Green v. City of Phx.
| Decision Date | 26 August 2019 |
| Docket Number | No. CV-15-02570-PHX-DJH,CV-15-02570-PHX-DJH |
| Parties | Jeffrey Green, Plaintiff, v. City of Phoenix, Defendant. |
| Court | U.S. District Court — District of Arizona |
NOT FOR PUBLICATION
Before the Court is Defendant City of Phoenix's ("City") Motion for Federal Rule of Civil Procedure ("Rule") 50 Judgment as a Matter of Law (Doc. 129). Plaintiff filed a Response (Doc. 162) and the City filed a Reply (Doc. 166). Upon consideration of the same and for the foregoing reasons, the Court finds that as a matter of law, a reasonable jury would not have had a legally sufficient evidentiary basis to find for Plaintiff on his claim of retaliation. Accordingly, the Court will grant the City's Motion.
I. BACKGROUND
On December 17, 2015, Plaintiff filed his Complaint against the City alleging a single claim of retaliation under Title VII of the Civil Rights Act of 1964. (Doc. 1). Plaintiff alleged multiple instances of retaliation after he engaged in protected activity. A six-day jury trial was held in April 2019. (Docs. 118, 119, 121, 123, 131, 133). At the close of Plaintiff's case-in-chief, the City orally moved for judgment as a matter of law pursuant to Rule 50 (Doc. 175 at 151-58), and Plaintiff responded. (Id. at 159-65). However, because the City's oral motion was accompanied by written memoranda (Doc. 129), the Court reserved ruling on the Motion and told the parties that it intended to give Plaintiff adequate time to respond in writing to the Motion. (Doc. 176 at 7). In the meantime, the parties continued with trial. At the close of the City's case, it "reurge[d]" its Motion. (Id. at 10). The Court took the matter under advisement and the case was submitted to the jury. (Id.) On April 10, 2019, the jury entered a verdict, finding that Plaintiff engaged in protected activity, the City subjected Plaintiff to one or more adverse employment actions because he engaged in protected activity, and Plaintiff suffered damages as a result of the adverse employment action. (Doc. 134).
Plaintiff joined the City of Phoenix Police Department ("Police Department") in 1994. (Doc. 170 at 140; Doc. 175 at 35). In 2003, Plaintiff was promoted to sergeant and he continued to hold this rank at the time of trial. (Doc. 173 at 20). Plaintiff has held a variety of assignments while employed with the Police Department, including working with the Special Assignment Unit ("SAU"),2 the Professional Standards Bureau ("PSB"), the Legal Department, and the Mounted Unit. (Doc. 170 at 140-41, 190-208; Doc. 173 at 20-32).
While working in the Mounted Unit, Plaintiff told his supervisor, Lieutenant Jeff Lazell ("Lt. Lazell"), that he was experiencing discrimination. (Doc. 173 at 32). Plaintiff subsequently filed an Equal Employment Opportunity Commission ("EEOC") charge on December 11, 2009 ("2009 EEOC charge"), alleging discriminatory harassment.(Doc. 170 at 140; Doc. 173 at 32-33). The 2009 EEOC charge was resolved by a settlement agreement between the parties, and as part of that settlement, Plaintiff elected to be transferred from the Mounted Unit to the Robbery Unit ("Robbery"). (Doc. 170 at 140; Doc. 173 at 32-33).3
Plaintiff transferred to Robbery, a unit within the Violent Crimes Bureau ("VCB"), on December 5, 2011.4 (Doc. 170 at 140). Despite never having worked in Robbery, nor having been a case-carrying detective5 before, as a Robbery sergeant, Plaintiff would be responsible for supervising a squad of case-carrying detectives. (Doc. 175 at 36-38). At the time of Plaintiff's transfer to Robbery, the VCB commander was David Faulkner ("Commander Faulkner") and the Robbery lieutenant was Lisa Messina ("Lt. Messina").6 (Doc. 170 at 140-41; Doc. 173 at 36, 39). Before Plaintiff's transfer to Robbery, he learnedthat Commander Faulkner was the cousin7 of Lt. Lazell, the lieutenant who was the focus of his 2009 EEOC charge. (Doc. 173 at 36). Assistant Chief Jim Pina ("Assistant Chief Pina") informed Commander Faulkner that Plaintiff had been reassigned to Robbery. (Doc. 172 at 130). Commander Faulkner held a meeting with the entire unit to inform them that Plaintiff would be joining Robbery as a sergeant. (Doc. 170 at 145-46).
Plaintiff testified that shortly after starting in Robbery, he met with Commander Faulkner and expressed his concerns about reporting to him because he was Lt. Lazell's cousin. (Doc. 173 at 37-39). Plaintiff testified that Commander Faulkner responded by stating that "if you stand by the river long enough your enemies will float past you" and that "I'm kind of a conspirator myself"; which Plaintiff understood to mean that Commander Faulkner thought Plaintiff's 2009 EEOC charge was a conspiracy against Lt. Lazell. (Id. at 38). Separately and without any input from Commander Faulkner, Lt. Messina met with Plaintiff for approximately six hours over the course of two days to welcome Plaintiff to Robbery. She provided him with a Performance Expectations Memorandum, which explained her expectations for Robbery sergeants, and a Goal Setting Worksheet that detailed Plaintiff's work responsibilities. (Id. at 39; Doc. 172 at 175; Defendant's Trial Exhibits ("Def. Exs.") 31 and 32). Plaintiff testified that he thought the meeting with Lt. Messina was "hostile" and he felt like she was "scolding [him]" on her list of expectations. (Doc. 173 at 40). In fact, on Plaintiff's first or second day in Robbery, Plaintiff complained to Ms. Marquita Beene ("Ms. Beene"), an City of Phoenix's Equal Opportunity Department ("EOD") employee, that he thought he was being subjected to retaliation. (Doc. 172 at 194, 212-13; Doc. 175 at 47).
Nonetheless, Plaintiff testified that he understood that his performance evaluations would be based on the whether he met the goals in the Goal Setting Worksheet. (Doc. 175 at 49). The Goal Setting Worksheet included the following goals: "[t]horoughly review allof your squad's search warrants, tactical plans, and robbery bulletins prior to service or dissemination for accuracy and validity"; and "[m]aintain well documented supervisory notes on your assigned employees . . . [and] [s]ubmit to the Lieutenant by the fifth of each month." (Def. Ex. 31 at 1-2).
On February 9, 2012, Plaintiff reviewed a search warrant, but failed to confirm the description of the location in the warrant was complete and accurate before the warrant was presented to the judge. (Doc. 175 at 56). The location was incorrect, and Plaintiff's squad served the search warrant on the wrong location, during which the homeowner's dog was killed. (Id. at 57). PSB subsequently investigated the incident. (Id. at 57-58). After the investigation, PSB found that in the process of obtaining and serving the warrant, Plaintiff violated a Police Department policy, failed to properly supervise, and neglected his duties. (Id. at 58-59). Plaintiff then took stress-related leave from February 23, 2012, to April 6, 2012, because he felt like his superiors were trying to "unfairly discipline [him] out of the unit . . . ." (Doc. 173 at 56; Doc. 175 at 59).
On April 6, 2012, after returning from this leave, Plaintiff filed an EEOC charge ("April 2012 EEOC charge"). In this charge, Plaintiff claimed that his alleged hostile reception into Robbery was in retaliation for his 2009 EEOC charge. (Doc. 170 at 141; Doc. 173 at 45-46, 56). Then on April 24, 2012, Officer Candice Wilson ("Ms. Wilson"),8 the only female detective on Plaintiff's squad, came to Plaintiff and reported that she had been sexually harassed by a Police Department sergeant. (Doc. 173 at 46-47, 53). Plaintiff, as her supervisor, assisted her in filing a complaint with the EOD. (Doc. 170 at 141; Doc. 173 at 46-47, 53). Plaintiff also personally notified EOD and Lt. Messina of Ms. Wilson's complaint. (Doc. 173 at 48-49).
On May 7, 2012, Assistant Chief Pina notified Plaintiff that he would be assigned to work from home and he would be required to undergo a work fitness evaluation. (Doc. 170 at 141; Doc. 173 at 54; Def. Ex. 66). A work fitness evaluation, also known asa fitness for duty evaluation, is managed by the City's Human Resources Department. An employee is referred to one when the employee conducts himself in a manner that causes those in the organization to be concerned about the employee's ability to safely perform his job duties. (Doc. 172 at 227). Plaintiff testified that he was not given a reason for the work fitness evaluation, nor did he have any idea why he was required to undergo it. (Doc. 173 at 54-55). On May 9, 2012, Dr. Phillip Lett ("Dr. Lett") completed Plaintiff's work fitness evaluation. (Doc. 175 at 66-67). Dr. Lett recommended that Plaintiff was fit for duty, provided that he attend counseling on a weekly basis for a month and then every other week for three months. (Id. at 68-69). And Plaintiff did so. (Id.)
When Plaintiff returned to work on June 4, 2012, Lt. Messina had been replaced by Lieutenant Joseph Tomory ("Lt. Tomory") as the Robbery lieutenant. (Doc. 173 at 57; Plaintiff's Trial Exhibit ("Pl. Ex.") 21). In the month that Lt. Tomory was the Robbery lieutenant, Plaintiff testified that Lt. Tomory gave him orders to retaliate against Ms. Wilson. (Doc. 173 at 57). On July 2, 2012, Lt. Finley replaced Lt. Tomory as the Robbery lieutenant. (Doc. 170 at 141; Doc. 173 at 62; Def. Ex. 45). Plaintiff testified that he and Lt. Finley met on July 9, 2012, to discuss Ms. Wilson and during that meeting, Lt. Finley instructed Plaintiff to "get rid" of her. (Doc. 173 at 64). At trial, Plaintiff agreed that Ms. Wilson had engaged in unprofessional conduct when she posted several comments on Facebook, including a comment that implied that another female Robbery detective was a "hypocritical Christian." (Doc. 175 at 77-78). Plaintiff further agreed that Ms. Wilson's behavior was inappropriate and could...
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