Jordan v. City of Waycross, Georgia et al, No. 5:2017cv00033 - Document 44 (S.D. Ga. 2018)
Court Description: ORDER granting in part and denying in part 25 Motion for Summary Judgment. The summary judgment motion on the official capacity claims against Martin, Maddox, and Eddins is GRANTED. The summary judgment motion against Maddox and the City of Waycr oss on all claims is DENIED. The City's summary judgment on the Substantive Due Process claim is GRANTED. The City's summary judgment motion on the Procedural Due Process claim is DENIED. The summary judgment motion on Plaintiff's First Amendment retaliation claim is DENIED. The summary judgment motion on Plaintiff's claim under the Georgia Whistleblower Act is DENIED. Signed by Judge Lisa G. Wood on 8/27/2018. (csr)
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Jordan v. City of Waycross, Georgia et al ifti Doc. 44 tiSmteb States! litsittict Court for tl^e ^outliem IBiotrtct of ((Georgia ^apcrooo Btbtoton WILLIAM N. JORDAN, Plaintiff, V. No. 5:17-cv-33 CITY OF WAYCROSS, GEORGIA; DAVID E. EDDINS, fire chief for the city of Waycross, Georgia, in his individual and official capacities; TRINIJA MOLINAMARTIN, individually and in her official capacity as director of human resources and risk management of the city of Waycross, Georgia; and RAPHEL MADDOX, individually and in his official capacity as city manager of the city of Waycross, Georgia, Defendants. ORDER This Matter comes before the Court on the summary judgment motion of Defendants City of Waycross (^'the City"), Eddins, Trinija Molina-Martin, and Raphel Maddox. David E. Dkt. No. 25. This Motion has been fully briefed and is ripe for review. For the following reasons, this Motion is GRANTED in part and DENIED in part. A0 72A (Rev. 8/82) Dockets.Justia.com BACKGROUND Plaintiff William Jordan joined Department as a firefighter in 1987. the Waycross Fire Defendants' Statement of Material Facts Not in Dispute SI 1 (^^SUMF"), Dkt. No. 25-1; No. 26 at 13. Dkt. Defendant Eddins, at the times relevant to this lawsuit, is the Fire Chief for the City of Waycross, having assumed the position in March 2008. 10-11. SUMF SI 13; Dkt. No. 28 at Defendant Maddox was the City Manager since 2013 and the Human Resources Director before that. SUMF SI 79; Dkt. No. 29 at 28. Human Defendant Martin since December 2014. has been the Resources Director SUMF SI 79; Dkt. No. 30 at 6. In the early morning hours of December 15, 2013, City of Waycross firefighters responded to a house fire ("the Fire") in a condemned building on Isabella Street in Waycross. Dkt. No. 26 at 57-59; Dkt. No. 28 at 125-26. SUMF SI 33; The parties dispute whether and for how long some supervising firefighters on the scene building, inside. 87. but may have ultimately believed it was that somebody determined was that in the nobody was SUMF SI 36; Dkt. No. 39-1 at 50-51; Dkt. No. 28 at 185- At some point, one of the firefighters inside the condemned building, Robert Sumerall, was ordered from the back Of the house to the front of the house in order to ^^salvage and ^ Throughout this order, the Court cites only those paragraphs from Defendants' SUMF which Plaintiff explicitly admits. overhaul." Dkt. No. 28 at 146; Dkt. No. 39-1 at 62, 63, 70-71. Sumerall thought this a strange order because ''you don't salvage and overhaul mode unless you're in a residential structure, not a condemned structure." In response to Dkt. No. 39-1 at 62. Eddins's "salvage and overhaul" Lieutenant Little and his crew entered the building. Shortly thereafter, the ceiling collapsed. 164, 171. Id. at 73. Id.; Dkt. No. 28 at Then Plaintiff arrived on the scene. No. 28 at 161-62. order. SUMF f 38; Dkt. He rushed into the building to help extricate the trapped Lieutenant Little. SUMF f 38; Dkt. No. 26 at 67. The firefighters successfully pulled Little out of the building, but he lost his life shortly thereafter. that Eddins survive, and apologized sought Dkt. No. 39-1 at on the scene, forgiveness 81-82. from Summerall testified prayed the for other Little to firefighters. Eddins denies making such an apology. Dkt. No. 28 at 185. In the aftermath of the Fire and Little's death, many began to blame Eddins for Little's death. Jordan testified that firefighters at the scene "were all up in a rage" about Little's death and Eddins's role in it by ordering firefighters into a building with nobody in it. Dkt. No. 26 at 94. himself began to voice this sentiment. And He complained to his direct supervisor the first working day after the Fire. 95. Jordan Id. at He complained to Battalion Chief James Brown at Little's funeral. Id. at 96. He testified that this sentiment shared and voiced at the firehouse for a couple months. was Id. at 94, 97. Plaintiff asserts that Eddins's ordering Little into an empty condemned building violated then existing firefighting policy. Summerall testified that the policy was "'You don't go inside no condemned building that bad." Dkt. No. 39-1 at 85-86. And a year later, Eddins issued a new policy providing: (1) We will risk our lives a lot, in a calculated manner, to save SAVABLE lives. (2) We will risk our lives a LITTLE, in a calculated manner, to save SAVABLE property. (3) We WILL NOT risk our lives at all for a building or lives that are already lost. Dkt. No. 40-9 (emphasis in original). The complaints in the aftermath of the Fire prompted Eddins to send weeks an after interoffice the Fire), memorandum entitled on December ^^Rumors and 30, 2013 (two Opinions" that stated: In the last few days I have been hearing about different rumors and opinions being floated around the department concerning the fire on Isabella Street and the devastating death of Lt. Little. There is no doubt that this has sent Shockwaves throughout created the department and a lot concern and confusion, that is only natural. of I wished I had answers to give each of you but I do not. However, I will not sit idly by and let anyone give false information, spread harmful rumors, state unfounded and harmful opinions make . or any statements that are totally out of line. This is to stop Immediately. The National Institute for Occupational Safety and Health (NIOSH) will be coming to Waycross to investigate the fire. Based on their findings they will provide recommendations. Dkt. No. 40-7. True to his word, multiple investigations began. The Waycross Fire Department Fire Marshall, the State Fire Marshal's Office, NIOSH, involved. and the Waycross Police Department were all SUMF 1 41; Dkt. No. 31 at 4, 40; Dkt. No. 26 at 77- 78; Dkt. No. 31 at 8, 41-42. Then Jordan's surrounding Little's department. complaints death about expanded the outside circumstances of the fire He contacted the Bureau of Alcohol, Tobacco, and Firearms and James Atkins, the local arson investigator with the state fire marshal's office, in March 2015, Gordon Henderson, Director of Georgia Firefighters Standards & Training Council in April, 2015, the Governor of Georgia in May 2015, and the United States Department of Justice in May or June 2015. 100, 114-15. Id. at 98- He also unsuccessfully attempted to contact Ralph Hudgens, the Georgia Insurance Commissioner, in July or August 2015. Id. at 165-67; SUMF i 77. Plaintiff Little's widow and urged her to file a lawsuit. also contacted SUMF SI 78. The record contains a factual dispute as to whether Martin and Eddins had knowledge that Plaintiff made these complaints. Investigator Atkins testified that he never called Eddins to tell him Plaintiff had complained. Dkt. No. 31 at 28. On the other hand, Henderson testified that he informed Eddins that ^^someone" had complained. Dkt. No. 36 at 51, 81. Jordan had previously complained to Eddins about not being able to attend an interview with an investigator from NIOSH. 90. Dkt. No. 26 at Eddins and Martin knew of Little's wife's lawsuit against Eddins, which named Jordan in the pleadings and alleged that Eddins ^^fraudulently kept those involved in the fire from speaking publically about the fire." Dkt. No. 40, Ex. 39; Dkt. No. 30 at 99; Dkt. No. 29 at 14-15. A member of the Waycross Fire Department testified that complaints about the Fire were ^^common knowledge" at the firehouse. Dkt. No. 33 at 7. Plaintiff injured his shoulder when extricating Little from the Fire. SUMF SI 66; Dkt". No. 26 at 115-16. He continued working until he began medical leave on March 18, 2015, in order to undergo surgery. at 118. would Eddins SUMF SI 67; Dkt. No. 28 at 220; Dkt. No. 26 On June 16, 2015, Eddins asked Martin whether Plaintiff be absent needed Training. to from work report SUMF SI 89; much longer Plaintiff s Dkt. medical leave lasted about a No. 28 because, absence to at 278-73. if so, then Standards & Plaintiff's year—he returned to work without restrictions on March 29, 2016. SUMF SI 91; Dkt. No. 26-18. The leave would have lasted exactly one year-Plaintiff's doctor was prepared to release him on March 18, 2016, but substituted the March 29 date after Plaintiff explained that he could not begin in the middle of a pay period. SUMF SI 92; Dkt. No. 26 at 120. (As it turns out, the City does not require an employee's start date to correspond with pay periods. SUMF SI 93; Dkt. No. 30 at 54, 106-07.) Eddins learned on March returning on March 29. (Eddins) called HR 24 that Plaintiff would SUMF SI 94; Dkt. No. 28 at 231. Director Martin to discuss the be He training requirements that Jordan must satisfy after returning to work following an extended absence. Dkt. No. 28 at 231. Henderson testified that the Standards & Training regulations require a firefighter to retake the basic Firefighter I test following a leave exceeding 365 days. Dkt. No. 36. test date for Plaintiff was March 31. The first available Dkt. No. 30 at 50. Jordan started back to work on March 29. day that he Defendants SUMF SI 98.) learned assert that of the this retest It was on that requirement. information was (However, available online. In any event, nobody had warned Jordan that he needed to be recertified. SUMF SI 99; Dkt. No. 30 at 83. On that first day of Plaintiff's return to work. Plaintiff had an 8:00a.m. meeting with Eddins, Martin, and Nicole Price, another employee of the City of Waycross. Dkt. No. 28 at 231. There, Martin presented Jordan with a letter ('^the Letter"), which read, in pertinent part: We have been advised that your medical leave of absence which began 3/19/2015 through 3/28/2016 has caused your firefighter certification to lapse. You will be given an opportunity to retake the basic Firefighter I written exam and the requisite remedial training required to have your state firefighter certification reinstated and subsequently be restored to your previous position of certified firefighter. Your written exam is scheduled for Thursday, March 31, 2016, at the GFSTC Office in Forsyth, GA. This is the only test date you will be given; I encourage you to do your best. Dkt. No. 40-1. Also at the meeting, Jordan was informed that he would be ^^temporarily reassigned" to the Community Improvement Department (one of eight departments within the City of Waycross) until his test results were received. asked Plaintiff to sign Id.; Dkt. No. 30 at 27. the Letter, but Plaintiff Martin declined, choosing not to accept the reassignment or the recertification requirement. explained that reviewed it. refusal to resignation. on the package. SUMF ^ 115; he couldn't Dkt. No. sign Dkt. No. 26 at 127. sign the Letter Letter and began at anything 158. until be his lawyer considered a voluntary Martin typed ^^REFUSED TO SIGN" preparing Plaintiff's SUMF SI 127; Dkt. No. 30 at 79, 89, 97-98. informed Maddox of the happenings at the Meeting. 8 Plaintiff Plaintiff was told that his would Dkt. No. 30 at 78. 26 separation Martin then SUMF SI 128; Dkt. No. 30 at 89-90. The City considered Plaintiff's refusal to sign the Letter to be a voluntary resignation. City employees have no ability to appeal a separation resulting from a voluntary resignation. Dkt. No. 30 at 93. lasted about thirty-five minutes. Following the Meeting, This Meeting Dkt. No. 26 at 122. Plaintiff contacted an attorney (Deen Strickland) who had represented him in a previous matter. SUMF SlSl 130, 131; Dkt. No. 26 at 122. Although Strickland was in court that day, he told his office to ^'^tell Mr. Jordan to please let him have an opportunity for me to look at [the Letter] before he signed it." Dkt. No. 34 at 3. Later that afternoon, Strickland spoke directly to Jordan, reviewed the Letter, and advised Jordan to sign it in the morning. Plaintiff Training and recertified. also contacted confirmed individuals that he really at did SUMF 1 142; Dkt. No. 26, Ex. 22. the Meeting (March 30), Plaintiff called in sick. at 122-28.^ Standards need to Id* & be The day after Dkt. No. 26 He also called Eddins and explained that he had not refused to sign the Letter the day before but simply sought to speak with his attorney first. SUMF SI 137; Dkt. No. 28 at 248. At some point (the record does not provide a date), Plaintiff contacted Martin, informing her that he wanted to sign the ^ There is some lack of clarity regarding whether Plaintiff had a scheduled surgery at that time, but it is not material to the present dispute. Letter and return to work, but she told him that his resignation had already been accepted. SUMF ^ 140; Dkt. No. 30 at 126. A few days later, on April 1, 2016, Strickland contacted the City Attorney about appealing any adverse action against Plaintiff. SUMF Attorney f 143; explained appealable. Dkt. that a No. 26 at voluntary resignation SUMF SI 144; Dkt. No. 34 at 19. an exception could be made for Plaintiff. 34 at 21. Maddox responded that he 133-34. The City is not Strickland asked if SUMF SI 145; Dkt. No. doubted it, because of Plaintiff's history of a troubled relationship with the City. Id. (Previously, supervisors, Plaintiff suffered had various filed adverse convicted of minor criminal charges. grievances actions, against and been See Dkt. No. 26 at 21-23, 24, 27-28.) Plaintiff filed Waycross, Eddins, violation of the the present lawsuit against the Martin, Georgia and Maddox, Whistleblower alleging Act, City of claims First for Amendment retaliation, violation of substantive due process, and violation of procedural due process. Dkt. No. 1. LEGAL STANDARD Summary judgment is required where '^the movant shows that there is no genuine dispute as to any material fact movant is entitled to judgment as a matter of law." Civ. P. 56(a). and the Fed. R. A fact is "^material" if it ^'might affect the 10 outcome of the suit under the governing law." Grp. V. FindWhat.com, 658 F.3d 1282, 1307 FindWhat Inv^ r (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is ''genuine" if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In making this determination, the court is to view all of the evidence in the light most favorable to the nonmoving party and draw Johnson all reasonable v. Booker T. inferences Washington in that party's favor. Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. V. Catrett, 477 U.S. 317, 323 (1986). court that there is an nonmoving party's case. absence of Celotex Corp. The movant must show the evidence Id. at 325. to support the If the moving party discharges this burden, the burden shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does exist. Anderson, 477 U.S. at 257. The nonmovant may satisfy this burden in one of two ways. First, the nonmovant "may show that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion, which was 'overlooked or ignored' by the moving party, who has thus failed to meet the initial burden 11 of showing an absence of evidence." Fitzpatrick v. City of Atlanta^ 2 F.3d 1112, 1116 (llth Cir. 1993) (quoting Celotex Corp., 477 U.S. at 332 (Brennan, J., dissenting)). forward directed with additional verdict Second, the nonmovant '"may come evidence motion at evidentiary deficiency." sufficient trial to based Id. at 1117. on withstand the a alleged Where the nonmovant attempts to carry this burden instead with nothing more ^ than a repetition of his conclusional allegations, summary judgment for the defendants [is] not only proper but required." Morris v. Ross, 663 F.2d 1032, 1033-34 (llth Cir. 1981) (citing Fed. R. Civ. P. 56(e)). DISCUSSION Defendants raise several grounds for summary judgment. First, they seek dismissal of the official capacity claims against the individual defendants. Second, they argue that Maddox and the City cannot be liable under respondeat superior. Third, they argue that they are entitled to qualified immunity on each constitutional Plaintiff's claim. whistleblower claim Fourth, must fail they argue because alleged a specific law that Eddins violated. he that never The Court will take up each in turn. I. Official Capacity claims against individual Defendants Defendants Martin, Maddox, and Eddins move for summary judgment on the official capacity claims against them because of 12 their redundancy with the claims against the City of Waycross. Plaintiff responds that ^^[t]his is a correct statement of law." Dkt. No. 41 at 16. The parties are right. ^'For liability purposes, a suit against a public official in his official capacity is considered a suit against the local government entity he represents." Owens v . Fulton Cnty., 877 F.2d 947, 952 n.5 (11th Cir. 1989) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)). The presence of both claims is ^'redundant and possibly confusing to the jury." of Orlando, 931 F.2d 764, 776 (11th Cir. Busby v. City 1991). Therefore, Defendants' motion for summary judgment on the official capacity claims is GRANTED. II. Respondeat Superior Claims against Maddox and the City of Waycross Defendants Maddox and the City of Waycross argue that they cannot be held liable under a theory of respondeat superior. Plaintiff responds, in effect, that he is not seeking to hold them liable on such a basis but, rather, for their final policymaking authority. To begin, the parties are right that respondeat superior liability does not apply to § 1983 claims. City of Birmingham, 230 F.3d city or 1275, 1295 (11th local government agency constitutional deprivations See Oladeinde v. on 13 ^may the not be theory Cir. 2000) (^^A held liable for of respondeat superior.'") (quoting Denno v. School Bd. of Volusia Cnty., 218 F.3d 1267, 1276 (11th Cir. 2000)). Instead, ''to impose § 1983 liability on a municipality, a plaintiff must show: (1) that his constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation." (11th Cir. 2004). those McDowell v. Brown, 392 F.3d 1283, 1289 And, "a municipality is held liable only for deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality." 392 F.3d at 1290. liable [only] constitutional between if Similarly, the "supervisory officials can be they personally violation actions McDowell, of the or where participate there supervising is a official in the causal and alleged connection the alleged constitutional deprivation." This can be established when the supervisor's or improper custom policy results indifference to constitutional rights." Id. decision the that is officially adopted by in deliberate "A policy is a municipality, or created by an official of such rank that he or she could be said to be acting on behalf of the municipality. A custom is a practice that is so settled and permanent that it takes on the force of law." Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997) (citations omitted). 14 In § 1983 employment cases, "[in] unicipality liability may arise employment decision, such with regards to an as a termination, provided that the decision maker ^possesses final authority to establish municipal policy with respect to the action ordered.'" Quinn v. Monroe Cty., 330 F.3d 1320, 1325 (11th Cir. 2003) (emphasis omitted) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)). So-did the person who effected Plaintiff s resignation have final authority resignation? to establish the City's position as to that Martin was the one who wrote ^'REFUSED TO SIGN" and characterized that refusal as a voluntary resignation. Maddox and (i.e., Eddins testified that the human resources Martin) makes that final determination. No. 28 236, 251. contrary. director Dkt. No. 29 at 9; Dkt. No record evidence suggests anything to the Additionally, in this case, the City's own policy had a role in the relevant adverse action: it is the City's policy that employees presents that the cannot evidence, City is appeal sufficient a proper ^'voluntary to resignations." withstand defendant in a summary § 1983 That judgment, employment claim. On the subject of supervisor liability, Maddox asserts that he did not participate in the meeting with Plaintiff regarding his temporary reassignment and was not involved in the decision to accept Plaintiff's resignation. 15 His testimony is that he is only involved in decisions concerning separation from employment when an employee appeals. Dkt. No. 29 at 15-16, 19. record does not establish as a matter of law involvement in hiring and firing But the that Maddox decisions. While had no Martin testified that department managers (i.e., Eddins) had authority for hiring decisions with the support of Human Resources (i.e., Martin), Eddins testified recommendations for Maddox). And such that his process decisions to the was to city manager make (i.e., Compare Dkt. No. 30, 32-33 with Dkt. No. 28, 285. the record particular case. Maddox in shows some involvement by Maddox in this Specifically, Plaintiff's attorney contacted an attempt to appeal the separation and explicitly asked Maddox to make an exception allowing Plaintiff to appeal. For these reasons, the facts viewed in the light most favorable to Jordan establish that Maddox's role in the adverse action was not limited to that of a supervisor without direct involvement. In conclusion, Maddox and the City's ^'point" that they cannot be liable under a theory of respondeat superior is welltaken, but there are no claims Plaintiff has raised that strictly base liability on that theory. Ill. Qualified Immuni-by Qualified immunity protects government officials acting in their discretionary authority from liability unless they violated ^^clearly established statutory or constitutional rights 16 of which a reasonable Fitzgerald, qualified 457 U.S. immunity, person 800, would 818 have known." (1982). discretionary In the authority is Harlow v. context of defined more broadly than requiring the exercise of independent judgment but asks whether legitimate within power Harland, 370 to employee function (b) utilize. within his circumstances or compel was her (a) through Holloman F.Sd 1252, 1265 (11th acts objective government job-related his official the ex means rel. Cir. 2004). conclusion that a were Holloman v. ''A government discretionary the performing authority that if challenged actions occurred in the performance of the official's duties and within the scope of this authority." Hill v. Dekalb Reg'1 Youth Pet. Ctr., 40 F.Sd 1176, 1185 n.l7 (11th Cir. 1994). ^MT]he inquiry is not whether it was within the defendant's authority to commit the allegedly illegal act." Harbert Int'l, Inc. v. James, 157 F.Sd 1271, 1282 (11th Cir. 1998). first step immunity, of the the discretionary defendant must have function been So, ''to pass the test for performing qualified a function that, but for the alleged constitutional infirmity, would have fallen within his legitimate job description." Holloman, S70 F.Sd at 1266. Here, the actions in question are discussing an employee's return to accepting work, a implementing resignation. certification The 17 first requirements, question and regarding discretionary authority is whether these actions were legitimate job-related functions of Martin and Eddins. contest that these These actions were fall Plaintiff does not job-related functions, under the duties of and they a human were. resources director and the fire chief. It is the second prong of the discretionary authority test that Plaintiff performed power. contests. their duties This prong asks whether through means that were Defendants within their Plaintiff asserts that none of these Defendants had the power to transfer Plaintiff from one department to another or to unilaterally make a determination that an voluntarily resigned instead of being terminated. employee had In support of this assertion. Plaintiff points to the lack of a written policy explicitly allowing reassignment of employees from one department to another or unilateral decisions that an employee had resigned. Dkt. No. 41 at 19 (citing Dkt. No. 30 at 68). Plaintiff's identification of the parses too finely the relevant actions. taken pursuant to ^^discretionary." a stated written job powers at issue An action need not be policy in order to be Whether Defendants took the right actions has no bearing on whether they had authority to take those actions. Meeting with an employee about his return to work, reassigning to a different recertification, department and accepting within a 18 the resignation City, were arranging within the powers of the human resources director and the fire chief—that is, the acting powers of Martin and Eddins. Thus, within their discretionary authority. Defendants were Therefore, they are entitled to qualified immunity unless they violated clearly established constitutional rights. As discussed below. Defendants are entitled to summary judgment on the Substantive Due Process claims; however, material factual disputes surround the remaining federal claims such that summary judgment is not proper—that is, if a finder of fact were to resolve the factual disputes in favor of Plaintiff, clearly established law would have been violated. A. Substantive Due Process Defendants argue that the actions Plaintiff complains of in this suit Clause. are not protected They are right. by the Substantive Due Process The Eleventh Circuit has held that ''an employee with a property right in employment is protected only by the procedural component of the Due Process Clause, not its substantive component." {11th Cir. 1994). as much. Circuit McKinney v. Pate, 20 F.3d 1550, 1560 And Plaintiff's response essentially concedes See Dkt. No. 41 at 20-2i (conceding that the Eleventh evaluates similar claims as procedural due process claims). Therefore, the Court GRANTS summary judgment to Defendants on Plaintiff's Substantive Due Process claims. 19
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