520 F.3d 1269 (11th Cir. 2008), 07-11657, Rioux v. City of Atlanta, Georgia

Docket Nº:07-11657.
Citation:520 F.3d 1269
Opinion Judge:ALTONAGA, District Judge:
Party Name:Gerard RIOUX, Plaintiff-Counter-Defendant-Appellant, v. CITY OF ATLANTA, GEORGIA, Lynette Young, in her individual capacity, Defendants-Counter-Claimants-Appellees, Dennis L. Rubin, in his official capacity as City of Atlanta Fire Chief, Consolidated Defendant-Counter-Claimant-Appellee.
Attorney:William J. Atkins, A. Lee Parks, Jr., Steven E. Wolfe, Parks, Chesin & Walbert, P.C., Atlanta, GA, for Rioux. Cleora S. Anderson, Robert N. Godfrey, City of Atlanta, Law Dept., Atlanta, GA, for Defendants.
Judge Panel:Before EDMONDSON, Chief Judge, WILSON, Circuit Judge, and ALTONAGA, District Judge. EDMONDSON, Chief Judge, concurring in the result:
Case Date:March 18, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1269

520 F.3d 1269 (11th Cir. 2008)

Gerard RIOUX, Plaintiff-Counter-Defendant-Appellant,

v.

CITY OF ATLANTA, GEORGIA, Lynette Young, in her individual capacity, Defendants-Counter-Claimants-Appellees,

Dennis L. Rubin, in his official capacity as City of Atlanta Fire Chief, Consolidated Defendant-Counter-Claimant-Appellee.

No. 07-11657.

United States Court of Appeals, Eleventh Circuit.

March 18, 2008

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[Copyrighted Material Omitted]

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William J. Atkins, A. Lee Parks, Jr., Steven E. Wolfe, Parks, Chesin & Walbert, P.C., Atlanta, GA, for Rioux.

Cleora S. Anderson, Robert N. Godfrey, City of Atlanta, Law Dept., Atlanta, GA, for Defendants.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON, Chief Judge, WILSON, Circuit Judge, and ALTONAGA, [*]

District Judge.

ALTONAGA, District Judge:

The issues in this appeal, a civil rights action raising claims of race discrimination, are whether the trial court erred in granting summary judgment in favor of Appellees, Defendants below, Lynette Young ("COO Young") and Dennis L. Rubin ("Rubin"), by misapplying the summary judgment standard to the facts presented and on the basis of Appellees' qualified immunity. While we agree with Appellant, Plaintiff below, Gerard Rioux ("Rioux"), that he presented a prima facie case of discrimination and showed sufficient evidence of pretext, we find that he has not shown Defendants violated clearly established federal law, and we affirm.

I. BACKGROUND

In December 2003, Rubin was hired as Fire Chief of the Atlanta Fire Department ("AFD"). Rubin, a Caucasian male, is the highest-ranking member of the AFD. Rubin's predecessor had appointed Rioux, a Caucasian male, to the position of Deputy Fire Chief of the Field Operations Division of the AFD on a temporary basis in 2002. In January 2004, Rubin made

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Rioux's promotion to Deputy Fire Chief permanent.

One of Rubin's concerns shared with his supervisory personnel, including Rioux, involved the slow response time of the AFD Fire Investigation Unit ("FIU") in getting to the scenes of fires. On May 2, 2004, although he was off duty, Rioux arrived at the scene of a fire and concluded that members of the FIU, including Lieutenant Michael Austin ("Austin"), had taken too long to arrive. Rioux approached Austin, a Caucasian male, grabbed and pulled him by the lapel of his coat, and proceeded to chastise him for arriving late to the fire. A few days after the incident, Austin filed a formal complaint against Rioux.

The AFD Office of Professional Standards ("OPS") initiated an investigation into the incident. The OPS commander was a member of an organization of African American firefighters known as the Brothers Combined. The OPS is a section within the AFD Office of the Fire Chief and is overseen by AFD Fire Chief and Appellee, Rubin. Shortly after OPS began its investigation, Appellee COO Young, Rubin's direct supervisor and the City of Atlanta Chief Operating Officer, called Rubin and told Rubin "she had received or perhaps even the mayor had received a telephone call from Ivory Lee Young [Councilman of the City of Atlanta] from the Brothers Combined ... that the ... investigation of Gerard Rioux ... was being obstructed by [Rubin]." Although the interference and favoritism allegations against Rubin were found meritless, Rubin also turned the investigation over to the City of Atlanta Law Department ("Law Department").

On July 19, 2004, OPS completed its investigation and concluded that Rioux had violated at least four AFD Work Rules. OPS further concluded that Rioux had been untruthful and uncooperative during the investigation. The Law Department completed its own investigation on September 10, 2004 and reached conclusions similar to those reached by OPS with a few exceptions, most notably that the Law Department disagreed Rioux had lied during the investigation.

Both reports were given to Rubin, as well as COO Young, an African American woman. Rubin recommended to COO Young that Rioux be demoted two ranks to Battalion Chief, the lowest "discretionary officer" position in the AFD. COO Young concurred with Rubin's recommendation. On September 28, 2004, Rioux was informed of Appellees' decision and given a copy of the Law Department's report. Although Rioux believes his actions at the May 2, 2004 fire did not violate any AFD Work Rules, he does not dispute the basic facts of his interaction with Austin that night.

Around the time of Rioux's demotion, Rubin sought to fill the vacated position of Deputy Chief. Assistant Chief Michael Williams ("Williams"), an African American male, testified that sometime in September 2004, Rubin approached him, and after stating Rubin would "more than likely" reduce Rioux in rank, asked Williams if Williams would be interested in accepting the position. 1 Williams rejected the position. According to Williams, Rubin also identified to Williams two others on Rubin's "short list," and these, too, were African Americans. The position was ultimately offered to Nishiama Willis ("Willis"), an Asian woman.

Rioux asserts his demotion from Deputy Chief to Battalion Chief was not the result of his actions at the May 2, 2004 fire but rather Rubin's and COO Young's desire to replace Rioux with an African American.

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Rioux believes the organization of African American firefighters, Brothers Combined, in conjunction with COO Young, convinced Austin to file the complaint against Rioux and ultimately influenced Appellees' decision to demote Rioux. He also maintains that Rubin intended and tried to fill his position with an African American, only settling on Willis when no African American candidate would take the job.

Finally, Rioux asserts the disciplinary action taken against him was more severe than that imposed two years later on AFD Battalion Chief, Samuel Dunham ("Dunham"), an African American male, for what Rioux contends is similar misconduct. Dunham was alleged to have grabbed the arm of another AFD member, an African American woman, when she tried to open a refrigerator while leading a tour of high school students through an AFD facility. After grabbing her arm, Dunham verbally berated the complainant in front of the students and other firefighters. After an OPS investigation of the incident, Dunham received a six-day suspension and a written reprimand.

Rioux filed the underlying action in this case against the City of Atlanta and COO Young ("First Complaint") in her individual and official capacities, alleging discrimination in violation of the Equal Protection Clause. 2 The First Complaint alleged a first count under 42 U.S.C. § 1981 against the City and Young, and this count was merged into Rioux's section 1983 claim stated in count two. 3 The First Complaint identified Nathaniel Grissom ("Grissom") as a similarly situated high-ranking African American firefighter (former AFD Fire Marshal) who was treated differently from Rioux after coming under investigation. Rioux also alleged that Young "took over [Rioux's] investigation in order to remove Rioux from his position as Deputy Chief in hopes that an African-American would replace him." The City of Atlanta was dismissed from the action with prejudice due to the absence of any allegation that COO Young was the final policymaker for the City.

Rioux separately filed a lawsuit ("Second Complaint") alleging similar claims under sections 1981 and 1983 against Rubin individually and in his official capacity. The second count, under section 1983, alleged a denial of Rioux's equal protection rights based on Rioux's contention that similarly highly-ranked African American members of the AFD, including Samuel Dunham, were treated more favorably than Rioux based on race, despite having committed nearly identical disciplinary infractions to those Rioux committed. The Second Complaint alleged that Rubin's decision to demote Rioux "was motivated by Rioux's race, not only as an act of appeasement to the Brothers Combined and others who continued accusing him of racism toward African Americans, but also as part of Rubin's continuing policy, custom, and practice of achieving and maintaining what he perceives as racial balance among the upper ranks of AFD."

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The district court consolidated the actions against COO Young and Rubin and thereafter granted summary judgment in Defendants' favor. Rioux challenges that portion of the trial court's order finding he did not proffer sufficient evidence to support his claim of discriminatory demotion and the trial court's conclusion that COO Young and Rubin were entitled to qualified immunity for claims against them in their personal capacities. 4

II. DISCUSSION

Rioux raises three arguments on appeal: (1) the district court erred in applying the summary judgment standard to Rioux's pretext arguments; (2) the district court erred in concluding Dunham was not a suitable comparator to Rioux; and (3) the district court erred in granting summary judgment to Rubin and COO Young in their individual capacities on the basis of qualified immunity. While Appellees disagree in all respects, they also argue the district court improperly determined Rioux had established a prima facie case of discrimination.

A. Standard of Review

The Court's review of the grant of summary judgment is de novo, with evidence considered in the light most favorable to Rioux. See, e.g., Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir.2004). Summary judgment is rendered "if 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...

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