Opinion
Civil Action No. 4:02-CV-763-BE
December 10, 2003
MEMORANDUM OPINION AND ORDER
Pending before the court is the Defendant City of Arlington's Motion for Summary Judgment. Having considered the motion, Plaintiff's response, and the evidence submitted, the Court finds that the motion should be granted for the reasons stated below.
A. STATEMENT OF THE CASE
Plaintiff Mark Garber, a former sergeant with the Arlington Police Department, filed suit against Arlington Chief of Police Theron Bowman and the City of Arlington in state court on August 16, 2002. The City removed this action to federal court on September 13, 2002, based on the presence of a federal question. 28 U.S.C. § 1331, 1441(b).
Garber's suit arises out of the manner in which Bowman and the City handled the media attention and administered discipline after the shooting death of an Arlington police officer during a training demonstration. Garber joined the City of Arlington's police department in 1993, and was promoted to the rank of Sergeant in 1999. (Garber App. at 19, ¶ 1). Garber was the Sergeant in charge of the police department's Special Operations Division ("Special Ops"), and was supervising the Active Shooter Training that was being conducted by Special Ops. (Garber App. at 19, ¶ 2). One portion of the exercise involved a demonstration of "Simunition," a non-lethal projectile used in converted weapons. Garber allowed instructors, other than those playing the roles of "aggressors" in the training exercise, to retain loaded weapons during training, including the instructor demonstrating Simunition. (City App. at 2; Garber App. at 22). On June 7, 2001, Garber was called away from the training exercise and left Officer Johnny Spruiel in charge of the Simunition demonstration. (Garber App. at 19). Officer Blane Shaw was assisting Spruiel. Spruiel decided to allow a Simunition demonstration on a person, rather than an inanimate object, and Corporal Joey Cushman volunteered to be the target. (Garber App. at 22, ¶¶ 30-31). Spruiel picked up a converted shotgun, aimed and fired at Cushman, who was dressed in safety gear, but the Simunition missed Cushman, Shaw had been carrying a converted pistol that was loaded with Simunition ammunition during the demonstration, but at some point placed the converted pistol on a table in the classroom. After Spruiel missed, Shaw decided to complete the demonstration, but apparently forgetting that he had laid down the converted pistol, drew his loaded duty weapon and fired at Cushman, striking Cushman in the head and killing him. (Garber App. at 31-33).
Five members of the police department were the subjects of an Internal Affairs (IA) investigation: Garber, Shaw, Spruiel, Lieutenant Roy Mitchell, and Deputy Chief Jerry Kendrick. Spruiel is African American, but the remaining officers are Anglo American. The IA investigator, Lieutenant Fred Collie, is an Anglo American He found that Spruiel should be exonerated from the charge of using poor judgment in the performance of duty, the only charge of misconduct lodged against Spruiel, but found evidence of rule violations or other misconduct by each of the remaining four officers. More specifically, Collie found evidence to sustain the charges that Garber committed misconduct in judgment and misconduct in planning for failing to prohibit the instructor demonstrating Simunition during the Active Shooter Training sessions from remaining armed with a loaded duty weapon. (Garber App. at 62-63). Collie forwarded his findings to Police Chief Theron Bowman for the assessment of disciplinary action. Bowman is African American. Bowman assessed no discipline against Spruiel, but demoted Garber to the rank of patrol officer effective August 27, 2001. (Garber App. at 5, 16). Bowman also demoted Kendrick, and gave Mitchell a written reprimand. Bowman terminated Shaw. (Bowman App. at 4).
Mitchell was the Lieutenant over Special Ops, while Kendrick was the Deputy Chief for the Operations Support Division, which included Special Ops. (City App. at 8).
Garber resigned from the police department in April 2002. (Bowman App. at 58). Garber brings suit against the City under Title VII, and asserts that he is the victim of racial discrimination in employment that resulted in his demotion and constructive discharge from the City's police department. He also contends that the City is liable under 42 U.S.C. § 1983 for damage to his reputation and standing in the community and acts of racial discrimination by a public employer that violate equal protection and due process guarantees.
B. STANDARD OF REVIEW
Summary judgment is appropriate 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247,106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The court views all of the evidence and inferences therefrom in the light most favorable to the nonmovant. Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993).
The movant bears the initial burden of showing that no genuine issue of material fact exists, but once the movant makes such a showing, the burden shifts to the nonmovant to produce competent summary judgment evidence of the existence of a genuine issue of material fact. Anderson, 477 U.S. at 256-57, 106 S.Ct. at 2514, 91 L.Ed.2d 202. An issue is genuine if there is sufficient evidence for a reasonable jury to return a verdict in favor of the nonmovant. Id. at 248, 106 S.Ct. at 2510. A fact is material if its resolution would affect the outcome of the suit under the governing law. Id.
C. DISCUSSION
1. Race Discrimination
Garber asserts that his demotion was racially motivated and resulted in his constructive discharge from his employment with the City. He contends that Bowman, who made the demotion decision, has a history of treating African American officers more leniently than other officers in the police department. Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an individual on account of race, color, religion, sex or national origin. 42 U.S.C. § 2000e-2(a).
The City asserts that Garber cannot establish a prima facie case of racial discrimination or produce evidence of a racial motivation for his demotion. Presentation of an employment discrimination case follows the order of proof established in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and reaffirmed by the Supreme Court in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506,113 S.Ct. 2742, 2746-47, 125 L.Ed.2d 407 (1993).
Alternatively, the City asserts that Garber's action is time-barred because his demotion occurred more than 300 days before Garber filed a charge of discrimination with the Texas Commission on Human Rights and the Equal Employment Opportunity Commission (EEOC). In states like Texas, which provide a state administrative mechanism to address complaints of employment discrimination, a Title VII plaintiff must file a charge of discrimination with the EEOC within 300 days after learning of the allegedly discriminatory conduct. See 42 U.S.C. § 2000e-5(e)(1); Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998). Garber learned of the demotion on August 17, 2001, but did not file a charge of discrimination with the EEOC until January 16, 2003. (City App. at 111). Garber, however, has complained that the demotion led to his constructive discharge after he exhausted available administrative channels for appealing the disciplinary measures imposed against him. He resigned from the police department on April 27, 2002, which is within the statutory three hundred days. (City App. at 110).
The plaintiff must first meet the minimal requirement of establishing a prima facie case of discrimination, which creates a presumption that the employer unlawfully discriminated against the employee. Hicks, 509 U.S. at 506, 113 S.Ct. at 2747. A prima facie case of discrimination requires proof that (1) the plaintiff is a member of a protected class; (2) he suffered an adverse employment action; and (3) that individuals outside of his protected class did not suffer that adverse employment action. See Ward v. Bechtel, 102 F.3d 199, 202 (5th Cir. 1997). To make a prima face case for claims of disparate treatment, the plaintiff must demonstrate that the misconduct for which he was punished was "nearly identical" to that engaged in by another employee outside of the protected class who was treated more favorably. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1089 (5th Cir. 1995); Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177, 1180 (5th Cir. 1990) (per curiam).
Once the plaintiff has established his prima facie case, the burden then shifts to the employer to produce evidence that the adverse employment action was taken for a legitimate, nondiscriminatory reason. Hicks, 509 U.S. at 506-07, 113 S.Ct. at 2747. The employer must articulate reasons for its actions that, if believed by the trier of fact, would support a finding that unlawful discrimination was not the reason for the adverse action. Id. at 507,113 S.Ct. at 2747. If the employer meets this burden, the presumption of discrimination is rebutted and drops from the case. Id. at 507, 113 S.Ct. at 2747. The plaintiff then has the opportunity to demonstrate that the employer's proffered reason was not the true reason for the employment decision and that the discriminatory reason was. Id. at 508, 523, 113 S.Ct. at 2747.
Garber asserts that Bowman's disciplinary decision could only be motivated by race, especially when Spruiel was exonerated even though he was the officer in charge at the time of the shooting, but Garber has no evidence to suggest that he and Spraiel were in similar circumstances. Garber was the supervisor who permitted instructors to retain live weapons during the training sessions — including the instructor who performed the Simunition demonstration. Spruiel was not charged with misconduct in allowing instructors to retain their weapons because this was a practice permitted by Garber, the higher ranking officer. Spruiel was charged with misconduct in allowing the demonstration to be altered to use a person as the target for the Simunition demonstration, but was exonerated because his choice was within his granted authority and because Simunition was designed to be used on people without harming them. (Garber App. at 13, 85). This distinction between Garber's role and Spruiel's role in the Active Shooter Training accounts for the difference in the outcome of the IA investigations of both officers. Cf. Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001). Garber has not established a prima facie case of racial discrimination.
Even if Garber had a prima facie case, he has no evidence to defeat the City's proffered legitimate reason for his demotion on grounds of poor planning and judgment given his supervisory role in the training program. Garber's only response is a conclusory assertion that race must underlie Bowman's disciplinary decisions because Bowman failed to impose any discipline against Spruiel. Spruiel, however, was exonerated during the IA investigation. The City has provided summary judgment evidence that the IA investigation was an independent investigation by Collie, an Anglo American, without any instructions from the police chief or anyone else. (City App. at 3). Moreover, Spruiel and Garber were not similarly situated in terms of their positions and responsibilities for the Active Shooter Training program.
Garber also asserts that Bowman has a history of treating minority officers more leniently. He accuses Bowman of extending the probationary periods for minority officers, but not Anglo American officers. Garber names two minority officers who were granted extensions of their respective probationary periods, but provides no details about the reasons for these extensions or any information about Anglo American officers who were denied extensions; therefore, no effective comparison can be made in Bowman's treatment of the two groups. Garber, however, admits that he successfully completed his probationary period with the police department. (Garber App. at 22, ¶ 32).
Garber also complains that Bowman required that an officer have a college degree to be eligible for a promotion in rank. Garber does not discuss why this requirement is racially discriminatory and gives no examples of instances when this requirement was not applied across the board to any candidate for promotion. Additionally, Garber has a bachelor's degree and does not allege that the college degree requirement affected his employment with the police department.
The City has provided a legitimate, racially neutral explanation for Garber's demotion, and Garber has failed to present evidence raising a genuine issue of material fact about any racial motivation for the disciplinary action imposed against him. Whether the discipline was the best decision or even a fair one is not a question for the court because Title VII is not a vehicle for judicial second — guessing of employment decisions. See Deines v. Texas Department of Protective and Regulatory Servs., 164 F.3d 277, 281 (5th Cir. 1999); Walton v. Bisco Indus., Inc., 119 F.3d 368, 372 (5th Cir. 1997). The City is entitled to summary judgment on Garber's cause of action for racial discrimination in employment.
2. Section 1983
Garber alleges that the City and Bowman have violated his constitutional rights by damaging his reputation and standing in the community, infringing on his right to pursue his career as a peace officer, and by failing to treat him in a manner equal to other similarly situated persons because of his race.
Section 1983 provides that any person who, under color of state law, deprives another of rights, privileges or immunities secured by the Constitution and laws shall be liable to the party injured. 42 U.S.C. § 1983. Section 1983 does not create substantive rights, but only provides a remedy for the rights that it designates. Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997).
With regard to municipal liability, 42 U.S.C. § 1983 does not provide for vicarious liability. See Monell v. Dep't of Social Servs. of City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Henley v. Edlemon, 297 F.3d 427, 431 (5th Cir. 2002). A municipality is liable under 42 U.S.C. § 1983 when injury results from execution of governmental policy or custom, whether made by its lawmakers or by those whose edicts and acts may fairly be said to represent official policy. Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002), cert. denied, 537 U.S. 1110 (2003). However, Garber has provided evidence that raises a material issue of fact with regard to Bowman's role as a policymaker for the City of Arlington where police department operations are concerned.
a. Procedural Due Process
Garber asserts that he had a property interest in his license as a Texas peace officer and rank as Sergeant and a liberty interest in pursuing his chosen vocation, but the City disciplined him without providing a fair and complete hearing as required by the municipality's own policies or state law.
Garber testified during his deposition that he has not lost his Texas peace officer's license, nor does he assert that Bowman or any other City employee has attempted to deprive him of that license; therefore, his due process claims must be based upon an alleged property or liberty interest in his continued rank as Sergeant or a liberty interest in choosing and pursuing his chosen career. The Fifth Circuit has found it axiomatic that the right to work in the "common occupations of the community is of the very essence of the personal freedom and opportunity" that the Fourteenth Amendment is intended to secure. Phillips v. Vandygriff, 711 F.2d 1217, 1222 (5th Cir. 1983) (quoting Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131 (1915)). For summary judgment purposes, the City has not disputed that Garber had some property or liberty interest at stake worthy of due process protections.
To the extent Garber is relying solely on violations of a personnel handbook or state admininstrative law, his attention is misplaced. The City's failure to follow its own procedural regulations or state law does not establish a violation of due process if constitutional minimums have nevertheless have been met. See Brown v. Texas AM University, 804 F.2d 327, 335 (5th Cir. 1986) (involving denial of a hearing to a University employee following his job loss).
The Due Process Clause has procedural and substantive components. See County of Sacramento v. Lewis, 523 U.S. 833, 840, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). The procedural component requires states to provide a constitutionally adequate process before depriving an individual of life, liberty, or property. Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (internal quotations and citations omitted).
Procedural due process claims require a two-part analysis: (1) whether the plaintiff has a liberty or property interest that is entitled to procedural due process protection; and (2) if so, what process is due. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). The essential requirements of due process are notice and an opportunity to respond. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985); Delahoussaye v. New Iberia, 937 F.2d 144, 151 (5th Cir. 1991).
Garber has no complaints about the adequacy of the notice he received, and he took advantage of the City's administrative appeals process. That process culminated in a three-day formal evidentiary hearing before the human resources director for the City and an administrative law judge retained by the City to rule on procedural and evidentiary questions. (City App. at 130 et seq. Garber was represented by an attorney, Michael Rickman, during this hearing. Garber, however, asserts that the process was not fair because his attorney was not allowed to prepare for the hearing by interviewing City employees without the presence of the City attorney and because the administrative law judge excluded evidence showing Garber was not supervising the scene when the shooting occurred and was a victim of race-based disparate treatment.
Garber cites no authority for the proposition that minimal due process guarantees would require the City to make its employees available for interviews outside the presence of the City's attorney. As for his evidentiary complaints, reversal is not automatically required when a hearing deviates from acceptable procedures. Minor infractions are not sufficient to invalidate a civil service termination. Banks v. FAA, 687 F.2d 92, 94 (5th Cir. 1982) (citing Dozier v. United States, 473 F.2d 866, 868 (5th Cir. 1973)). Rather, to justify relief for a procedural due process failure in an administrative proceeding, there must be a showing of substantial prejudice. Keough v. Tate County Ed. of Educ., 748 F.2d 1077 (5th Cir. 1984).
In reviewing administrative disciplinary proceedings for alleged due process violations, the court is not to review every evidentiary ruling as if deciding the issues that were the subject of the disciplinary proceeding. Shawgo v. Spradlin, 701 F.2d 470, 480 (5th Cir. 1983). Instead, review is limited to whether the Plaintiff's due process right to an opportunity to be heard was offended when he was not allowed to fully develop his defense. Id. He asserts he was denied the opportunity to present evidence that he was not the supervisor at the scene, that Spruiel was, that Spruiel was a minority, and that Spruiel was not disciplined. At least part of this evidence was already before the hearing officer: It was undisputed at the hearing that Garber was not present at the time Cushman was shot and that Spruiel was in charge at the time. Spruiel was a witness at the disciplinary hearing and admitted that he made the decision to change the target to a person.
Garber cites to the 600-page transcript of its disciplinary hearing in its entirety without specifying where in that transcript the alleged evidentiary errors occurred.
Evidence that Spruiel was not disciplined was excluded, but whether the administrative law judge should have admitted the evidence is questionable because the two men held different positions and responsibilities in the Active Shooter Training program. Even if it was error to exclude the evidence, Garber was permitted to introduce the essence of his defense, i.e., that it was a longstanding departmental practice for instructors to carry loaded weapons during training sessions so that his failure to have a policy prohibiting that practice was not a failure in judgment or planning. Garber appeared with counsel, called witnesses, cross-examined the City's witnesses, and presented arguments and evidence, just not all of the evidence he wanted. He has not shown that excluding evidence of an alleged inequity in the way discipline was administered was so prejudicial as to render the hearing process constitutionally inadequate. Cf. Shawgo, 701 F.2d at 480-81.
b. Substantive Due Process
Garber asserts that the City has arbitrarily and capriciously denied him a liberty interest in pursuing his chosen vocation in law enforcement. The City has not challenged the existence of a protected liberty or property interest for summary judgment purposes, but denies that Garber's demotion constitutes a substantive due process violation.
Public officials violate substantive due process rights if they act arbitrarily or capriciously. Spuler v. Pickar, 958 F.2d 103, 107-108 (5th Cir. 1992). But the evidence here does not raise a fact question about the arbitrary or capricious nature of the City's conduct in deciding to demote Garber. Garber does not dispute that he was the supervisor of the Active Shooting Training program, that he had permitted instructors to retain their loaded duty weapons during the training sessions, and that he had no written protocol prohibiting this practice. He does not dispute that he was the subject of an internal affairs investigation, that discipline was imposed based on those findings, or that he participated in an extensive multi-level review process to appeal his demotion. Nor has Garber demonstrated that demotion was an arbitrary or capricious choice just because Spruiel was not disciplined. Bowman and the City had reasonable grounds for not disciplining Spruiel after the internal affairs investigation exonerated him.
Although other decision makers might have taken different disciplinary action against Garber or foregone any discipline at all, the Due Process Clause of the Fourteenth Amendment is not a guarantee against incorrect or ill-advised personnel decisions. Bishop v. Wood, 426 U.S. 341, 350, 96 S.Ct. 2074, 2080, 48 L.Ed.2d 684 (1976). Summary judgment for the City is appropriate because there is no genuine issue of material fact concerning the arbitrary or capricious nature of the disciplinary action taken against Garber.
c. Equal Protection
Garber complains that he has been denied equal protection of the law because he was disciplined when Spruiel, an African American officer, was not. There is a Constitutional right to be free from racial discrimination by a public employer. Southard v. Texas Ed. of Criminal Justice, 114 F.3d 539, 549-50 (5th Cir. 1997). See, e.g., Felton v. Polles, 315 F.3d 470 (5th Cir. 2002). But for the same reasons that Garber's Title VII claim fails, his efforts to bring a related claim under Section 1983 likewise fail because the standard for determining whether a prima facie case has been established is identical for the two causes of action. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047-48 (5th Cir. 1996). As a prerequisite in any equal protection claim, the plaintiff must prove that similarly situated individuals were treated differently. Bryan v. City of Madison, 213 F.3d 267, 276-77 (5th Cir. 2000); Wheeler v. Miller, 168 F.3d 241, 252 (5th Cir. 1999). Garber and Spruiel were not similarly situated in terms of their responsibilities or roles in the Active Shooter Training exercise. Spruiel was the officer in charge at the time of the shooting, but the decision to allow instructors to retain loaded weapons during the training exercise belonged to Garber as the supervising Sergeant. Because Garber and Spruiel were not in comparable positions, Bowman's decision not to impose comparable discipline on both employees cannot be viewed as an infringement of the Equal Protection Clause. The City is entitled to summary judgment against Garber on his claims of an equal protection violation.
The IA investigation assigned fault up the chain of command to Garber's superiors.
ORDER
It is ORDERED that the City's Motion for Summary Judgment is granted.