Jones v. Gerwens

• Citation: 874 F.2d 1534
• Decision Date: 13 June 1989
• Docket Number: No. 88-5220,88-5220
• Parties: 50 Fair Empl.Prac.Cas. 163, 50 Empl. Prac. Dec. P 39,089 Willie JONES, Plaintiff-Appellant, v. Joseph GERWENS, as Chief of Police of the City of Fort Lauderdale Police Department, and City of Fort Lauderdale Police Department, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1534

874 F.2d 1534

50 Fair Empl.Prac.Cas. 163,

50 Empl. Prac. Dec. P 39,089

Willie JONES, Plaintiff-Appellant, v. Joseph GERWENS, as Chief of Police of the City of Fort Lauderdale Police Department, and City of Fort Lauderdale Police Department Defendants-Appellees.

No. 88-5220.

United States Court of Appeals Eleventh Circuit.

June 13, 1989.

Patricia Graham Williams, Miami, Fla., for plaintiff-appellant.

Gordon D. Rogers, Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P.A., Miami, Fla., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before ANDERSON and EDMONDSON, Circuit Judges, and ESCHBACH ^*, Senior Circuit Judge.

ANDERSON, Circuit Judge:

Plaintiff Willie A. Jones appeals from an order of the district court granting defendants City of Fort Lauderdale, Florida, and Joseph Gerwens, Chief of Police, summary judgment on his claim of disparate disciplinary treatment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e, et seq. (1981). Because Jones failed to make a showing of a genuine issue of material fact sufficient to establish the existence of disparate treatment in the application of disciplinary measures, the granting of summary judgment was correct. Accordingly, the judgment of the district court is affirmed.

FACTS

Willie A. Jones, who is black, began working as a police officer with the City of Fort Lauderdale Police Department on April 12, 1980. In September 1983, Jones was assigned to the Mounted Patrol Unit, which was then supervised by Sergeant Robert Dietrich. Effective November 3, 1985, Sergeant Dietrich was transferred to Uniform Patrol duties. Dietrich was replaced by Sergeant Ryan Runnerstrom, who worked with Dietrich to become oriented to Mounted Unit operations until October 21, 1985, when Dietrich went on vacation. ¹

During the period he supervised the Mounted Unit, Sergeant Dietrich, in knowing violation of City rules prohibiting employees from using Department vehicles for personal business, occasionally authorized employees under his supervision to use for personal matters a marked police pickup truck assigned to the Mounted Unit. Around October 30, Sergeant Runnerstrom told Jones that whatever had happened previously in the Mounted Unit "was history" and that the Unit would operate "by the book" under Runnerstrom's supervision. R1: Tab 31, p 8, at 3. Shortly before November 2, Jones attended a meeting of Mounted Unit members at which Dietrich declared that Runnerstrom would be taking over supervision of the Unit and warned that Runnerstrom was a strict supervisor.

Jones was off duty on Saturday, November 2. At approximately 5:30 p.m. or 5:45 p.m. he drove to the Police Barn in his personal vehicle to pick up the Mounted Unit pickup truck to use for the moving of personal furniture. He was not in uniform at the time. As Jones drove the pickup truck away from the Barn, he saw Sergeant Runnerstrom driving to the Barn. Runnerstrom contacted Jones by police radio, and Jones told Runnerstrom that he That evening Sergeant Runnerstrom wrote a memorandum to Captain Joseph Donisi which detailed Jones' actions in using the truck and charged him with violations of the following City rules: Rule 22.12 (Misusing Departmental Property or Equipment); Rule 17.4 (Untruthfulness); Rule 22.4 (Failure to Obey a Lawful Order); and P.M.S. 8.1.1(6) (Unauthorized Person in a City Vehicle). Runnerstrom recommended that Jones be suspended.

                would contact him by telephone.  Jones contacted Runnerstrom by telephone at approximately 6:00 p.m., and said that he had "mentioned" his use of the truck to Sergeant Dietrich. 2   Jones used the truck to move his personal furniture, making at least two trips from his former residence to his new residence.  When Jones returned to the Barn in the truck at approximately 8:00 p.m., riding with him as a passenger was a non-City employee
                

At a November 15 disciplinary hearing before Police Chief Joseph Gerwens, Jones admitted that he had committed all of the rule violations with which he was charged. ³ Gerwens recommended, and Jones received, a one-day suspension without pay. In addition, Jones was transferred to Uniform Patrol duties on or about December 8, 1985. Following Jones' transfer out of the Mounted Unit, a white officer was assigned to the Unit. Jones filed a complaint with the Equal Employment Opportunity Commission, which subsequently issued a right-to-sue letter.

Jones brought this employment discrimination action under Title VII, contending that the disciplinary measures in question were racially motivated in that white police officers who had committed allegedly similar offenses received lesser discipline or no discipline at all. The district court granted defendants' motion for summary judgment, holding that Jones had failed to establish a prima facie case of racial discrimination. The court found that Jones could not show that the misconduct for which he was disciplined was nearly identical to the conduct of a white employee who was not disciplined. Jones v. Gerwens, 677 F.Supp. 1151, 1152 (S.D.Fla.1988). With respect to the unauthorized use of a city vehicle, the district court held that white members of the Mounted Unit who had used the city truck for personal services during Sergeant Dietrich's tenure as supervisor were not similarly situated to Jones for Title VII purposes, because "Sergeant Ryan Runnerstrom became Supervisor of the Unit on October 21, 1985 and shortly thereafter informed plaintiff that he would run the Unit 'by the book' and that things would not be the same as they had been under Sergeant Dietrich." Id. Furthermore, the court found that Jones had "shown no instance where Sergeant Runnerstrom permitted employees to use the city vehicle for personal reasons." Id.

The court found, with respect to the charges of untruthfulness and failure to obey an order, that Jones' disparate treatment claim also failed, because "[t]he evidence clearly shows that white officers On appeal Jones contends that the district court erred in granting summary judgment, because there are material facts in dispute which undermine the district court's conclusion that he could not meet his burden of proof at trial, specifically: (1) who was sergeant of the Mounted Unit on November 2; (2) whether Jones had discussed his use of the truck with Dietrich; (3) whether Jones was in fact untruthful and did in fact disobey an order; and (4) whether white employees similarly situated to Jones went unpunished after permitting unauthorized civilians to ride in city vehicles. Because we find that none of these alleged factual disputes are material, we affirm the judgment of the district court. ⁵

                charged with those offenses received similar discipline."    677 F.Supp. at 1153.    Accordingly, the court held that Jones had failed to show the existence of a genuine issue of material fact, and granted summary judgment for defendants. 4   Jones timely filed notice of appeal from the district court judgment
                

DISCUSSION

Summary judgment is proper "only if the evidence produced by the non-moving party, when viewed in a light most favorable to that party, fails to establish a genuine issue of material fact." McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 932 (11th Cir.1987). There is no genuine issue of material fact if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which the party will bear the burden of proof at trial. Celotex Corporation v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Gordon Bus Co., 761 F.2d 1495, 1499 (11th Cir.1985). "The defendant need not p ersuade the court that it was actually motivated by the proferred reasons.... It is sufficient if the defendant raises a genuine issue of fact as to whether it discriminated against the plaintiff." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (198 1). See Chaney, 847 F.2d at 722; Griffin v. Carlin, 755 F.2d 1516, 1526 (11th Cir.1985). If he is to prevail, the plaintiff then must establish that the em ployer's articulated reason was a pretext for discrimination. See Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; McDonnell Douglas Corp. v. Green, 411 U.S. 79 2 In order to prove disparate treatment in violation of Title VII, ⁶ the plaintiff must prove by a preponderance of the evidence a prima facie case of employment discrimination. 2 Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d (1981); ¹ Chaney v.Southern Railway Co., 847 F.2d 718, 722 (11th Cir. 1988). ² A prima facie case raises the inference that discriminatory intent motivated the challenged action against the employee. ² The employer may rebut the presumption of discrimination by 'clearly articulating in a reasonably specific manner a legitimate non-discriminatory reason for the discharge.' ² Conner v. Fort ⁶. Title VII provides, in relevant part:

                804, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973);  Chaney, 847 F.2d at 722;  Conner, 761 F.2d at 1499.    Throughout the trial the plaintiff retains the ultim ate burden of proving by a preponderance of the evidence the existence of purpo seful discrimination.    United States Postal Service Board of Governors v. Aiken s, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983).    See Nix v.  WLCY Radio/Rahall Communications, 738 F.2d 1181, 1184 (11th Cir.1984) ("The 'ul timate question' in a disparate treatment case is not whether the plaintiff est ablished a prima facie case or demonstrated pretext, but 'whether the defendant intentionally discriminated against the plaintiff' "), quoting  Aikens, 460 U.S. at 714-15, 103 S.Ct. at 1481-82
                

The Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817,...