Ogletree v. City of Auburn

• Decision Date: 31 March 2009
• Docket Number: Case No. 3:07-CV-867-WKW.
• Parties: Eddie OGLETREE, et al., Plaintiffs, v. CITY OF AUBURN, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

619 F.Supp.2d 1152

Eddie OGLETREE, et al., Plaintiffs, v. CITY OF AUBURN, et al., Defendants.

Case No. 3:07-CV-867-WKW.

United States District Court, M.D. Alabama, Eastern Division.

March 31, 2009.

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Richard Freeman Horsley, King Horsley & Lyons LCC, Birmingham, AL, for Plaintiffs.

Elizabeth Brannen Carter, Randall C. Morgan, Hill Hill Carter Franco Cole & Black, Montgomery, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

W. KEITH WATKINS, District Judge.

I. INTRODUCTION

Before the court is Defendants' Motion for Summary Judgment (Doc. # 76), which is accompanied by an evidentiary submission and a brief (Doc. # 77). Defendants move for summary judgment on Plaintiffs' claims alleging discriminatory failure to promote on the basis of race, disparate impact on the basis of race, and retaliation, in violation of the Equal Protection Clause to the Fourteenth Amendment, as enforced by 42 U.S.C. § 1983 ("§ 1983"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"). Opposing the motion, Plaintiffs filed a Brief in Response (Doc. # 82), and an evidentiary submission (Doc. # 83). Defendants filed a Reply (Doc. # 88), and Plaintiffs filed a surreply (Doc. # 98). After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that Defendants' Motion for Summary Judgment is due to be granted.

II. JURISDICTION AND VENUE

The court exercises subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. The parties do not contest personal jurisdiction or venue, and the court finds that there are allegations sufficient to support both

III. STANDARD OF REVIEW

Summary judgment should be granted only "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Under Rule 56, the moving party "always bears the initial responsibility of informing the district court of the basis for its motion." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant can meet this burden by presenting evidence showing there is no genuine issue of material fact, or by showing that the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-24, 106 S.Ct. 2548. "[T]he court must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.1995).

Once the moving party has met its burden, "an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must—by affidavits or as otherwise provided in this rule—set out specific facts showing a genuine issue for trial." Rule 56(e)(2). To avoid summary judgment, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A genuine factual dispute exists if "a reasonable jury could return a verdict for the non-moving party." Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir.1999) (internal quotation marks and citation omitted).

IV. FACTS

In 2006, Plaintiffs, who at the time were lieutenants in the City of Auburn's Fire Division, applied for a battalion chief promotion. Neither was promoted, but four Caucasian firefighters were. Defendants say Plaintiffs were not promoted because they failed the written examination, not because they are African-American. Plaintiffs, however, say that reason is a coverup for race discrimination and retaliation and that the minimum score for passing the written examination created a disparate impact on African-Americans. Defendants move for summary judgment on all claims. The facts material to the resolution of the summary judgment motion are set out below. Those facts are portrayed in the light most favorable to Plaintiffs.

A. Parties

There are two Plaintiffs: Eddie Ogletree ("Ogletree") and Gerald Stephens ("Stephens"). They are African-American employees of the City of Auburn's Fire Division. Mr. Ogletree began his employment with the Fire Division in 1984. (Ogletree Dep. 20 (Ex. A to Doc. # 76).) In June 1996, he became a team leader; in February 2006, he was promoted to lieutenant. (Ogletree Dep. 10, 20.) Mr. Stephens began working for the Fire Division in January 1994. (Stephens Dep. 20, 22 (Unnumbered Ex. to Doc. # 80).) In 1996, he was promoted to lieutenant. (Stephens Dep. 43-44.) Having been denied battalion chief promotions in 2006, Plaintiffs remain lieutenants.

There are seven Defendants. The City of Auburn ("City") is a municipality organized under the laws of the State of Alabama. Larry Langley ("Langley") served as the fire chief for the City from 1997 until he retired in November 2007. (Langley Dep. 4-6 (Ex. H to Doc. # 76).) In December 2007, Lee Lamar ("Lamar") became the acting fire chief, an appointment which was made permanent in July 2008. (Lamar Dep. 5 (Ex. I to Doc. # 76).)

Steven A. Reeves ("Reeves") has been employed with the City as its human resources director since 1993. (Reeves Aff. ¶ 2 (Ex. F to Doc. # 76).) As part of his job responsibilities, he took part in the decision regarding the process to be used to promote firefighters to battalion chief in 2006. (Reeves Aff. ¶ 3.) Bill Ham Jr. ("Ham") has been the City's mayor since 1998. (Ham Aff. ¶ 2 (Ex. C to Doc. # 76).) Mr. Ham has no hiring, promoting or firing authority for the City. (Ham Aff. ¶ 4.) Since October 2004, Bill James ("James") has served as the City's public safety director. (James Dep. 5 (Ex. F to Doc. # 76).)

Charles M. Duggan Jr. ("Duggan") became acting city manager in February 2006. (Duggan Aff. ¶ 2 (Ex. D to Doc. # 76).) Mr. Duggan has hiring and firing authority. (Duggan Aff. ¶ 3.) When the battalion chief promotions were made in 2006, he approved the recommendations made to him as a result of the promotional process.¹ (Duggan Aff. ¶ 4.)

There is one third-party defendant in this lawsuit: CWH Research, Inc. ("CWH"). (Third-Party Compl. (Doc. # 56).) CWH developed the written examination that Plaintiffs failed. Defendants, as third-party plaintiffs, seek indemnification from CWH in the event that they are held liable on the claims brought against them by Plaintiffs.² (Third-Party Compl. 1-4 (Doc. # 56).)

B. Fire Division

1. Hierarchy

In 1996, in ascending order of rank, the City's Fire Division consisted of student firefighters, career firefighters, team leaders, lieutenants, captains, a deputy chief and a fire chief. (Stephens Dep. 46.) After 1996, career firefighters were promoted to team leader, not lieutenant. Mr. Stephens was the last employee promoted to lieutenant. (Stephens Dep. 48.)

In 1996, there were promotions to both captain and lieutenant. (Stephens Dep. 51.) At this time, Mr. Stephens was promoted to lieutenant on the basis of an assessment center, which consisted of a panel of assessors, unaffiliated with the City or the Fire Division, who put him through scenarios applicable to real-life firefighting. Mr. Stephens did not take a written test. (Stephens Dep. 43-44, 45 & 51.)

In November 2004, the captains petitioned the city manager to have their title changed to "battalion chiefs," and the change was made. (Lamar Aff. ¶ 6 (Ex. K to Doc. # 76); Reeves Aff. ¶ 18; Reeves Dep. 49-51 & 57 (Unnumbered Ex. to Doc # 80).) The title change did not result in any change "to the [team leaders'] job description or the rate of pay." (Reeves Aff. ¶ 18; see also Lamar Aff. ¶ 6; Reeves Dep. 52-53, 57.)

In February 2006, the team leaders petitioned the City to be reclassified as "lieutenants." (Lamar Aff. ¶ 7; Stephens Dep. 57.) The City agreed. (Lamar Aff. ¶ 7.) There was no difference in pay or any material change in job responsibilities. (Lamar Aff. ¶ 7; Stephens Dep. 57; Langley Dep. 28; Ogletree Dep. 17, 29-30; see generally Summ. J. Br. 15-16.) However, the insignia on a lieutenant's uniform included one bugle, while the insignia on a team leader's uniform had no bugles. (Summ. J. Resp. 6; Reeves Dep. 52-53.) Mr. Stephens, the only lieutenant at the time, opposed the re-titling, but Mr. Ogletree signed the petition requesting the change. (Stephens Dep. 60, 64-65; Reeves Dep. 39-40; Ogletree Dep. 13, 18-19.) The reclassification of team leaders to lieutenants resulted in team leaders, including Mr. Ogletree, receiving the rank of lieutenant (Ogletree Dep. 10, 20); the other team leaders who were reclassified as lieutenants were Caucasian (Summ. J. Resp. 6). The four Caucasian firefighters who, instead of Plaintiffs, subsequently were promoted to battalion chief in 2006 were among the team leaders whose titles were changed to lieutenant in February 2006. (Reeves Dep. 45-46, 76; see also Summ. J. Br. 16.)

2. 1991 Hammock Court-Approved Settlement Agreement

In 1991, the City of Auburn settled a class action lawsuit filed on behalf of the City's Fire Division employees, alleging a pattern and practice of racial discrimination, and the court approved the Settlement Agreement. See Hammock v. City of Auburn, Ala., No. 87-680-E (M.D.Ala. Feb. 15, 1991). Section 12 of that agreement provides that promotions for the positions of captains and lieutenants must be accomplished through an assessment center. Section 12, titled "ASSESSMENT CENTER" provides in full:

The City has submitted to this Court an Assessment Center which shall be approved by the Court and implemented by the City for use in the promotion of Lieutenants and Captains with the Fire Division. Notwithstanding any language to the contrary contained in the City of Auburn Assessment Center Candidate Orientation Manual, all...