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08-28-2015, 03:27 PM

KENT V. CITY OF HOMESTEAD, (S.D.FLA. 2002)

MARIE KENT, Plaintiff v. CITY OF HOMESTEAD, Defendant.
∙ CASE NO. 00-3601-CIV-SEITZ/GARBER
∙United States District Court, S.D. Florida.
∙ March 13, 2002

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

PATRICIA A. SEITZ, United States District Judge

THIS CAUSE is before the Court on Defendant's Motion for Summary Judgment [D.E. No. 69]. Plaintiff Marie Kent ("Kent") filed suit against the City of Homestead ("City") for alleged acts of retaliation and race discrimination1 under Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e, et seq. ("Title VII"), and the Florida Civil Rights Act of 1992, Fla. Stat. § 760.10 ("FCRA"). Defendant contends that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law with respect to Plaintiffs retaliation claims. Kent, however, maintains that the retaliatory conduct complained of presents questions of fact for a jury to decide. For the reasons stated below, the Court grants Defendant's Motion for Summary Judgment.

1.

As a preliminary matter, it appears based upon the pleadings submitted in this case, that Plaintiff has abandoned her race discrimination claim. Not only is there no mention of such claim anywhere in the summary judgment briefs, but such is also not addressed in the Joint Pretrial Stipulation.

BACKGROUND

This case arises out of Officer Marie Kent's nearly two decade employment relationship2 with the City of Homestead Police Department (the "Department"). More specifically, this case concerns Kent's repeated attempts during the last five years of that relationship to elevate herself through the ranks of the Department. Although her efforts have been unsuccessful, all evidence indicates that Kent was, and still is, an outstanding police officer.3 Thus, notwithstanding the outcome of this lawsuit, the Court is hopeful that Kent will continue to perform her job at the highest level.

2.

Kent has been a sworn uniformed police officer since approximately 1985. Prior to that, Kent worked as a police dispatcher for two years.

3.

In fact, Alexander Rolle, the current Chief of Police and former major, indicates that Kent received the highest possible evaluation for each period during the operative time of this lawsuit. (Rolle Aff., ¶ 3). More telling, however, is Rolle's proclamation that, if a vacancy arose, he "would not hesitate to promote Marie Kent." (Rolle Aff., ¶ 6).

Kent's employment relationship with the City, and more specifically, her efforts to be promoted within the Department are governed by the Collective Bargaining Agreement ("CBA") between the City and the Police Benevolent Association. Pursuant to the CBA, officers seeking promotion must take a promotional examination, which is periodically administered by the Department. Officers that take the exam are placed on an eligibility list that ranks them in order of their scores which they received on the exam.4 The eligibility list is valid for one year and all promotions during that year must be made by the Chief of Police based upon the eligibility list.

4.

Pursuant to the CBA, the process for promoting off of the eligibility list utilizes the "rule of three." This "rule" provides that as vacancies appear for various ranks, the Chief of Police chooses from among the top three candidates on the eligibility list for that specific rank. The candidates need not be promoted strictly according to their ranking on the eligibility list; but rather, provides that the Chief of Police consider the following criteria: (1) demonstrated past performance; (2) leadership ability; (3) seniority in the department; and (4) seniority in the law enforcement profession.

In May 1995, Kent participated in the Sergeant's promotional exam. Upon completion of her exam, Kent, who is Caucasian, and a number of other police officers complained that the exam was racially biased in favor of two African-American candidates. Specifically, Kent, assuming the role of leader of the complaining officers (Kent Aff., ¶ 8), alleged that the oral portion of the exam was administered in a fashion that favored the two African-American officers. (Kent Aff., ¶ 5). Notwithstanding Kent's vocal objections, the exam was deemed valid and four officers were subsequently promoted off of the 1995-96 eligibility list, including one of the two African-American candidates that Kent claimed to have benefitted from the allegedly tainted exam.5

5.

Angela Staggers was promoted to Sergeant during October 1995, at which point she became Kent's direct supervisor. Over the next ten months, Kent alleges that Staggers subjected her to verbal harassment and to a hostile work environment. (see infra). Also of note is that Kent's husband, Kevin Kent, was also promoted to Sergeant.

On July 18, 1996, after Kent concluded that she had exhausted her administrative remedies pertaining to her complaints about the exam, she filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination with respect to the promotional exam. On February 18, 1997, after investigating the allegations, the EEOC issued Kent a "Right to Sue" letter. Kent, however, opted not to pursue the matter in court.

Although she never pursued her action in court, Kent alleges that she was retaliated against for filing a Charge of Discrimination with the EEOC. Specifically, Kent alleges that the City took the following retaliatory actions: (1) not promoting Kent to Sergeant after the 1997 promotional exam; (2) not promoting Kent to Sergeant after the 1998 promotional exam; (3) initiating an Internal Affairs investigation of Kent in 1998; (4) not calling Kent for meetings of the Accident Review Board during July and August 1996; (5) transferring Kent out of the Community Affairs bureau in October 1997; (6) changing Kent's days off during October 1997 and July 1998; (7) not being appointed acting Sergeant during 1999; and (8) subjecting Kent to verbal harassment and hostile working conditions from 1996 through 1999.

Failure to Promote in 1997 and 1998

Kent completed the Sergeant's promotional exam in May 1997, and based upon her score, was number one on the resulting eligibility list.6 As a result, and due to the recent resignation of a Sergeant from within the Community Affairs bureau, Kent implies that her promotion should have been a virtual certainty. (Kent Aff., ¶ 16). Kent was not promoted. Instead, due to a purported financial crisis, the vacancy in the Sergeant ranks remained unfilled throughout the entire effective period of the 1997-98 eligibility list.7 (Ivy Aff., ¶¶ 6-9). Kent contends that the City's financial reasons for not promoting her were pretextual. The City, however, maintains that the financial crisis was real and that the resulting instability precluded any promotions at that time. (Ivy Aff., ¶ 11).

6.

The eligibility list was in effect from May 23, 1997 through May 23, 1998.

7.

Indeed, the Sergeant's position in the Community Affairs bureau was eliminated altogether by the 1998-99 budget. (Rolle Aff., ¶ 24).

In November 1998, Kent participated in yet another Sergeant's promotional exam. This time, Kent's score on the exam placed her fourth on the eligibility list. All three officers ahead of her on the list were promoted. As Kent correctly points out, when the first of these was promoted, Kent became one of the top three and within the "rule of three" for eligibility purposes. Thus, even though Kent's score on the exam placed her behind the remaining two officers on the list, the "rule of three" provided that she could have been promoted before either of them. Kent alleges that under a fair evaluation of the criteria provided for by the "rule of three," she should have been promoted during the 1998-99 eligibility period. (Kent Aff., ¶ 18). The City, however, contends that while the Chief does have discretion under the CBA to promote any of the top three candidates on the eligibility list, the City's general practice is to promote in the order of the eligibility list, absent special circumstances. (Ivy Aff., ¶ 11).
and in light of punishments recently handed down to two other officers for similar offenses. (Rolle Aff., ¶ 13).