Howell v. Ala. Law Enforcement Agency

TERRY HOWELL, Plaintiff, v. ALABAMA LAW ENFORCEMENT AGENCY, Defendant.

CIVIL ACTION 16-0257-WS-B

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

June 15, 2017

ORDER

This matter comes before the Court on defendant's Motion for Summary Judgment (doc. 36). The Motion has been extensively briefed and is now ripe for disposition.¹

I. Nature of the Case.

Because the parties' summary judgment filings devote considerable attention to documenting and discussing events that date back to 2008 or even earlier, a helpful starting place is to identify the particular claims joined in this action.

Plaintiff, Terry Howell, was a longtime employee of defendant, Alabama Law Enforcement Agency ("ALEA"). As set forth in the Complaint, Howell (who is AfricanAmerican) claims to be aggrieved by the following acts and omissions of ALEA: (i) failure to post a Lieutenant position for ABI Mobile (for which Howell would have been the most qualified candidate) in or around June 2010 (doc. 1, ¶¶ 12-13); (ii) passing over Howell for promotion to available Lieutenant positions from May 2010 to November 2010 even though he "was listed as the most qualified, eligible candidate" (id., ¶ 14); (iii) denying Howell's application for promotion to Lieutenant in the Driver's License Division, Mobile office, in June 2013, and instead awarding the position to a less experienced white male (id., ¶ 17); (iv) denying Howell's application for promotion to Lieutenant in the Mobile Highway Patrol Division in June 2013, even though he was the most experienced and qualified applicant, and instead awarding the position to a white female who lived in Montgomery (id., ¶ 18); (v) failing to post a Lieutenant promotional slot in Mobile in 2013 (id., ¶ 19); (vi) appointing a less experienced white male to perform Lieutenant duties and responsibilities for Mobile ABI in fall 2013 (id., ¶ 20); (vii) passing over Howell for promotion and instead selecting lower ranked white males in June 2014 (id., ¶ 21); (viii) failing to post available Supervisory Special Agent positions and promoting white males to those positions in October 2014 (id., ¶¶ 22-23, 25); (ix) involuntarily transferring Howell to the Mobile Highway Patrol Division (id., ¶ 24); and (x) failing to post Lieutenant positions for ABI Mobile or SSA positions for Mobile SBI from November 2013 until March 2016 (id., ¶ 26). Howell pleads that these actions were "racially motivated," in violation of Title VII and 42 U.S.C. § 1981. (Id., ¶ 29.)² Certain of these claims have since been abandoned; however, the above list represents the universe of employment actions that are or might be at issue in this case.

Although the topic of retaliation features prominently in the parties' summary judgment briefs, the "Cause of Action" section of the Complaint frames Howell's claims as sounding solely in theories of race discrimination. (Doc. 1, ¶¶ 28-30.) However, in a "Preliminary Statement," Howell's Complaint states that he seeks relief "for race discrimination andretaliation." (Id., ¶ 1.) And the Complaint references an internal charge of discrimination that Howell filed in March 2008. (Id., ¶ 9.) Based on these allegations in Howell's pleadings, both sides have treated this case as involving claims that the challenged personnel actions (as summarized above) were motivated by both race discrimination and retaliation. The Court will do the same. That said, in the interest of focusing this Order, extraneous facts and unwieldy arguments presented by the parties that do not relate to these specific allegations and claims will not be addressed.

II. Relevant Background.³

A. Plaintiff's Employment History and Charge of Discrimination.

Plaintiff, Terry Howell, was employed by defendant, Alabama Law Enforcement Agency (as well as a predecessor entity, the Alabama Department of Public Safety),⁴ for 34 years, beginning with his appointment as a State Trooper in February 1982 and ending with his retirement in March 2016. After 14 years as a trooper, Howell transferred to the Mobile office of ALEA's Alabama Bureau of Investigation Division ("ABI Mobile"), where he worked as an investigator. In April 2002, he was promoted to the rank of Corporal. (Doc. 43, Exh. 6 at 51.)

In early 2008, Howell passed the Sergeant examination and became eligible for promotion to the rank of Sergeant. (Odom Decl. (doc. 42, Exh. 2), ¶ 4.) In February 2008, ALEA posted promotional slots; however, despite defendant's prior assurances to Howell to the contrary, no posting was made for a Sergeant position for ABI Mobile. (Id., ¶ 7; Howell Dep. (doc. 42, Exh. 3), at 51.) On March 10, 2008, Howell filed in internal "EEO Complaint Form," in which he alleged that ALEA's failure to post the Sergeant vacancy and promote him to that position was because of his race. (Doc. 44, Exh. 10.) In the narrative accompanying his EEO Complaint, Howell wrote, "I have seen and had things done to me that I thought were unfair or racially motivated;" that "[i]t can only be concluded that the decisions on who gets promoted are racially motivated;" and that "I asked, however, that the playing field be level, and that treatment be equal." (Id. at 5-6.) In a memorandum dated April 10, 2008, Colonel J. Christopher Murphy notified Howell that his EEO Complaint had been investigated, and that Murphy was satisfied "that race did not play a role in the decision not to post a sergeant's position for the Mobile ABI office and that [Howell's] complaint is unfounded." (Doc. 36, Exh. 20.) Nonetheless, Murphy proceeded to post a Sergeant position for ABI Mobile "so as to eliminate any perception of unfairness that might have been raised." (Id.) Effective June 1, 2008, Howell was awarded the promotion to that Sergeant slot, thus resolving his EEO Complaint to his satisfaction. (Howell Dep., at 55-56; doc. 45, Exh. 19.)

B. Acting Lieutenant Duties and Lieutenant Eligibility in 2009 - 2013.

Howell remained assigned to ABI Mobile after his June 2008 promotion to Sergeant. In August 2009, a vacancy became open at ABI Mobile when incumbent Lieutenant C.J. Alexander retired. (Howell Dep., at 37.) At that time, defendant assigned Howell the duties of "Acting Lieutenant / Area Commander." (Id. at 36, 91.) During multiple intervals between August 2009 and fall 2013, Howell took on these "Acting Lieutenant" duties. Howell consistently received performance ratings of "Exceeds Standards" after assuming these additional responsibilities. (Doc. 46, Exh. 21, at 25, 32, 40.) In May 2010, Howell passed the Lieutenant examination, rendering him eligible for promotion to Lieutenant. (Howell Dep., at 22-23, 30.) Howell acknowledged, however, that one must apply in order to be considered for such a position. (Id. at 22.) Defendant's practices are unambiguous that an individual who does not apply will not be promoted. (Cook Dep. (doc. 48, Exh. 33), at 98.) Defendant placed Howell in "Band 2" for promotional consideration. (Doc. 36, Exhs. 21, 22.)

Defendant did not post a Lieutenant position for ABI Mobile between May 2010 (when Howell first became eligible for promotion to Lieutenant) and fall 2013. Plaintiff's testimony is that "there was a vacancy. They just never posted it." (Howell Dep., at 37.)⁵ However, it is undisputed that the vacancy did not remain for that entire period; indeed, defendant transferred Charles Huggins (who is African American) into the ABI Mobile Lieutenant position in July 2011, and Huggins held that position until his retirement in May 2013. (Howell Dep., at 97, 100, 121-22.) During the period of summer 2010 to summer 2011, then, there was a Lieutenant vacancy in ABI Mobile. That vacancy resurfaced with Huggins' retirement in May 2013. Defendant promptly filled the resulting job opening, as William Merritt (a white male who was then a Lieutenant in the Dothan office) was assigned Lieutenant duties for ABI Mobile in 2013, and supervised both offices jointly through early 2015. (Merritt Dep. (doc. 36, Exh. 8), at 12-14, 34, 36; Howell Dep. at 123.)⁶

C. Lieutenant Positions for which Plaintiff Did Apply.

Although defendant did not post the Lieutenant job for ABI Mobile between 2010 and 2013, numerous other Lieutenant positions were posted within the ALEA system between June 2010 and June 2013. (Doc. 36, Exh. 26, at 1.)⁷ For example, as of June 2013, there were 15Lieutenant positions available in the ALEA system. (Doc. 36, Exh. 23.) Howell was eligible to apply for any of those posted slots. It is undisputed, however, that he only applied for two Lieutenant positions, both in the 2013 hiring cycle. (Id.)⁸

The first position for which Howell applied was a Lieutenant posting for the Highway Patrol Division in Mobile. (Doc. 36, Exh. 23, at 3.) Defendant selected Lynn Sutton, a white female, to fill this vacancy. Whereas Howell was in Band 2 on the Lieutenant's list, Sutton was in Band 1 (the top band). (Doc. 36, Exh. 21.) Sutton had worked for defendant since 1986 and had amassed a diverse range of experience, including working as a state trooper, being assigned to ABI, performing homicide investigations with the Major Crimes Unit, working in the Office of Inspections, and writing policy in a special unit under the director's office. (Sutton Dep. (doc. 36, Exh. 10), at 9, 13-16.) Sutton applied for numerous Lieutenant positions across the state before landing the Highway Patrol Mobile job. (Id. at 30-32.) She had spent many years working at ALEA headquarters in Montgomery, and wished to make a change. (Id.) Substantial evidence shows that Howell and Sutton had similar qualifications. (Goolsby Aff. (doc. 48, Exh. 47).)⁹

The second Lieutenant position for which Howell applied was in the Driver's License Division in Mobile. (Doc. 36, Exh. 23, at 2.) Defendant selected Lawrence Goff, a white male, to fill this vacancy. Goff, like Howell, was in Band 2 on the Lieutenant promotion list. (Doc.36, Exh. 22.) But unlike Howell, Goff had eight years experience as a...