Villanueva v. City of Fort Pierce, Fla.

Decision Date20 October 1998
Docket NumberNo. 97-14109-CIV.,97-14109-CIV.
PartiesCarlos VILLANUEVA, Plaintiff, v. CITY OF FORT PIERCE, FLORIDA; City of Fort Pierce Police Department; and James F. Mahar, Defendants.
CourtU.S. District Court — Southern District of Florida

Allan Gordon Cohen, Brumer & Kaufman, Miami, FL, Norman Edward Ganz, Fort Lauderdale, FL, for Plaintiff.

Richard Hunt McDuff, Johnson Anselmo Murdoch Burke & George, Fort Lauderdale, FL, for Defendant.

ORDER

K. MICHAEL MOORE, District Judge.

THIS CAUSE came before the Court upon Defendants' Motion for Summary Judgment (filed February 25, 1998, DE # 14). The Motion is ripe.

I. Background

Plaintiff Carlos Villanueva is a police officer presently employed by the City of Fort Pierce Police Department. Plaintiff brings claims under 42 U.S.C. § 1981 (1998), 42 U.S.C. § 1983 (1998), Title VII of the Civil Rights Act of 1964,1 and the Florida Civil Rights Act of 1992,2 against Defendants City of Fort Pierce ("the City"), City of Fort Pierce Police Department ("the Police Department"), and former Police Chief James Mahar ("Chief Mahar"). At the core of Plaintiff's claims is his belief that Defendants passed him over for promotion because of his Hispanic national origins.3

The City's municipal code lays out the procedures for promotions within the Police Department. Officers seeking promotion must take a promotional examination, which is periodically administered by the Police Department. Officers are then ranked on an eligibility list according to their performance on the examination. These eligibility lists are valid for one year, subject to two six-month extensions. As vacancies appear for various ranks, officers are nominated for promotion from among the top three candidates on the eligibility lists by the Police Chief, subject to approval by the City Manager. The City's code does not require that candidates be promoted strictly according to their rankings. The municipal code simply states that "[t]he Chief of Police ... will be able to pick from the top three employees on the promotional list."4

In 1992, Plaintiff took a promotional examination for the position of sergeant. He was ranked fifth overall. The officers scoring above Plaintiff included three white officers and one African-American officer. The top three candidates from that list ("1992 list") were promoted to sergeant, including the African-American officer. Of the remaining six officers on the list, Plaintiff was ranked second. The 1992 list was extended for two six-month periods by the City Personnel Director, and was therefore valid until January 1995.

In October 1994, then-new Chief Mahar announced that the City would be administering a new examination for sergeants three months ahead of schedule in order to administer it at the same time as the examinations for lieutenants and captains, thereby reducing administration costs. Plaintiff interpreted this announcement as a preemptive move by Chief Mahar to deny him a promotion, even though there are no provisions within the City's municipal code or in the Police Department's regulations forbidding the acceleration of promotional examinations. In November 1994, Plaintiff filed an affirmative action complaint with the City, as well as with the police officers' union, claiming that the acceleration of the examination date from January 1995 to October 1994 was in violation of the City's affirmative action policies. In response, the City postponed the scheduled examinations.

In December 1994, there was a vacant sergeant's position within the Criminal Investigation Division of the Police Department. At that time, the top-ranked candidate on the 1992 list was an Officer Spring, followed by Plaintiff and an Officer Smith. Officers Spring and Smith were white. Chief Mahar recommended Officer Smith, the third-ranked candidate, for promotion over Officer Spring and Plaintiff. According to Chief Mahar, Officer Smith was recommended for promotion over the other two higher-ranked officers because Officer Smith was best qualified for the vacant position; he had experience in the Criminal Investigation Division, a higher educational level, and a clean disciplinary record. Plaintiff did not have any experience in the Criminal Investigation Division, only having served within the Road Patrol Division, and had various negative disciplinary marks on his record. Plaintiff, however, believed that promotions were made strictly according to officers' rankings, and therefore filed a complaint with the EEOC in December 1994.

In March 1995, the City administered the examination that had originally been announced for October 1994. Plaintiff was ranked second on the new eligibility list, below an Officer Baldwin. Soon thereafter, Officer Baldwin, who was not Hispanic, was promoted to the position of sergeant.

Towards the end of 1996, Chief Mahar created the position of "Sergeant-Chaplain" for an Officer Wharton, who had been acting informally as the Police Department's chaplain, even though Officer Wharton was not on the eligibility list for sergeants. Sergeant-Chaplain Wharton was only nominally a sergeant he did not have any of the supervisory duties of a normal officer with the rank of sergeant. The position was apparently created to give Sergeant-Chaplain Wharton freer rein in his counseling activities as chaplain.

Plaintiff finally received his right-to-sue letter from the EEOC, and filed suit against Defendants in April 1997. The City immediately instituted a freeze on promotions while it searched for a new Police Chief. A new Police Chief was hired in 1997; Plaintiff was promoted to the position of sergeant soon thereafter.

II. Summary Judgment Standard

Under Rule 56(c) of the Federal Rules of Civil Procedure:

The judgment sought shall be rendered forthwith 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). Summary judgment may be entered only where there is no genuine issue of material fact. See Twiss v. Kury, 25 F.3d 1551 (11th Cir.1994). The moving party has the burden of meeting this exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). In applying this standard, the district court must view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. Id. 398 U.S. at 157, 90 S.Ct. 1598.

However, the non-moving party "[m]ay not rest upon the mere allegations and denials of [its] pleading, but [its] response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In fact,

the plain language of Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial and requires the court to grant the motion for summary judgment. Id.

III. Discussion

While Plaintiff's Complaint is not entirely clear, it appears that Plaintiff is seeking relief under Title VII, Section 1981, Section 1983, and FCRA against Defendant City, Defendant Police Department, and Defendant Chief Mahar in his official capacity, and under Section 1981 and 1983 against Defendant Chief Mahar in his individual capacity. In addition, Plaintiff advances claims for failure to promote, harassment, disparate treatment, hostile environment, and retaliation under each of these statutory sources.

A. Claims as to Defendant Police Department

Plaintiff has stipulated to a dismissal of his claims against Defendant Police Department.5

B. Claims as to Defendant City of Fort Pierce and Defendant Chief Mahar in his Official Capacity

(1) Section 1981 and Section 1983 Claims

As an initial matter, Plaintiff's § 1981 claims are merged into Plaintiff's § 1983 claims because a plaintiff may not bring both § 1981 and § 1983 claims against a municipality. In Jett v. Dallas Independent School District, 491 U.S. 701, 109 S.Ct 2702, 105 L.Ed.2d 598 (1989), the Supreme Court held that § 1983 constitutes the exclusive federal remedy against state actors for violations of the rights contained in § 1981. Id. 491 U.S. at 736, 109 S.Ct. 2702. The Eleventh Circuit expressly adopted this rule. See Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir.1991). Amendments made to § 1981 by the Civil Rights Act of 1991 ("CRA")6 have created some confusion among the circuits as to whether the CRA overruled the Jett rule against simultaneous § 1981 and § 1983 claims.7 However, while the Eleventh Circuit has not expressly addressed whether the CRA has altered the original Jett analysis, district courts within the Eleventh Circuit, including the Southern District of Florida, have been unanimous in holding that the Jett rule remains unaltered, and a plaintiff may not bring § 1981 and § 1983 claims simultaneously against a municipal defendant.8 Therefore, the § 1981 claims are merged into,...

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