Harrison v. City of Montgomery (CONSOLIDATED FOR TRIAL)

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

MARCUS WEBSTER, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:21cv641-MHT

) (WO)

CITY OF MONTGOMERY, )

)

Defendant. )

EARL STANLEY WARE JR., )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:21cv659-MHT

) (WO)

CITY OF MONTGOMERY, )

)

Defendant. )

JEREMY D. HARRISON, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:22cv716-MHT

) (WO)

CITY OF MONTGOMERY, )

)

Defendant. )

OPINION

Plaintiffs Marcus Webster, Earl Stanley Ware, Jr.,

and Jeremy D. Harrison are African-American officers of

the Montgomery Police Department (MPD). In February

2021, each plaintiff was suspended for 20 days from

MPD, demoted, and prohibited from accepting off-duty

work for one year. The plaintiffs each brought one of

three separate lawsuits against the defendant, the city

of Montgomery, Alabama, asserting racial discrimination

and retaliation in violation of three federal statutes:

Title VII (Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. §§ 1981a and 2000e through

2000e-17); § 1981 (the Civil Rights Act of 1991, 42

U.S.C § 1981); and § 1983 (the Civil Rights Act of

1871, as amended, 42 U.S.C. § 1983).1 Jurisdiction is

1. In their complaints, Webster and Ware each

accuse MPD of “unlawful employment practices ... and

the creation of a hostile work environment.” Webster’s

Compl. (Doc. 1 (2:21-cv-641-MHT)) ¶ 10; Ware’s Compl.

(Doc. 1 (2:21-cv-659-MHT)) ¶ 10. Neither plaintiff

brings a standalone hostile-work-environment claim or

2

proper pursuant to 42 U.S.C. § 2000e-5(f)(3) (Title

VII), 28 U.S.C. § 1331 (federal question), and 28

U.S.C. § 1343 (civil rights).

The city has filed a motion for summary judgment in

each case, arguing that the plaintiffs were disciplined

for violating MPD’s off-duty employment policy and that

there was no consideration of race in the decision to

discipline them.2 During an on-the-record hearing on

contends that he experienced harassment. See Fernandez

v. Trees, Inc., 961 F.3d 1148, 1153 (11th Cir. 2020)

(explaining that harassment is a critical element of a

hostile-work-environment claim).

2. The city also contends that Ware and Harrison’s

complaints are untimely because they were filed more

than 90 days after the ‘right to sue letters’ first

became available on the Equal Employment Opportunity

Commission’s online portal. Although the counts in

each complaint refer only to Title VII, the plaintiffs

invoke §§ 1981 & 1983 in their statements of

jurisdiction. Ware mentions both provisions in his

prayer for relief as well. In the Eleventh Circuit

Court of Appeals, a claim made possible by the 1991

amendments to § 1981 has a four-year limitations

period. See Baker v. Birmingham Bd. of Educ., 531 F.3d

1336, 1338-39 (11th Cir. 2008). A standalone § 1983

claim has a two-year limitations period. See id. at

3

December 7, 2023, the parties agreed that the court

should resolve the pending summary-judgment motions in

each of the three lawsuits in a single opinion. For

the reasons below, the court will grant the motions as

to both the racial discrimination and retaliation

claims.

1337. Under either statute, the plaintiffs’ complaints

would be timely.

However, a complaint “that commits the sin of not

separating into a different count each cause of action

or claim for relief” is an impermissible form of

shotgun pleading. Weiland v. Palm Beach Cnty.

Sheriff’s Off., 792 F.3d 1313, 1322-23 (11th Cir.

2015). Such may well be the case here, as the

plaintiffs have failed to plead separate counts for

each statute under which they seek relief.

In the interests of expediency and equity, the

court will not ask the plaintiffs to amend their

complaints or dismiss their claims on pleading grounds.

For the reasons stated below, even if the court were to

assume that the complaints are properly pled and timely

under § 1981 and § 1983, the city would still be

entitled to summary judgment. The court need not and

does not reach the city’s timeliness argument.

4

I. SUMMARY-JUDGMENT STANDARD

Summary judgment is appropriate “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.” Fed. R. Civ. P. 56(a). To determine

whether a genuine factual dispute exists, the court

must view the evidence in the light most favorable to

the non-moving party and draw all reasonable inferences

in favor of that party. See Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

However, “conclusory assertions,” without admissible

supporting evidence, “are insufficient to withstand

summary judgment.” Holifield v. Reno, 115 F.3d 1555,

1564 n.6 (11th Cir. 1997), abrogated on other grounds

by Lewis v. City of Union City, 918 F.3d 1213 (11th

Cir. 2019) (en banc). In general, summary judgment is

appropriate when “the record taken as a whole could not

lead a rational trier of fact to find for the

non-moving party.” Matsushita, 475 U.S. at 587.

5

II. FACTUAL BACKGROUND

The facts, taken in the light most favorable to the

non-movant, are as follows.

Webster, Ware, and Harrison--who, as stated, are

African-Americans--joined MPD between 2006 and 2012.

In addition to their regularly scheduled shifts, each

plaintiff performed off-duty work. As relevant here,

MPD authorizes two types of off-duty positions:

‘security officers’ and ‘courtesy officers.’

According to MPD policy as it is written today,

security officers provide services to individuals and

companies who hire them on an hourly basis. An

off-duty client might hire a security officer to stand

guard at a store or an event. Off-duty clients who

hire security officers must pay an administrative fee

to compensate the city for wear and tear to the

officers’ vehicles, uniforms, weapons, and other

city-issued equipment.

6

Current MPD policy defines courtesy officers as

off-duty employees who help maintain order in the

apartment complexes where they live: checking lights,

distributing notices, and generally being on call for

the property’s management. Unlike security officers,

who receive financial remuneration for their work,

courtesy officers are compensated in-kind with free or

discounted rent. The city does not require their

clients to pay an administrative fee.

At all times relevant to these lawsuits, no MPD

policy explicitly required courtesy officers to live in

the apartment complexes they served or prohibited them

from accepting an hourly wage as payment instead of

free or discounted rent. To the extent MPD had a

policy distinguishing between how courtesy and security

officers were compensated, it was based on practice and

tradition.

In 2014 and 2018, respectively, Harrison and Ware

were approached by the manager of the Estates at

7

Northampton, an apartment complex providing ‘Section 8

housing.’ The manager asked each of them to work as a

courtesy officer on her property. The officers

accepted the position but made too much income to live

in Section 8 housing. They nonetheless identified

themselves as courtesy officers at the Estates at

Northampton to MPD’s off-duty coordinator. They earned

$ 374.50 weekly for their work.

In 2019, Webster’s friend and fellow MPD

officer--Antavione Ferguson, who is also

African-American--asked him for help doing security

work in Woods RV Park. Webster visited the property

about once a week and made $ 30 per hour.

The same year, Webster and Ferguson started

performing off-duty work at Eagle Landing Apartments,

where Webster had previously served as a courtesy

officer in exchange for free rent. Webster told MPD’s

off-duty coordinator that he had resumed doing courtesy

work there but did not move back onto the property. As

8

in Woods RV Park, he made $ 30 per hour.

None of the property managers who hired the

plaintiffs paid the city’s administrative fee.

In September 2020, the manager at Woods RV Park

contacted MPD to complain about crime levels in the

area and mentioned employing off-duty officers. The

complaint was forwarded to Jenny Reaves, who was then

MPD’s chief of operations. Not knowing about any

off-duty officers working at Woods RV Park, Reaves

conducted a preliminary inquiry and discovered that

neither Webster nor Ferguson had obtained MPD’s

permission to perform off-duty security work there.

See Ex. J (Doc. 34-10 (2:21-cv-641-MHT); Doc. 27-10

(2:21-cv-659-MHT); Doc. 24-10 (2:22-cv-716-MHT)) at 70.

Reaves and other MPD officials began reviewing the

off-duty coordinator’s records and discovered that

certain officers had undertaken courtesy positions at

multiple apartment complexes simultaneously. Unless

these officers were maintaining more than one

9

residence, they were not living in at least some of the

apartment complexes that hired them.

Within a few days, MPD released an updated off-duty

employment policy that explicitly limited courtesy

officers to in-kind compensation. MPD also requested

that City Investigations, a branch of city government

that investigates administrative policy violations,

look further into whether any officers had violated the

policy. Thirteen officers, 12 of whom were

African-American, eventually came to the attention of

City Investigations. Among these officers were

Webster, Ware, Harrison, and Ferguson.

Before this review of off-duty work ended, MPD

concluded an unrelated investigation into Ferguson for

improperly using force during a chokehold. He was

terminated. MPD leadership knew that Webster and Ware

were friendly with Ferguson and that they disagreed

with the decision to remove him from the force.

In December 2020, City Investigations charged

10

Webster, Ware, and Harrison with violating MPD’s

off-duty employment policy by presenting themselves as

courtesy officers without living on the properties they

served. The officers were charged under the old

version of the policy, which had not stated outright

that courtesy officers could accept in-kind payment

only. According to City Investigations, the rules

governing courtesy officers and their compensation may

have been unwritten, but they were well-known and

well-established throughout MPD. City Investigations

determined that the plaintiffs were security officers

masquerading as courtesy officers and that none of them

had fulfilled the requirements to do security work on

the properties in question, such as having the managers

pay the city’s administrative fee.3 Webster was also

3. Another requirement of note is that MPD officers

may not perform more than 25 hours of off-duty work in

any single week. Security work and overtime, but not

courtesy work, count toward the 25-hour limit. City

Investigations found that Ware regularly violated this

policy between the time he spent at the Estates at

11

charged with failing to secure the necessary approvals

to perform security work at Woods RV Park.

City Investigations noted that each officer

profited from performing unauthorized off-duty work:

Webster had made $ 43,560.00 from his work at Woods RV

Park and Eagle Landing, Ware had made $ 52,055.50 from

his work at the Estates at Northampton, and Harrison

had made $ 51,306.50 from his work at the Estates at

Northampton.

Based on these findings, Reaves recommended

suspending the officers for 20 days, demoting them each

by one rank, and prohibiting them from performing

off-duty work for one year. Each plaintiff separately

met with the chief of police to dispute the charges and

recommendations. They then had an evidentiary hearing

before the mayor’s designee. Finally, they appeared

Northampton (which City Investigations classified as

security work) and other businesses where he served as

a security officer.

12

together in an evidentiary hearing before the

Montgomery City-County Personnel Board. Reaves’s

recommendations were upheld at each juncture, and the

officers were disciplined accordingly.

The three cases therefore involve seven

decision-makers: MPD’s chief of operations, the chief

of police, the mayor, the mayor’s designee in personnel

disputes, and three members of the Montgomery

City-County Personnel Board. Besides the chief of

operations and one member of the personnel board, who

are white women, all the decision-makers are

African-American men.

In April and May 2021, the three officed filed

complaints regarding their discipline with the Equal

Employment Opportunity Commission, which subsequently

issued each of them a right to sue letter. Ferguson

also filed an EEOC complaint based on his termination.

13

III. DISCUSSION

a. Disparate Treatment on Account of Race

Title VII prohibits employers from

“discriminat[ing] against any individual with respect

to his compensation, terms, conditions, or privileges

of employment, because of such individual’s race.” 42

U.S.C. § 2000e-2(a). Section 1981 states: “All persons

within the jurisdiction of the United States shall have

the same right in every State and Territory to make and

enforce contracts ... as is enjoyed by white

citizens ... .” 42 U.S.C. § 1981(a). Webster, Ware,

and Harrison claim that MPD’s decision to discipline

them constituted racial discrimination under both

statutes. They pursue their § 1981 claim under § 1983,

which is the vehicle for bringing § 1981 claims against

state actors. See Baker v. Birmingham Bd. of Educ.,

531 F.3d 1336, 1337 (11th Cir. 2008).

The parties agree that the racial discrimination

claims at issue are governed by the McDonnell Douglas

14

burden-shifting analysis. See McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973). This framework applies

to “single-motive” Title VII claims based on

circumstantial evidence,4 in which the employee alleges

“that bias was the true reason for the adverse action.”

Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1235

(11th Cir. 2016).5

4. The Eleventh Circuit defines “circumstantial

evidence” as evidence that is suggestive of a

discriminatory intent. See Fernandez, 961 F.3d at

1156. Direct evidence refers only to remarks and

conduct that cannot be reasonably understood to

indicate anything other than an unlawful discriminatory

motive. See id.

5. The officers do not assert a “mixed-motive”

theory, under which an employee can hold an employer

liable for bias that “‘was a motivating factor for’ an

adverse employment action, ‘even though other factors

also motivated’ the action.” Quigg, 814 F.3d at 1235

(quoting 42 U.S.C. § 2000e-2(m)). They instead argue

that MPD acted pretextually and that their discipline

lacked any legitimate basis. Moreover, while Title VII

claims may be brought under either a single-motive or

mixed-motive theory, the plaintiffs’ § 1981 claims “may

be pursued under the single-motive theory only.”

Phillips v. Legacy Cabinets, No. 22-10057, __ F.4th __,

2023 WL 8519216, at *5 (11th Cir. Dec. 8, 2023). In

this case, the same outcome would result under either

15

Under McDonnell Douglas, the employee “bears the

initial burden of establishing a prima facie case of

discrimination by showing [by a preponderance of the

evidence] (1) that [h]e belongs to a protected class,

(2) that [h]e was subjected to an adverse employment

action, (3) that [h]e was qualified to perform the job

in question, and (4) that [his] employer treated

‘similarly situated’ employees outside [his] class more

favorably.” Lewis, 918 F.3d at 1220-21 (quoting

Holifield, 115 F.3d at 1561-62).

The burden then shifts to the employer to provide a

legitimate, nondiscriminatory reason for the

adverse-employment action. If it provides such a

reason, the employee must identify “such weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate

theory of causation because, for the reasons discussed

below, the plaintiffs have not shown that the

unfairness they complain of was at all attributable to

racial bias.

16

reasons for its action that a reasonable factfinder

could find them unworthy of credence.” Jackson v. Ala.

State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir.

2005) (quoting Combs v. Plantation Patterns, 106 F.3d

1519, 1538 (11th Cir. 1997)).

On an employer’s motion for summary judgment, it is

often beside the point for a district court to dwell on

whether the employee has successfully established a

prima-facie case. See Paige v. Equity Grp. Eufaula

Div., LLC, No. 2:18-cv-737-MHT, 2021 WL 4227034, at *3

(M.D. Ala. Sept. 16, 2021) (Thompson, J.). After all,

the burden at the first two stages of the McDonnell

Douglas burden-shifting analysis is “light” for both

the employee and the employer. Id. (quoting

Bailey-Potts v. Alabama Dep’t of Pub. Safety, No.

3:11-cv-495-MHT, 2012 WL 566820, at *3 (M.D. Ala. Feb.

21, 2012) (Thompson, J.)). What is more, once the

employer presents evidence of a nondiscriminatory

reason for the adverse-employment action, as the city

17

does here, “the presumption of discrimination created

by the prima facie case ‘simply drops out of the

picture.’” Tynes v. Fla. Dep’t of Juv. Just., No.

21-13245, __ F.4th __, ___, 2023 WL 8593114, at *4

(11th Cir. Dec. 12, 2023) (quoting St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 511 (1993)).

Accordingly, although the parties’ briefing focuses

primarily on whether the plaintiffs have identified a

similarly situated white comparator under the McDonnell

Douglas framework, the court will address its analysis

to “the ultimate question in a discrimination case”:

“whether there is enough evidence to show that the

reason for an adverse employment action was illegal

discrimination.” Tynes, ___ F.4th at __, 2023 WL

8593114, at *1.

The officers contend that they have raised a

triable issue of material fact about whether MPD had a

practice of factoring race into its disciplinary

decisions. They claim that Reaves, in particular,

18

“initiat[ed] meritless investigations against them and

recommend[ed] harsher discipline for African American

officers.” Webster’s Compl. (Doc. 1 (2:21-cv-641-MHT))

¶ 24; Ware’s Compl. (Doc. 1 (2:21-cv-659-MHT)) ¶ 26;

Harrison’s Compl. (Doc. 1 (2:22-cv-716-MHT)) ¶ 32. In

support, they point to three groups of white officers

whom they assert benefitted from MPD’s racial

favoritism: two white officers who used an off-duty

client’s internet connection to watch adult content,

four white officers who logged overtime hours they did

not work,6 and a white corporal who submitted paperwork

late to serve as a courtesy officer. The plaintiffs

insist that these officers received lighter sanctions

for similar or more egregious misconduct--and that

6. In his deposition, Webster recalls hearing a

rumor after filing his complaint that an

African-American officer committed overtime theft

alongside the white officers. See Webster’s Ex. A

(Doc. 34-1 (2:21-cv-641-MHT)) at 108-09. For the

purposes of resolving the motion for summary judgment,

the court will assume that the allegations presented to

Reaves mentioned only white officers.

19

Reaves failed to investigate the allegations of

overtime theft altogether.

These representations are insufficient to survive

summary judgment for three reasons.

First, insofar as the plaintiffs posit Reaves as

the source of their discriminatory treatment, they

forget that she only ‘recommended’ their discipline.

The plaintiffs have not shown how any biases she may

have held affected which officers were investigated or

what sanctions were ultimately imposed. The closest

they come is their theory that Reaves either directed

the investigation or steered it toward particular

officers. But, at oral argument, they could not point

to any evidence indicating that City Investigations was

beholden to Reaves’s influence. See Rough Draft

Hearing Tr. at 31. Nor have they alleged, much less

shown, that any decision-maker who considered her

recommendations acted out of racial prejudice. Without

illustrating how any bias on Reaves’s part tainted the

20

investigation that preceded her recommendations or the

appeals that followed, the plaintiffs cannot survive

summary judgment by casting aspersions on her motive.

Second, insofar as the plaintiffs contend that MPD

(beyond just Reaves) made racially biased disciplinary

decisions, most of their arguments rest on their

impressions and speculations. They have submitted no

evidence besides their own depositions to support their

claims about all but one of the white officers

mentioned in the complaint. The depositions are rife

with ambiguity and based largely on hearsay: Webster,

for example, had heard “from conversations” that the

officers who watched inappropriate content “received

like 20 days or somewhere around up in there.”

Webster’s Ex. A (Doc. 34-1 (2:21-cv-641-MHT)) at 98.

Absent admissible supporting evidence, no reasonable

factfinder could credit the plaintiffs’ claims about

what misconduct these white officers committed or how

MPD responded.

21

Third, MPD had compelling, nondiscriminatory

reasons to discipline the only other white officer

mentioned in the complaint more lightly than the

plaintiffs. MPD permitted a white corporal to perform

courtesy work on the property where he lived and on an

adjacent apartment complex under common management. He

received a written reprimand for not submitting the

required paperwork to serve as a courtesy officer until

four months after accepting the position.

The plaintiffs see MPD’s willingness to let him do

courtesy work on two properties and the decision not to

suspend him as signs of racial bias. But they do not

confront MPD’s race-neutral justifications for treating

the corporal differently: there is no allegation that

he ever received financial remuneration from the

apartment complexes, while the plaintiffs each made

over $ 40,000 in unauthorized off-duty work; he lived

on one of the properties where he was a courtesy

officer; his misconduct spanned months, not years; and,

22

the complexes where he worked could plausibly be

regarded as a single unit. MPD’s decision to treat the

corporal as differently situated to the plaintiffs is

not surprising or suspicious given the race-neutral

reasons for why it viewed him as committing a

comparatively minor policy infraction. An employer

does not offend Title VII by tailoring its discipline

to the severity of the misconduct.

The plaintiffs have therefore failed to identify

any white officers whom MPD disciplined more leniently

based on race. What remains of their racial

discrimination claim is the same argument they

presented to the chief of police, the mayor’s designee,

and the personnel board: that their conduct complied

with MPD’s off-duty employment policy and that their

discipline was, therefore, unfair. They emphasize that

no MPD policy explicitly prohibited their conduct

during the time in question, that they informed their

supervisors and the off-duty coordinator that they were

23

living offsite, and that they performed off-duty work

for years without any indication that they were doing

anything improper. If MPD had no sound basis to

discipline them, their logic goes, its decision to do

so must have been pretextual.

However, the Title VII inquiry turns on “‘the

employer’s beliefs’ about the employee’s conduct, ‘not

the employee’s beliefs’” about whether his actions were

permissible. Phillips v. Legacy Cabinets, No. 22

10057, __ F.4th __, 2023 WL 8519216, at *8 (11th Cir.

Dec. 8, 2023) (quoting Alvarez v. Royal Atl. Devs.,

Inc., 610 F.3d 1253, 1266 (11th Cir. 2010)). MPD’s

interpretation of its policy could well have been

faulty, but a faulty justification for an

adverse-employment action is not necessarily a

pretextual one. After all, “employers are free to

[discipline] their employees for a good reason, a bad

reason, a reason based on erroneous facts, or for no

reason at all, as long as its action is not for a

24

discriminatory reason.” Flowers v. Troup Cnty. Sch.

Dist., 803 F.3d 1327, 1338 (11th Cir. 2015) (quoting

Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1187

(11th Cir. 1984)). To establish pretext, the

plaintiffs must show that the decision to discipline

them was not actually motivated by MPD’s interpretation

of its policy, however misguided that interpretation

may have been. This they have not done.

It is also noteworthy that the plaintiffs do not

advance a ‘cat’s paw’ theory, under which MPD could be

liable for Reaves’s bias had higher-level

decision-makers accepted her recommendations

uncritically. See Sims v. MVM, Inc., 704 F.3d 1327,

1335 n.6 (11th Cir. 2013). The plaintiffs have

disclaimed making any argument to that effect. See

Rough Draft Hearing Tr. at 17-18. In other words, they

concede that there were three levels of decision-makers

higher than Reaves who did not merely rubber stamp her

recommendations: first, they met with the chief of

25

police; second, they had an evidentiary hearing before

the mayor’s designee, who then recommended that the

mayor impose their discipline; and, third, the

personnel board conducted yet another evidentiary

hearing and performed a de novo review.

At each stage of their appeals, the plaintiffs

challenged their discipline based on MPD policy and

their notions of fairness. They do not question, and

the record does not suggest, that the hearings they

received were anything but full, fair, and independent.

They have not claimed that they were treated unfairly

during these hearings--and, again, the record does not

indicate anything to the contrary--much less that they

were treated unfairly based on race. Three levels of

decision-makers considered their arguments that they

were disciplined unfairly, and three levels of

decision-makers sided against them. The plaintiffs may

disagree with the outcome, but that alone cannot

suffice to make out a racial discrimination claim under

26

Title VII.

Because the plaintiffs have not raised a triable

issue of fact about whether MPD discriminated against

them, the city is entitled to judgment as a matter of

law on their disparate treatment claims.

b. Retaliation

Webster and Ware also argue that they faced

retaliation from MPD in violation of Title VII. Each

officer contends that MPD disciplined him because he

disagreed with the decision to investigate and

terminate Ferguson for the improper use of force.

Title VII prohibits employers from retaliating

against an employee for “oppos[ing] any ... unlawful

employment practice” or “participat[ing] in any manner

in an investigation, proceeding, or hearing.” 42

U.S.C. § 2000e-3(a). To make out a prima-facie case of

illegal retaliation, an employee must show (1) that he

“engaged in a statutorily protected activity,” (2) that

27

he “experienced an adverse employment action,” and

(3) causation. Yelling v. St. Vincent’s Health Sys.,

82 F.4th 1329, 1337 (11th Cir. 2023).

As with racial discrimination claims, establishing

a prima-facia case of retaliation “is not onerous.”

Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1312

(11th Cir. 2016) (quoting Texas Dep’t of Cmty. Affs. v.

Burdine, 450 U.S. 248, 253 (1981)). But even if the

court were to assume that Webster and Ware have made

out a prima-facie case, no reasonable factfinder could

conclude that MPD retaliated against them.

Webster and Ware concede that the thrust of their

retaliation claim is that they were “targeted [by MPD]

because they were friends with Ferguson.” Rough Draft

Hearing Tr. at 37. But their association with Ferguson

does not constitute participation in a formal

employment proceeding or opposition to an unlawful

employment practice. Under some circumstances, a

retaliation claim is cognizable under Title VII even

28

when the employee did not himself engage in protected

activity if he faced an adverse-employment action

because he was closely associated with someone who did.

See Tolar v. Bradley Arant Boult Commings, LLP, 997

F.3d 1280, 1289-90 (11th Cir. 2021). Webster and Ware

do not bring a third-party retaliation claim; each

officer maintains that he faced retaliation for his own

purportedly protected activity. In any event, a

third-party retaliation claim would be an ill-fit on

these facts, as no party contends that Ferguson’s use

of force was protected activity under Title VII.

Beyond offering his friendship, Ware does not claim

that he ever expressed his solidarity with Ferguson to

MPD. He did not speak with supervisory officials to

protest Ferguson’s firing or testify on his behalf.

See Ware’s Ex. A (Doc. 27-1 (2:21-cv-659-MHT)) at 92.

Indeed, when asked whether he “actually t[ook] any

action to support” Ferguson, Ware responded, “No.” Id.

MPD could not have retaliated against him for support

29

he never voiced.

Unlike Ware, Webster contends that he twice

demonstrated his support for Ferguson. First, he told

the chief of police that Ferguson’s termination was

“wrong.” Webster’s Ex. A (Doc. 34-1 (2:21-cv-641-MHT))

at 123. But he did so only after Ferguson filed his

EEOC complaint in April 2021, while the mayor had

signed off on Webster’s discipline two months earlier.

See id. at 122-23. Webster cannot claim that he was

retaliated against for a conversation that occurred

after his discipline had taken effect.

Second, during his deposition testimony, Webster

briefly states that he “supported” Ferguson during his

“hearing,” id. at 91, but he does not explain what type

of hearing this was, when it occurred, or how he made

his support known. He elsewhere disclaims ever

testifying or submitting an affidavit on Ferguson’s

behalf. See id. at 123. Webster’s passing mention of

a hearing whose purpose and date are unknown does not

30

create a triable issue of material fact.

The retaliation claims also fail because neither

Webster nor Ware suggests that any decision-maker

besides Reaves and the chief of police acted on a

retaliatory motive. The plaintiffs had two evidentiary

hearings before officials who, as discussed above, did

not merely rubber-stamp Reaves’s recommendations but

acted independently. The plaintiffs have not shown

that any of those officials knew that Webster had

attended one of Ferguson’s hearings or ever spoke with

the chief of police. Nor is there evidence that those

officials viewed Webster and Ware’s friendship with

Ferguson as material in any way to their respective

determinations. At bottom, the plaintiffs’ retaliation

claims rest on factual allegations that were either

unknown or scarcely mentioned to the higher-level

decision-makers.

Accordingly, the court will grant the city’s motion

for summary judgment on Webster and Ware’s retaliation

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claims as well.

***

An appropriate judgment will be entered.

DONE, this the 27th day of December, 2023.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE

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