Gresham v. City of Atlanta
| Decision Date | 29 August 2011 |
| Docket Number | CIVIL ACTION NO. 1:10-CV-1301-RWS-ECS |
| Parties | MARIA GRESHAM, Plaintiff, v. CITY OF ATLANTA, MAJOR PERDUE, in his official capacity, GEORGE TURNER, in his individual and official capacities, Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
On April 28, 2010, Plaintiff Maria Gresham ("Plaintiff") filed this civil action against Defendant City of Atlanta, Defendant Major Moses Perdue in his official capacity, and Chief George Turner in his individual and official capacities ("Defendants"), alleging a variety of federal and state claims against Defendants arising in connection with Plaintiff's employment as a police officer with the City of Atlanta. [Doc. 1]. In particular, Plaintiff asserts claims for gender discrimination and hostile work environment under Title VII of the Civil Rights Act of 1964 ("Title VII"); for denial of due process under the Fourteenth Amendment; for retaliation under the First Amendment via 42 U.S.C. § 1983; for breach of contract underGeorgia law; for liability under Georgia's Whistleblower Act; and for intentional infliction of emotional distress under Georgia law. [Id.]. Plaintiff seeks injunctive relief, punitive and compensatory damages, and attorney's fees. [Id. at 25].
This matter is before the Court on Plaintiff's motion for summary judgment on her First Amendment retaliation claim, [Doc. 15], and Defendants' motion for summary judgment on all of Plaintiff's claims, [Doc. 17]. For the reasons discussed herein, IT IS RECOMMENDED that Plaintiff's motion for summary judgment, [Doc. 15], be DENIED, and that Defendants' motion for summary judgment, [Doc. 17], be GRANTED in part and DENIED in part.
In response to Defendants' Statement of Material Facts, Plaintiff provided insufficient responses to several of Defendants' statements. The local rules of this court state the following:
This Court will deem each of the movant's facts as admitted unless the respondent: (i) directly refutes the movant's facts with concise responses supported by specific citations to evidence (including page or paragraph number); (ii) states a valid objection to the admissibility of the movant's fact; or (iii) points out that the movant's citation does not support the movant's fact or that the movant's fact is not material or otherwise has failed to comply with the provisions set out in LR 56.1B.(1).
LR 56.1B.(2)a.(2), NDGa. Plaintiff failed to respond to a number of Defendants' facts, namely, Defs' SMF ¶¶ 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24. Accordingly, these enumerated facts will be deemed admitted. In addition, in response to several of Defendants' other facts, Plaintiff states merely that she "disputes" or "disagrees" with those facts, without providing supporting citations. See Pl's SMF ¶¶ 1, 3, 6, 7, 8. Accordingly, these facts are likewise deemed admitted.
When evaluating the merits of a motion for summary judgment, the Court must view the evidence and factual inferences in a light most favorable to the non-moving party. Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1309 (11th Cir. 2001); Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 920 (11th Cir. 1993). Applying the above standard, the Court derives the following facts from the parties' statements of facts and from the record as a whole:1
1. Background of Plaintiff's Employment with the Atlanta Police Department
Plaintiff is a City of Atlanta police officer in the Atlanta Police Department ("APD"). [Defs' SMF ¶ 11]. In August of 2009,Plaintiff was on the list of officers eligible for promotion to an investigative position, [id. ¶¶ 12, 14], where she ranked number twenty, [Pl's SMF ¶ 1].
In the spring of 2010, promotions were made to investigative positions, but Plaintiff was not promoted. [Pl's SMF ¶¶ 5-6]. It is undisputed that Plaintiff was not promoted because she had an open complaint against her with the Office of Professional Standards ("OPS") regarding an incident discussed below. [Defs' SMF ¶¶ 8, 24].
2. The Arrest
In December of 2009, before any promotions to investigator from the list of eligibles were made, Plaintiff arrested an individual named Jeriel Scrubb ("Scrubb"). Plaintiff was told at the time that Scrubb was a nephew of City of Atlanta police investigator Barbara Floyd ("Floyd"). [Pl's SMF ¶ 2].2 In thearrest report, Plaintiff records that Floyd accompanied Scrubb alone to another room, took money and two cell phones from Scrubb's pockets, and possibly spoke to Scrubb. [Doc. 15-3 at 7]. Plaintiff states that the "transfer of money was witnessed by other . . . investigators." [Id.].
3. Plaintiff's Response to the Incident
On December 15, 2009, Plaintiff made a "newsfeed" post on her Facebook site,3 which stated the following:
Who would like to hear the story of how I arrested a forgery perp at Best Buy only to find out later at the precinct that he was the nephew of an Atlanta Police Investigator who stuck her ass in my case and obstructed it?? Not to mention the fact that while he was in my custody, she took him into several other rooms alone before I knew they were related. Who thinks this is unethical?
[Pl's SMF ¶ 3]; [Doc. 15-4].
4. OPS Investigation Against Plaintiff
In January of 2010, OPS received a complaint regarding Plaintiff's Facebook posting. [Defs' SMF ¶ 16] (citing Turner Aff.,[Ex. 11, Doc. 17, ¶ 19]). OPS then opened an investigation of Plaintiff for an alleged violation of APD's Work Rule 4.1.2 ("Public Criticism"). [Id. ¶ 15] (citing Turner Aff., [Ex. 11, Doc. 17, ¶¶ 18, 20]). Exhibit 1 to Defendants' motion for summary judgment contains the APD Work Rules. Rule 4.1.2 does not exist; however, upon review of the APD Work Rules contained in Exhibit 1, it appears that Rule 4.1.06 ("Criticism") is the applicable rule relating to "public criticism."
APD's Work Rule 4.1.06 states the following:
Employees will not publicly criticize any employee or any order, action, or policy of the Department except as officially required. Criticism, when required, will be directed only through official Department channels, to correct any deficiency, and will not be used to the disadvantage of the reputation or operation of the Department or any employees.
During the OPS investigation, Plaintiff became ineligible for a promotion to an investigator position because "Chief Turner does not appoint individuals who have open OPS investigations pending to discretionary rank positions." [Defs' SMF ¶ 8].
After the OPS investigation concluded, the charge against Plaintiff was sustained; as a result, she received an oral admonishment. [Id. ¶ 21] (citing Turner Aff., [Ex. 11, Doc. 17, ¶¶ 36, 39]). Plaintiff's OPS file was closed in September of 2010.[Id. ¶ 24] (citing Turner Aff., [Ex. 11, Doc. 17, ¶ 39]). Plaintiff is now eligible for promotion to an investigator position. [Id. ¶ 23] ("Once an OPS investigation is closed, an individual may become re-eligible for consideration of an appointment to the discretionary position."); [id. ¶ 24] ("[Plaintiff]'s OPS file [i]s closed and as such, [Plaintiff] is now eligible for an appointment to the position of Investigator.").
Defendants argue that several of Plaintiff's claims should be dismissed because Plaintiff abandoned them: hostile work environment under Title VII, due process under the Fourteenth Amendment, and breach of contract. [Doc. 25 at 6].
The undersigned agrees. Claims raised in the complaint but not briefed or argued before the Court in response to a summary judgment motion may be deemed abandoned. Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000); Burnett v. Northside Hosp., 342 F. Supp. 2d 1128, 1140 (N.D. Ga. 2004) (). Because Plaintiff did not defend thesethree claims at the summary judgment stage in response to Defendants' motion for summary judgment specifically targeting those claims, [Doc. 17], IT IS RECOMMENDED that Plaintiff's hostile work environment, due process, and breach of contract claims be DEEMED ABANDONED and that summary judgment on those claims be GRANTED. See Coal. for the Abolition of Marijuana Prohibition, 219 F.3d at 1326; Burnett, 342 F. Supp. 2d at 1140.
Defendants argue that Plaintiff's claims against Defendants Turner and Perdue in their official capacities are improper because "[s]tate officers sued for damages in their official capacity are not 'persons' for the purposes of the suit because they assume the identity of the government that employs them." [Doc. 17 at 24-25] (citing Richey v. City of Lilburn, 127 F. Supp. 2d 1250 (N.D. Ga. 1999)).4
Defendants are correct that a suit against an individual defendant in his official capacity is considered a suit against the defendant's employing entity and not the defendant himself. Abusaid v. Hillsborough Cnty. Bd. of Comm'rs, 405 F.3d 1298, 1302 n.3 (11th Cir. 2005); Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.1991) (). Accordingly, IT IS RECOMMENDED that Defendants Turner and Perdue be DISMISSED from this suit insofar as they are sued in their official capacities.
Plaintiff seeks summary judgment in her favor on her First Amendment claim, alleging that "Defendants . . . failed to...
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