245 F.3d 1232 (11th Cir. 2001), 00-10305, Davis v Town of Lake Park Florida

Docket Nº:00-10305.
Citation:245 F.3d 1232
Party Name:Mack DAVIS, Plaintiff-Appellant, v. TOWN OF LAKE PARK, FLORIDA, a Florida municipal corporation, Defendant-Appellee.
Case Date:March 26, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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245 F.3d 1232 (11th Cir. 2001)

Mack DAVIS, Plaintiff-Appellant,


TOWN OF LAKE PARK, FLORIDA, a Florida municipal corporation, Defendant-Appellee.

No. 00-10305.

United States Court of Appeals, Eleventh Circuit

March 26, 2001

April 5, 2001.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of Florida. (No. 98-08315-CV-FAM), Donald M. Middlebrooks, Judge.

Before CARNES and MARCUS, Circuit Judges, and HAND[*], District Judge.

MARCUS, Circuit Judge:

Plaintiff Mack Davis appeals the district court's grant of Defendant Town of Lake Park's motion for judgment as a matter of law on his Title VII race discrimination claim. Davis, an African-American police officer in the Town, alleges that he suffered adverse employment action based on race in the form of two corrective job performance memos placed in his personnel file and two instances where he was temporarily removed as the designated officer-in-charge ("OIC"). The jury returned a verdict for Davis and awarded $1.00 in nominal damages. The district court, however, set aside the verdict and granted the Town's motion for judgment as a matter of law, concluding that no reasonable jury could have found adverse

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employment action on this record. Because we agree that Davis failed to prove the kind of serious, material change to the terms, conditions, or privileges of his employment required to obtain relief under Title VII's anti-discrimination clause, we affirm.


Davis is the only black police officer in Lake Park, a small community near West Palm Beach, Florida. The department has approximately 20 road patrol officers, plus three sergeants, two lieutenants, and a chief (Jeffrey Lindskoog). The district court's opinion amply sets out the Town's extensive efforts to bring Davis into the police force. Davis was hired in November 1992, and remains a police officer there. His performance reviews have been excellent or no worse than satisfactory, and his supervisors have recommended him for several awards. He has served many times as one of the department's Field Training Officers ("FTOs"), responsible for teaching new officers the rules and regulations of the department.

In or about January 1996 Davis was selected by his then-shift sergeant, Patricia Gordon, to serve as OIC in her absence. The OIC is the road patrol officer who fills in for the shift sergeant when that sergeant has a day off, takes a vacation, or otherwise is unavailable. The OIC, when acting in that capacity, is to be accorded the same deference and respect as the sergeant. The OIC designation carries no additional pay or benefits, and is only temporary. It usually, although not always, goes to the most senior officer on the shift.

On October 31, 1996, Davis received a memorandum from Lieutenant Jules Barone entitled "Failure to Follow Department Requirements (S.O.P.)." The memo discussed Davis's alleged failure to comply with certain departmental requirements regarding "turning in paperwork on time and keeping your mailbox clean." It continued:

What makes this situation even more unacceptable is your position as a field training officer. How can you possibly expect trainees under your direction to follow instructions when you ignore a very basic aspect of your job. I expect more from you. As a result, any future leave requests will not be granted until all work-related paper work is turned in or you receive a waiver from your supervisor or me.

Davis did not suffer any repercussions from that memo; indeed, a week later, he received a performance evaluation-prepared by Gordon, and approved by Barone and Chief Lindskoog-of excellent, and an attendant pay raise.

On December 13, 1996, Gordon elected to designate another officer, Larry Wood, to serve as OIC while she was away on vacation. Gordon testified that she had noticed a "slump" in Davis's performance, and that she felt Davis needed a break from the additional duties imposed by being both OIC and an FTO. Gordon later re-designated Davis to serve as OIC. On January 24, 1997, Davis was again replaced as the designated OIC, this time (according to Davis) based on a decision by Barone that Davis's recent performance was deficient. Gordon concurred in Barone's decision, and designated an officer named Crowell to be OIC instead. Nevertheless, since that time, Davis has served as OIC on various occasions, including at the time of trial.

Meanwhile, on February 5, 1997, Davis received another job performance memo from Barone. The initial version of that memo was quite harsh in its criticism of Davis's recent performance, and identified several specific instances of unacceptable conduct. The memo was placed in Davis's

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personnel file, prompting Davis to file a union grievance. In response, the department substituted a somewhat softer, revised version of this memo, which stated that Davis's level of performance was "unacceptable for any officer, let alone one who is a field training officer and has served as an OIC." The memo added that it was meant to serve "as a warning that performance of a like nature may result in other department actions." The revised version replaced the initial version in Davis's personnel file, and was put there with the proviso that it would be removed on February 8, 1998, if the performance problems did not reoccur. The union, notably, did not pursue the matter further. Although the personnel file produced during discovery still contained the revised memo, in July 1999 Chief Lindskoog testified at trial-without contradiction-that the memo had been removed by that time.


It is undisputed that Davis did not suffer any reduction in salary, loss of benefits, denial of promotions, workplace reassignment, transfer, or change in permanent job title as a result of these incidents. Nevertheless, on May 14, 1998, Davis filed suit against his employer in the Southern District of Florida, alleging race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1, et seq., the Florida Civil Rights Act, and 42 U.S.C. § 1981. The case was originally assigned to U.S. District Judge Federico Moreno, who denied the Town's motion for summary judgment. In so doing, Judge Moreno rejected the argument that Davis did not suffer adverse employment action. The case was subsequently reassigned to U.S. District Judge Donald Middlebrooks.

A jury trial was held on July 26-28, 1999. At trial the Town moved for judgment as a matter of law at the close of Davis's case as well as after the close of the evidence. On both occasions the district court reserved ruling. On July 28, the jury returned a verdict in favor of Davis, but awarded him only $1.00 in nominal damages. Before rendering its verdict the jury had submitted to the district judge a note stating: "[W]e appear to be deadlocked. Can you assist? What do we do next?" The district judge responded by ordering the jury to deliberate further.

In a lengthy order dated December 22, 1999, the district court granted the Town's motion for judgment as a matter of law and thereby set aside the jury's verdict. After a detailed discussion of the evolution of the adverse employment action requirement in Title VII cases, the court concluded that the incidents complained of by Davis did not, viewed individually or collectively, amount to adverse action. The district court emphasized that Davis did not suffer any discipline for these incidents, did not lose any pay or benefits, and continued to receive excellent or satisfactory performance reviews with attendant increases in salary. With respect to the February 5, 1997, job performance memo, the court particularly emphasized that the memo was not a formal reprimand, and that according to Chief Lindskoog it had already been removed from Davis's personnel file. In any event, the court wrote, "[m]emoranda of reprimand or counseling that amount to no more than a mere scolding, without any following disciplinary action, do not rise to the level of adverse employment actions sufficient to satisfy the requirements of Title VII." With respect to the brief removals from the OIC designation, the district court wrote that "courts have uniformly held that changes in assignments or work-related duties do not amount to actionable adverse employment action if unaccompanied by a decrease in salary." Finally, as an additional ground for entering judgment in the Town's favor, the court

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concluded that Davis had failed to prove that he was treated differently than any similarly-situated white employees, and thus failed on that ground as well to establish a prima facie case under Title VII. This appeal followed.1


The standard of review is well-settled. As set forth in Tidwell v. Carter Products, 135 F.3d 1422 (11th Cir.1998):

A district court's denial of a defendant's motion for judgment as a matter of law is reviewed de novo, entailing the application of the same standards used by the district court. Dade County v. Alvarez, 124 F.3d 1380, 1383 (11th Cir.1997). Those standards require the consideration of "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). All evidence and inferences are considered in a light most favorable to the nonmoving party. Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989).

If the facts and inferences point overwhelmingly in favor of one party, such that reasonable people could not arrive at a contrary verdict, then the motion was properly granted. Conversely, if there is substantial evidence opposed to the motion such that reasonable people, in the exercise of impartial judgment, might reach differing conclusions, then such a motion...

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