Bolling v. City of Montgomery

IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

KENNETH BOLLING, )

)

Plaintiff, )

)

v. ) Case No. 2:19-cv-244-ALB

)

CITY OF MONTGOMERY, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

This matter comes to the Court on Defendant City of Montgomery’s motion

for summary judgment. Doc. 24. Plaintiff Kenneth Bolling filed an opposition,

Docs. 28 and 29, to which the City replied, Doc. 30. Upon consideration, the motion

is due to be and hereby is GRANTED IN PART AND DENIED IN PART.

BACKGROUND

The following facts are taken in the light most favorable to the nonmovant,

Plaintiff Bolling.

The Montgomery Fire Department is led by one chief who appoints a chief of

operations, a chief of staff, and a chief executive officer. Below this executive

leadership team, there are nine assistant chiefs and 17 district chiefs. Then come

captains, lieutenants, sergeants, and firefighters.

Bolling is a black man who was employed by the Montgomery Fire

Department from 1985 until 2018. He started as a firefighter and worked his way

up to District Fire Chief. In 2008, Fire Chief Miford Jordan promoted Bolling to

Assistant Fire Chief. In 2017, he was assigned the additional title of Chief of

Operations, which is the second highest position in the department. Bolling received

merit raises, excellent reviews, and other commendations and promotions during his

long career.

Bolling’s government job came with considerable benefits. He could not be

fired without cause and without the City following certain procedures. Upon his

leaving service in good standing, the City would have to compensate him for accrued

annual leave and one-half of accrued sick leave. Even if he were to be terminated

for cause, the law provides that any firefighter with enough service credit is entitled

to retirement benefits. See Ala. Act. 2013-385. Specific to this situation, the

Montgomery Fire Department also has a “Domestic Violence Policy,” Master Letter

File 8-15, that provides for progressive discipline of a fire department employee who

is convicted of domestic violence. In relevant part, it (1) provides certain procedures

when an employee is arrested for domestic violence, (2) permits suspension,

demotion, or other disciplinary action when the employee is “convicted,” and (3)

states that a “third conviction for an offense involving Domestic Violence will result

in the termination of employment of the member.” Chief Jordan approved the

domestic violence policy in 2008.

Bolling has never been convicted of domestic violence, but he has been

charged with domestic violence at least eight times during his career.

In late June of 2018, Bolling was charged again with domestic violence. The

Montgomery Fire Department was hosting the Southeastern Association of Fire

Chiefs Conference. Bolling left the conference around 10pm on June 27, 2018, drove

to his girlfriend’s house in his work vehicle, drank into the early morning hours, got

into an argument with his girlfriend, pushed through a locked door, and punched his

girlfriend in the face. He left. She called the cops. The police documented her

injuries and, although she said she did not want to prosecute, the police obtained a

warrant for Bolling’s arrest for Domestic Violence Assault.

High-ranking officials in the City were notified the next day, June 28. Fire

Chief Jordan contacted Bolling and told him that a warrant had been issued for his

arrest. Chief of Staff John Petrey took Bolling home so he could change into civilian

clothes. Bolling turned himself in that morning and remained in jail until after

midnight.

The next morning, June 29, Chief Jordan and Chief of Staff Petrey met with

Bolling at the office and put him on administrative leave until a city investigation

could be conducted.

Chief Jordan believed that the Mayor and the Director of Public Safety had

the authority to terminate Bolling immediately. Bolling testified that Chief Jordan

told him that morning that he was going to be terminated. Specifically, Bolling

testified that Chief Jordan told him that he was going to be fired immediately. “I

stayed on the phone for over an hour with the boss during this conference yesterday

all through my lunch break trying to get them to follow the domestic policy, for you

to go to court and then start.” “Man they are going to fire you.” “The termination

process is already started. They started the paperwork yesterday.” “Bolling, I’m

talking to you like a brother. There ain’t no fighting this.”

At the morning meeting, Chief Jordan and Chief of Staff Petrey advised

Bolling that he should resign. Chief Jordan told him that his “best bet would be to

resign to keep from losing all of [his] benefits.” “[H]e needs to resign immediately

and then go sign his retirement papers. If not, he’s going to lose everything.” “They

are going to take your retirement. You’re going to lose all your benefits.”

Shortly after that meeting, Bolling submitted a letter of resignation effective

immediately.

About a month later, the domestic violence charge against Bolling was

dismissed.

STANDARD OF REVIEW

Summary judgment is appropriate when 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.” FED.R.CIV.P. 56(a). The Court views the evidence, and all reasonable

inferences drawn therefrom, in the light most favorable to the nonmoving party.

Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).

The party moving for summary judgment “always bears the initial

responsibility of informing the district court of the basis for the motion.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying

the portions of the record illustrating the absence of a genuine dispute of material

fact. Id. Alternatively, a movant who does not have a trial burden of production can

assert, without citing the record, that the nonmoving party “cannot produce

admissible evidence to support” a material fact. Fed. R. Civ. P. 56(c)(1)(B); see also

Fed. R. Civ. P. 56 advisory committee's note (“Subdivision (c)(1)(B) recognizes that

a party need not always point to specific record materials.... [A] party who does not

have the trial burden of production may rely on a showing that a party who does

have the trial burden cannot produce admissible evidence to carry its burden as to

the fact.”).

If the movant meets its burden, the burden shifts to the nonmoving party to

establish—with evidence beyond the pleadings—that a genuine dispute material to

each of its claims for relief exists. Celotex Corp., 477 U.S. at 324. A genuine dispute

of material fact exists when the nonmoving party produces evidence allowing a

reasonable fact finder to return a verdict in its favor. Waddell v. Valley Forge Dental

Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001).

DISCUSSION

Bolling brings four claims against the City. Count I of the operative complaint

alleges a due process violation, Count II alleges that Bolling was not compensated

for overtime under the Fair Labor Standards Act, Count III alleges a breach of

contract claim because Bolling was not compensated for accrued annual leave or

sick leave, Count IV alleges that Bolling was terminated based on his race in

violation of 42 U.S.C. § 1981. See Doc. 1. Bolling concedes that summary judgment

is appropriate as to Count II, but he argues that the City’s motion for summary

judgment should be denied as to all other claims.

A. Genuine issues of material fact preclude summary judgment on Count I

(due process).

The City’s motion for summary judgment is due to be denied on Count I (due

process). The City concedes that Bolling had a property interest in continued

employment that could be removed only by affording him due process. The City

argues, however, that Bolling voluntarily resigned from his position, which mooted

the need to provide him with process. Bolling, on the other hand, argues that he was

constructively discharged.

The City makes two arguments in support of its position, neither of which is

persuasive.

First, the City argues that Chief Jordan’s statements during the morning

meeting with Bolling, which he denies making, are hearsay that cannot be considered

by the Court. But, under Rule 801(d)(2), admissions by a party opponent’s agent

are not hearsay. “A statement by the party’s agent or servant concerning a matter

within the scope of the agency or employment, made during the existence of the

relationship [] is deemed an admission by a party opponent.” Zaben v. Air Prods. &

Chems., Ins., 129 F.3d 1453, 1456 (11th Cir. 1997). Accordingly, in employment

litigation, “statements made by a supervisory official who plays some role in the

decision making process are generally admissible.” Id. Here, the City does not

argue—and could not in good faith argue—that Chief Jordan’s statements

immediately before, during, and after his meeting with Bolling were unrelated to his

position as the City’s fire chief. Accordingly, those statements are not hearsay.

Second, even considering Chief Jordan’s statements, the City argues that

Bolling—an experienced supervisor who was familiar with termination proceedings

and due process rights—was not coerced or tricked into resigning by anything Chief

Jordan may have said. The Eleventh Circuit has held that resignations are presumed

to be voluntary. Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995).

That presumption can be overcome (1) where the employer forces the resignation by

coercion or duress or (2) obtains the resignation by misrepresenting a material fact.

Id. This test requires an objective inquiry into the surrounding circumstances,

including such factors as (1) whether the employee was given an alternative to

resignation, (2) whether the employee understood the alternative, (3) whether the

employee had a reasonable time to decide, (4) whether the employee chose the

effective date of the resignation. and (5) whether the employee had the advice of

counsel. Id. “[R]esignations can be voluntary even where the only alternative to

resignation is facing possible termination for cause.” Id. “The one exception to this

rule is where the employer actually lacked good cause to believe that grounds for the

termination . . . existed.” Id.

Having reviewed the evidence on file and Bolling’s deposition testimony, the

Court concludes that Bolling has introduced substantial evidence in support of

constructive discharge. Much of this comes down to Bolling’s credibility, but

Bolling has also introduced extrinsic evidence in support of his claims. First, there

is substantial evidence that the City did not have cause under its own policies to

terminate Bolling, such that threats that he would be terminated were false: (1) the

department policy on domestic violence reflects that a charge of domestic violence

is insufficient for termination,1 (2) Bolling has been charged with domestic violence

before without being terminated, (3) other firemen, although of lesser rank, have

been charged with domestic violence without being terminated, and (4) the domestic

violence charge was dismissed because the victim had not wanted to press charges

in the first place. Second, because he resigned immediately, Bolling lost benefits

(accrued sick leave and vacation pay) that he would have received had he given

seven days notice. Compare Poindexter v. Mickles, 946 F. Supp. 2d 1278 (M.D.

Ala. 2013) (summary judgment denied under coercion theory where employee was

pressured to resign immediately to her detriment). Third, Bolling testified that Chief

Jordan told him, incorrectly, that he would lose retirement benefits if he were

terminated that he would not lose if he resigned. See Litaker v. Hoover Bd. of Educ.,

277 F. Supp. 3d 1267 (N.D. Ala. 2017) (summary judgment denied under

misrepresentation theory based on inaccurate statements by a supervisor). Fourth,

the surrounding circumstances support Bolling’s testimony that he was coerced: he

had just been released from jail at the time of the meeting, he did not have advice of

counsel, and he was not offered an opportunity for reflection. Whether Bolling was

constructively discharged is a fact question for a jury.

1 The City argues that, although this policy was approved in 2008, it had fallen out of use by the

time of Bolling’s charge for domestic violence. But that creates a fact issue for a jury to resolve.

One final point: how the due process/constructive discharge claim should be

charged to the jury is a question for later. The City did not differentiate between the

misrepresentation theory and coercion theory in its motion. Its initial brief addressed

the two theories as one, and its reply brief relied almost entirely on its hearsay

argument without addressing the merits. For his part, Bolling argued that there was

enough evidence to go to trial on each theory separately as a distinct claim. It is

unnecessary to resolve this tension in this opinion, and the Court declines to do so.

However, the Court anticipates that the parties will further develop the issue as the

case progresses.

B. Genuine issues of material fact preclude summary judgment on Count

III (breach of contract).

Genuine issues of fact also preclude summary judgment on the breach of

contract claim. The City denied Bolling’s request to pay accrued annual leave and

a portion of his accrued sick leave because he did not provide seven days notice of

his resignation.2 The same issues that require the denial of summary judgment on

Bolling’s constructive discharge claim warrant the denial of summary judgment on

this claim too. That is, if the City constructively discharged Bolling, then the City

2 The City asserts without analysis that the personnel board rule about the payment of accrued

annual and sick leave does not constitute an employment contract. Because that argument is not

developed in the City’s brief and it is the City’s initial burden to move for summary judgment, the

Court will not address that argument here.

cannot rely on his failure to provide seven days notice as a basis not to pay him for

accrued annual and sick leave.

C. Summary judgment is due to be granted on Count IV (race

discrimination)

Unlike the counts above, Bolling’s racial discrimination claim under Section

1981 fails to survive summary judgment. There is no direct evidence of racial

discrimination nor is there a convincing mosaic of circumstantial evidence that

suggests race was at play in the City’s employment decisions with respect to Bolling.

Bolling does not argue otherwise.

Instead, Bolling argues that his claim survives summary judgment under the

McDonnell Douglas burden-shifting framework. “When proceeding under

McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima

facie case of discrimination by showing (1) that she belongs to a protected class, (2)

that she was subjected to an adverse employment action, (3) that she was qualified

to perform the job in question, and (4) that her employer treated ‘similarly situated’

employees outside her class more favorably.” Lewis v. City of Union City, 918 F.3d

1213, 1221 (11th Cir. 2019) (en banc). To meet the fourth element of this test, a

plaintiff must identify comparators who are “similarly situated in all material

respects.” Id. at 1224. This means that “a plaintiff and her comparators must be

sufficiently similar, in an objective sense, that they ‘cannot reasonably be

distinguished.’” Id. at 1228.

The City correctly argues that Bolling cannot meet the fourth prong of the

McDonnell Douglas test. Bolling has identified one white firefighter and one white

sergeant who were not constructively discharged or terminated after they were

arrested for domestic violence in 2018. See Doc. 28-3. But Bolling was not a line

firefighter or lower-level manager—he was in the top echelon of the department,

reporting directly to the Chief as his second-in-command. Employers have

traditionally, and reasonably, held the leaders of their organizations to a higher

standard. E.g., The King James Bible, Luke 12:48 (“For unto whomsoever much is

given, of him shall be much required: and to whom men have committed much, of

him they will ask the more.”). And lower level government employees, unlike their

supervisors, generally do not create public scandal or attract press reports when they

commit misconduct. Bolling has not identified anyone else in the management level

of the department who was ever arrested or charged with a crime. There is no

evidence that Bolling’s race had anything to do with his discharge.

CONCLUSION

Based on the foregoing, the Court orders as follows:

1. The City’s motion for summary judgment is GRANTED IN PART AND

DENIED IN PART.

2. The motion is GRANTED as to Count II under the Fair Labor Standards

Act and Count IV under 18 U.S.C. § 1981.

3. Count II and Count IV of the Complaint are DISMISSED WITH

PREJUDICE.

4. The motion is DENIED as to Count I and Count III, which remain

pending.

5. This case is not closed.

DONE and ORDERED this 2nd day of April 2020.

/s/ Andrew L. Brasher

ANDREW L. BRASHER

UNITED STATES DISTRICT JUDGE