Opinion
Civil Action 8:18-cv-03277-JD-JDA
02-11-2022
Akiel McKnight, Plaintiff, v. The Pickens Police Department, The City of Pickens, Travis Riggs, Dennis Harmon, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the parties' cross-motions for summary judgment. [Docs. 63; 65.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
Plaintiff filed this action in the Pickens County Court of Common Pleas on November 13, 2018, asserting claims for wrongful and retaliatory discharge in violation of public policy, race and sex discrimination in violation of the South Carolina Human Affairs Law, race discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), sexual orientation discrimination in violation of Title VII, and violation of constitutional rights under 42 U.S.C. § 1983. [Doc. 1-1.] Defendants removed the action to this Court on December 4, 2018. [Doc. 1.] On December 12, 2021, Defendants filed a motion for summary judgment. [Doc. 63.] Plaintiff filed a motion for summary judgment on December 14, 2021. [Doc. 65.] The parties have filed responses opposing each other's summary 1 judgment motions, and Plaintiff filed a reply. [Docs. 68; 72; 74.] The motions are now ripe for review.
BACKGROUND
In 2018, Plaintiff was a patrol officer with the Defendant Pickens Police Department (“the Department”). [Docs. 1-1 ¶ 9; 9 ¶ 9; 10 ¶ 9; 72-3 at 19.] Plaintiff is an African-American, bisexual male. [Docs. 63-4 at 1; 65-3 at 28, 30.] In April 2018, the Department's Chief of Police, Defendant Travis Riggs, was informed by Pickens County Sheriff Rick Clark that a parent had complained that Plaintiff was sending sexual solicitations to underage males via Snapchat. [Docs. 63-3; 72-3 at 44.] In particular, Sheriff Clark provided Chief Riggs a photograph of a message from “AJ MCKNIGHT” to a 17-year-old male (“the Student”) that referenced sexual activity (“the Message”). [Doc. 63-3.] At the same time, Chief Riggs also learned that Plaintiff had been seeking out social-media information on youth in a church program. [Id.]
The Student had first met Plaintiff when Plaintiff pulled him over for speeding. [Doc. 63-12 at 1.] The Student was interested in law enforcement, and he ended up going on multiple “ride-alongs” with Plaintiff. [Id. at 1, 13.] It was after the last such ride-along that Plaintiff sent the Student the Message. [Id. at 10.] Upon receiving it, the Student showed the Message to another person, who took a picture of the Student's phone screen displaying the Message and showed it to his father. [Id. at 4.] The father made the complaint to the Sheriff's Department. [Id.] 2
Upon learning of the allegations, Chief Riggs met with Plaintiff on April 20, 2018. [Docs. 63-9 at 2-3; 72-3 at 44, 46.] Plaintiff admitted sending the Message but insisted that he had done nothing wrong because the Student was at least 16 years old, and thus had the legal capacity to consent to sex in South Carolina. [Doc. 63-9 at 3.] Chief Riggs responded that, regardless of whether the Student had the legal capacity to consent, sending such a message to a high school student was immoral. [Id.] Plaintiff continued to argue the issue, however, and Chief Riggs suspended him as of April 23, 2018, for two weeks without pay. [Id.; Docs. 63-4 at 1; 63-6; 72-3 at 44-45.]
Plaintiff subsequently sent an email to Dennis Harmon, who was the Interim City Administrator for Defendant the City of Pickens (“the City”), challenging the suspension and repeating his assertion that, because the Student was over 16 years old, Plaintiff had done nothing wrong in sending the sexual solicitation. [Docs. 63-4 at 1; 63-6.] Plaintiff added that Plaintiff was bisexual and although Chief Riggs had told Plaintiff that his sexual orientation had nothing to do with the suspension, Plaintiff did not believe him. [Doc. 63-4 at 1.] On May 3, 2008, Chief Riggs and Harmon met with Plaintiff concerning his grievance. [Doc. 63-6 at 2.] Harmon reduced Plaintiff's discipline to a one-week suspension without pay. [Id.; Doc. 72-1 at 13; 72-2 at 33.]
On May 7, 2018, Chief Riggs received a direct complaint from a parent asking that Plaintiff no longer be allowed around school children. [Doc. 63-5 at 1.] The next day, the Pickens County School District (“the District”) itself also requested that Chief Riggs not allow Plaintiff back into any of its schools while the District considered the issue further. [Id. at 2.] Due to these new requests, Chief Riggs placed Plaintiff on suspension with pay 3 while he decided how to respond. [Doc. 63-6.] In a letter dated May 30, 2018, Harmon informed Plaintiff that the City was “terminating [his] employment, effective immediately, for (1) exercising poor judgment as a police officer, and (2) breaching protocol and the City's policy and procedure for the citizen ‘ride along' program.” [Id. at 2.] Plaintiff's law enforcement certification has also been suspended. [Doc. 72-1 at 23.]
At some point in May 2018, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). [Docs. 1-1 ¶ 17; 9 ¶ 17; 10 ¶ 17.] Plaintiff alleges that on September 29, 2018, the EEOC issued a right-to-sue letter to him. [Doc. 1-1 ¶ 19.]
As noted, Plaintiff filed his Complaint in this case in late 2018. As relief, he requests actual and punitive damages, court costs, and attorneys' fees. [Id. at 7.]
APPLICABLE LAW
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.4 Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party.United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored5
information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
DISCUSSION
Defendants argue that they are entitled to summary judgment on all of Plaintiff's claims. [Doc. 63-1.]
Federal Claims
Defendants first argue that they are entitled to summary judgment on Plaintiff's claims in his third, fourth, and fifth causes of action that he was terminated on the basis of his race and sexual orientation in violation of Title VII, 42 U.S.C. § 1983, and the United States Constitution. [Doc. 63-1 at 9-16.] The Court agrees.
Title VII makes it unlawful for an employer “to discriminate against any individual with respect to . . . compensation, terms, conditions, or privileges of employment, because of 6 such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has also held that discrimination based on sexual orientation violates Title VII “because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.” Bostock v. Clayton Cnty., 140 S.Ct. 1731, 1742 (2020). Generally speaking, “an unlawful employment practice is established when the complaining party demonstrates that [race or sexual orientation] was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m); see Bostock, 140 S.Ct. at 1739. Section 1983 provides, in relevant part,
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .”42 U.S.C. § 1983.
Regardless of whether a claim is brought under Title VII or § 1983, a plaintiff may establish liability for employment discrimination under two methods of proof: (1) “demonstrating through direct or circumstantial evidence that his race [and sexual orientation] was a motivating factor in the employer's adverse employment action”; or (2) relying on the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), burden-shifting framework. Holland v. Washington Homes, Inc., 487 F.3d 208, 213-14 (4th Cir. 2007); see also Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir. 2004) (“[T]he McDonnell Douglas framework, developed for Title VII, has been used to evaluate . . . discrimination claims under [Section 1983 as well].”). 7
In this case, Plaintiff was terminated for conduct that showed remarkably bad judgment and may have amounted to a crime. Regardless of whether the conduct amounted to a crime, it was certainly understandable that Chief Riggs would be extremely troubled by of one of his officers soliciting sex from an underage student at the local high school. That Plaintiff continued to argue with Chief Riggs about whether it is wrong to solicit sex from 16- and 17-year-old high school students, even in the face of Chief Riggs's admonishment, gave Chief Riggs even more cause for concern. Thus, once Chief Riggs received another parent complaint and a specific request from the District that Plaintiff not 8 be allowed in their schools, it was entirely understandable that Chief Riggs suspended Plaintiff with pay as he decided how to respond, and nothing seems unreasonable about his final decision that discharge was warranted.
Despite the facial reasonableness of Chief Riggs's actions, Plaintiff argues that he has forecasted direct or indirect evidence of sexual orientation discrimination and that he has forecasted sufficient evidence to establish a prima facie case of both race and sexual orientation discrimination with direct and circumstantial evidence of discrimination and under the McDonnell Douglas framework. [Docs. 65; 72; 74 at 4-12.]
Direct or Circumstantial Evidence of Sexual Orientation Discrimination
Plaintiff argues that statements from Mayor Fletcher Perry, Police Commissioner Donnie McKinney, and others constitute direct or circumstantial evidence of sexual orientation discrimination that could at least create a genuine dispute of material fact as to whether he suffered such discrimination. [Docs. 65 at 2; 72 at 1-3; 74 at 5-6.] The Court disagrees.
Initially, the Court emphasizes that, in the employment discrimination context, what matters for purposes of proving discrimination is the decision makers' perception of the facts. See King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003) (“It is the perception of the decision maker which is relevant.” (internal quotation marks omitted)). Here, it appears the 9 decision makers were Chief Riggs and Harmon. [See Docs. 63-6 at 2; 63-11 at 11; 72-2 at 17-18.] Plaintiff identifies statements of Perry and McKinney as supporting the case for discrimination, but he has forecasted no evidence linking these statements to the discharge decision.
Perry, when asked whether he believed that Plaintiff's “sexual orientation had anything to do with his termination at all, ” testified that he thought that “[Plaintiff] being bisexual in conjunction with the person being a student played a part in it.” [Doc. 63-11 at 1-2.] Upon further questioning, Perry clarified that he thought “the major factor was that [Plaintiff] was involved with a student.” [Id. at 3.] Regardless of what Perry believed about the motivation for Chief Riggs's and Harmon's decisions, however, Plaintiff has not forecasted any evidence that Perry had any first-hand knowledge of what factors motivated them or that Perry had any input in the decision. In fact, Perry testified that he did not give Chief Riggs or Harmon an opinion as to whether Plaintiff should be fired and that, when Plaintiff's situation was discussed in executive session at a City Council meeting, the decision “was basically left up to [Chief Riggs].” [Id. at 11.] In the absence of evidence that Perry had a basis for believing that Plaintiff's sexual orientation played a role in Chief 10 Riggs's or Harmon's decisions, Perry's opinion on the subject is nothing more than rank speculation, and “[m]ere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995); cf. Huggins v. Roach, No. 5:15-CT-03002, 2016 WL 11430726, at *6 (E.D. N.C. Aug. 1, 2016) (“Without explaining the basis of his knowledge of the operation of the doors, the court must conclude that this statement is merely speculation.”), Report and Recommendation adopted by 2016 WL 5106984 (E.D. N.C. Sept. 19, 2016), aff'd, 678 Fed.Appx. 153 (4th Cir. Mar. 1 2017).
Plaintiff also points to his own testimony about statements that were made to him that he contends suggest he was terminated for being bisexual. [Docs. 72 at 2-3; 74 at 4-6.] Plaintiff testified that the same day he first spoke with Chief Riggs about the Message, either Chief Riggs or the sheriff asked him “to resign because of the morals of the situation.” [Doc. 63-10 at 14.] Plaintiff testified that Perry and McKinney, discussing his actions in the wake of the first suspension, “both stated that [the City] was a small-town, biblical community” and “that this action is not acceptable here.” [Id.] First of all, on the face of the statements, neither is in tension with Chief Riggs's position that the victim's 11 status as a student was the critical factor and that Plaintiff's sexual orientation was beside the point. However, Plaintiff had his own take on Perry and McKinney's statements, and he testified that he believed they “were pretty much stating that no one is openly gay or openly bisexual in this community” and thus, that “they felt the need for [Plaintiff] to either resign or leave the city.” [Id.; see also Id. at 15-16 (Plaintiff's testimony that McKinney used a word like “homosexual, gay, or bisexual” and “was beating around the bush of homosexuals are not accepted here”).] Putting aside the issue of whether Plaintiff was merely speculating as to what Perry and McKinney meant, even assuming that Perry and McKinney believed that bisexuality was wrong and that many in the City would agree and would like Plaintiff to resign because of his sexual orientation, that fact would not be sufficient to create a genuine factual dispute as to what Chief Riggs or Harmon believed. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151-52 (2000) (focusing analysis of an employment discrimination claim on the “actual decisionmaker” behind a termination). After all, Plaintiff did not forecast evidence that Chief Riggs or Harmon were aware that Perry or McKinney made these statements, let alone evidence that Chief Riggs or Harmon agreed with them. And even assuming arguendo that Perry's and McKinney's statements were evidence that Chief Riggs and Harmon personally believed that bisexuality was morally wrong, that would still leave the issue of whether Chief Riggs or Harmon chose to terminate Plaintiff based in part on those personal beliefs even though doing so would have been illegal. Plaintiff has forecasted no direct or circumstantial evidence creating a reasonable inference that Chief Riggs or Harmon did that. Indeed, nothing in these statements casts any doubt on the genuineness of Chief Riggs's stated concern about the immorality of an officer soliciting sex from a high school student. 12
For all of these reasons, the Court concludes that Plaintiff has not forecasted either direct or circumstantial evidence that creates a genuine dispute of material fact as to whether Plaintiff's sexual orientation was a motivating factor in the discharge decision.
McDonnell Douglas Framework
Plaintiff also argues that he has forecasted sufficient evidence to survive summary judgment under the McDonnell Douglas framework. [Doc. 74 at 6-11.] The Court disagrees.
Under the burden-shifting framework, an employee must first prove a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. To establish a prima facie case of discrimination, a plaintiff must demonstrate “(1) he is a member of a protected class; (2) he was qualified for his job and his job performance was satisfactory; (3) he was fired; and (4) other employees who are not members of the protected class were retained under apparently similar circumstances.” Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 133 (4th Cir. 2002). Alternatively, the fourth element can be satisfied with a showing that the plaintiff “was terminated under circumstances which give rise to an inference of unlawful discrimination.” Ndjofang v. Wal-Mart, No. 7:17-cv-01504-AMQ-JDA, 2018 WL 4573092, at *8 n.7 (D.S.C. June 28, 2018), Report and Recommendation adopted by 2018 WL 13 3738002 (D.S.C. Aug. 7, 2018). Here, even assuming that Plaintiff could establish the first three elements, he has not forecasted evidence that could satisfy the fourth.
Plaintiff argues that the fact that Plaintiff was terminated for soliciting an underage high school student creates a reasonable inference of illegal discrimination because his conduct did not violate any specific, existing Department policy. [Doc. 72 at 1; 74 at 7, 10.] Plaintiff also argues that the fact that Chief Riggs and Harmon did not terminate him for several weeks after learning of the accusations creates the inference that their eventual termination decision was based on illegal discrimination. [Docs. 72 at 4; 74 at 7.] He maintains that if soliciting sex with a high school student were the true reason for his discharge, Chief Riggs would have discharged him immediately upon learning about the solicitation. [Doc. 72 at 4.] The Court does not find these arguments persuasive. Chief Riggs certainly did not need to find that Plaintiff violated a specific, existing policy to terminate him for exercising poor judgment. Cf. Cosby v. S.C. Probation Parole and Pardon Servs., No. 6:20-cv-00655-HMH-JDA, 2021 WL 5311324, at *12 n.16 (D.S.C. Aug. 26, 2021) (noting that the absence of a policy specifically prohibiting sexual relationships between subordinate and supervisor did not cast doubt on a supervisor's statement that 14 he believed refraining from having sex with subordinates was a very important issue of professionalism and encompassed by the agency's policy providing that agents will act in a professional manner), Report and Recommendation adopted by 2021 WL 4772094 (D.S.C. Oct. 13, 2021), appeal filed, No. 21-2275 (4th Cir. Nov. 12, 2021). And there is nothing suspicious about Chief Riggs taking time to consider how to respond, reconsidering the issue after requests and input from the community, or finally deciding that discharge was warranted.
Plaintiff also argues that he has forecasted evidence sufficient to satisfy the fourth element of the prima facie case by forecasting evidence that Chief Riggs treated Plaintiff more harshly than other officers who he asserts engaged in conduct similar to Plaintiff's. [Docs. 65 at 2; 72 at 3-8; 74 at 6-11.] However, “[t]he similarity between comparators and the seriousness of their respective offenses must be clearly established in order to be meaningful.” Lightner v. City of Wilmington, 545 F.3d 260, 265 (4th Cir. 2008). Here, the conduct of the officers Plaintiff identifies was not comparable to Plaintiff's. Plaintiff points to two officers who had sex with a woman who was younger than they were. [Doc. 65-2 at 10-14, 19, 31.] In both cases, though, the woman-it was the same woman in both 15 cases-was already 18 and no longer a student at the time that the sex occurred. [Id. at 14, 19.] Given that critical difference, no reasonable factfinder could conclude that either of these two officers were valid comparators.
Accordingly, for the reasons discussed, the Court concludes that Plaintiff has not established a genuine dispute of material fact regarding whether his termination was based on either his race or his sexual orientation, and the Court therefore recommends that Defendants' summary judgment motion be granted as to all of Plaintiff's federal claims. 16
State Law Claims
Supplemental Jurisdiction
Plaintiffs' state-law claims can be heard by this Court through the exercise of supplemental jurisdiction, which allows federal courts to hear and decide state-law claims along with federal law claims. Federal courts are permitted to decline to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3) if “the district court has dismissed all claims over which it has original jurisdiction.” In deciding whether to exercise supplemental jurisdiction, courts look at “convenience and fairness to the parties, the existence of any underlying issues of federal policy, comity, and considerations of judicial economy.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995). Further, the Supreme Court has warned that “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. . . . [I]f the federal claims are dismissed before trial . . . the state law claims should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).
Applying these factors, the Court concludes that the factors counsel in favor of the Court retaining jurisdiction over Plaintiffs' state-law claims. This case has been pending since November 2018 and has been pending in this Court since December 2018. Discovery has concluded. Remanding these claims to state court would cause needless 17 delay as the state court took the steps necessary to acquaint itself with issues with which this Court is already familiar. The Court concludes that these factors outweigh the fact that Plaintiffs filed this case in state court. See Battle v. S.C. Dep't of Corr., No. 9:19-cv-1739-TMC, 2021 WL 4167509, at *13 (D.S.C. Sept. 14, 2021); Ray v. S.C. Dep't of Corr., No. 9:19-cv-147-TMC, 2021 WL 1540928, at *9 (D.S.C. Apr. 20, 2021).
Plaintiff Has not Created a Genuine Factual Dispute as to His State Law Claims
Plaintiff's claim for wrongful discharge in violation of public policy [Doc. 1-1 ¶¶ 28-34] and his claims brought under the South Carolina Human Affairs Law, SC Code § 1-13-80 [Doc. 1-1 ¶¶ 35-40] and under the South Carolina Constitution [id. ¶¶ 55-65], like Plaintiff's federal claims, are based on the premise that he was terminated based on his sexual orientation or race. For the reasons explained, however, Plaintiff has not forecasted evidence that creates a genuine dispute of material fact regarding whether such discrimination occurred. Accordingly, the Court recommends that Defendants' summary judgment motion be granted as to the state claims as well. 18
RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that Defendants' motion for summary judgment [Doc. 63] be GRANTED and that Plaintiff's motion for summary judgment [Doc. 65] be DENIED.
IT IS SO RECOMMENDED. 19