Hartwell v. City of Montgomery, al
| Decision Date | 10 May 2007 |
| Docket Number | Civil Action No. 2:06cv518-MHT. |
| Parties | Lee HARTWELL, Plaintiff, v. The CITY OF MONTGOMERY, ALABAMA, Personnel Board of the City And County of Montgomery, Alabama, and District Chief Kelly D. Gordon, in his individual capacity, Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
James Bernard Brannan, Jr., The Brannan Law Firm PC, Montgomery, AL, for Plaintiff.
Robert David Segall, Copeland Franco Screws & Gill, Wallace Damon Mills, Montgomery, AL, for Defendants.
Plaintiff Lee Hartwell, who claims he was unlawfully demoted within the City of Montgomery Fire Department, brings this lawsuit alleging a violation of his First Amendment right to free speech, as enforced through the Fourteenth Amendment and 42 U.S.C. § 1983, as well as a state-law claim challenging the sufficiency of the evidence supporting his demotion. Hartwell's federal claim is solely against defendant Kelly D. Gordon, a fire department district chief, in his individual capacity; Hartwell claims that Gordon caused his demotion in violation of the First Amendment.1 Hartwell's state-law claim is against defendants City of Montgomery and Personnel Board of the City and County of Montgomery; he claims that there was insufficient, evidence for the personnel board to uphold the city's action demoting him. The defendants removed his lawsuit from state to federal court, 28 U.S.C. § 1441, basing removal on federal-question and supplemental jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.
This case is before the court on the defendants' motion for summary judgment. For the reasons that follow, summary judgment will be granted on the federal claim, and the state-law claim will be remanded to state court.
Summary judgment is appropriate "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 entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Under Rule 56, the party seeking summary judgment must first inform the court of the basis for the motion, and the burden then shifts to the non-moving party to demonstrate why summary judgment would not be proper. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir.1993) (discussing burden-shifting under Rule 56). The nonmoving party must affirmatively set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials in the pleadings. Fed.R.Civ.P. 56(e),
The court's role at the summary-judgment stage is not to weigh the evidence or to determine the truth of the matter, but rather to determine only whether a genuine issue exists for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In doing so, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Viewed in the light most favorable to Hartwell, the admissible evidence reflects the following facts. On September 3, 1999, the Montgomery Fire Department adopted a new policy on tattoos, brands, and body piercing for fire department personnel. The policy prohibited tattoos and brands "anywhere on the body that are obscene and/or advocate sexual, racial, ethnic, or religious discrimination" as well as those that "are prejudicial to the good order and discipline or of a nature that tends to bring discredit upon the Montgomery Fire Department and the City of Montgomery." Pl. Ex. 1 (doc. no. 17-3) at 1. The policy provided that employees who obtained non-compliant tattoos or brands before the policy went into effect would be required to remove them if the fire chief or his designee felt that the circumstances warranted such removal; otherwise, they would be "grandfathered for purposes of compliance with this rule and regulation." Id.
In 1999, when the policy went into effect, Hartwell and Gordon were both firefighters with the Montgomery Fire Department. Days after the, policy took effect, Hartwell filed an internal complaint or grievance about a tattoo on Gordon's bicep of a skull and crossbones superimposed on a Confederate battle flag. Hartwell states that he was offended by the tattoo; considered it a racially discriminatory symbol and as such should not have been displayed by a government employee; and alleged that it was in violation of the fire department's tattoo policy. Upon receiving Hartwell's complaint, the fire department concluded that Gordon was not in violation of the tattoo policy and took no action against him.
The record contains no contemporaneous documentation of Hartwell's 1999 complaint or the fire department's response. However, the record does contain a memo (doc. 15-2, at 8) written by Gordon in 2005 in which Gordon acknowledges that in 1999 he was made aware that Hartwell and another firefighter had filed a complaint against him regarding his tattoo. Therefore, the evidence reflects not only that Hartwell complained about Gordon's tattoo in 1999 but also that Gordon was aware of Hartwell's complaint.
Gordon and Hartwell were eventually promoted through the ranks of the fire department, but evidently Gordon was promoted higher than Hartwell: Hartwell became a sergeant, while Gordon was promoted to district chief and became Hartwell's superior officer. Soon after Gordon assumed a supervisory position over Hartwell, several incidents occurred resulting in Gordon taking disciplinary action against Hartwell. These incidents culminated in Hartwell's demotion from the rank of sergeant to firefighter, and Hartwell alleges that Gordon took these disciplinary actions against him in retaliation for his 1999 complaint regarding Gordon's tattoo.
The first incident occurred in May 2003, when Hartwell's fire station failed an inspection initiated by Gordon. Gordon required each firefighter in the station to sign a form acknowledging the failed inspection. Hartwell initially refused to sign the form because he was of the opinion that only the officer in charge of the station should be required to sign the form, and because he was not on duty at the time the inspection took place. When Hartwell objected, Gordon became enraged and shouted, Hartwell eventually signed the form as Gordon directed, but Gordon wrote him up two days later for disobeying a direct order by refusing to sign the form.
The next series of incidents occurred in August 2005, and they directly led to Hartwell's demotion. On August 4, Hartwell volunteered to work an overtime shift because the department was low on personnel. However, during the overtime shift, Hartwell became ill and left work. When Hartwell returned to work on August 7, Gordon (who suspected that Hartwell had not been sick) told Hartwell to bring a doctor's excuse. Hartwell refused to do so because he was of the opinion that department regulations required a doctor's excuse only when he takes sick leave from an assigned shift, not when he leaves sick from an overtime shift that he was not required to work in the first place. Gordon disagreed and ordered Hartwell to produce a doctor's excuse, but Hartwell refused. On August 9, Gordon wrote him up for disobeying a direct order.
The next incident occurred on August 16, 2005, when Hartwell wrote a memo to the assistant chief of the fire department complaining that Gordon was mistreating him and was biased against him. Hartwell's memo gave rise to two separate disciplinary actions against him on August 18. First, Gordon wrote him up for violating the chain of command. Fire department regulations require personnel to follow the chain of command when addressing correspondence to superior officers. According to Hartwell, he followed department procedures by addressing the memo to the assistant chief, its ultimate recipient, but delivering it to his immediate supervisor to pass it up the chain of command. However, according to the discipline form issued by Gordon, Hartwell sent a sealed envelope to the assistant chief without following the chain of command.
Second, Gordon disciplined Hartwell for making false statements. According to Gordon, Hartwell's memo to the assistant chief complaining that Gordon was biased was untrue and unfounded. Hartwell, of course, disagrees: not only does he think Gordon was biased, he also argues that his memo did not contain false statements because he was merely expressing his opinion.
Following these disciplinary incidents in August 2005, Assistant Chief Carl E. Walker wrote a memo recommending that Hartwell be demoted. Hartwell alleges, by affidavit, that Gordon himself recommended the demotion, though he does not state how he obtained personal knowledge of Gordon's recommendation and the record contains no admissible independent documentation that Gordon recommended the demotion. A review of Walker's memo indicates that Walker's recommendation was based largely, though not entirely, on the incidents and disciplinary actions reported and taken by Gordon.
Walker's memo begins by recounting the August 4 incident involving Hartwell's sick leave. Walker then reports three...
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