Larry v. City of Mobile
| Decision Date | 15 April 2022 |
| Docket Number | CIV. ACT. 1:19-cv-1008-TFM-MU |
| Parties | DEATRI J. LARRY, Plaintiff, v. CITY OF MOBILE, ALABAMA, Defendant. |
| Court | U.S. District Court — Southern District of Alabama |
Pending before the Court is Defendant City of Mobile Alabama's Motion for Summary Judgment (Doc. 45 filed 5/14/21) along with the incorporated brief and evidentiary support (Docs. 46, 47). Plaintiff timely responded and Defendant timely replied. See Docs 51, 52, 53, 54, 57. The motion has been fully briefed and is ripe for review. Having considered the motion, response reply, and relevant law, the Court finds the motion for summary judgment (Doc. 45) is due to be GRANTED.
Plaintiff Deatri J. Larry (“Plaintiff” or “Larry”) filed his complaint again Defendant City of Mobile, Alabama (“Defendant” or “the City”).
The District Court has subject matter jurisdiction over the claims in this action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1343 (civil rights) as Plaintiff asserts claims pursuant to Title VII of the Civil Rights Act of 1964, as amended, and the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).
The parties do not contest personal jurisdiction or venue, and there are adequate allegations to support both.
Plaintiff is an African-American who was employed as a Fire Service Driver with the City of Mobile's Fire-Rescue Department (“MFRD”). The MFRD is a part of the City of Mobile, Alabama. Plaintiff began his employment in 1995 serving as a paramedic and firefighter.[2]Plaintiff was already a member of the Army Reserves at this point.[3] He was eventually promoted to Fire Service Driver. During his employment with MFRD, Plaintiff was deployed by the Army Reserves on multiple occasions to include 2003-2004, 2006-2008, 2010-2011, and 2014-2017.
Plaintiff returned to the MFRD on February 6, 2017 after his last deployment. During that deployment he experienced significant injuries as the result of his military service, most notably a severe back injury and related nerve damage received during combat. Upon his return to the MFRD on February 6, 2017, he underwent a fitness for duty examination at the Occupational Health Center. See Doc. 46-2, Attachment B. The doctor who examined him determined that Plaintiff could not perform the essential job functions of paramedic (his position prior to his deployment) and would present a direct threat to himself or others if he attempted to perform the job. Id. MFRD (then led by Acting Chief Pappas) placed him in an administrative role in the MFRD Emergency Medical Services Staff Division to accommodate for his military-service connected injuries. MFRD discontinued his paramedic incentive pay which resulted in a 20% reduction of his overall pay.[4]
While Plaintiff was deployed in 2016, MFRD requested twelve (12) vacancies for Captain and administered a promotional examination. Eleven (11) of the vacancies were filled - all were white men. The twelfth position remained vacant. Upon his return in 2017, Plaintiff requested and received the opportunity to take a supplemental promotional examination as he would have been eligible during his military deployment. He took the exam in July 2017.
A few months prior in May 2017, Chief Sealy was selected as the new Chief of MFRD after a three year vacancy in the position filled by an Acting Chief. As part of his application for the position, he included a strategic vision document. See Doc. 46-4 at 3-6 and Attachment A. As part of the strategic vision, Chief Sealy discussed the need to reduce the number of “staff positions” (i.e. support personnel) and a restructuring of leadership including a reduction in the number of chief positions through retirements and attrition. See Doc. 46-1, Attachment A at 3. Chief Sealy also discussed manpower issues and the allocation of resources. Id. at 6. Specifically, he indicated his opinion that the number of staff positions was too high and unacceptable given the shortages of field personnel. Id. Chief Sealy also said many of these staff position holders had forgotten what it was like to serve in the field and adopted the Marine Corps motto “Every Marine is a Rifleman.” Id. Chief Sealy's strategic vision was very clear that if hired, he intended to eliminate many of these positions and streamline certain operations to free up money and personnel to add firefighters to accomplish the primary mission. Id. He also made it clear that all positions would need to be able to serve in a firefighter role as needed. Id. As part of his reorganization plan, there would be 8 fewer District Chief positions and 10 few Captain positions - some would be eliminated immediately while others would be done by attrition over a few years. Id. at 9. He also indicated that the remaining staff roles would be rotated frequently with personnel moving back into the field. Id. Chief Sealy also discussed the need to diversify its membership and discussed various ways to do so. Id. at 13. Chief Sealy also discussed issues with unscheduled leave and specifically discussed in detail sick days and military leave. Id. at 16. Though he acknowledged that military leave is protected by federal law and that he is also a veteran, he discussed his view that some members view the military as their primary job and the MFRD as a part time supplement. Id. Finally, Chief Sealy also discussed the fitness program. Id. at 18. Specifically, he indicated significant concerns about a lack of fitness and proposed annual testing of all personnel for health and fitness. Id. After Chief Sealy was hired into the role, he began implementing parts of his strategic plan. See Doc. 46-4 generally. Specifically, he changed the command structure, reduced the number of Captains, and reallocation of resources to address manpower shortages.
In July 2017, Plaintiff took the supplemental promotional examination and placed on the list of eligible promotions though he was not promoted.[5] His examination results expired in June 2018. Additionally, in 2018, due to the physical restrictions placed on his duties due to the February 2017 fitness for duty evaluation, Plaintiff was identified as one of the MFRD employees not performing full duties as required by Chief Sealy, though he was performing the full duties of the staff position in which he had been placed by Acting Chief Pappas. Therefore, in November 2018, Plaintiff underwent another fitness for duty examination. The conclusions and results were the same as the February 2017 examination.
In March 2019, Plaintiff took another promotional examination and his score ranked him twelfth on the promotion list. The top six candidates were promoted to Captain on May 11, 2019. The next two candidates were promoted in August 2019.
In August 2019, Plaintiff and Mark Shobe both received letters which identified them as employees who could not perform the full functions of their positions. See Doc. 46-3, Attachments G, H. Two other employees (Richard McMillian and Dexter Pettway) received the same letters a few months later. Id. None of the other three employees served in the military. Additionally, Shobe is Caucasian while McMillian and Pettway are African-American. Shobe and McMillian elected to apply for disability retirement. Plaintiff, through his counsel, conveyed that he did not accept the options presented and would not voluntarily leave.[6] See Doc. 46-3, Attachment I.
The Court now turns back to the administrative complaints made by the Plaintiff over the course of time since his return from deployment in February 2017. In late 2017, [7] Plaintiff filed a complaint with the Department of Labor (“DOL”) that his pay had been unfairly reduced after his deployment. Ultimately, DOL relayed that “military discrimination could not be verified” and subsequently the Department of Justice (“DOJ”) declined to provide legal representation for the USERRA matters raised in his DOL complaint. See Doc. 53-20; Doc. 46-3, Attachment L. In June 2018, Plaintiff filed an EEOC charge for race discrimination and retaliation for being denied his paramedic incentive pay and a promotion to Captain. DOJ also declined to intervene in the EEOC matter and provided a Notice of Right to Sue letter on November 18, 2019.[8] Plaintiff filed a second EEOC complaint in November 2019 to add a retaliation claim related to his termination. On December 10, 2020, Plaintiff, upon his request, received a Right to Sue letter from EEOC. See Doc. 46-3, Attachment P. The letter indicated that it makes no finding as to the merits of the complaint.[9]
On November 20, 2019, Larry filed his original Complaint against the City. See Doc. 1. Eventually, after the City filed its motions to dismiss, Plaintiff requested leave to file a second amended complaint which the City did not oppose, the Court granted, and was filed. See Docs. 17, 19, 20, 21, 22. In his Second Amended Complaint (the operative complaint), Plaintiff asserts claims for Title VII race discrimination (Count I), Title VII retaliation (Count II), and violations of USERRA (Count III). See Doc. 22. He seeks reinstatement to his position in the MFRD or some other comparable position, the award of a promotion to Captain, back pay and benefits, compensatory damages in the amount of $300, 000, and attorney's fees/costs. Id.
On May 14, 2021, Defendant filed the instant motion for summary judgment along with a brief and evidentiary material in support. See Docs. 45, 46, 47. Plaintiff filed his response in opposition along with a statement of disputed facts and evidentiary materials. See Doc 54-1;[10]Docs. 52, 53. Defendant filed...
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