Opinion
CIVIL ACTION 99-D-765-N.
October 24, 2000.
Gregory D. Crosslin, Crosslin, Slaten O'Connor, P.C., Montgomery, AL. Defendant EURPAC represented by Crosslin.
David George Flack, Montgomery, AL. Plaintiff represented by Flack.
Leura J. Garrett, U.S. Attorney's Office, Montgomery, AL. Defendant William Cohen represented by Garrett.
Leura J. Garrett, U.S. Attorney's Office, Montgomery, AL. Defendant Beverly Montgomery represented by Garrett.
Leura J. Garrett, U.S. Attorney's Office, Montgomery, AL. Defendant Paul Royal represented by Garrett.
Leura J. Garrett, U.S. Attorney's Office, Montgomery, AL. Defendant Gordon Harris represented by Garrett.
Leura J. Garrett, U.S. Attorney's Office, Montgomery, AL. Defendant Barbara Sannino represented by Garrett.
Leura J. Garrett, U.S. Attorney's Office, Montgomery, AL. Defendant William Nobles represented Garrett.
MEMORANDUM OPINION AND ORDER
Before the court is the Motion To Dismiss Or, In The Alternative, Motion For Summary Judgment filed by Defendants on August 7, 2000. Plaintiff filed a Response on September 6, 2000, and Defendants filed a Reply on September 13, 2000. After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that Defendants' Motion is due to be granted.
The court construes the Motion as one for summary judgment. See Fed.R.Civ.P. 12(b).
I. JURISDICTION AND VENUE
The court has subject matter jurisdiction over this lawsuit under 28 U.S.C. § 1331 (federal question). The parties do not contest personal jurisdiction or venue.
II. SUMMARY JUDGMENT STANDARD
A court considering a motion for summary judgment must construe the evidence and make factual inferences in the light most favorable to the nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). Summary judgment is entered only if it is shown "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).
At this juncture, the court does not "weigh the evidence and determine the truth of the matter," but solely "determine[s] whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). This determination involves applying substantive law to the substantive facts that have been developed. A dispute about a material fact is genuine if a reasonable jury could return a verdict for the nonmoving party, based on the applicable law in relation to the evidence developed. See Anderson, 477 U.S. at 248; Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir. 1989).
The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. The burden then shifts to the non-moving party, which "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). An action will be dismissed when the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. See id. at 587.
III. FACTUAL BACKGROUND
This case presents a complex series of facts surrounding the revocation of Plaintiff Jeanette T. Hooks' vendor badge, which was a prerequisite to her employment as the delicatessen manager at the Gunter Air Force Base Annex Commissary. The ultimate issue is whether racial discrimination or retaliatory animus played a role in the loss of that badge.
An introduction of the relevant parties is necessary. Defendants Beverly Montgomery, Gordon Harris, Barbara Sannino and William Nobles are civil service employees of the U.S. Government, who are employed by the Defense Commissary Agency ("DeCA"), an agency of the Department of Defense. Defendant EURPAC is a private corporation that holds a contract with DeCA to operate a deli at Gunter Air Force Base ("the Commissary"). Montgomery was the acting store manager of the Commissary. She reported to Harris, who was the Maxwell Air Force Base store manager. Harris, in turn, was subordinate to Sannino, who was the commissary officer in charge of all operations at Maxwell and Gunter. Nobles was a lower-level the on-site work supervisor of the Commissary's meat department. Similarly, Hooks, who is a black female, worked for EURPAC as the Commissary's deli manager.
EURPAC has not joined in this Motion.
On August 13, 1997, Nobles told a subordinate to place five boxes of soon-to-be-expired chicken in the freezer. Two days later, Dorothy Leonard (who is a meat cutter at the Commissary but is not a party to this suit), received a telephone call from a customer asking whether any chicken was on sale. After receiving authorization from Nobles to mark down the chicken, Leonard told the customer that out-of-date chicken had been marked down and that she could purchase the chicken if she picked it up by 5:30 p.m. After getting off the telephone, Leonard marked down the five boxes of out-of-date chicken by 50 percent. The hour of 5:30 p.m. came and went. The customer, however, never materialized. Leonard happened to notice Hooks — who was off duty at the time — shopping. Leonard asked Hooks whether she wanted to buy the five boxes of chicken, and Hooks answered in the affirmative. Leonard gave it to her.
Hooks proceeded to the check-out counter. About that time, another DeCA employee told Montgomery that she had seen Hooks with several cases of chicken in her shopping cart and that at least one of the cases was marked with a price of $4. The employee told Montgomery that she was not aware that chicken was on sale. As soon as Hooks checked out at the Commissary, Montgomery looked at the register receipt from Hooks' purchase. It showed that Hooks had purchased six cases of chicken for a total of $42. Montgomery followed Hooks out of the Commissary and told Hooks that she wanted to recheck her purchase. Hooks questioned Montgomery's request. Montgomery called Harris and the military base's security police. She asked them to come to the Commissary on the double. When the security police arrived, they detained both Hooks and Leonard.
Meanwhile, Montgomery had a bagger take Hooks' shopping cart back inside the Commissary. Montgomery rescanned the chicken at the register, and it showed that its unreduced price was $165.04. Because Plaintiff purchased the chicken for $42, Montgomery concluded that Plaintiff had purchased the chicken for less than 50 percent of its unreduced price. DeCA regulations prohibit commissary managers from selling items at more than half off. In addition, Montgomery noticed that the "sell by" date on the chicken had passed. DeCA regulations also generally prohibit commissaries from selling food items once they reach that date.
After conducting the recheck of Hooks' purchase, Montgomery showed the security police Hooks' original receipt and the receipt from the recheck. The security police tried to resolve matters. They detained Leonard and Hooks for three hours before releasing them. The security police issued Hooks and Leonard a notice of suspension of commissary privileges. The police suspected the two of larceny. The suspension banned Hooks and Leonard from entering the Gunter Commissary for any purpose. They both requested post-deprivation hearings to challenge the decision.
The next business day, Hooks informed EURPAC that she had been suspended from the Gunter Commissary. At that time, EURPAC told Plaintiff that she was not terminated, but would be placed in limbo status pending investigation of the incident. Hooks got her hearing a few weeks later. The base commander revoked her suspension of commissary privileges. The following day, Hooks presented evidence to Sannino reflecting that her privileges to the Commissary had been restored. Hooks asked Sannino to reinstate her vendor badge. Sannino demurred. EURPAC fired Hooks some time shortly thereafter.
Plaintiff has since filed this Bivens action. At the outset, the court sua sponte dismisses all of Plaintiff's claims against Cohen, Harris, Montgomery, Nobles, and Sannino in their official capacities. See Blalock v. Dale County Bd. of Educ., 84 F. Supp.2d 1291, 1314 (M.D.Ala. 1999); Blalock v. Dale County Bd. of Educ., 33 F. Supp.2d 995, 998 (M.D.Ala. 1998). The court also notes that Plaintiff has abandoned all of her claims except those alleging that Defendants have violated the Equal Protection Clause of the Fifth Amendment and Petition Clause of the First Amendment. (Resp. at 30-34.)
The court has sifted through the record and pleadings. This was a difficult task; Plaintiff's materials are an impenetrable jungle of incomplete sentences, often bereft of citation to the record or to relevant authority yet full of typographical mistakes and grammatical errors. After careful analysis, the court finds that Defendants' Motion For Summary Judgment is due to be granted.
IV. DISCUSSION
Federal officials, such as the Defendants in this case, can be held liable for their violations of federal constitutional rights. There being no congressionally-established alternative remedy available, Hooks is entitled to bring her claim in federal court. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); Ray v. Nimmo, 704 F.2d 1480 (11th Cir. 1983) (per curium).
Because Hooks is not a federal employee, she has no Title VII claim against the defendants who have joined in this motion.
A Bivens action is analyzed in the same manner as a Section 1983 claim. See, e.g., Abella v. Rubino, 63 F.3d 1063 (11th Cir. 1995) (per curium). Furthermore, in cases involving allegations of discriminatory discharge, the court applies the same analysis as it would apply in a Title VII claim. See Richardson v. Leeds Police Dep't, 71 F.3d 801, 805 (11th Cir. 1995) (per curium). The ultimate question in a discriminatory discharge case is whether the defendant engaged in intentional discrimination. See Jones v. Gerwens, 874 F.2d 1534, 1539 (11th Cir. 1989).
Plaintiff may seek to prove discrimination by relying on either direct, circumstantial, or statistical evidence. See Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997). In this case, Plaintiff argues that she has produced sufficient circumstantial evidence for her claims to survive summary judgment. Thus, the familiar McDonnell-Douglas burden-shifting analysis applies. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 428 (1981);McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under the McDonnell-Douglas framework, a plaintiff must first raise an inference of discrimination by establishing a prima facie case of discriminatory discharge or retaliation. For discriminatory discharge cases, this requires showing that: (1) Plaintiff is a member of a protected class; (2) Plaintiff was qualified for the job from which she was discharged; (3) Plaintiff was discharged in fact; and (4) Plaintiff's former position was filled by someone outside her protected class, or she was terminated while others having comparable or lesser qualifications and not in her protected class were retained, or that she was subject to a different application of work or disciplinary rules. See Ross v. Rhodes Furniture Inc., 146 F.3d 1286, 1290 (11th Cir. 1998); Edwards v. Wallace Community College, 49 F.3d 1517, 1521 (11th Cir. 1995). For retaliation claims, this means offering proof that: (1) Plaintiff engaged in a statutorily protected activity; (2) Plaintiff suffered adverse employment action; and (3) some causal connection exists between the two events. See Morgan v. Alabama, 5 F. Supp.2d 1285, 1297 (M.D.Ala. 1998).
In this case, Plaintiff seeks to hold the individual federal Defendants liable for an employment decision they did not make. After all, Hooks was terminated by EURPAC, not any of the federal defendants. As a result, without a sufficient causal link between Defendants' alleged animus and EURPAC's ultimate employment decision, neither Montgomery's recommendation nor Sannino's revocation of Hooks' vendor badge worked a change in her terms or conditions of employment. See Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1331-32 (11th Cir. 1999) (per curiam). Thus, a brief discussion of "indirect" liability is necessary.
The Eleventh Circuit, deciding a case of indirect liability, recently dismissed a Section 1983 claim that differs from Plaintiff's action in no material way. In Stimpson, the police chief and city council recommended the termination of the plaintiff, who was a city police officer. See id. at 1330. The city had no statutory power to dismiss the officer; that power was vested in a civil service board alone. The board had the discretion to terminate, impose lesser sanctions, or completely vindicate an officer brought before it. See id. at 1331. As a result, the court explained, "the City's recommendation that the Board terminate Stimpson does not, itself, constitute a change in the terms or conditions of employment absent a sufficient causal link between the termination and the discriminatory animus behind the recommendation." Id.
The court went on to note that "a discharge recommendation by a party with no power to actually discharge the employee may be actionable if the plaintiff proves that the recommendation directly resulted in the employee's discharge." Id. (citingZaklama v. Mt. Sinai Med. Center, 842 F.2d 291, 294 (11th Cir. 1988)). However, the court added, "this causation must be truly direct." Id. It stated that
[w]hen the biased recommender and the actual decisionmaker are not the same person or persons, a plaintiff may not benefit from the inference of causation that would arise from their common identity. Instead, the plaintiff must prove that the discriminatory animus behind the recommendation, and not the underlying employee misconduct identified in the recommendation, was an actual cause of the other party's decision to terminate the employee.Id. (citing Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1248 (11th Cir. 1998)). The court then found that Stimpson had not "introduced any evidence that could reasonably indicate that the City's alleged discriminatory animus influenced the Board's decision to terminate her." Id. at 1332. Because the Board terminated Stimpson because of her misconduct, the Eleventh Circuit dismissed her claim against the City.
Llampallas and Stimpson hold that a biased intermediary cannot be held liable for the decisionmaker's actions if the decisionmaker was not biased, and the decisionmaker undertook an independent evaluation of the intermediary's recommendation, then subsequently agreed with the merits of the recommendation. See id.; Llampallas, 163 F.3d at 1251; see generally Hamilton v. Montgomery County Bd. of Educ., 99-D-507-N, — F. Supp.2d — (M.D.Ala. 2000). Thus, in this case, it is not sufficient for Plaintiff simply to show that any one of the Defendants was involved in the events leading up to her discharge. Rather, Plaintiff must also present evidence on either of two fronts. First, she can show that each employee was biased throughout the chain of command extending from Nobles to Harris and Montgomery to Sannino and EURPAC. Second, she might show that: (1) bias existed at some point along the chain, and that the biased employee recommended to a higher-ranking official that the official take action against Hooks; and (2) each higher-ranking official up the chain of command either was biased or acted upon the recommendation without giving it sufficient independent consideration; and ultimately that (3) the relevant decisionmakers at EURPAC either were biased or terminated Hooks without undertaking their own independent investigation into the merits of the recommendations they were receiving.
With those principles in mind, the court turns to Plaintiff's claims. First, she alleges that Defendants violated the First Amendment by retaliating against her. She asserts that Defendants conspired to withhold her vendor badge because she appealed her initial suspension, which was issued by military police due to her behavior on August 15, 1997. Second, she alleges that racial bias among the Defendants played a role in that same decision. The court finds that summary judgment is due to be granted on both claims.
EURPAC was the ultimate decisionmaker with respect to employment at the Commissary. Thus, Defendants cannot be liable unless there is some causal link between their alleged biased actions and EURPAC's decision to terminate. In this case, Plaintiff has not provided the court with a scintilla of evidence suggesting that the relevant supervisors at EURPAC acted out of racism or retaliation. Plaintiff has pointed to absolutely nothing on this point, and the court's painstaking examination of the record has failed to turn up anything either. See Celotex, 477 U.S. at 324 (pleadings are not evidence); see also Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) ("There is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment.") Moreover, nowhere does Plaintiff's Complaint allege that EURPAC failed to investigate the recommendations percolating up from Sannino prior to acting upon them.
Nor does Plaintiff point to evidence supporting this proposition.
Plaintiff had ample opportunity to produce such evidence, yet she has not done so. Thus, the court finds that she has failed to produce sufficient evidence for a rational jury to find a causal connection between Defendants' actions and EURPAC's employment decision. Given the court's finding on causation, there is no need to delve further into the merits, other than to note that there is no connection whatsoever between Harris and Nobles and the incidents in question. Summary judgment shall be entered accordingly.
The court also has considered the possibility that Plaintiff's Complaint, if read in an extremely charitable manner, might be thought to allege an Equal Protection violation resulting from her suspension by Gunter's security police. This suspension preceded her termination. Even if such a claim were made, it would be dismissed. No evidence suggests that the police were biased and there is no allegation or evidence suggesting that they failed to investigate adequately the charges against Hooks.
V. ORDER
Based on the foregoing, it is CONSIDERED and ORDERED that Defendants' Motion For Summary Judgment, filed on behalf of William Cohen, Beverly Montgomery, Gordon Harris, William Nobles, and Barbara Sannino, be and the same is hereby GRANTED and that Plaintiff's claims against the same Defendants be and the same are hereby DISMISSED.
DONE this 24th day of October, 2000.