Minnifield v. City of Birmingham Department of Police

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MONTAGUE MINNIFIELD }

}

Plaintiff, }

}

v. } Case No.: 2:16-cv-00196-MHH

}

CITY OF BIRMINGHAM, }

}

Defendant. }

MEMORANDUM OPINION

The Court returns to this employment discrimination and retaliation case to

take a closer look at the City’s motion for summary judgment. We start as we did

previously: Montague Minnifield worked as a police officer for the Birmingham

Police Department. According to Officer Minnifield, who is Black, the City of

Birmingham and Sergeant Heath Boackle discriminated against him based on his

race and retaliated against him for filing multiple internal grievances and charges of

discrimination with the EEOC by refusing to appoint him to a 2013 K-9 patrol

position in the BPD’s Tactical Unit. Officer Minnifield has asserted Title VII claims

of disparate treatment and retaliation against the City.1

1 Officer Minnifield also asserted a Title VII hostile work environment claim and § 1981 claims

against the City. The Court resolved those claims in favor of the City on the City’s first motion

for summary judgment. (Doc. 70).

Officer Minnifield also asserted claims against Sergeant Boackle in his

individual capacity. The Court entered judgment for Sergeant Boackle on the merits

of some of the claims against him but denied his motion for summary judgment on

the merits and on the basis of qualified immunity with respect to Officer Minnifield’s

§ 1983 claims for disparate treatment and retaliation in violation of § 1981, to the

extent the claims were based on the failure to appoint him to a 2013 K-9 patrol

position. (Doc. 70, pp. 43–44; Doc. 84, pp. 2–8). Sergeant Boackle successfully

challenged this Court’s ruling on qualified immunity in the Eleventh Circuit Court

of Appeals, so the Court entered judgment in his favor on all of Officer Minnifield’s

claims. (Doc. 103).

Relying on the Eleventh Circuit’s decision in Sergeant Boackle’s appeal, the

City has renewed its motion for summary judgment, arguing that Officer

Minnifield’s claims against the City fail as a matter of law because Officer

Minnifield cannot demonstrate that he suffered an adverse employment action.

(Doc. 108).2 As the Court previously explained, to prevail on his disparate treatment

and retaliation claims, Officer Minnifield must prove that he suffered an adverse

employment action. Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dept. of

Educ., 342 F.3d 1281, 1289 (11th Cir. 2003) (Title VII disparate treatment); Thomas

2 A district court “shall grant summary judgment 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).

v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007) (Title VII retaliation);

see also Minnifield v. City of Birmingham Dep’t of Police, 791 Fed. Appx. 86, 90

(11th Cir. 2019). Applying the two-part test for qualified immunity, the Eleventh

Circuit held that Sergeant Boackle was immune from Officer Minnifield’s claims

against him because “Sergeant Boackle was acting within the scope of his

discretionary authority when he recommended officers for a vacant position within

BPD” and because “[t]he law did not clearly establish that Sergeant Boackle’s

conduct” in declining to recommend Officer Minnifield for a vacant K-9 patrol

position “constituted an adverse employment action, under either the disparate

treatment or retaliation standard.” Minnifield, 791 Fed. Appx. at 90, 93. In reaching

its decision, the Eleventh Circuit found that Officer Minnifield was seeking only a

lateral transfer, that the only difference between the position that Officer Minnifield

held as a motorscout and the position that he wanted as a K-9 patrol officer was

prestige, and that “Officer Minnifield cannot argue that he suffered an adverse

employment action because Sergeant Boackle’s refusal to recommend him for a

lateral transfer foreclosed his opportunity to apply for yet another lateral transfer.”

Minnifield, 791 Fed. Appx. at 93 (emphasis in Minnifield).

The City argues that this final statement from the Eleventh Circuit is the law

of the case, and the statement dooms Officer Minnifield’s ability to prove his Title

VII claims against the City. Under the law of the case doctrine, “findings of fact and

conclusions of law by an appellate court are generally binding in all subsequent

proceedings in the same case in the trial court or on a later appeal.” Transamerica

Leasing, Inc. v. Inst. of London Underwriters, 430 F.3d 1326, 1331 (11th Cir. 2005).

On remand, a district court may address an issue that was not “determined, explicitly

or by necessary implication” on the appeal in the case, but a district court must

follow the broad import of the appellate holding unless the evidence on remand shifts

substantially. Transamerica Leasing, 430 F.3d at 1332; Jackson v. State of Ala.

State Tenure Comm’n, 405 F.3d 1276, 1283 (11th Cir. 2005).

Officer Minnifield argues that the Eleventh Circuit did not have to decide

whether his request for a lateral transfer was an adverse action to hold that Sergeant

Boackle was entitled to qualified immunity; the Court of Appeals had to decide only

whether, when Sergeant Boackle refused to recommend Officer Minnifield for the

K-9 patrol position, binding precedent clearly established that the refusal was an

adverse employment action. (Doc. 110, pp. 17–20). That is a fair statement of the

second part of the test for qualified immunity, but it does not alter the fact that, if

not explicitly, the Eleventh Circuit determined by necessary implication that Officer

Minnifield did not suffer an adverse employment action when Sergeant Boackle

denied him the K-9 patrol position. That finding is binding on this Court under the

law of the case doctrine.

Officer Minnifield also argues that in Doe v. DeKalb Cnty. Sch. Dist., 145

F.3d 1441 (11th Cir. 1998), a binding ADA decision that preceded the interlocutory

appeal in this case, the Eleventh Circuit found that a loss of prestige relating to a

lateral transfer may support a finding of an adverse employment action. (Doc. 110,

p. 19).3 That is a fair statement of the holding in Doe. In Doe, the plaintiff, a special

education teacher, was transferred from a classroom for students with “the most

severe behavioral problems” to a classroom for students with “mild disorders.” 145

F.3d at 1443. The plaintiff “spent the months after his transfer trying to convince

the District to return him to his psychoeducation class,” the classroom with students

with severe behavioral problems. 145 F.3d at 1444.

The Eleventh Circuit explained the significance of the lateral transfer this

way:

Although Doe would prefer to teach a psychoeducational rather than an

interrelated class, his transfer does not appear to represent a demotion.

Doe’s salary, benefits, and seniority all remain the same. Doe also

enjoys the same relative level of prestige within the school system and

the larger community. In addition, while Doe lacks a certificate from

the State of Georgia in interrelated teaching, his transfer does not seem

likely to render obsolete his investment in his own education. Although

Doe’s teaching experience has focused on psychoeducation, he does not

have a particularly specialized educational background. Doe holds a

bachelor’s degree in psychology from New York University and a

Master’s degree in special education from Georgia State University.

3 In Doe, the Eleventh Circuit held that “the same ‘adverse employment action’ concept” applies

in Title VII, ADEA, and ADA cases. Doe, 145 F.3d at 1448.

Doe, however, does have a Georgia certificate in psychoeducational

teaching but not in interrelated instruction. To obtain an interrelated

certificate, Doe would have to complete ten credit hours of coursework.

In order to reduce any inconvenience this additional study might pose

to Doe, the District has allowed Doe three years to become certified and

promised to pay his educational expenses. In addition, the District has

suggested that Doe might be able to count his ten hours concerning

interrelated teaching toward the continuing education total that he

would have to achieve in any case to retain his current certification,

though this point is not clear in the current record. Even without the

interrelated certificate, Doe appears qualified to teach an interrelated

class, since his interrelated pupils suffer from the same sort of disorders

as his previous psychoeducational students—his new students are just

easier to teach because they are less prone to misbehavior. As Doe

concedes, his new interrelated position is less stressful. Significantly,

Doe also agrees with the District that he will be more marketable as an

interrelated teacher (once he obtains his certificate), with more long

term career opportunities, than he was before his transfer.

145 F.3d at 1444. On this record, the school district argued that it had not

“unlawfully ‘discriminated’ against” the plaintiff because a reasonable person in the

plaintiff’s position would not view his transfer as an adverse employment action.

145 F.3d at 1447. Based on the evidence presented in a bench trial, the district court

disagreed, found that the plaintiff had suffered an adverse employment action, and

directed the school district to reinstate the plaintiff as a psychoeducational instructor.

145 F.3d at 1445.

To review the district court’s decision, the Eleventh Circuit first considered

whether it could weigh a plaintiff’s subjective view of a lateral transfer in

determining whether the transfer constituted an adverse employment action. In

doing so, the Court of Appeals explained:

in most employment discrimination cases the issue of a plaintiff’s

subjective preference need not arise, because the plaintiff has alleged

an employment action that would appear adverse to any reasonable

person. Where a plaintiff has allegedly suffered termination, demotion,

reduction in pay, loss of prestige, or diminishment of responsibilities,

for example, a court normally has no cause to consider its standard for

adversity; the relevant question in such cases is whether such patently

adverse actions actually took place.

Doe, 145 F.3d at 1448. Thus, the Eleventh Circuit included within its list of

“patently adverse actions” a “loss of prestige.” But the Eleventh Circuit also adopted

an objective test for assessing employment actions and recognized that “‘[t]he clear

trend of authority is to hold that’ a purely lateral transfer is not an adverse

employment action. Ledergerber v. Stangler,122 F.3d 1142, 1144 (8th Cir. 1997).”

Doe, 145 F.3d at 1450. Like the panel in Minnifield, the panel in Doe held that for

a lateral transfer to count as an adverse employment action, there must be an

objective component to the transfer that made the new position resemble a demotion.

145 F.3d at 1450, see also Minnifield, 791 Fed. Appx. at 92-93.4 The Eleventh

4 The Eleventh Circuit reiterated this proposition at least twice between its decision in Doe and its

decision in Minnifield. See Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1245 (11th Cir.

2001) (“[A]pplying the adverse action requirement carefully is especially important when the

Circuit cited, by way of example, de la Cruz v. New York City Human Resources

Admin. Dep’t of Soc. Serv., finding that the transfer in that Title VII case was

actionable because it resulted “in lessened prestige and professional growth.” Doe,

145 F.3d at 1450 (citing 82 F.3d 16, 21 (2d Cir. 1996)).

plaintiff’s claim is predicated on his disagreement with his employer’s reassignment of job tasks.

Courts elsewhere have been reluctant to hold that changes in job duties amount to adverse

employment action when unaccompanied by any tangible harm.”), overruled on other grounds by

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)); Trask v. Sec’y, Dep’t of Veterans

Affairs, 822 F.3d 1179, 1194 (11th Cir. 2016) (“A work reassignment may constitute an adverse

employment action when the change is ‘so substantial and material that it … alter[s] the terms,

conditions, and privileges of employment.’ Here, the plaintiffs’ reassignment resulted in no

decrease in pay or grade. And while the plaintiffs offered some subjective evidence that the float

pharmacist position involved decreased responsibility and prestige and required the performance

of more menial tasks, it is not clear that these changes were so substantial that they amounted to

an actionable adverse employment action.”) (quoting Davis, 245 F.3d at 1245), abrogated on other

grounds by Babb v. Wilkie, 140 S. Ct. 1168 (2020), abrogation recognized by Babb v. Sec’y, Dep’t

of Veterans Affairs, 992 F.3d 1193, 1196 (11th Cir. 2021). In Davis, Eleventh Circuit noted: “We

do not suggest that a change in work assignments can never by itself give rise to a Title VII claim;

in unusual instances the change may be so substantial and material that it does indeed alter the

‘terms, conditions, or privileges’ of employment.” Davis, 245 F.3d at 1245. The Eleventh Circuit

also stated: “Work assignment claims strike at the very heart of an employer’s business judgment

and expertise because they challenge an employer’s ability to allocate its assets in response to

shifting and competing market priorities. The same concern exists for public entities such as the

Town’s Police Department, which must balance limited personnel resources with the wide variety

of critically important and challenging tasks expected of them by the public.” Davis, 245 F.3d at

1244.

To determine whether the City’s failure to offer Officer Minnifield the K-9 patrol position was an

adverse action, the Court must consider whether there are objective factors that would make the

transfer from motorscout to K-9 patrol officer “equivalent, at least to some degree, to” a promotion.

In other words, Officer Minnifield does not complain that he was moved to a new position with

fewer and less prestigious responsibilities but that he already held such a position and that the City

deprived him of a more prestigious position based on his race and in retaliation for his previous

opposition to race-based conduct in the BPD. Doe, 145 F.3d at 1450. Therefore, the Court must

determine whether Officer Minnifield’s evidence establishes that a transfer from motorscout to K-

9 patrol is the objective equivalence, in some degree, of a promotion.

In de la Cruz, the employer transferred the plaintiff, a Puerto Rican employee,

from the adoption unit to the foster care unit of New York City’s Department of

Social Services. The transfer did not affect the plaintiff’s salary, but he argued that

he experienced an adverse employment action because the defendants “moved him

from an ‘elite’ division of DSS, which provided prestige and opportunity for

advancement, to a less prestigious unit with little opportunity for professional

growth.” 82 F.3d at 21. The Second Circuit stated: “Although de la Cruz’s case is

in this respect quite thin, the transfer arguably altered the terms and conditions of his

employment in a negative way. This is sufficient to satisfy the third prong of the

McDonnell Douglas prima facie test.” 82 F.3d at 21. The Court of Appeals held:

“The question of whether de la Cruz has been harmed by the transfer would be a

question of fact for trial.” 82 F.3d at 21. Ultimately, the Second Circuit affirmed

the district court’s judgment in favor of the defendants because the plaintiff did not

identify disputed evidence to support the pretext element of his Title VII

discrimination claim. 82 F.3d at 23.

Relying on de la Cruz and a Third Circuit decision, Torre v. Casio, Inc., 42

F.3d 825 (3d Cir. 1994), the Eleventh Circuit in Doe selected an objective test for

adversity and held that under the objective standard, “[t]ransfers that result in lesser

pay, responsibilities, or prestige will still be ‘adverse.’ So, too, will transfers that

involve arduous travel or that impede an employee’s professional growth or

advancement.” 145 F.3d at 1452 (citations omitted). With respect to prestige, the

Eleventh Circuit observed:

loss of prestige, either within an organization or with regard to the

general public, is an objective factor that a court should consider as part

of the reasonable person test. Cf. de la Cruz, 82 F.3d at 21. Beyond the

loss of prestige itself (a reasonable if egoistic employee goal much like

salary or promotion), diminishment of prestige may also affect an

employee’s marketability, another significant objective factor.

Doe, 145 F.3d at 1452 n.19.5 The Eleventh Circuit summed up its holding in Doe

this way: “In other words, our reasonable person standard will continue to protect

disabled employees from transfers that are a form of demotion or that disrupt

investment in education, training, or seniority.” 145 F.3d at 1452. The Eleventh

Circuit also held that the adversity associated with a transfer “must be material; it is

not enough that a transfer imposes some de minimis inconvenience or alteration of

responsibilities.” 145 F.3d at 1453.

5 Citing Rodriguez v. Board of Educ. of Eastchester Union Free Sch. Dist., 620 F.2d 362 (2d Cir.

1980), the Eleventh Circuit noted that “transfer from a middle to an elementary school might also

be thought to involve a significant loss of prestige, and perhaps long-term prospects for

advancement in the art education field as well.” 145 F.3d at 1453 n.20.

Because the Doe case was on appeal from a verdict in a bench trial, the

Eleventh Circuit remanded the case to the district court for additional findings of

fact relating to adversity. With respect to that factfinding, the Court of Appeals

observed:

the following would seem to be relevant: what is entailed in the

coursework required for certification in the new position; would such

additional certification increase Doe’s career opportunities, and, if so,

was such additional certification and resulting increase in opportunities

available to Doe in any event, or was this available to Doe only because

of the transfer; whether the District’s action would in effect limit Doe’s

opportunities in this school district to the teaching of interrelated

classes, and/or foreclose other opportunities, and, if so, whether the

same would adversely affect Doe’s employment opportunities or status

within either this particular school district or the field of special

education generally . . .

145 F.3d at 1453 n.22.

The Eleventh Circuit concluded its opinion in Doe by classifying the issue of

adversity as a question of fact:

It is important not to make a federal case out of a transfer that is de

minimis, causing no objective harm and reflecting a mere chip-on-the-

shoulder complaint. However, it is equally important that the threshold

for what constitutes an adverse employment action not be elevated

artificially, because an employer’s action, to the extent that it is deemed

not to rise to the level of an adverse employment action, is removed

completely from any scrutiny for discrimination. In other words, where

the cause or motivation for the employer’s action was clearly its

employee’s disability, a finding that the action does not rise to the level

of an adverse employment action means that the action is not

scrutinized for discrimination. An artificially high threshold for what

constitutes an adverse employment action would undermine the

purposes of the statute by permitting discriminatory actions to escape

scrutiny. We believe that the purposes of the statute are appropriately

served by requiring the fact finder to determine whether a reasonable

person would consider the action adverse under all the facts and

circumstances.

145 F.3d at 1453 n.21.

In its first opinion in this case, the Court, viewing the facts available to it in

the light most favorable to Officer Minnifield, concluded that “the K-9 position was

a coveted promotion in all respects except for salary,” that the K-9 position was “an

exclusive position that rarely posted vacancies,” and that the pool of officers vying

for the position was competitive. (Doc. 70, pp. 25–26). The Court cited Sergeant

Boackle’s testimony that handling a K-9 is “the most liab[le] thing a police

department especially here in Birmingham, Alabama has to offer.” (Doc. 70, p. 26)

(citing Doc. 58-5, p. 129). The Court also described the efforts that Officer

Minnifield had taken to be admitted to the BPD’s Tactical Unit and then receive

promotions within the unit. (Doc. 70, pp. 3–5). The Court found that this evidence,

viewed in the light most favorable to Officer Minnifield, created a question of fact

concerning adversity.6

The Eleventh Circuit disagreed and reversed. The Court of Appeals found

that the K-9 position “offered no materially improved work conditions” and that the

position was “materially similar in all respects” to Officer Minnifield’s motorscout

6 The Court noted that in 2013, Sergeant Boackle recommended five white officers for BPD K-9

positions, and Chief Roper selected three of the officers for K-9 positions. (Doc. 70, p. 9).

position “but prestige.” Minnifield, 791 Fed. Appx. at 88, 92. The Court of Appeals

stated: “Officer Minnifield’s claim therefore reduces to Sergeant Boackle declining

to recommend him for lateral transfer to a position offering the same pay but more

prestige.” Minnifield, 791 Fed. Appx. at 91. The Eleventh Circuit observed: “There

is no evidence that Officer Minnifield was denied an increase in pay because he did

not receive either a patrol or airport K-9 position.” Minnifield, 791 Fed. Appx. at 91

(emphasis in Minnifield). Those findings are binding on this Court, and the Court

must abide by them.

Citing Heathcoat v. Potts, Officer Minnifield argues that there is an exception

to the law of the case rule “when [] a subsequent trial produces substantially different

evidence,” and “the trial of this case could bring out substantial different facts . . .

such as the fact that the TSA-k-9 position was a federal position with different

benefits than the benefits from the city.” (Doc. 110, pp. 16, 20) (citing 905 F.2d

367, 371 (11th Cir. 1990)). The “substantially different evidence” exception to the

law of the case rule applies when a new panel of appellate judges reviews a case on

a successive appeal. 905 F.2d at 371 (“This court has identified three circumstances

in which the law of the case doctrine will not preclude a later panel from addressing

an issue decided on a prior appeal.”). Here, for Officer Minnifield to develop a

record containing “substantially different evidence,” he would have to identify new

facts, via an affidavit or another tool, that would allow him to prove that an

appointment to a BPD K-9 patrol position would have opened the door to a TSA K-

9 position which, in turn, would have offered improved benefits. He has not done

so.

The evidentiary record before the Court now is identical to the record that the

Eleventh Circuit had before it when it decided Sergeant Boackle’s interlocutory

appeal. That record indicates that BPD K-9 patrol officers and TSA K-9 officers are

part of BPD’s Tactical Unit. (Doc. 57-10, p. 1; Doc. 57-11, p. 1). The record

suggests that BPD may receive federal resources to help sponsor TSA K-9 units, but

BPD tries to use the TSA resources in conjunction with BPD K-9 patrol units, not

TSA K-9 units. (Doc. 57-22, p. 1).7 The Court has not found in the record evidence

that indicates how often, if at all, the BPD Tactical Unit contains TSA K-9 officers

and how those officers’ positions are funded. It is conceivable that either the TSA

provides federal benefits for local K-9 patrol officers who perform TSA duties, or

the TSA employs K-9 officers who previously worked for local law enforcement

and provides to those federal employees federal benefits that surpass the benefits

offered to local law enforcement officers.8 But there is no evidence before the Court

7 See TSA Canine Training Center, TRANSPORTATION SECURITY ADMINISTRATION,

https://www.tsa.gov/news/press/factsheets/tsa-canine-training-center (last visited May 19, 2021)

(“TSA partially reimburses each participating agency for operational costs associated with

maintaining the teams, including veterinary fees, handler salaries, dog food, and equipment.”).

8 See TSA’s National Explosive Detection Canine Program, TRANSPORTATION SECURITY

ADMINISTRATION (Dec. 9, 2020), https://www.tsa.gov/blog/2020/12/09/tsas-national-explosive-

to establish either option, and Officer Minnifield cannot overcome the City’s motion

for summary judgment without placing concrete facts in the record to create a factual

dispute for a factfinder to resolve.

Because the summary judgment evidence has not changed, the law of the case

dictates that that evidence does not suffice to create a jury question concerning

adversity. Accordingly, by separate order, the Court will enter judgment for the City

of Birmingham on Officer Minnifield’s remaining Title VII claims because Officer

Minnifield has not established a prima facie case of discrimination or retaliation.

DONE and ORDERED this May 25, 2021.

MADELINE HUGHES HAIKALA

UNITED STATES DISTRICT JUDGE

detection-canine-program (last visited May 19, 2021) (“The Canine Training Center (CTC) is located

at Joint Base San Antonio-Lackland in San Antonio, Texas. This site trains and deploys both TSA-led and

state and local law enforcement-led canine teams. These teams, made up of a canine and a handler, support

the day-to-day activities that secure and protect transportation environments.”); TSA Canine Training

Center, TRANSPORTATION SECURITY ADMINISTRATION,

https://www.tsa.gov/news/press/factsheets/tsa-canine-training-center (last visited May 19, 2021)

(“Law enforcement officers make up approximately 60 percent of the [canine] teams and

approximately 40 percent are transportation security inspectors.”).

15