Ross v. City of Memphis

Decision Date29 September 2005
Docket NumberNo. 02-2454 Ml/AN.,02-2454 Ml/AN.
Citation394 F.Supp.2d 1024
PartiesHerlancer S. ROSS, Plaintiff, v. CITY OF MEMPHIS, et al., Defendants.
CourtU.S. District Court — Western District of Tennessee

David M. Sullivan, Law Offices of David M. Sullivan, Memphis, TN, for Plaintiff.

Delaine R. Smith, Keith R. Thomas, Louis P. Britt, III, Ford & Harrison, LLP, Earle J. Schwarz, Glankler Brown, PLLC, Jean Markowitz, Causey Caywood, Thomas E. Hansom, Hansom Law Office, Memphis, TN, for Defendants.


MCCALLA, District Judge.

Before the Court is Defendant Deputy Chief Alfred Gray's second Renewed Motion for Summary Judgment, filed December 17, 2004.1 Plaintiff responded in opposition on January 28, 2005. For the following reasons, Defendant's motion is DENIED in part and GRANTED in part.


The instant lawsuit arises out of disciplinary proceedings held by the Memphis Police Department against Herlancer Ross, an African-American police officer. Plaintiff Herlancer Ross is a female African American and is employed as a police officer by the City of Memphis' Police Services Division. Defendant Walter Crews is the former Director of the Police Services Division. Defendant Alfred Gray is the Deputy Chief in the Police Services Division.

The facts relevant to Plaintiff's claims are largely undisputed. Plaintiff took the police department promotion examination on June 1, 2000. That same day, Crews, then the Interim Director of the Police Services Division, publicly announced that a portion of the police department promotion examination had been leaked or stolen. On June 2, 2000, Crews ordered a criminal investigation to determine how the test materials had been compromised. As the investigation of the compromised exam materials proceeded, Crews promoted sixty-three candidates to sergeant on July 12, 2000. Three days later, Crews was appointed Director of the Police Services Division.

On September 12, 2000, Plaintiff, along with other police department employees, joined in a lawsuit against the City of Memphis in the United States District Court for the Western District of Tennessee.2 The Johnson lawsuit alleged that the police department's 2000 promotion process was invalid, in part, because high-ranking police officials had knowingly leaked a portion of the test materials to selected candidates. In addition, the lawsuit alleged that the department's written test was not race neutral and that the Johnson defendants intentionally discriminated against minorities by administering the written test. The Johnson plaintiffs filed materials related to the test under seal with the District Court on September 12, 2000. In December 2000, the Johnson plaintiffs moved for partial summary judgment. Plaintiff furnished testimony and evidence in support of the motion for partial summary judgment. Later, Plaintiff was deposed in the Johnson case, and her deposition was filed under seal.

During the months of January and February 2001, Defendant City of Memphis ("City") decided to administer a new portion of the exam to replace the compromised portion of the previously administered exam. In April 2001, the City announced that it did not oppose the Johnson plaintiffs' motion for partial summary judgment and conceded that the 2000 promotion process was invalid.

At some point after the investigation began, Crews established criteria for charging individuals implicated in the distribution of the compromised 2000 promotion exam materials. On September 12, 2000, police investigators interviewed Plaintiff. She informed them that she had received the "study guide" prior to taking the examination and had given it to her attorney after hearing that the test was compromised. (Pl.'s Resp. Opp'n to Def. Gray's [Second] Renewed Mot. Summ. J. ¶¶ 22, 59.) Plaintiff alleges that the investigators did not intend to charge her. (Id. ¶ 61.1.) On April 24, 2001, Plaintiff was charged with violating department policies. On May 15, 2001, Plaintiff sent a letter to Defendants stating that she had provided testimony in the Johnson matter and had filed a charge of racial discrimination with the Equal Employment Opportunity Commission ("EEOC").3 The letter informed Defendants that they must not retaliate against her for her testimony in the Johnson lawsuit and in the EEOC claim. The letter also stated that there was no basis to charge Plaintiff with violating department policies and demanded that the charges against her be withdrawn and dismissed.

On June 11, 2001, Defendant Gray, by Crews' appointment, served as the hearing officer at Plaintiff's disciplinary hearing. Defendant Gray refused Plaintiff's request that her attorney be present during the hearing. Following the hearing, Plaintiff was demoted from the rank of Patrol Officer (PII) to Patrol Officer Probationary (PI), which resulted in an immediate decrease in pay and seniority. Gray also banned Plaintiff's participation in the upcoming sergeant's promotion process re-testing.

Plaintiff appealed her demotion to the Civil Service Commission ("Commission"), and a hearing was conducted by the Commission on October 19, 2001. At the hearing, Gray testified that Plaintiff had violated department policies. At the conclusion of Plaintiff's proof during the civil service hearing, the Commission unanimously granted Plaintiff's motion for a directed verdict and concluded that the City did not have a reasonable basis for demoting Plaintiff. The Commission ordered the City to reinstate Plaintiff to her former rank and position with all seniority rights and benefits. Crews subsequently appealed the Commission's ruling to the Chancery Court. The City voluntarily dismissed its appeal on May 29, 2003.


Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "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 judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). So long as the movant has met its initial burden of "demonstrat[ing] the absence of a genuine issue of material fact," Celotex, 477 U.S. at 323, 106 S.Ct. 2548, and the nonmoving party is unable to make such a showing, summary judgment is appropriate. Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir.1989). In considering a motion for summary judgment, "the evidence as well as all inferences drawn therefrom must be read in a light most favorable to the party opposing the motion." Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

When confronted with a properly-supported motion for summary judgment, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 250 (6th Cir.1998). A genuine issue of material fact exists for trial "if the evidence [presented by the nonmoving party] is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In essence, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. 2505.

Additionally, "where motive is an element of the constitutional wrong alleged ..., the plaintiff cannot be required to meet a heightened burden of proof" to meet a summary judgment challenge. Thaddeus-X v. Blatter, 175 F.3d 378, 385-86 (6th Cir.1999) (citing Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (finding that civil rights plaintiff need not prove unconstitutional motive by clear and convincing evidence to rebut defense of qualified immunity at summary judgment phase; noting that heightened burden undermines the very purpose of § 1983)); see also Goad v. Mitchell, 297 F.3d 497, 502-03 (6th Cir.2002) (holding heightened pleading requirement invalid). The district court may require plaintiffs to produce "`specific, nonconclusory factual allegations' that establish improper motive" to survive a motion for summary judgment. Crawford-El, 523 U.S. at 598, 118 S.Ct. 1584 (citation omitted). However, this requirement only applies to qualified immunity claims where improper motive is at issue. Goad, 297 F.3d at 504. Plaintiffs need not provide direct evidence of improper motive, but may utilize circumstantial evidence to meet this requirement. Id.


Defendant Gray moves for summary judgment regarding all of Plaintiff's claims against him. In her First Amended Complaint, Plaintiff alleges that Defendant Gray disciplined and demoted Plaintiff in retaliation for her involvement in the Johnson lawsuit in violation of her rights under the First and Fourteenth Amendments of the United States Constitution, Article I § 23 of the Tennessee Constitution, 42 U.S.C. §§ 1981, 1983, 1985(2), and Tenn.Code Ann. § 4-21-301. Plaintiff also alleges that Defendant engaged in civil conspiracy. (First Am. Compl. at 10-13.) Defendant contends that he is entitled to qualified immunity from suit and that he is entitled to judgment as a matter of law on all of Plaintiff's claims. The Court will address these contentions.

A. 42 U.S.C. § 1981

Section 1981 "prohibits racial discrimination in the making and enforcing of private contracts." Noble v. Brinker Int'l., Inc., 391 F.3d 715, 720 (6th Cir.2004).4...

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