

(See

Doc. 56, ¶¶ 2,10,11,12 C & F,¹³,16).

Further, the bulk of the rare paragraphs that actually include a pinpoint citation are deficient. For example, paragraph¹⁴ states:

McNeil also testified during his deposition that Sgt. Sumpter, however, was demoted for not being “forthcoming” during the IA investigation; the Chief was quick to point out that Sumpter did not “lie” during the IA investigation, although the evidence in 11-0027 in the form of Chief Proctor’s testimony suggests otherwise. Compare pages 6-7 of Exhibit “K” with Proctor’s testimony included within 11-0027 in Exhibit “G”.

(Doc. 56, ¶ 14). While Plaintiff attempts to establish the factual content of McNeil’s testimony, in an effort seemingly aimed at establishing a disputed issue of fact, Plaintiff simply points to another article of evidence, concluding that “Chief Proctor’s testimony suggests otherwise” (Doc. 56, ¶ 14). Plaintiff does not state that a disputed fact exists (merely “suggest[ing]” the existence of a disputed fact) or set forth what disputed

fact

appears in the other article of evidence. Rather, Plaintiff places an exhibit of approximately 400 pages before the Court and expects the Court to not only undertake an expedition in search of some fragment of testimony included within it, but then, upon discovery of the treasured portions of the document, to comb though Proctor’s testimony with

*1312

the hope of stumbling upon some portion that merely “suggests” a disputed issue of fact.

20

Filing a massive record, making conclusory and opinion-laden references to expansive exhibits, and expecting the Court to scour those exhibits with the faint hope of stumbling across a disputed issue of fact is simply insufficient to comply with Local Rule 56.1(A). Therefore, Defendant’s Motion to Strike Plaintiffs affidavit is GRANTED in part and DENIED in part and Defendant’s Statement of Undisputed Facts is admitted of the purpose of summary judgment as set forth in Part I.

III. Motion for Summary Judgment

A Standard

Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c);

see also Celotex Corp. v. Catrett,

477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). “[T]he substantive law will identify which facts are material” and which are irrelevant.

Anderson,

477 U.S. at 248, 106 S.Ct. at 2510. An issue of fact is material if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case.

See id.

At summary judgment, a court’s function is not to weigh the evidence to determine the truth of the matter, but to determine whether a genuine issue of fact exists for trial.

See id.

at 249, 106 S.Ct. at 2510-11. A genuine issue exists only if sufficient evidence is presented favoring the nonmoving party for a jury to return a verdict for that party.

See id.

“If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment.”

Miranda v. B & B Cash Grocery Store, Inc.,

975 F. 2d 1518, 1534 (11th Cir.1992) (citing

Mercantile Bank & Trust Co. v. Fidelity and Deposit Co.,

750 F. 2d 838, 841 (11th Cir.1985)).

When assessing the sufficiency of the evidence in favor of the non-moving party, the court must view all the evidence, and all factual inferences reasonably drawn from the evidence, “in the light most favorable to the non-moving party.”

Hairston,

Anderson, 477

U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted). “A mere ‘scintilla’ of evidence supporting the ... [non-moving] party’s position will not suffice” to demonstrate a genuine issue of material fact that precludes summary judgment.

Walker v. Darby,

911 F. 2d 1573, 1577 (11th Cir.1990)

B. Discussion

Defendant first challenges Plaintiffs claims as barred by

res judicata.

Second, Defendant claims that Plaintiff is unable to establish a

prima facie

case on either his

*1313

discrimination or his retaliation claims. Finally, Defendant argues Plaintiff cannot prove its proffered legitimate business reasons are pretextual as a matter of law on those same claims.

1.

Res Judicata

Defendant argues that Plaintiffs claims are barred by

res judicata

because they constitute the same cause of action as a case previously litigated by Plaintiff.

21

Plaintiff concedes that “[w]ith respect to any other issue raised by Plaintiff other than his termination,

res judicata

appears to be proper” (Doc. 54, p. 10 n. 3). Accordingly, the Court examines whether

res judicata

bars consideration of Plaintiffs termination.

The Eleventh Circuit has found:

Res judicata ...

precludes claims which a plaintiff actually raised or could have raised in a prior suit when (1) there is a final judgment in a prior suit on the merits; (2) the decision in the prior suit is rendered by a court of competent jurisdiction; (3) the parties in both suits are identical; and (4) both suits involve the same cause of action.

O’Connor v. PCA Family Health Plan, Inc.,

200 F. 3d 1349, 1355 (11th Cir.2000). The only issue disputed by the parties is whether the present action and

Henry I

involve the same cause of action. Two suits involve the same cause of action if the cases arise out of the same “nucleus of operative fact.”

Jang v. United Tech. Corp.,

206 F. 3d 1147, 1148 (11th Cir.2000). Further, “for

res judicata

purposes, claims that ‘could have been brought’ are claims in existence at the time the original complaint is filed or claims actually asserted by supplemental pleadings or otherwise in the earlier action.”

Pleming v. Universal-Rundle Corp.,

142 F. 3d 1354, 1356 (11th Cir.1998). Therefore,

“res judicata

does not bar a claim that was not in existence at the time of the original action unless the facts underlying the claim were actually raised in that action.”

In re Piper Aircraft Corp.,

244 F. 3d 1289, 1299 (11th Cir.2001).

Defendant argues that Plaintiff raised his termination in

Henry I

by averring that he had suffered from “enhanced penalties” and “criminal charges ... resulting in an internal affairs/CID investigation” that were “contrived to effect his termination” and that “may result in his termination”

{Henry I,

Doc. 10, ¶¶ 12, 29, 43). However, for Plaintiff to say that Defendant’s actions “may result in” or are intended “to effect” his termination is entirely different than asserting that he has been terminated; the latter only appears to be possible after the termination has

*1314

been effectuated.

Cf. Lundquist v. Rice Mem. Hosp.,

238 F. 3d 975, 978 (8th Cir.2001). Plaintiffs termination occurred after his second amended complaint was filed in

Henry I.

Accordingly,

res judicata

does not bar Plaintiffs claims with regard to his termination.

22

2. Race Discrimination

Title. VII provides that it is unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race ....” 42 U.S.C. § 2000e-2(a)(1) (West 1994). In

McDonnell Douglas Corp. v. Green,

411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court articulated a tripartite framework for analyzing claims brought under Title VII. The framework places the initial burden on a plaintiff to establish a

prima facie

case of discrimination.

23

See id.

at 802, 93 S.Ct. at 1824. To establish a

prima facie

case of disparate treatment in the workplace through circumstantial evidence, a plaintiff must show that “(1) he belongs to a protected class; (2) he was subjected to adverse job action, (3) his employer treated similarly situated employees outside his classification more favorably, and (4) he was qualified to do the job.”

Maniccia v. Brown,

171 F. 3d 1364, 1368 (11th Cir.1999). Once the plaintiff presents a

prima facie

case, a presumption of discrimination arises.

See St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 506, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993).

The intermediate burden of production then shifts to the defendant to articulate a legitimate, nondiscriminatory explanation for the adverse action.

See McDonnell Douglas,

411 U.S. at 802, 93 S.Ct. at 1824. “To satisfy that burden of production, ‘[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.’ ”

Combs v. Plantation Patterns,

106 F. 3d 1519, 1528 (11th Cir.1997),

cert. denied,

522 U.S. 1045, 118 S.Ct. 685, 139 L.Ed.2d 632 (1998) (quoting

Texas Dept. of Community Affairs v. Burdine,

450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981)). The defendant can satisfy this burden by producing evidence “which would allow the trier of fact rationally to conclude that the employment decision ... [was not] motivated by discriminatory animus.”

Id.

(quoting

Burdine,

450 U.S. at 257, 101 S.Ct. at 1096).

If the defendant can demonstrate a legitimate, nondiscriminatory reason, the

*1315

presumption of discrimination is eliminated and the burden shifts back to the plaintiff to raise a genuine factual question that the reason offered by the defendant was not the real reason for the adverse employment action.

See id.; Corbin,

25 F. 3d at 1550 (citing

Hairston,

9 F. 3d at 920). A plaintiff may “survive summary judgment, and judgment as a matter of law, if there is sufficient evidence to demonstrate the existence of a genuine issue of fact as to the truth of each of the [defendantj’s proffered reasons for its challenged action.”

Combs,

106 F. 3d at 1529.

24

However, “there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the [defendant’s] explanation, no rational factfinder could conclude that the action was discriminatory.”

Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 148, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000);

accord Chapman v. AI Transport,

229 F. 3d 1012, 1025 n. 11 (11th Cir.2000) (recognizing that the

Reeves

decision modified the

Combs

decision). Under such circumstances, a plaintiff “still may not be entitled to take his case to a jury.”

Chapman,

229 F. 3d at 1025 n. 11. A defendant may still be entitled to summary judgment, and judgment as a matter of law, even if a plaintiff offers sufficient evidence demonstrating that the defendant’s stated reasons are pretextual so long as the court determines that no rational fact finder could conclude the action was discriminatory. This test is “intended ... to function ... as an evidentiary guide to determine the ultimate question in a racial discrimination case under Title VII: whether the [defendant] discriminated against the claimant on the basis of race.”

Roberts v. Gadsden Mem. Hosp.,

835 F. 2d 793, 796-97 (11th Cir.1988).

a. Prima facie case

Defendant argues that Plaintiff cannot establish the third element of the

prima facie

case, that other similarity situated non-black employees were more favorably treated. Plaintiff relies on an expansive list of proposed comparators that he claims are similarly situated and disciplined more leniently than he.

“In determining whether employees are similarly situated for purposes of establishing a prima facie case, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways.”

Jones v. Bessemer Carraway Med. Ctr.,

137 F. 3d 1306, 1311 (11th Cir.),

opinion modified by

151 F. 3d 1321 (11th Cir.1998). “The most important factors in the disciplinary context are the nature of the offenses committed and the nature of the punishments imposed.”

Id.

(internal quotations and citations omitted). Further, “Title VII does not take away an

*1316

employer’s right to interpret its rules as it chooses, and to make determinations as it sees fit under those rules.”

Maniccia v. Brown,

171 F. 3d 1364, 1368-69 (11th Cir.1999),

reh’g denied,

(quoting

Jones,

137 F. 3d at 1311);

Nix v. WLCY Radio/Rahall Comms.,

738 F. 2d 1181, 1187 (11th Cir.1984).

Defendant argues that this circuit requires that, in order to be similarly situated, “the quantity and quality of the comparator’s misconduct be nearly identical to prevent courts from second-guessing employers’ reasonable decisions and confusing apples with oranges.”

Id.

Plaintiff points to a recent decision of the Eleventh Circuit to argue that “similarly situated” is broader than Defendant claims.

See Alexander v. Fulton County,

207 F. 3d 1303, 1333-34 (11th Cir.2000).

Alexander

has already been effectively distinguished from the present case by at least one court.

See Holston v. The Sports Auth., Inc.,

136 F. Supp. 2d 1319, 1327-28 (N.D.Ga.2000),

aff&#x²⁷;d,

251 F. 3d 164 (11th Cir.2001). Nevertheless, whatever “similarly situated” may be, this is certainly not it.

Plaintiff sets forth an expansive list of alleged comparators that he claims, in addition to the offenses for which they were charged “should have been” charged with additional offenses, often bordering on the absurd. Plaintiff then claims that these additional offenses “should have” sad to harsher discipline for each comparator, often the individual’s termination. This, Plaintiff claims, would make him similarly situated to each alleged comparator. While the Court’s inquiry is limited to “whether employees

are

similarly situated for purposes of establishing a

prima facie

case,” not whether Plaintiff can construct a situation in which they could conceivably be similarly situated, and Plaintiffs argument would result in a series of mini-trials on collateral issues, even assuming Plaintiffs “should have” comparisons are proper, they eviscerate his own case.

Jones,

137 F. 3d at 1311 (emphasis added).

See

Fed. R. Evid. 403;

cf. Anderson v. WBMG-42,

253 F. 3d 561, 567 (11th Cir.2001). Plaintiff does not contend that the internal investigation reports were prepared differently based on whether the subject of the report was black or not, since such an argument would be futile. The record overwhelmingly establishes that the rules were applied to black officers and non-black officers alike. Indeed, Plaintiffs list of “comparators” includes six

black officers

that he argues “should have” received harsher discipline.

25

Further,

Plaintiffs own deposition testimony

establishes, on four separate occasions, that the reason for any disparate treatment is

not

Plaintiffs race (Doc. 48, Ex. L, pp. 212 (“There’s no other black in the police department that’s been treated the way I’ve been treated. Not one.”), 223

*1317

(“There’s no other black in the City of Tallahassee or the history of the [TPD] that has been treated like Raymond Henry.”), 296-97 (“I was disciplined more harshly than any other police officer in the [TPD]. That includes whites and blacks.”), 337-38 (“I have to go back and say again for the record, there’s no other black male in TPD that’s been done, handled, disciplined as harshly as I’ve been disciplined.”)).

26

Additionally, the circumstances of each alleged comparator’s conduct are not sufficiently similar to Plaintiffs circumstances to create an inference that Plaintiffs termination was the result of racial discrimination. First, “the quantity ... of the comparator’s misconduct” is

clearly

less than that of Plaintiff.

Maniccia,

171 F. 3d at 1368. No individual, other than Plaintiff, has been charged with anywhere near the²⁸ policy violations (27 of which were sustained) that he has arising out of a single incident.

27

Further, Plaintiffs “multiple instances of misconduct on the same day” and his additional misconduct arising out of the same incident “may simply have been ‘the straw that broke the camel’s back.’ ”

Jones,

137 F. 3d at 1311. Second, the Court must examine “quality of the comparator’s misconduct ... to prevent [the court] from ... confusing apples with oranges.”

Maniccia,

171 F. 3d at 1368-69. Yet, Plaintiffs alleged comparators are of an entirely different food group.

28

No individual other than Plaintiff was even accused of, much less had substantiated, charges of repeatedly lying about material facts while under oath in IA and CID investigations

and

abusing his authority as an officer to commit a felony, much less one for personal gain.

29

Accordingly, Plaintiff cannot establish a

prima facie

case.

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b. Pretext

Assuming

arguendo

that Plaintiff had established a

prima facie

case of race discrimination, Defendant successfully satisfies its burden to present legitimate, nondiscriminatory reasons for Plaintiffs termination. Defendant presented competent evidence that Plaintiff was terminated because he was untruthful in both his CID investigation and IA investigation and because of the criminal implications of Plaintiffs conduct. Plaintiff argues that these are pretextual.

In support of his argument that Defendant’s reasons are pretextual, Plaintiff relies on the evidence discussed above. After reviewing the evidence, the Court finds Plaintiff has failed to demonstrate the existence of a genuine issue of fact as to the truth of Defendant’s proffered reasons for its challenged action. A reasonable fact finder could not conclude that the proffered nondiscriminatory reasons were not the real reasons for Defendant’s decision to terminate Plaintiff. Assuming a fact finder could conclude Defendant’s reasons were pretextual, the record conclusively reveals a plethora of other nondiscriminatory reasons for Defendant’s decision to terminate Plaintiff. Consequently, no rational fact finder could conclude that Defendant’s actions were discriminatory.

3. Retaliation

Plaintiff claims that he was retaliated against because he previously filed charges and testified against Defendant for race discrimination. Title VII provides:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful practice by this ... [title], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this [title] ....

42 U.S.C. § 2000e-3(a). To establish a

prima facie

case of retaliation, Plaintiff must demonstrate that (1) he engaged in protected activity; (2) Defendant was aware of that activity; (3) he suffered adverse employment action; and (4) there was a causal link between his protected activity and the adverse employment action.

See Maniccia,

171 F. 3d at 1369. Like the tripartite framework used to establishing a claim of discrimination, once a plaintiff satisfies the elements of the

pri-ma facie

case, a presumption of retaliation is created.

See Hairston,

9 F. 3d at 919.

*1319

Defendant can defeat the presumption only by offering evidence of a legitimate, nonretaliatory reason for the adverse action.

See id.

After the presumption is eliminated, the burden shifts back to the plaintiff, who must then raise an issue of material fact as to whether Defendant’s reason is pretextual.

See id.

at 920-21.

Defendant contests that Plaintiff can satisfy the third element of his

prima facie

case — the causal connection between Plaintiff’s September 1999 charge of discrimination or testimony in a July 1999 trial and his March 2000 termination. Plaintiff presents no direct evidence of a causal connection, and relies on circumstantial evidence by attempting to show a close time-link between the events. Defendant argues that the time lapse of six to eight months between the time of termination and Plaintiffs filing of a charge of discrimination and testimony are insufficient to create an inference of retaliation.

To establish the causal relation element of his

prima facie

case of retaliation, Plaintiff need only show “that the protected activity and the adverse action are not completely unrelated.”

Wideman,

141 F. 3d at 1457. “In order to satisfy the ‘causal link’ prong of a prima facie retaliation case, a plaintiff must, at a minimum, generally establish that the defendant was actually aware of the protected expression at the time the defendant took the adverse employment action.”

Raney v. Vinson Guard Serv., Inc.,

120 F. 3d 1192, 1197 (11th Cir.1997). However, the United States Supreme Court has recently determined mere temporal proximity between the defendant’s knowledge of the protected activity and an adverse employment action must be “very close” to establish causation.

Clark County School District v. Breeden,

532 U.S. 268, 273-74, 121 S.Ct. 1508, 1511, 149 L.Ed.2d 509 (2001). While holding that a 20-month disparity was insufficient, the Court cited with approval cases holding that a three to four month disparity was insufficient.

Id.

(citing

Richmond v. ONEOK, Inc.,

120 F. 3d 205, 209 (10th Cir.1997) (3-month period insufficient);

Hughes v. Derwinski,

967 F. 2d 1168, 1174-75 (7th Cir.1992) (4-month period insufficient)).

Plaintiff relies on being “fired shortly” after engaging in statutorily protected conduct, which was nine months after the conclusion of his state trial and six months from when he filed a charge of discrimination. However, the time disparity falls outside the period suggested by

Clark County.

Plaintiff does not set forth any other meritorious basis for finding causation.

30

Assuming that Plaintiff had established a

prima facie

ease of retaliation, as discussed above, the Court concludes Defendant has articulated legitimate, nondiscriminatory reasons for terminating Plaintiff. The Court further concludes Plaintiff has failed to demonstrate the existence of a genuine issue of fact as to

*1320

the truth of Defendant’s proffered reasons for its challenged action. Assuming further that a fact finder could conclude Defendant’s reasons were pretextual, no rational factfinder could conclude that the action was retaliatory.

See Reeves,

530 U.S. at 148, 120 S.Ct. at 2109.

For the reasons stated above, the Court finds that there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. Defendant’s motion for summary judgment is GRANTED.

IV. Summary

The Court’s ruling in this matter may be summarized as follows, and IT IS HEREBY ORDERED:

1. Defendant CITY OF TALLAHASSEE’S second motion for leave to file reply memorandum (Doc. 81) is DENIED.

2. Defendant CITY OF TALLAHASSEE’S motion to strike Plaintiffs affidavit and Marie Maddox’s affidavit (Doc. 71) is GRANTED in pai’t and DENIED in part as outlined in this order. 3. Defendant CITY OF TALLAHASSEE’S motion to strike Plaintiffs request for judicial notice (Doc. 70) is GRANTED to the extent Plaintiff requests judicial notice of the truth of the matters asserted in the documents accompanying Plaintiffs request.

4. Defendant CITY OF TALLAHASSEE’S motion for summary judgment (Doc. 42) is GRANTED.

5. Consistent with this order, the Clerk of Court is directed to enter summary judgment in favor of Defendant. Plaintiff shall take nothing by this action and goes without day.