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Terry v. Shelby County Government Fire Department

United States District Court, W.D. Tennessee, Western Division

January 30, 2015



SHERYL H. LIPMAN, District Judge.

Plaintiff filed a Complaint on February 26, 2013, alleging that Defendant discriminated against him based on his race (African-American) in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981. Before the Court is Defendant's Motion for Summary Judgment (ECF No. 30), filed on May 5, 2014. Plaintiff did not file a response within 28 days, as required by Local Rule 56.1. On June 18, 2014, Magistrate Judge Claxton issued an Order to Show Cause which required Plaintiff to show cause within fourteen days as to why the Court should not consider the Motion for Summary Judgment on the record before it. (ECF No. 35.) Plaintiff did not respond to that Order within the time limit set by the Court. Therefore, pursuant to Local Rule 56.1(d), Defendant's statement of undisputed material facts (ECF No. 56-1) are deemed undisputed for the purposes of summary judgment.[1]

On August 27, 2014, Magistrate Judge Claxton issued a Report and Recommendation (ECF No. 39, ) recommending that the Court grant Defendant's Motion for Summary Judgment. Plaintiff filed timely objections to the Report and Recommendation on September 10, 2014. (ECF No. 40.) For the reasons set forth below, the Court hereby ADOPTS the Report and Recommendations and Defendant's Motion for Summary Judgment is GRANTED.


The following material facts are undisputed for purposes of summary judgment unless otherwise noted.

Plaintiff is an African-American man who began working as a firefighter for the Shelby County Fire Department in November, 2004. (ECF No. 1 at 5.) In May, 2010, Plaintiff and one of his supervisors (Lieutenant Jackson) filled out Performance Appraisals evaluating Plaintiff's job performance. (See ECF No. 30-4.) On both Plaintiff's and Lieutenant Jackson's Performance Appraisal forms, a score of "achieves" was awarded for a section that was not meant to be scored and the points for this section were erroneously added to the total score. (Id.) At some point in time, someone corrected these mistakes on both forms and adjusted the total score from 3.17 to 3.0. (Id. at 5, 10.)

Plaintiff was not made aware of the corrections to his Performance Appraisal at the time the changes were made. When Plaintiff discovered the changes, he complained to Harvey Kennedy, the Chief Administrative Officer for Shelby County Government. (ECF No. 33 at 10-11.) Kennedy investigated the incident but was unable to determine what happened and why there were differing copies of Plaintiff's Performance Appraisal. (ECF No. 30-2 at 44.) The difference in scores did not impact Plaintiff's ranking on promotion eligibility lists because every applicant was automatically given 5.0 points for their Performance Appraisals, regardless of their actual scores. (ECF No. 33 at 12.) Likewise, the difference in scores did not impact Plaintiff's ability to earn a Top Performer Award (a $150 bonus given to the top 10% of employees in each department) because Plaintiff's first score was not sufficient to earn the award. (ECF No. 33 at 13.) It is not clear from the complaint, but it appears that Plaintiff alleges that this change to his Performance Appraisal was racial discrimination.

On March 1, 2012, Plaintiff hit an object while he was driving Fire Engine 62. The fire engine suffered damage to the "tire, mud flap, fender wheel well, wheel rim, and lug nut covers" and a traffic cone was also damaged when it was "wrapped up in [the] wheel." (ECF No. 33, ¶¶ 21, 23; ECF No. 38 at 8.) On March 20, Battalion Chief Gene Adams (who is African-American) issued a Notice of Proposed Major Discipline to Plaintiff. (See ECF No. 30-2 at 9.) The basis of the discipline was operating the Fire Engine in an "unsafe/reckless/haphazard" manner and failing to give complete and accurate information. The letter gave Plaintiff notice that the Department would hold a "Loudermill hearing" regarding the proposed discipline on March 29, 2012. Battalion Chief Gene Adams (African-American) conducted the hearing as scheduled on March 29, 2012. (ECF No. 38 at 10.) Plaintiff had an opportunity to testify, present evidence and ask questions. (See ECF No. 38 at 3, 10.) Plaintiff was called back that same day after the hearing had concluded for a second round of questioning to clarify some issues (Plaintiff refers to this as a second Loudermill hearing and believes his due process rights were violated because he did not have three-days-notice of this second round of questioning).

After reviewing the evidence presented at the hearing, Adams determined that Plaintiff violated the Fire Department policies in operating the Fire Engine in a reckless manner and attempting to cover up the accident. (See ECF No. 30-2 at 13.) Defendant suspended Plaintiff for 72 hours without pay as punishment for violating these Department rules. Plaintiff appealed this decision to Fire Chief Clarence Cash, Jr. (African-American); Chief Cash denied the appeal. (See ECF No. 30-2 at 18.) Plaintiff next appealed the decision to Tom Needham, the Director of Public Works for Shelby County (race unknown). (See ECF No. 30-2 at 19-21.) Director Needham investigated the charges and found that the suspension was warranted. (See ECF No. 30-2 at 22-23.) Plaintiff appealed this decision to Shelby County Human Resources Administrator, Michael Lewis (race unknown). Lewis found that Plaintiff had a fair hearing and denied his appeal. (See ECF No. 30-2 at 24-26.) Plaintiff avers that the discipline he received was "discriminatory discipline."

Sometime in 2010, Plaintiff took tests to put him in the pool of qualified applicants for future promotions to two different positions - driver and lieutenant. (ECF No. 33, ¶ 5.) The Fire Department gave every applicant who met the minimum requirements for the positions a written test to gauge the applicant's knowledge, skills, and abilities for the position as well as practical exams to evaluate job-specific skills. ( Id., ¶¶ 8-9.) Every applicant who took the test was placed on a list, ranked in order of their test scores. (See ECF No. 33, ¶¶ 11-13.) Plaintiff ranked twenty-eighth on the driver list and seventh on the lieutenant list. (See ECF No. 30-2 at 1-2.) While the tests were administered in 2010, the Department did not promote anyone until 2012.

In July 2012, Chief Cash promoted three firefighters to driver and three firefighters to lieutenant based, at least in part, on their rankings on the previously-established promotion eligibility lists. Chief Cash was not bound by an applicant's ranking on the lists, but considered the list as a factor in addition to the applicants' attendance record, longevity, past performance, and perceived leadership ability. (ECF No. 33, ¶ 7.) Chief Cash promoted Ned Douglas (African-American), Jonathan Hanks (Caucasian), and Anthony Harrington (Caucasian) to driver. (ECF No. 33, ¶¶ 15-16.) Hanks was ranked second on the Driver List, Harrington was third, Douglas was sixteenth, and Plaintiff was twenty-eighth. (See ECF No. 30-2 at 1-2.) Chief Cash promoted Jeremy Havlik (Caucasian), Usarius Royal (African-American), and Larry Robinson (African-American) to Lieutenant. (ECF No. 33, ¶¶ 17-18.) Havlik ranked first on the Lieutenant List, Royal was ranked second, Robinson ranked third, and Plaintiff was ranked seventh. (See ECF No. 30-2 at 1-2.) Plaintiff claims the failure to promote him to either driver or lieutenant in 2012 was racial discrimination. Defendant eventually promoted Plaintiff to lieutenant in 2014. (ECF No. 33, ¶ 43.)


District courts must conduct a de novo review of the parts of a magistrate judge's report and recommendation to which a party objects. See 28 U.S.C. § 636(b)(1). The Court has reviewed the report and recommendation and the entire record in this case de novo.

Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Although hearsay evidence may not be considered on a motion for summary judgment, Carter v. Univ. of Toledo, 349 F.3d 269, 274 (6th Cir. 2003), evidentiary materials presented to avoid summary judgment otherwise need not be in a form that would be admissible at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court is to "view facts in the record and reasonable inferences that can be drawn from those facts in the light most favorable to the nonmoving party." Bible ...

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