IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

ANTHONY BERNARD MOORER, ) 

Plaintiff, ) 

) 

v. ) Case No. 2:06-CV-672-WKW 

) 

CITY OF MONTGOMERY; ) 

BERNARD HARRIS, individually; and ) 

THOMAS PROVITT, individually, ) 

Defendants. ) 

DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE IN OBJECTION 

TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

COME NOW the above-named Defendants, City of Montgomery, Bernard Harris 

and Thomas Provitt and respectfully submit this Reply to Plaintiff’s Response in 

Objection to Defendants’ Motion for Summary Judgment (Doc. 30), without waiving 

their Motion to Strike (Doc. 31) the same, and state: 

1. Defendants have grouped their responses into three categories, to mirror 

Plaintiff’s claims against them as set out in this Court’s Order (Doc. 10). 

A. RACIAL DISCRIMINATION 

2. Defendants incorporate herein by reference all points and authorities set 

forth in their Brief (Doc. 25, pages 4-7) against Plaintiff’s Racial Discrimination claim 

against Defendant Bernard Harris. Plaintiff claims he is only required “to present some 

evidence to demonstrate that the decision of the Defendant was based on the 

discriminatory criterion,” (Doc. 30, at 3), and that “Once the Plaintiff presents such 

evidence, a presumption of illegal discrimination is presented” (Id). Plaintiff then claims 

Defendants have not presented a valid non-discriminatory reason why Plaintiff was 

treated differently, instead arguing that Plaintiff was not treated differently at all. Id. 

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3. Plaintiff has either misunderstood or is mischaracterizing Defendants’ 

case. It is true that Defendants deny any illegal discrimination or disparate treatment. 

However, there is no factual dispute as to whether Plaintiff was given different tasks than 

his co-workers. Defendants agree that Plaintiff was assigned different jobs than the other 

members of his paint crew, and explicitly stated their legitimate, non-discriminatory 

reasons for doing so in their Brief in Support of Defendant’s Motion for Summary 

Judgment (Doc. 25): 

17. Be that as it may, Defendant Harris had legitimate, nondiscriminatory reasons for his task assignments. (Def. Ex. 

A). Plaintiff was the newest member of Defendant Harris’ 

paint crew and had the least amount of experience. (Def. 

Ex. A). Plaintiff made assignments based on crew 

members’ skills and abilities. (Def. Ex. A). Plaintiff’s race 

was never a factor in any of Defendant Harris’ decisions 

about what tasks Plaintiff would be assigned to. (Def. Ex. 

A). Defendant Harris did not treat Plaintiff differently than 

any other crew member (Def. Ex. A), and Defendant Harris 

certainly did not discriminate against Plaintiff because of 

his race. (Def. Ex. A). 

(Doc. 25, page 5, paragraph 17). 

4. Plaintiff proceeds to make a conclusory allegation that “the reasons 

advanced by the Defendant to support its discriminatory practices are not the real reasons 

for the adverse employment decisions; therefore they are pretextual.” Doc. 30, at 3. 

Conclusory allegations cannot interpose genuine issues of material fact into litigation so 

as to preclude entry of summary judgment. Fed. R. Civ. Proc. Rule 56. 

5. Plaintiff claims to have “presented evidence to cast sufficient doubt as to 

Defendant’s proffered reasons to permit a reasonable fact finder to conclude that 

Defendant’s reasons were not the actual motivation in making its decision in regard to 

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James’ [sic.] terms and conditions of employment with Defendant.” 1 (Doc. 30, at 3). It is 

unclear as to which evidence Plaintiff refers. Plaintiff presents no evidence of racial 

animus toward Plaintiff by his foreman, Defendant Bernard Harris, relying entirely upon 

his claim that he was the only crewmember who was tasked with high work. 

6. Plaintiff, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), 

states the rule that “to establish a prima facie case of discrimination, Plaintiff is required 

to show that he is a member of a protected class, that he suffered some adverse 

employment action, and some other evidence, which allows an inference of 

discrimination” (Doc. 30, at 4) (emphasis added). Plaintiff has not met the requirements 

of this test. There must be some other evidence which allows an inference of 

discrimination. Plaintiff has not provided any. 

7. Plaintiff also cites cases for the proposition that a court can infer 

discriminatory animus “because experience has proved that in the absence of any other 

explanation, it is more likely than not that those action [sic.] were bottomed on 

impermissible consideration.” Doc. 30, at 5. These cases do not apply here because 

Defendants have stated their legitimate, non-discriminatory reasons for assigning Plaintiff 

to different tasks. 

8. Plaintiff cites Avarado v. Board of Trustees, which Defendants were 

unable to locate because of the incomplete citation and perhaps incorrect spelling of the 

plaintiff’s name, but even if Plaintiff correctly states the holding, Avarado does not apply 

to the facts at hand. Avarado seems to involve a plaintiff with more experience and 

seniority than someone else who was promoted. The uncontested evidence in this case 

 

1

 It appears from the many references to a Plaintiff named James, not Moorer, that large portions of 

Plaintiff’s Response in Opposition were copied from another brief. 

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shows that Plaintiff Moorer was the most junior, least experienced member of his crew. 

Doc. 25, page 5, paragraph 17. Plaintiff’s inexperience was the reason for assigning him 

different tasks than were assigned to other, more experienced and more senior 

crewmembers. Id. This reason did not constitute unlawful discrimination, nor was it 

pretextual. 

B. DUE PROCESS VIOLATION 

9. Defendants incorporate herein by reference all points and authorities set 

forth in their Brief (Doc. 25, pages 7-10) against Plaintiff’s Due Process claim against 

Defendant Thomas Provitt. Plaintiff’s only response to Defendants’ points and authorities 

regarding this claim is an attack on Defendants’ argument that Plaintiff is collaterally 

estopped from arguing that he did not resign from his employment with the City. 

10. Plaintiff appears to be claiming that res judicata only applies when every 

issue in a prior proceeding has been litigated. The doctrine of collateral estoppel, or 

“issue preclusion,” recognizes that suits addressed to particular claims may present issues 

relevant to suits on other claims. 

11. Plaintiff misapplies the test he cites from Brewer v. Dupree, 2003 WL 

23507795 (M.D. Ala 2003). Defendants applied the Brewer test to the facts at hand to 

analyze whether Plaintiff’s resignation may be proved by collateral estoppel in this case, 

and the issue is precluded. The issue at stake, namely whether Plaintiff resigned his 

employment with the City, is identical to the question before Judge McCooey. Also, the 

resignation issue was actually litigated. A review of Judge McCooey’s Judgment shows 

she specifically ruled on this issue (Doc. 25, page 8, paragraphs 28-31). Finally, 

voluntary resignation is bar to unemployment benefits, and determining whether Plaintiff 

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resigned was a critical and necessary part of the Circuit Court case. 

12. Thus, all three prongs of Plaintiff’s test have been met and Plaintiff should 

be estopped from re-litigating the issue of Plaintiff’s resignation. 

C. FAILURE TO TRAIN 

13. As a threshold issue, Plaintiff completely abandons his Failure to Train 

claim, and makes no objection to or arguments against Defendants points and authorities 

regarding the same, all of which Defendants incorporate herein by reference. (Doc. 25, 

pages 10-11). Thus, Plaintiff’s Failure to Train claim should be deemed abandoned and 

the City of Montgomery should be dismissed as a party. 

14. Notwithstanding, Alabama courts have not recognized a cause of action 

against a municipality for negligent training. Cornelius v. City of Andalusia, No. 06-

0312, 2007 WL 4224036, 5 (M.D. Ala. 2007), citing Styron v. City of Foley, No. 03-

0572, 2005 WL 3098926, at 4-5 (S.D. Ala. 2005); and Ott v. City of Mobile, 169 

F.Supp.2d 1301, 1314-15 (S.D. Ala. 2001). 

15. Assuming, arguendo, there is a cause of action for negligent training 

against a municipality, Plaintiff has not stated a claim for negligent training. An element 

of a negligent training claim is that the employer is actually or constructively aware of 

the employee's incompetence before the alleged tort occurred. Cornelius v. City of 

Andalusia, No. 06-0312, 2007 WL 4224036, 5 (M.D. Ala. 2007), citing Lane v. Cent. 

Bank of Ala., N.A., 425 So.2d 1098, 1100 (Ala.1983). Presuming Plaintiff means failure 

to train Defendants Provitt and Harris (although he never states as much), Plaintiff has 

produced no evidence that the City of Montgomery is actually or constructively aware of 

incompetence on the part of either before the alleged harm occurred. 

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16. The United States Supreme Court has stated that there are only “limited 

circumstances” in which an allegation of a failure to train or supervise can be the basis 

for liability under Section 1983. Hamilton v. City of Jackson, 508 F.Supp.2d 1045, 1056 

(S.D. Ala. 2007), citing City of Canton v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197, 

1197 (1989). These “limited circumstances” occur only where the municipality 

inadequately trains or supervises its employees, this failure to train or supervise is a city 

policy, and that city policy results in the employees violating a citizen's constitutional 

rights. Hamilton v. City of Jackson, 508 F.Supp.2d 1045, 1056 (S.D. Ala. 2007). It is 

only when the failure to train amounts to “deliberate indifference” that it can properly be 

characterized as a “policy” or “custom” necessary for Section 1983 liability to attach. 

Hamilton v. City of Jackson, 508 F.Supp.2d 1045, 1056 (S.D. Ala. 2007), citing Canton, 

489 U.S. at 389, 109 S.Ct. 1197. 

17. To establish a “deliberate or conscious choice” or such “deliberate 

indifference, a plaintiff must present some evidence that the municipality knew of a need 

to train and/or supervise in a particular area and the municipality made a deliberate 

choice not to take any action.” Hamilton v. City of Jackson, 508 F.Supp.2d 1045, 1056 

(S.D. Ala. 2007), citing Board of County Commissioners of Bryan County, Oklahoma v. 

Brown, 520 U.S. 397, 407-09, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). 

18. In this case, Plaintiff has not produced a scintilla of evidence to support a 

claim that the City of Montgomery was deliberately indifferent to a need to train. 

II. CONCLUSION 

19. There are no genuine issues of material facts and Plaintiff cannot prevail 

on his claims, which are unfounded. Plaintiff is not entitled to any relief, therefore 

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Summary Judgment in favor of Defendants is just and proper, and all claims against them 

are due to be dismissed with prejudice. 

WHEREFORE, premises considered, Defendants renew their petition to this 

Honorable Court to enter summary judgment in their favor and against Plaintiff Anthony 

Moorer as to all issues in controversy alleged against them. 

Respectfully submitted this 4th day of January 2008. 

/s/ Allison H. Highley .

Allison H. Highley (HIG024) 

 Attorney for Defendants 

OF COUNSEL: 

CITY OF MONTGOMERY 

Legal Department 

Post Office Box 1111 

Montgomery, AL 36101-1111 

(334) 241-2050 Telephone 

(334) 241-2310 Facsimile 

CERTIFICATE OF SERVICE

I hereby certify that on January 4, 2008, I sent a copy of the foregoing to the 

Plaintiff via U.S. mail, first-class postage pre-paid to: 

Anthony Moorer 

4240 Green Meadow Drive 

Montgomery, Alabama 36108 

/s/ Allison H. Highley .

Of Counsel 

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