Tatum v. Jasper Water Works and Sewer Board Inc

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

JASPER DIVISION

CHARLES C. TATUM, JR., )

)

Plaintiff,

)

v. ) 6:21-cv-00153-LSC

)

JASPER WATER WORKS

)

AND SEWER BOARD, INC.,

)

Defendant. )

MEMORANDUM OF OPINION

Charles C. Tatum, an African-American male, brings this action against the

Jasper Waterworks and Sewer Board, alleging that the Board discriminated against

him by denying his request for additional water and sewer taps. Tatum claims that

the Board violated 42 U.S.C. § 1981 (Count I) and breached its state law duty to treat

citizens fairly (Count II). The Board moved for summary judgment on both claims.

For the following reasons, the Board’s motion is due to be granted as to the Section

1981 claim. The Court declines to exercise supplemental jurisdiction over the

remaining state law claim and will dismiss this claim without prejudice.

I. Background1

Tatum owns a commercial building in the downtown business district of

Jasper, Alabama. (See doc. 42-6 at 8.) In January 2019, he entered into a lease

agreement with Garve Ivey and Joeletta Barrentine. (Id. at 11.) Shortly thereafter,

Tatum and Ivey decided the building needed a second water and sewer tap to

accommodate both tenants. (Id.)

Ivey’s assistant, Tina Martin, contacted the Board to request the installation

of the additional taps and spoke with office manager Diana Smith. (Id. at 12.) The

parties dispute the details of the conversation between Martin and Smith. Tatum

claims that Martin requested additional taps at the back of the building while the

Board contends that Martin requested additional taps at the front. (See doc 41 at 8;

doc. 43 at 6.) In any event, after she discussed Martin’s request with a service

dispatcher, Smith updated the service order with this entry: “No more water taps

are to be made here because of the sidewalks. The sewer is in the back so a tap can

1 The facts set out in this opinion are gleaned from the parties’ submissions of facts claimed to be

undisputed, their respective responses to those submissions, and the Court’s own examination of

the evidentiary record. These are the “facts” for summary judgment purposes only. They may not

be the actual facts. See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th

Cir. 1994). The Court is not required to identify unreferenced evidence supporting a party’s

position. As such, review is limited to exhibits and specific portions of the exhibits specifically cited

by the parties. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011)

(“[D]istrict court judges are not required to ferret out delectable facts buried in a massive record .

. .”).

be made there for the sewer if needed.” (See doc. 41 at 9; doc. 43 at 7.) In Tatum’s

account of the facts, Smith told Martin during a subsequent conversation that the

Board could not install additional taps at the back of the building. (Doc. 43 at 7.)

On February 4, 2019, Tatum himself contacted Smith to better understand

the situation. (Doc. 43 at 8.) According to Tatum, Smith said that her supervisors

had made the decision to deny the request and that she would talk to them. (Id.) The

supervisors were out of the office for the day, so Smith left a note for them to contact

Tatum. (Doc. 41 at 10.) That evening, Tatum emailed Jim Brakefield, the Board’s

General Counsel, to relay his belief that neighboring white property owners received

better treatment. (Doc. 42-6 at 16.) The following morning (around sixteen hours

later), Brakefield responded and offered his apology for “any misinformation or

miscommunication.” (Id. at 54.) Further, Brakefield made clear that the Board

would provide the requested service if Tatum or his tenants signed up for service

with the Board and paid the water tap fee. (Id.) Despite receiving Brakefield’s

response, Tatum did not thereafter attempt to obtain service. (Id. at 20.)

II. Standard of Review

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). A dispute is genuine if “the record taken as a

whole could lead a rational trier of fact to find for the nonmoving party.” Hickson

Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004). A genuine

dispute as to a material fact exists “if the nonmoving party has produced evidence

such that a reasonable factfinder could return a verdict in its favor.” Greenberg v.

BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (quoting Waddell v.

Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The trial judge

should not weigh the evidence, but should determine whether there are any genuine

issues of fact that should be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986).

In considering a motion for summary judgment, trial courts must give

deference to the non-moving party by “view[ing] the materials presented and all

factual inferences in the light most favorable to the nonmoving party.” Animal Legal

Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1213–14 (11th Cir. 2015) (citing

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). However, “unsubstantiated

assertions alone are not enough to withstand a motion for summary judgment.”

Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). Conclusory

allegations and “mere scintilla of evidence in support of the nonmoving party will

not suffice to overcome a motion for summary judgment.” Melton v. Abston, 841 F.3d

1207, 1219 (11th Cir. 2016) (per curiam) (quoting Young v. City of Palm Bay, Fla., 358

F.3d 859, 860 (11th Cir. 2004)). In making a motion for summary judgment, “the

moving party has the burden of either negating an essential element of the

nonmoving party's case or showing that there is no evidence to prove a fact necessary

to the nonmoving party's case.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d

1236, 1242 (11th Cir. 2013). Although the trial courts must use caution when granting

motions for summary judgment, “[s]ummary judgment procedure is properly

regarded not as a disfavored procedural shortcut, but rather as an integral part of the

Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

III. Analysis

A. Section 1981 Claim

To successfully invoke Section 1981 in this context, a plaintiff must establish

that “(1) intentional racial discrimination (2) . . . caused a contractual injury.”

Ziyadat v. Diamondrock Hosp. Co., 3 F.4th 1291, 1296 (11th Cir. 2021). A plaintiff can

marshal direct or circumstantial evidence to show discrimination. Jenkins v. Nell, 26

F.4th 1243, 1249 (11th Cir. 2022). Tatum does not offer direct evidence of racial

discrimination and instead proceeds under the McDonnell Douglas burden-shifting

framework. “To make out a prima facie case, the plaintiff must point to comparators

of a different race who were similarly situated in all material respects and were not

subject to the same mistreatment.” Ziyadat, 3 F.4th at 1296 (internal citations

omitted).

Tatum fails to identify a comparator who is “similarly situated in all material

respects.” See Lewis v. City of Union City, 918 F.3d 1213, 1226 (11th Cir. 2019) (en

banc). Unlike Tatum, all of the proffered comparators signed up and paid for service.

Tatum does not dispute this fact but claims that neighboring white property owners

were not initially refused service as he was. Tatum, however, offers no proof of this

claim.2 Absent evidence that an adjacent property owner was “not subject to the

same mistreatment,” Tatum cannot establish a prima facie case of discrimination.

Ziyadat, 3 F.4th at 1296.

In a commercial or retail setting (as opposed to employment), a plaintiff must

be denied the opportunity to engage in contractual activity to suffer a Section 1981

injury—deterrence alone is insufficient. See Lopez v. Target Corp., 676 F.3d 1230,

1234 (11th Cir. 2012) (“[A] viable § 1981 claim in the retail context must allege that

the plaintiff was actually prevented, and not merely deterred, from making a

purchase.”) (internal citations omitted). Here, Tatum did not suffer a contractual

injury. His opportunity to contract was possibly delayed, but he was not ultimately

2 At his deposition, Tatum based this claim on “an educated guess” from his personal

observations. (See doc. 42-6 at 22.) He conceded that he had not spoken with any white property

owners about their experiences with service activation.

denied service. See Lopez, 676 F.3d at 1235 (finding no violation of Section 1981

because plaintiff—though a retail clerk refused to serve him—was able to

consummate his transaction with a different clerk); see also O’Connor v. J.C. Penney

Corporation, No. 2:16-cv-02068-RDP, 2018 WL 2416423 (N.D. Ala. May 29,

2018).Tatum declined the Board’s services despite the opportunity to obtain them.

His claim therefore does not satisfy the strictures of Section 1981.

B. State Law Claim

In accordance with 28 U.S.C. § 1367(c)(3), a district court “may decline to

exercise supplemental jurisdiction” if “the district court has dismissed all claims

over which it has original jurisdiction.” This decision is “purely discretionary.”

Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009). In the interests of

comity and fairness, this court therefore declines to consider the merits of Tatum’s

state law claim. See Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir. 2004)

(“We have encouraged district courts to dismiss any remaining state claims when,

as here, the federal claims have been dismissed prior to trial.”).

IV. Conclusion

For the foregoing reasons, Defendant’s Motion for Summary Judgment is due

to be granted as to the Section 1981 claim. The Court declines to exercise

supplemental jurisdiction over the remaining state law claim and will dismiss this

claim without prejudice. Tatum may refile this state law claim in state court if

appropriate. To the extent the Court relies on evidence to which Tatum objects in

his Motion to Strike, it is due to be denied.3 The Court will enter an Order consistent

with this Memorandum of Opinion.

3 To reach its conclusion in this case, the Court does not rely on most of the evidence to which

Tatum objects. (See doc. 44.) Specifically, the Court does not rely on paragraphs 37 and 38. The

Court does rely, in part, on the contents of Brakefield’s email from paragraph 42. In the concluding

sentences of the email, Brakefield writes: “JWWSB will do the same for you and treat you the same

as it treated other business owners. Obviously, you will have to pay for any new water tap and water

meter and provide plumbing to the meter as the other business owners did. Additionally, you or

whomever is responsible for the new water tap will need come [sic] into to the JWWSB [and] sign

up for the service and pay the water tap fee.” (Doc. 42-6 at 54.) The critical final portion of the

email is not hearsay because (among other reasons) it is an instruction that “is, to a large degree,

not even capable of being true or false.” See United States v. Cruz, 805 F.2d 1464, 1478 (11th Cir.

1986).