Thomas v. Cobb County Sheriff's Department et al, No. 1:2006cv01883 - Document 95 (N.D. Ga. 2010)

Court Description: ORDER AND OPINION GRANTING defendants' Motion for Summary Judgment 70 , GRANTING plaintiff's Motion for Leave to File Original Deposition Transcripts in Paper Form 83 , GRANTING defendants' Motion for Extension of Time to File Reply 86 , DENYING AS MOOT defendant Hutson's Motion to Dismiss 63 , and GRANTING Plaintiff's Motion for Order and Direction Regarding Filing of Sur-Reply 93 . Signed by Judge Julie E. Carnes on 02/04/10. (fap)
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION Ft8 0 i ,-u ?nl,~ ~ ~ ANTHONY B. THOMAS By Plaintiff, H} , IV 1-111 TTi::~ {Jd~ler~ ~..r~ CIVIL ACTION NO. v. 1:06-CV-1883-JEC COBB COUNTY SHERIFF'S DEPARTMENT; COBB COUNTY DEPARTMENT OF CORRECTIONS; NEIL WARREN (INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS COBB COUNTY SHERIFF); COBB COUNTY BOARD OF COMMISSIONERS; SAMUEL OLENS (COBB COUNTY COMMISSION CHAIRMAN); COBB COUNTY, GEORGIA; AND WILLIAM ~BILLff HUTSON. Defendants. o This case Hutson's Motion Judgment [70J, is to R D E R presently Dismiss plaintiff's & 0 PIN ION before [63], the Court defendants' Motion for Leave on defendant Motion to for File Bill Summary Original Deposition Transcripts in Paper Form [83J, and defendants' Motion for Extension of Time to File Reply [86J. The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that defendants' should be GRANTED, A072A (Rev.8I82) Motion for Summary Judgment plaintiff's Motion for [70] Leave to File Original Deposition Transcripts in Paper Form [83] should be GRANTED, defendants' Motion for Extension of Time to File Reply [86J should be GRANTED, and defendant DENIED as moot. Hutson's Motion to Dismiss [63] should be 1 BACKGROUND This is a race discrimination case. Plaintiff was hired by the Cobb County Department of Corrections (hereinafter the "Department H in 1990. (Defs.' Statement of Material Facts ("DSMF") Effective October 1, County Sheriff's accepted 2000, Office. employment with [70] ) at 'lI 1.) the Department was absorbed by the Cobb (Id. at the Sheriff's 'lI 2.) Plaintiff Office. subsequently (Id. ) During plaintiff's employment with the Sheriff's Office, his performance was never in issue and his employment evaluations were favorable before July 28, 2002. On April 9, (Id. at'll 4.) 2002, plaintiff's ex-wife Kimberly Thomas filed a Petition for Stalking and Temporary Protective Order in Cobb County Superior Court, in which she stated that on March 21, 2002, plaintiff Plaintiff has also filed a Motion for the Court's Order and Direction Regarding Filing a Sur-Reply to Defendant's Motion for Summary Judgment [93J. That motion is GRANTED. Plaintiff's motion is based on defendants' objection to plaintiff's response as untimely. Defendants' timeliness argument did not factor' in the Court's summary jUdgment ruling, and the Court fully considered plaintiff's response in deciding defendants' motion for summary judgment. Accordingly, plaintiff should not file a sur-reply to defendants' motion. 2 ) 72A ev.8182) had: Followed me to my friends['] house in Riverdale and blocked my car in the driveway with his car, was yelling obscenities [and] knocking on doors. On Sunday, April 7th, 2002, he stalked me to Riverdale again and kept driving by the house I was visiting. He also followed me to the gas station [and] threatened me. (Id. at'll 7.) On April 9,2002, a Temporary Protective Order ("TPO") was entered restraining and enjoining plaintiff from having contact with Kimberly Thomas and from coming within 500 yards of her person, home, or work. (DSMF [70] at 'll 8.) Plaintiff informed his supervisor at the time, Colonel Alder, of the Stalking Petition and TPO. (Id. at 'll 10.) The TPO was dismissed on July 21, 2002. (Pl.'s Resp. to DSMF [85J at 'll'll 8-9.) On July Apartments, children. and the (Id. ) 28, 2002, plaintiff drove to the Sterling Highland where Kimberly Thomas resided with the couple's three (DSMF [70] at 'll 11.) children, as well as There he encountered Kimberly Thomas Earnest What happened next is disputed. Hampton and his young son. Plaintiff claims that he simply asked his children to come with him for a previously scheduled visitation, and that he left the premises when the children indicated that they did not want to go with him. 'll 11.) Plaintiff admits, however, (Pl.'s Resp. to DSMF [85] at that shortly after he left the premises, Kimberly Thomas called 911 and reported that plaintiff had pulled a gun and pointed it at Hampton. 3 '72A ".8182) (Id. at 'll 12.) The Cobb County Police Department responded to the 911 call, and prepared an incident report accusing plaintiff of committing aggravated assault. (DSMF [70J at ~ 13.) On July 29, Cobb County 2002, the Internal Affairs Sheriff's Office began an ("IAN) division of the investigation into allegation that plaintiff had pointed a gun at Hampton. 14.) As a first step in the investigation, Roberts and Morris (Id. at ~ 15.) Nix (Id. the at 'll IA investigators Allen interviewed plaintiff about the incident. Plaintiff stated that he did not have a weapon in his possession on the night in question, and that he did not display a weapon of any kind during his conversation with Kimberly Thomas and Earnest Hampton at the Sterling Highland Apartments. Plaintiff's statement was contradicted Kimberly Thomas and Earnest Hampton. (Id. at by ~'ll (Id. ) statements 16-17.) from Thomas and Hampton both told the IA investigators that, upon confronting them in the apartment parking lot, cursing, (DSMF plaintiff had become irate and started and then had pulled out his gun and pointed it at Hampton. [70] at Jordan Thomas, n 16-17.) Plaintiff's minor daughters, subsequently provided statements that Taylor and corroborated Thomas and Hampton's version of the events of July 28, 2002. (Id. at n19, 22.) During the course of its investigation, IA conducted a polygraph examination of plaintiff. (Id. at 'll 20.) 4 AOnA (Rev.8182) Plaintiff was asked in the examination if he had pointed a weapon at Hampton or made any false statements concerning the investigation. (Id. ) The results of the examination indicated deception in plaintiff's responses to those questions. (Id. 'Jl at 21.) Following the polygraph examination, plaintiff was placed on paid administrative leave pending the outcome of the internal investigation. (DSMF [70J at 'Jl 24.) IA ultimately concluded that plaintiff had pointed his weapon at Hampton without justification, in violation of the Sheriff's Office policy and procedures, at (Id. 'Jl'Jl untruthful 29-31.) during as well as several provisions of state law. IA the also concluded investigation, that in Sheriff's Office policy and procedures. plaintiff further had violation at 'Jl 32.) (Id. been of Colonel Bartlett issued a memorandum informing plaintiff that, based on the results of plaintiff's terminated. the IA investigation, employment (Id. with the Bartlett Cobb was County proposing Sheriff's Office be at 'Jl 34.) Plaintiff had a disciplinary hearing on August 5, 2002. 'Jl 35.) that (Id. at The hearing was attended by the IA investigation team, well as Chief Deputy Neil Warren. (DSMF [70] at 'Jl 35.) as Following the hearing, Warren informed plaintiff that his employment with the Sheriff's Office was terminated. for Warren's decision were: then lying about it. (Id. (Id. (Rev.Bl82) The stated reasons pointing a pistol at another person and at 'Jl 5 A072A at 'Jl 36.) 37.) Sheriff Hutson approved plaintiff's termination. (P1.' s Resp. to DSMF [85J at 'Il 38.) Plaintiff subsequently filed this action. (Comp1. [lJ at 'Il 1.) In his complaint, plaintiff asserted claims against Cobb County and various Cobb County officials under 42 U.S.C. § 1981 and alleged constitutional violations connection with his termination. [5J at 'Il'Il 12, 21.) Plaintiff and race § 1983 for discrimination in (Id. at 'Il'll 47-51, 61-67, Am. Compl. also alleged that, while he was employed by the Sheriff's Office, he was subjected to unlawful racial harassment in further violation of § 1981. Prior to submitting their answer, defendants filed a partial motion to dismiss plaintiff's complaint. Dismiss 1983 § [3J.) claims, In their motion, and his § (Id. ) (Defs.' Partial Mot. defendants argued that plaintiff's 1981 claims against the Cobb County defendants, were subject to a two-year statute of limitations. at 2-3.) to (Id. Based on the allegations in the complaint, plaintiff was terminated on August 12, 2002. (Amended Compl. [5J at 'Il'll 27-28.) He did not file his complaint until nearly four years later, on August 11, 2006. § (Comp1. [1].) Thus, defendants argued that plaintiff's 1983 claims, as well as his § 1981 claims against the Cobb County defendants, were time-barred. 2.) (Defs.' Partial Mot. to Dismiss [3] at The Court granted defendants' motion, relying on the Eleventh Circuit's decis.ion in Palmer v. Stewart County Sch. Dist., 178 Fed. Appx. 999, 1003 (11th Cir. 2006) (holding that a two-year statute of 6 AO 72A (Rev.8I82) limitations applies to all § 1983). 1981 claims that must be brought under § (Order [18J at 5-6.) Plaintiff subsequently filed a motion to reconsider and a motion for interlocutory appeal as to whether the Court correctly determined that his § 1981 race discrimination claims against the Cobb County defendants were barred by the statute of limitations. Recons. [19J and Mot. for Interlocutory Appeal (Plo's Mot. to [28J and [29J.) Plaintiff did not cite any intervening case law or newly discovered evidence in support of his motion to reconsider. plaintiff attempted to recast his claim against defendants as a malicious prosecution claim, Instead, (Id. ) the Cobb County which would not have accrued until the underlying criminal charges against plaintiff were dismissed on September 20, 29. ) 2004. (Id. and Amended Complo [5J at 'IT Because it was evident that plaintiff was improperly using the motion to reconsider to assert a new theory of law, the Court denied plaintiff's motion. In support (Order [26J at 4-5.) of his motion for interlocutory appeal, however, plaintiff cited the Eleventh Circuit's intervening decision in Baker v. Birmingham Bd. 25, 2008). against a of Educ., In Baker, state actor 531 F. 3d 1336, 1338-39 (11th Cir. the Circuit Court held that a § is subject to the four-year June 1981 claim statute of limitations set forth in 28 U.S.C. § 1658, as opposed to the two-year statute of limitations that is generally applicable to § 1983 actions 7 AO 72A (Rev.8182) in Georgia. The Eleventh Circuit noted its prior decision to Id. the contrary in Palmer, but declined to follow Palmer because it was an unpublished decision. at 1338. Id. Applying Baker, the Court held that plaintiff's § 1981 race discrimination claims against the Cobb County defendants limitations. were sUbject (Order [32] at 4.) to a four-year statute of Accordingly, the Court vacated the portion of its Order dismissing those claims. Following discovery, defendants from the case. defendants have now filed plaintiff agreed (Consent a motion for plaintiff's race discrimination claims. [70] . ) The summary several remaining judgment to for Summ. (Defs.' Mot. as J. Defendant Hutson has also filed a second motion to dismiss plaintiff's [63] . ) dismiss [41] . ) Mot. to claims against Those motions, him. (Def. Hutson's Mot. and several related motions, to Dismiss are presently before the Court. DISCUSSION I. Plaintiff's Malicious Prosecution Claim Plaintiff suggests in his response to defendants' motion for summary judgment that he is still asserting a claim for malicious prosecution. Resp. ") [85] (PI.'s at 4.) Resp. In to its Defs.' order Mot. on for Surnm. plaintiff's J. ("Pl.'s motion to reconsider, the Court noted that plaintiff had not even hinted at the existence of a malicious prosecution claim before filing his motion 8 A072A (Rev.Sl82) to reconsider. not raising plaintiff's (Order it earlier motion to "malicious prosecution" The [26] at 5.) Court did in the reconsider claim. not Absent a compelling reason for litigation, its Court dismissing denied any such at 6.) (Id. revisit ruling the this ruling in its order on plaintiff's motion for interlocutory appeal. (Order [32].) the Court noted at the end of its order that, in its Vlew, the only remaining claims were: Indeed, (1) plaintiff's § 1983 claim against the Cobb County defendants for discrimination and retaliation in violation of § 1981; and (2) plaintiff's § 1981 claims for race discrimination and retaliation against Neil individual capacities. (Id. Warren and at 5.) William Hutson, in their The Court specifically invited either party to file a statement clarifying the remaining claims and parties, (Id. in the at 6.) In event that the Court's statement was inaccurate. Neither party did so. short, the Court disposed of plaintiff's malicious prosecution claim in its initial order denying plaintiff's motion to reconsider. The Court never had occasion to reconsider that ruling, and there is no basis for doing so now. The Court will thus limit its plaintiff's discussion on summary judgment discrimination and retaliation claims. 9 , 72A ,v.8I82) to § 1981 race II. Plaintiff's § 1981 Discriminatory Termination Claim A. Summary Judgment Standard Summary judgment is appropriate when discovery and disclosure materials on file, the "pleadings, the and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law."n P. 56 (c) . A fact's materiality is determined by the controlling substantive law. (1986) . FED. R. Cry. An Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 issue is genuine when the evidence is such reasonable jury could return a verdict for the nonmovant. that a Id. at 249-50. Summary judgment is not properly viewed as a device that the trial court may, the merits. in its discretion, implement in lieu of a trial on Instead, Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of every element essential to that party's case on which that party will bear the burden of proof at trial. 322 (1986) Celotex Corp. v. Catrett, 477 U.S. 317, In such a situation, there can be "'no genuine issue as to any material fact"n as "a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. n Id. at 322-23 56 (c) ) . 10 A072A (Rev.8182) (quoting FED. R. Crv. P. The movant bears the initial responsibility of asserting the basis for his motion. at Id. 323. However, required to negate his opponent's claim. his burden by merely "'showing' --that the movant is not The movant may discharge is, pointing out to the district court--that there is an absence of evidence to support the non-moving party's case." Id. at 325. After the movant has carried his burden, the non-moving party is then required to "go beyond the pleadings" and present competent evidence designating facts showing that there is a genuine issue for trial.'" "'specific Id. at 324. While the court is to view all evidence and factual inferences in a light most favorable to the non-moving party, Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988), "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly requirement is that supported there be no Anderson, 477 U.S. at 247-48 B. motion for summary judgment; the genuine issue of material fact." (l986) Cobb County's Liability Section 1983 "'provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor.'" 764, 771 F.3d (llth Cir. 1991). 1254, 1256 (llth Busby v. City of Orlando, 931 F.2d See also, Webster v. Fulton County, 283 Cir. 2002) (noting that enforceable against a state actor through § 1983). 11 AD 72A (Rev.8I82) § 1981 is only There are strict limits on municipal liability under § 1983. 335 F.3d 1326, 1329 (11th Cir. 2003). Grech v. Clayton County, In particular, a municipality may not be held liable under § 1983 on a respondeat superior theory. Id. Instead, a municipality is only liable under § "actually responsible" for the violation at issue. 1983 when it is Id. In order to show that Cobb County is "actually responsible" for the violation of plaintiff's rights under § 1981, plaintiff must present some evidence of a county policy or custom of racial discrimination. Griffin v. City of Opa-Locka, 261 F.3d 1295, Id. 1307 See also (11th Cir. 2001) (holding same) There are two methods by which to establish a county policy: identify either (1) an officially promulgated county policy; or (2) an unofficial custom or practice of the county shown through the repeated acts of a final policymaker for the county. at 1329. Grech, 335 F. 3d Under either avenue, a plaintiff must show that the county has authority and responsibility over the governmental function in issue. with Id. final A plaintiff must also identify those officials who speak policymaking authority for the allegedly unlawful or unconstitutional act. Defendants do not dispute that Chief Deputy Warren, Sheriff's Office. county Sheriff Hutson, and arguably act as final po1icymakers for the Cobb County However, plaintiff cannot show that Hutson and 12 (Rev.Sl82) the Id. Warren are final policymakers for Cobb County. A072A concerning In fact, Georgia's Constitution grants the state legislature, as opposed to the county government, the exclusive sheriff's powers authority and duties. Const. art. IX, § 1. to Grech, establish and F. 3d at 1332. 335 control a See Ga. Interpreting this constitutional provision, the Georgia Supreme Court has explained that sheriffs are subject to the control of the Georgia legislature, and are not county employees. Grech, 335 F.3d at 1332 (citing Ed. of Comm'rs of Randolph County v. Wilson, 260 Ga. deputies, 482, 482 in particular, (1990)). the With regard to hiring and firing sheriff and his chief deputy derive their authority directly from the state, not from Cobb County. See a.C.G.A. § 15-16-23 ("Sheriffs are authorized in their discretion to appoint one or more deputies") and Manders v. Lee, 1311 ("Sheriffs alone hire and fire their deputies. 338 F.3d 1304, Deputies are employees of the sheriff and not the county.") A county "can never be liable under § 1983 for the acts of those [officials] whom [it] has no authority to control." at 1331. control Under Georgia law, over a purposes of '~larren § Grech, 335 F.3d counties do not exercise substantial sheriff's personnel decisions. Consequently, for 1983 liability, neither Sheriff Hutson nor Chief Deputy qualifies as a "final policymaker" for Cobb County. Id. Plaintiff does not point to any other discriminatory custom or policy of Cobb County that might have contributed to his allegedly unlawful termination. Thus, even assuming that plaintiff's rights under 13 A072A (Rev.8I82) § 1981 were violated, there is no basis to impose liability for that violation on Cobb County. Accordingly, both of the remaining Cobb County defendants are entitled to summary judgment on plaintiff's claims.' C. Liability of the Individual Defendants Plaintiff seeks to hold each defendant personally liable under § 1981 in his individual and official capacity. liability, As to their official the Eleventh Circuit has held that "when an officer is sued in his or her official capacity, the suit is simply 'another way of pleading an action against . the [municipality] of 931 which an officer Consequently, is an agent.'" Busby, F.2d 776. it would be redundant to allow plaintiff to sue both the County and the officers in their official capacity. individual at defendants are thus entitled to summary The Id. judgment on plaintiff's claims against them in their official capacity. As to their individual liability, plaintiff's § 1981 discriminatory termination claim is governed by the same standards that govern A.B.E.L. a Title VII Serv. , Inc. , race 161 discrimination F.3d 2 1318, 1330 claim. (11th Standard Cir. v. 1998) . Plaintiff's claims against the Cobb County Board of Commissioners also duplicate his claims against Cobb County, and are redundant. See Abusaid v. Hillsborough County Bd. of County Comm'rs, 405 F.3d 1298, 1302 (11th Cir. 2005) ("The Board is simply the County's governing body and therefore cannot be sued separately.") 14 AO 72A (Rev.8182) Plaintiff has not produced any direct evidence that his termination was motivated by race discrimination. Accordingly, his claim must be analyzed under the framework set out in McDonnell Douglas Corp. Green, 411 U.S. 792 Burdine, 450 U.S. 1561-62 (llth Cir. (1973) 248 and (1981). 1997). Texas Dep't Holifield v. of Cmty. v. 115 F.3d 1555, Reno, Under this framework, Affairs v. plaintiff has the initial burden of establishing a prima facie case of discrimination. 411 McDonnell Douglas, burden, U.S. defendants at must 802. Once plainti ff "articulate meets tha t legitimate, some nondiscriminatory reason" for their employment decision. Id. If defendants can legitimately explain their rationale, plaintiff must present some evidence that the proffered reason is a pretext for discrimination. 1. To Burdine, 450 U.S. at 253-54. There is insufficient evidence in the record to show a prima facie case of race discrimination. establish a prima facie case of plaintiff must present some evidence that: protected action; (3) class; (2) he was subj ected to than a similarly situated white employee. 1373 (llth Cir. 2008) three requirements are met. .Bl82) an he is a member of a adverse employment he or treated less favorably McCann v. Tillman, 526 It is undisputed that the first However, 15 '2A (1) discrimination, he was qualified to do the job in question; and (4) was either replaced by a white employee, F.3d 1370, race plaintiff has not presented sufficient evidence on the fourth requirement to survive summary treatment theory. judgment. Plainti ff' s (Plo's Resp. following unlawfully claim is based on a Plaintiff [85] . ) an and investigation without disparate concedes during which justification that IA pointed Hampton, and then lied about the incident. (Id.) he was terminated concluded a gun at that he Earnest However, plaintiff claims that white officers who engaged in similar misconduct were (Id. at 17-25.) treated more favorably. In order to prevail on his disparate treatment theory, plaintiff must identify a white employee to which he is "similarly situated in all relevant respects." Knight v. Baptist Hosp. 1313, 1316 (11th Cir. 2003). of Miami, 330 '.3d To prevent courts from second-guessing an employer's reasonable decision, "[t]he comparator must be nearly identical to the plaintiff." 1079, 1091 the Wilson v. BIE Aerospace, Inc., 376 F.3d (11th Cir. 2004). plaintiff must show In a termination case, in particular, that the misconduct for which he was discharged was "nearly identical" to that engaged in by an employee outside the protected class who was Atlanta, 520 F.3d 1269, 'similar' to insufficient." the 1280 misconduct retained. (11th Cir. of the 2008). Rioux v. City of "Misconduct merely [terminated] plaintiff lS Id. The closest comparator to plaintiff is Deputy Joseph Storrud, a 16 A072A (Rev.81B2) white male who was October 25, 2001. accused of pointing a (Plo's Resp. gun at Zanov Gomez [85] at Exs. 14-20.) on IA commenced an investigation into the incident on the same day that it occurred, interviewing both Gomez and Storrud. (Id. at Ex. 14.) Gomez stated that he was engaged in a minor altercation outside of Gants Food Store in Marietta, when Deputy Storrud drove up, got out of his car, and drew a confirmed handgun that he between two men. from had his waistband. (Id. ) outside Gants stopped (Id. at Ex. 15.) of Deputy Storrud to stop a fight He admitted that he pulled up his shirt and displayed his gun to the men. he had been drinking at the time. (Id.) He also admitted that (Plo's Resp. Following the investigation, Major J.C. [85] at Ex. 15.) Burns advised Storrud that he was recommending dismissal based on the October 25, incident. (Id. at Ex. 17. ) Based on the results of 2001 the investigation, Chief Deputy Warren terminated Storrud's employment on November 2, 2001. (Id. at Ex. 27.) Arguably, misconduct was less serious than plaintiff's, worse. Even so, he received exactly the Deputy Shorrud's and certainly was no same discipline as plaintiff . Plaintiff also cites incidents involving Deputy Billy Walker and Deputy Steven Johnson, two white males who were accused of misusing 17 AO 72A (Rev.8I82) their weapons but who were not terminated.' However, 25. ) similar ~lalker' to s displaying (Warren employees neither Walker nor Johnson's plaintiff's case, or Dep. had (Pl.'s Resp. two show disparate a "black Exs. argued 6-8.) on the revolver" Apparently telephone former Philly Connection employee. Police Department, treatment. with (Id. ) accused outside the In of Philly Walker's Deputy ~lalker the of store. Connection daughter, a Officers from the Hlram who responded to the incident, went to Walker's house to question him. his car and house. case is sufficiently Philly Connection employees waving at to [85] at 17­ (Id.) (Id. ) Walker allowed the officers to search When the search did not reveal a black revolver, the officers went back to the Philly Connection and spoke with the employees again. (Id.) During the second interview, one of the employees retracted his statement about the gun, employee substantially changed his statement. and the other (Warren Dep. at Exs. 6-8. ) There are several important distinctions between the incident Plaintiff cites numerous other examples of white employees who were engaged in conduct ranging from having sex with a colleague to spraying an inmate with OC spray. (PI.' s Resp. [85J at 17-25.) None of these incidents are sufficiently similar to show disparate treatment, as they do not involve the misuse of a firearm and 'dishonesty during an IA investigation. See Rioux, 520 F.3d at 1280. Although plaintiff also claims that he saw other white officers misuse their firearms on various occasions, there is no evidence that either Hutson or Warren was aware of these incidents. 3 18 , 72A ' ¢.8182) involving Deputy Walker and the incident involving plaintiff. the allegation against Walker was that First, he displayed or waved his weapon, not that he pointed it directly at another person's head in a threatening manner. against Walker was Second, the factual basis for the allegation much weaker, as one of the witnesses to the incident retracted his statement, and a search of Walker's home and car did not uncover a gun that matched the description of the gun that Walker had supposedly displayed outside the Philly Connection. Finally, there was no indication that Walker was untruthful during the investigation into the incident. The incident involving Deputy Johnson is similarly unhelpful to plaintiff's case. On May 23, 2003, Johnson authorized his fifteen year old foster daughter to permit two male teenagers into his home. (Warren Dep. at Ex. 15.) After hearing the teenagers make several sexual comments to his daughter, Deputy Johnson confronted the boys, who ran from the house. (Id. ) In the front yard, Johnson displayed his badge and identified himself as a deputy sheriff. (Id. ) During the confrontation, Johnson drew his gun from his pocket and held it by his side. (Id. ) Johnson advised the boys that they were failing to follow the directions of a law enforcement officer and would face charges. residence. (Id. ) The boys then got into their car and left Johnson's (Warren Dep. at Ex. 15.) into the incident, Johnson was suspended for one day without pay. 19 A072A (Rev.Sl82) Following an IA investigation (Id. ) Again, there are several notable distinctions between Deputy Johnson's and plaintiff's misconduct. Importantly, Johnson did not point his gun at the teenagers in a threatening manner, held it by his side during the confrontation. but merely Moreover, there is no indication that Johnson was untruthful during the investigation into the incident. Plaintiff's untruthfulness, threatening use of his firearm, in addition to his were the primary reasons cited by Warren for his decision to terminate plaintiff's employment. (Id. at Ex. 28.) Misuse of untruthfulness a firearm during an by pointing it at IA investigation, offenses for a law enforcement officer. another are person, extremely (DSMF [70J at ~ and serious 42.) There is no evidence of any deputy of the Cobb County Sheriff's Office, white or black, who has been retained in employment after committing an offense involving the unlawful pointing of a firearm at another person and then lying about it. (Id. at ~ 43.) Accordingly, defendants are entitled to summary judgment on plaintiff's § 1981 discriminatory termination claim. 2. Plaintiff has not produced anv evidence to rebut defendants' legitimate, non-discriminatory reasons for terminating his employment. Even assuming that plaintiff could establish a pr~ma facie case of race discrimination, defendants still would be entitled to summary 20 , 72A ,v.8I82) judgment on his § 1981 claim. Under the McDonnell Douglas framework, once plaintiff has established a prima facie case of retaliation, the burden of production shifts to defendant to articulate a legitimate, non-retaliatory reason for his termination. U.S. at 802. McDonnell Douglas, 411 Defendants easily meet this "exceedingly light" burden. See Perryman v. Johnson Prods. Co., Inc., 698 F.2d 1138, 1142 (11th Cir. 1983). They contend, with substantial support in the record, that plaintiff was terminated because he threatened another person with his gun and then lied about the incident during the subsequent investigation. At this (Defs.' Mot. for Summ. J. stage, present evidence to survive summary sufficient to permit a [70] at 10-17.) judgment, plaintiff must reasonable factfinder to conclude that the reason given by defendants was not the real reason for his Harrell 2009). termination, v. but merely Alabama Dep't of Educ., a pretext for discrimination. 2009 WL 1510276 *1 (11th Cir. A plaintiff may not establish that an employer's proffered reason is pretextual merely by questioning the wisdom of the reason. Id. at *2. As long as the proferred reason is one that might have motivated a reasonable employer, plaintiff must "meet that reason head on and rebut it." Id. this additional reason, defendants' motion for summary judgment on plaintiff's §. 1981 This, plaintiff has failed to do. discriminatory GRANTED. 21 AO 72A (Rev.8I62) termination claim should For be III. Plaintiff's § 1981 Retaliation Claim The Eleventh Circuit has concluded that of action for "retaliation race discrimination. 289, 294 ff [based on] § 1981 supports a cause a plaintiff's opposition to Tucker v. Talladega City Sch., 171 Fed. Appx. (11th Cir. 2006) (citing Andrews v. Lakeshore Rehab. Hosp., 140 F.3d 1405, 1412-13 (11th Cir. 1998)). See also, Webster v. Fulton County, 283 F.3d 1254, 1256 (11th Cir. 2002) (applying retaliation proscription outside the employment context). § 1981's Plaintiff claims that he complained to Warren at some point in July, 2002 about disparate treatment and discrimination within the Sheriff's Office. (Plo's Resp. [85] at 28-29.) According to plaintiff, his termination shortly thereafter is evidence of retaliation based on his opposition to race discrimination. (Id. ) Plaintiff's failure to present any evidence of pretext to rebut defendants' legitimate, non-discriminatory reason for his termination is fatal to his retaliation claim. direct evidence of retaliation. Again, plaintiff presents no Accordingly, the Court applies the McDonnell Douglas analysis. See Snowden v. City of Daphne, 283 Fed. Appx. 2008) (applying 693, 695 (11th Cir. the McDonnell Douglas analysis to plaintiff's retaliation claim). A plaintiff can establish a prima facie case of retaliation by showing that: (1) he engaged in statutorily protected expression; (2) he suffered an adverse employment action; and (3) a causal connection 22 A072A (Rev.8182) exists between the two events. 1457, 1460 (11th requirements, Cir. 1998). Olmsted v. Taco Bell Corp., 141 F.3d Assuming plaintiff defendants have articulated a can meet these legitimate reason for plaintiff's termination that is well-supported in the record, namely, an IA investigation concluding that plaintiff had threatened Earnest Hampton by pointing a gun at his head, and that he had then lied about the incident during the investigation. J. (Defs.' Mot. for Summ. [70] at 10-17.) Under the McDonnell Douglas framework, plaintiff must at this stage produce some evidence that defendant's articulated legitimate reason for his termination is "unworthy of credence," and a pretext for retaliation, in order to survive summary judgment. Fed. Appx. F.3d 1262, at 695. 1266 See also Pennington v. (11th Cir. Snowden, 283 City of Huntsville, 2001) (outlining each stage of 261 the McDonnell Douglas framework in the context of a retaliation claim) . As discussed above, he has not done so. Corp., See Earley v. Champion Int'l 907 F.2d 1077, 1081 (lIth Cir. 1990) (noting that a plaintiff must present "concrete evidence in the form of specific facts which show that the defendant's proffered reason is mere pretext") and Jackson v. Alabama State Tenure Comm'n, 405 F.3d 1276, 1290-91 (11th Cir. 2005) (affirming summary judgment where plaintiff failed .to point to evidence showing that the reasons given for her termination were false). Accordingly, defendants are entitled to summary judgment on 23 A072A (Rev.8I82) plaintiff's retaliation claim. IV. Plaintiff's § 1981 Claim for Racial Harassment In his last remaining claim, plaintiff alleges that he suffered racial harassment while working at the Cobb County Sheriff's Office. (PI.'s Resp. [85] actionable under U.S. 369, 383 § at 36-38.) 1981. (2004). Workplace Jones v. P.R. racial harassment Donnelley & Sons Co., is 541 To prevail on his hostile work environment claim, plaintiff must show that he was subjected to racial harassment sufficiently "severe or pervasive" to alter the conditions of his employment and create an abusive working environment.' Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). It is highly questionable whether the isolated incidents plaintiff cites show "severe or pervasive" racial harassment. DecI. [85] at 'II'll 6-12, 18, 26, 28.) (PI. ' s Most of plaintiff's allegations involve offensive statements that were overheard by, but not directed towards, plaintiff. 21 See Harris v. Forklift Sys., Inc., 510 U.S. 17, (1993) (a hostile work environment generally does not arise from the "mere utterance of an feelings in a employee"). in the Cobb County epithet which engenders offensive There is no evidence that the atmosphere Sheriff's Office was "charged with racial The elements of a hostile work environment claim under § 1981 are the same as the elements of a similar claim under Title VII, 42 U.S.C. 2000e-2, et seq. Standard, 161 F.3d at 1330. 24 AO 72A (Rev.8182) hostility.'" Edwards v. Wallace (11th Cir. 1995) (quoting EEOC v. 1067, 1068 Cmty. Coll., 49 F.3d 1517,1521 (11th Cir. 1990)). Beverage Canners, 897 F.2d Inc., In any case, plaintiff's racial harassment claim is barred by the statute of limitations. order, plaintiff's a four-year As discussed in the Court's previous 1981 race discrimination claims are subject to § statute of limitations. Baker, 531 F. 3d at 1338-39. Plaintiff was placed on paid leave beginning July 31, [70] at 'II 24.) 2002. (DSMF He was terminated on August 12, 2002, before he had an opportunity to report back to work. (Id. at 'II 36.) Thus, any alleged workplace harassment that plaintiff suffered ceased on July 31, 2002. Plaintiff did not file this lawsuit until August 11, 2006, over four years later. (Comp 1 . [ 1] . ) Accordingly, entitled to summary judgment on plaintiff's § defendants are 1981 racial harassment claim. CONCLUSION For the foregoing reasons, the Court GRANTS defendants' Motion for Summary Judgment File Original [70], Deposition GRANTS plaintiff's Motion for Leave to Transcripts in Paper Form [83J, GRANTS defendants' Motion for Extension of Time to File Reply [86J, DENIES as moot defendant Hutson's Motion to Dismiss [63J, and GRANTS Plaintiff'S Motion for Order and Direction Regarding Filing of Sur­ 25 A072A (Rev.8182) Reply [93]. SO ORDERED, this ~ day of February, 2010. CARNES UNITED STATES DISTRICT JUDGE E. 26 AO 72A (Rev.8I82)