Brown v. Houser

129 F.Supp.3d 1357

James BROWN and Craig Owens, Plaintiffs,

v.John R. HOUSER, in his individual capacity, and Cobb County, Georgia, Defendants.

No. 1:13–cv–1807–WSD.

United States District Court, N.D. Georgia, Atlanta Division.

Signed Sept. 4, 2015.

Brian J. Sutherland, Buckley Law Firm, LLC, Edward D. Buckley, Buckley Beal, LLP, Atlanta, GA, for Plaintiffs.

Mairen C. Kelly, Fisher & Phillips, LLP, Atlanta, GA, for Defendants.

OPINION AND ORDER

WILLIAM S. DUFFEY, JR., District Judge.

This matter is before the Court on Magistrate Judge Walter E. Johnson's Final Report and Recommendation ("R & R") [85] on Defendants John R. Houser and Cobb County, Georgia's ("Cobb County") (together, "Defendants") First Motion for Partial Summary Judgment [59] and their Second Motion for Partial Summary Judgment [61].

I. BACKGROUND

A. Facts¹

This case arises from Plaintiffs Lieutenant James Brown ("Brown") and Lieutenant Craig Owens's ("Owens") (together, "Plaintiffs") allegation that Defendants failed to promote them to the rank of police captain because of their race. Owens also alleges that Cobb County discriminated against him because of his military service, in violation of the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301 et seq., and that Cobb County retaliated against him for exercising his rights under USERRA. (First Am. Compl. [4] ¶¶ 77–92).

Mr. Owens was hired by the Cobb County Police Department ("CCPD") in 1989 and became a lieutenant on May 23, 2004 (Defs.' Statement of Material Facts on Counts I–III[76] ("DMSF1") ¶ 2; Pls.' Resp. to DSMF1 [79] ("R–DSMF1") ¶ 2). Mr. Brown was hired by the CCPD in 1988 and became a lieutenant on December 31, 2000. (DSMF1 ¶ 1; R–DSMF1 ¶ 1). Plaintiffs are African Americans. (Brown Decl. [79–3] ¶ 7). Plaintiffs' professional qualifications are summarized below.

1. Owens

Owens's professional experience includes positions as a SWAT team first responder, traffic death investigator, supervisor in the special operations division, an adjutant to the chief of police, a critical incident commander of the Metro Atlanta Critical Incident Response Team, and a supervisor in the Criminal Investigations Unit. (Pls.' Statement of Additional Facts Presenting Genuine Issues for Trial as to Counts I–III [79–1] ("PSAF1") ¶¶ 11, 13; Defs.' Resp. to PSAF1 [82] ("R–PSAF1") ¶¶ 11, 13; Pls.' Statement of Additional Facts Presenting Genuine Issues for Trial as to Counts IV–V [78–1] ("PSAF2") ¶¶ 10–11; Defs.' Resp. to PSAF2 [83] ("R–PSAF2") ¶¶ 10–11). The chief selected Owens to train at the FBI Academy. (DSMF1 ¶ 125; R–DSMF1 ¶ 125; PSAF1 ¶ 12; R–PSAF1 ¶ 12). Owens received the Bureau Commendation Award, Physical Fitness Award, Police Driving Award, State of Georgia Grant Writing Award, and several other honors. (PSAF2 ¶ 13; R–PSAF2 ¶ 13). He received annual "good performance" ratings from 2006 to 2012. (PSAF1 ¶ 19; R–PSAF ¶ 19).

Owens holds a master's degree in public administration, a bachelor's of science in criminal justice, a graduate certificate in pre-command from the Command General Staff College of the United States Army Command College, five certifications from the Georgia Peace Officer Standards and Training Council ("P.O.S.T."), and twenty other trainings and certifications in law enforcement, command, and management. (PSAF1 ¶ 14; R–PSAF1 ¶ 14). Owens is a Command Sergeant Major in the United States Army Reserves and served multiple tours of duty in Iraq and Afghanistan. (PSAF2 ¶ 1; R–PSAF2 ¶ 1).

2. Brown

Brown has a bachelor's degree in criminal justice and four P.O.S.T. certifications. (PSAF ¶ 21; R–PSAF1 ¶ 21). Brown managed the robbery and homicide unit. (PSAF ¶ 22; R–PSAF ¶ 22). He received annual "good performance" ratings from 2006 to 2012. (PSAF1 23; R–PSAF1 ¶ 23). Brown has been a member of the SWAT team. (PSAF1 ¶ 39; R–PSAF1 ¶ 39).

B. Cobb County Government

The government of Cobb County is organized into departments. The Department of Public Safety ("DPS") includes a number of subsidiary departments and agencies. (Defs.' Statement of Material Facts on Counts IV–V[75] ("DSMF2") ¶ 1; Pls.' Resp. to DSMF2 [78] ("R–DMSF2") ¶ 2). DPS has administrative responsibility for the CCPD, and direct authority over certain police-related units, including Internal Affairs, 911 Emergency Center, Training Center, and Animal Control Unit ("ACU"). (DSMF ¶ 3; R–DMSF ¶ 3). DPS does not manage the CCPD's day-to-day operations, but represents the CCPD before the County Manager and Board of Commissioners on budgetary and funding issues. (Hatfield Decl. [61–4] ¶ 5).

Gary Lloyd served as director of DPS from 2003 to 2010. (DSMF2 ¶ 2; R–DSMF2). Director Lloyd reported to David Hankerson, the County Manager. (DSMF2 ¶ 6, R–DSMF2 ¶ 6). Mr. Hankerson reports to the Board of Commissioners. (DMSF2 ¶ 7; R–DSMF2 ¶ 7). The DPS director is authorized to select and appoint police offers for assignment to certain DPS subsidiary departments, such as the ACU. (DSMF2 ¶ 12; R–DSMF2 ¶ 12). Officers appointed by the DPS director report to the DPS director, not the police chief. (DSMF2 ¶ 13, R–DSMF2 ¶ 13).

C. Owens's Allegation Director Lloyd Denied Him a Promotion Because of His Military Service

Owens alleges he was denied a promotion to captain of the Animal Control Unit for discriminatory reasons. The ACU was responsible for enforcing animal-related ordinances, dealing with vicious animals, managing the shelter and its adoption services, interfacing with animal rights organizations, managing a volunteer force, and representing Cobb County in connection with public interest groups and the media. (DMSF2 ¶ 16; R–DMSF2 ¶ 16). Civilians managed the ACU from 2006 to 2008. (DSMF2 ¶ 17). In response to the Board of Commissioners' concerns about the unit, Director Lloyd replaced the ACU's civilian management with a sworn command. (DSMF2 ¶ 18; R–DSMF2 ¶ 18).

In June 2007, the United States Army placed Owens on active duty. (DSMF2 ¶ 39, as modified by R–DMSF2 ¶ 39). Owens took leave from the CCPD to serve in Afghanistan. (Owens Decl. [79–2] ¶ 3; Owens Dep. [71] at 12). While abroad, the chief of police, George Hatfield, sent Owens an e-mail notifying him that he had been selected as captain of the ACU. (Owens Dep. [71] at 11, 13, 31; see also DSMF2 ¶ 41). Chief Hatfield later retracted this statement, explaining that Director Lloyd would not allow Owens to be promoted while on military duty because, if he was, Mr. Hankerson would eliminate Owens's position. (PSAF2 ¶ 35, citing, inter alia, Owens Dep. [71] 11–12; see also Defs.' Mot. Summ. J. Ex. H [61–10].)

In February 2008, while Owens was on rest and recuperation leave (Owens Decl. [79–2] ¶ 4), he met with Chief Hatfield and Deputy Chief Mull. (Owens Dep. [71] at 12). The Chief repeated that he had selected (or recommended) Owens for a promotion, but that Director Lloyd would not allow him to promote Owens. (Id. at 11–12). Chief Hatfield stated that this directive came from Hankerson. (Id. ). About this same time, Chief Hatfield told Owens that "there was a captain position coming open." (PSAF2 ¶ 29). Owens expressed to Chief Hatfield his interest in being promoted to captain. (Id. ¶ 30; R–PSAF2 ¶ 30). He also told Director Lloyd about his interest in being promoted to captain. (PSAF2 ¶ 31; R–PSAF2 ¶ 31).

Chief Hatfield and Director Lloyd discussed Owens's military leave and his interest in being promoted. (PSAF2 ¶ 32; R–PSAF2 ¶ 32). Director Lloyd testified that Chief Hatfield "had concerns about the perception of the rank and file of promoting someone to [captain], or appointing them to a high rank, when that person was gone more than they were there." (Lloyd Dep. [69] at 61; see also PSAF2 ¶ 33, as modified by R–PSAF2 ¶ 33). Chief Hatfield believed promoting someone who "was not present a lot" would have "repercussions through the ranks." (PSAF2 ¶ 34, as modified by R–PSAF ¶ 34; Lloyd Dep. [69] at 59).

Concerned his military leave made him ineligible for promotion to captain, Owens met with County Manager Hankerson to ask about his promotion eligibility while on leave. (PSAF2 ¶ 36; R–PSAF2 ¶ 36; DSMF2 ¶ 44). Mr. Hankerson assured Owens that he could compete for a promotion on the same footing as other candidates and that he "lost no rights" because of his military obligations. (DSMF2 ¶ 45; R–DSMF2 ¶ 45; PSAF2 ¶ 37; R–PSAF2 ¶ 37). Mr. Hankerson's testimony confirms the substance of this conversation. (PSAF2 ¶ 37; R–PSAF2 ¶ 37).

Owens went straight from Mr. Hankerson's office to Director Lloyd's office. (PSAF2 ¶ 38; R–PSAF2 ¶ 38); (Owens Dep. [71] 25). Consistent with Chief Hatfield's account, Director Lloyd told Owens that he was ineligible for a promotion because of his military leave. (PSAF2 ¶ 38; R–PSAF2 ¶ 38). Director Lloyd added that County Manager Hankerson had told him this. (PSAF2 ¶ 39; R–PSAF2 ¶ 39). When Owens told Director Lloyd that Mr. Hankerson had just told him the opposite, Director Lloyd claims he had "misunderstood" Mr. Hankerson. (PSAF ¶ 40; DSMF2 ¶ 46). Owens then asked Director Lloyd whether he could "fix the problem." Lloyd responded: "[l]et me just get my stuff squared away." (PSAF2 ¶ 42).

In March 2008, Owens returned to active duty in Iraq. (PSAF2 ¶ 43; R–PSAF2 ¶ 43). On March 6, 2008, Owens sent a letter to Chief Hatfield explaining the conversations between Director Lloyd, County Manager Hankerson, and him regarding the impact of his active duty service on promotion. (PSAF2 ¶ 44, citing, inter alia, Hatfield Dep. Ex. 108 [67–1].)

Director Lloyd claims he wanted a no-nonsense ACU captain with the personality, demeanor, tact, and people skills required for the "delicate" task of overhauling the unit's operations, interfacing with animal rights activists, and managing civilian employees. (DSMF2 ¶ 28; R–DSMF2 ¶ 28; see also Prince Decl. [61–3] ¶ 11). Director Lloyd and Major Ronald Prince, the DPS Executive Officer, knew Lieutenant Jeffrey Patellis's ("Patellis") management style and work ethic because of Patellis's assignment to the Training...