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noting that the plaintiff had "provided enough factual allegations (of white male officers who engaged in similar conduct but who were not terminated)" for her "equal[-]protection claims charging race and gender discrimination . . . [to] survive the motion to dismiss"
Summary of this case from Brown v. JarvisOpinion
CIVIL ACTION NO. 1:08cv874-MHT (WO).
September 8, 2009
OPINION AND ORDER
Plaintiff Tomorrow Bush, a black female, claims that her employment with the Houston County, Alabama Sheriff's Department was terminated because of her race and gender, in violation of the Equal Protection Clause of the Fourteenth Amendment, as enforced through 42 U.S.C. § 1983, and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 1981a, 2000e to 2000e-17. Bush names as defendants Sheriff Andy Hughes (in his official and individual capacities) and Jail Commander Keith Reed (in his individual capacity only). She seeks both monetary and injunctive relief. Jurisdiction is proper pursuant to 28 U.S.C. §§ 1331 (federal question) and 1343 (civil rights), as well as 42 U.S.C. § 2000e-5(f)(3).
This case is now before the court on Sheriff Hughes and Jail Commander Reed's motion to dismiss. The motion will be granted as to Bush's Title VII gender-discrimination claim at Hughes in his official capacity and denied as to her Title VII race-discrimination claim against Hughes in his official capacity and her equal-protection race- and gender-discrimination claims against Hughes and Reed in their individual capacities.
I. MOTION-TO-DISMISS STANDARD
In considering a defendant's motion to dismiss filed pursuant to Fed.R.Civ.P. 12(b)(6), the court accepts the plaintiff's allegations as true, Hishon v. King Spalding, 467 U.S. 69, 73 (1984), and construes the complaint in the plaintiff's favor,Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). Generally, to survive a motion to dismiss and meet the requirement of Fed.R.Civ.P. 8(a)(2), a complaint need not contain "detailed factual allegations," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), but rather "only enough facts to state a claim to relief that is plausible on its face," id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
II. BACKGROUND
• Bush alleges that, in January 2008, while working alone in a lock-down area for unruly inmates, she delivered food to inmate Heath Whitt in cell N-9. Whitt began yelling that he wanted to have sex with Bush and stating what he would like to do to her in "vividly vulgar terms." Pl.'s First Amended Compl. at 5. When Bush later returned to retrieve the food tray, Whitt refused to come to the cell door to deliver his tray and told Bush she would have to enter the cell to get it. As Bush was working alone and concerned about entering a cell with two unrestrained inmates, she insisted that Whitt bring the tray to the door, which all inmates were required to do. Whitt continued to refuse. Eventually, Whitt's cellmate handed Bush the tray. As Bush waited for the tray, standing just inside the cell with the door ajar, Whitt moved toward Bush in a threatening manner. Frightened and seeking to protect herself, Bush took out her pepper spray and sprayed Whitt. Bush called Sergeant Glenn Jones to the scene.
• Sergeant Jones wrote a report concluding that Bush used unnecessary force against Whitt. Bush disagrees with many of the factual conclusions in this report. A disciplinary report was filed against Bush, and she was terminated.
Bush was terminated between January 24 and January 30, but the complaint does not clarify which day.
• On January 30, Reed held a termination hearing, which Bush attended; however, Bush was not permitted to ask questions. Reed upheld the decision to terminate Bush.
• On February 8, Hughes conducted an appeals hearing. Bush brought a witness to this hearing, but Hughes refused to hear the witness's testimony. On February 14, Hughes sent Bush a letter concurring in the decision to terminate her employment.
• On January 27, 2008, Bush filed for unemployment. She was denied initially because she had been terminated for misconduct. She appealed this decision and was ultimately awarded full benefits. The hearing officer who presided over her appeal concluded that her use of pepper spray was appropriate and no misconduct was committed.
• On April 3, 2008, Bush filed a charge with the Equal Employment Opportunity Commission (EEOC), alleging discrimination based on race.
• On October 31, 2008, Bush filed this lawsuit. Bush alleges, in some detail, that white males used greater force against inmates than she herself did, but that they were not determined to have used "excessive force" and were not terminated. Bush offers several examples. Officer Keith Fitzgerald, a white male, tasered an inmate while the inmate was in handcuffs; Fitzgerald was not terminated. Officers Ronnie Dye and Michael Brian Shelley, also white males, tasered inmates who refused to comply with instructions, although they did not pose a threat to the officers; neither officer was terminated.
III. DISCUSSION 1.
Sheriff Hughes argues that Bush's Title VII gender-discrimination claim (Count III), which is against him in his official capacity only, should be dismissed because she did not allege gender discrimination in her EEOC charge. Bush concedes that she did not check the box for gender discrimination when she filed her EEOC charge, but she argues that any reasonable investigator would have known that she intended to bring a gender-discrimination charge.
It is uncontested that filing an administrative complaint with the EEOC is a prerequisite to a Title VII action. "A Title VII action, however, may be based not only upon the specific complaints made by the employee's initial EEOC charge, but also upon any kind of discrimination like or related to the charge's allegations, limited only by the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charges of discrimination." Chanda v. Engelhard/ICC, 234 F.3d 1219 (11th Cir. 2000). This court must therefore ask: Was Bush's charge of gender discrimination "like or related to" her charge of race discrimination such that it "could reasonably be expected to grow out of" her initial charge? The answer is no.
Courts have generally rejected requests to permit a Title VII claim of either race, gender, or national-origin discrimination where that claim was not asserted in the initial EEOC charge.See, e.g., Chanda, 234 F.3d 1219 (rejecting attempt to add retaliation claim based on disability where EEOC charge claimed only retaliation based on national origin); Cobb v. Marshall, 481 F. Supp. 2d 1248, 1254 (M.D. Ala. 2007) (DeMent, J.) (rejecting attempt to add sexual harassment claim, where only race discrimination and retaliation were alleged in EEOC charge);Gaston v. Home Depot USA, Inc., 129 F. Supp. 2d 1355, 1366 (S.D. Fla. 2001) (Gold, J.) (rejecting attempt to add national-origin-discrimination claim where EEOC charge claimed only race discrimination).
Even more, in this specific instance, the language in Bush's EEOC charge clearly asserted only race discrimination; nothing in the charge even hinted at gender discrimination. Bush marked only the box for race discrimination, and her EEOC charge stated that, "I believe the Respondent terminated my employment because of my race, Black." The charge goes on to assert that a "White Correctional Officer" who tasered an inmate was not dismissed and that "Respondent has a history of disciplining Black Correctional Officers more harshly than White Correctional Officers." She called considerable attention to the race of her comparators, and she did not state their gender in the EEOC charge. As such, there was nothing in the charge that would have put a reasonable EEOC investigator on notice that Bush might also have intended to allege gender discrimination. Her gender-discrimination allegation cannot be considered a like or related allegation reasonably expected to grow from her race-discrimination allegation. Bush's Title VII gender-discrimination claim against Sheriff Hughes in his official capacity must be dismissed.
However, because Bush's equal-protection gender-discrimination claim against Hughes in his individual capacity does not require the filing of an EEOC charge, this conclusion does not dispose of that claim.
2.
Sheriff Hughes and Jail Commander Reed contend that Bush's equal-protection claims for race and gender discrimination (Counts I and IV), against them in their individual capacities, should be dismissed because she has not met the heightened-pleading requirements to survive the defense of qualified immunity.
Courts "must keep in mind the heightened pleading requirements for civil rights cases, especially those involving the defense of qualified immunity." Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003). However, "[t]o satisfy even the heightened pleading standard for § 1983 claims, [the plaintiff] need plead only 'some factual detail' from which the court may determine whether Defendants' alleged actions violated a clearly established constitutional right." Amnesty Intern., USA v. Battle, 559 F.3d 1170, 1180 (11th Cir. 2009) (quoting Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992)).
Under the doctrine of qualified immunity, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity should be available at "the earliest possible stage in litigation because the defense is immunity from suit and not from damages only." Marsh v. Butler County, Ala., 268 F.3d 1014, 1022 (11th Cir. 2001).
To be entitled to qualified immunity, the defendant must demonstrate that he was performing a discretionary function in committing the allegedly unconstitutional conduct. Holloman ex rel. Holloman v. Harland, 370 F. 3d 1252, 1263 (11th Cir. 2004). The burden then shifts to the plaintiff to show, in general and preferably, two things: first, that the defendant violated a constitutional right and, second, that the right was clearly established at the time. Pearson v. Callahan, ___ U.S. ___, ___, 129 S. Ct. 808 (2009); Saucier v. Katz, 553 U.S. 194, 200 (2001). In short, the plaintiff must show that the defendant violated a constitutional right sufficiently clearly established that a reasonable person would have known of it.
Bush agrees with Sheriff Hughes and Jai Commander Reed that they were performing a discretionary function within their powers when they terminated her. The only issue in dispute is whether the defendants violated Bush's clearly established constitutional right. It has long been recognized that firing an employee because of her race or gender is a violation of clearly established constitutional and statutory rights. See, e.g., Bogle v. McClure, 332 F.3d 1347, 1355 (11th Cir. 2003) ("[T]here is no doubt that . . . it was clearly established that intentional discrimination in the workplace on account of race violated federal law."); Stuart v. Jefferson County Dept. of Human Resources, 152 Fed. Appx. 789, 803 n. 6 (11th Cir. 2005) ("The district court also properly rejected [defendant's] defense of qualified immunity because gender discrimination was a clearly established violation of the law at the time of the alleged violations.") (citing Williams v. Consolidated City of Jacksonville, 341 F.3d 1261, 1270-71 (11th Cir. 2003)).
In fact, Hughes and Reed do not contest that firing an employee solely on the basis of her race or gender would violate clearly established constitutional and statutory law. Instead, they argue that "it is undisputed that Plaintiff's employment was terminated because of her use of excessive force against an inmate." Defs.' Reply M. Dismiss at 8. Hughes and Reed then push the argument that it is not a violation of clearly established constitutional law to terminate an employee based partially on race or gender discrimination, if that decision was also based partially on a legitimate, non-discriminatory rationale.
Hughes and Reed rest their argument on Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1284 (11th Cir. 2008), which determined that qualified immunity should be granted to defendants where the decision to discipline an employee was motivated, at least in part, on a legitimate rationale, namely, the employee's actual violation of certain work rules. The Rioux court noted that "the record undisputably established that objectively valid reasons existed for the [adverse=employment decision], because the incidents underlying the discipline . . . did in fact take place." Id. at 1284. "Summary judgment," the court continued, "was [therefore] appropriate because the record undisputably established that [the defendant] was motivated, at least in part, by the lawful consideration of the disciplinary incidents." Id.
In this case, because Bush concedes that she used some force in the form of pepper spray against an inmate, it is established that the incidents underlying the discipline did take place. But, as this case is currently before the court on a motion to dismiss and discovery has not yet been conducted, there is no record undisputably establishing Hughes and Reed's motivation. On the contrary, Bush alleges in some detail that they did not actually rely on the incident report but rather that the report itself and any stated reliance upon it were merely a pretext for discrimination. Therefore, Rioux is inapplicable.
At this stage, the court looks only at the complaint, which, first, asserts that Bush was fired because of her race and gender and which, second, identifies similarly situated persons, outside her protected classes, who were treated more favorably than she. Furthermore, Bush has provided enough factual allegations (of white male officers who engaged in similar conduct but who were not terminated) for the court to determine that, if Bush can prove her allegations, Hughes and Reed violated a right that was clearly established at the time. Therefore, Bush's equal-protection claims charging race and gender discrimination (Counts I and IV) survive the motion to dismiss, even under the Eleventh Circuit's heightened-pleading standards.
3.
Finally, because Bush's equal-protection race-discrimination survives, her Title VII race-discrimination claim (Count II), against Hughes in his official capacity, survives as well. See Rioux, 520 F.3d at 1275 n. 5 ("Title VII and section 1983 claims have the same elements where the claims are based on the same set of facts."); see also Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) ("The analysis of disparate treatment claims under § 1983 is identical to the analysis under Title VII where the facts on which the claims rely are the same."). Bush has "nudged" her claim "across the line from conceivable to plausible." Iqbal, ___ U.S. at ___, 129 S.Ct. at 1951 (quotingTwombly, 550 U.S. at 570).
***
Accordingly, it is ORDERED as follows:
(1) Defendants Andy Hughes and Keith Reed's motion to dismiss (doc. no. 56) is granted as to plaintiff Tomorrow Bush's Title VII claim (Count III) charging gender discrimination against defendant Hughes in his official capacity. This claim is dismissed.
(2) Said motion to dismiss is denied as to (a) plaintiff Bush's Title VII claim (Count II) charging race discrimination against defendant Hughes in his official capacity and (b) her equal-protection claims (Counts I and IV) charging race and gender discrimination against defendants Hughes and Reed in their individual capacities. These claims will go forward.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).