Bush v. Houston County Commission et al (MAG+)
OPINION AND ORDER as follows: (1) Defendants Andy Hughes and Keith Reed's 56 Motion to Dismiss 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 (Cou nts I and IV charging race and gender discrimination against defendants Hughes and Reed in their individual capacities. These claims will go forward. Signed by Honorable Myron H. Thompson on 9/8/2009. (Attachments: #(1) Civil Appeals Checklist)(dmn)
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
) ) Plaintiff, ) ) v. ) ) SHERIFF ANDY HUGHES, in his ) individual and official ) capacities, and JAIL ) COMMANDER KEITH REED, in ) his individual capacity, ) ) Defendants. )
CIVIL ACTION NO. 1:08cv874-MHT (WO)
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 as Protection Clause 42 of the
§ 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
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. will be granted as to Bush's Title The motion 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 equalprotection race- and gender-discrimination claims against Hughes and Reed in their individual capacities.
In considering a defendant's motion to dismiss filed pursuant to Fed.R.Civ.P. 12(b)(6), the court accepts the plaintiff's Spalding , allegations U.S. 69, as 73 true, (1984), Hishon and v. King & the
complaint in the plaintiff's favor, Duke v. Cleland, 5
F.3d 1399, 1402 (11th Cir. 1993). a motion to dismiss 8(a)(2), and a meet
Generally, to survive the requirement not of
contain 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, "The
____ U.S. ____, ____, 129 S.Ct. 1937, 1949 (2009). plausibility requirement,' standard but it is not akin for to a
`probability a sheer Id.
possibility that a defendant has acted unlawfully."
II. BACKGROUND ! alone Bush alleges that, in January 2008, while working in a lock-down area for unruly inmates, she
delivered food to inmate Heath Whitt in cell N-9.
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. handed Bush the tray. Eventually, Whitt's cellmate
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. the scene. ! Sergeant Jones wrote a report concluding that Bush Bush called Sergeant Glenn Jones to
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. 1 ! On January 30, Reed held a termination hearing,
which Bush attended; however, Bush was not permitted to ask questions. Bush. ! hearing. Hughes On February 8, Hughes conducted an appeals Reed upheld the decision to terminate
Bush brought a witness to this hearing, but 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.
1. Bush was terminated between January 24 and January 30, but the complaint does not clarify which day. 5
On April 3, 2008, Bush filed a charge with the
Equal Employment Opportunity Commission (EEOC), alleging discrimination based on race. ! Bush On October 31, 2008, Bush filed this lawsuit. 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.
Sheriff Hughes argues that Bush's Title VII genderdiscrimination 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, like but or only also related by the upon to scope any the of kind of
charge's the EEOC
investigation that could reasonably be expected to grow out of the initial charges of discrimination." Engelhard/ICC, 234 F.3d 1219 (11th Cir. 2000). must therefore ask: Was Bush's charge Chanda v. This court 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. discrimination, and
Bush marked only the box for race 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 did not
attention to the race of her comparators, and she 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. discrimination claim against Bush's Title VII genderSheriff Hughes in his
official capacity must be dismissed.
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." (1982). Harlow v. Fitzgerald, 457 U.S. 800, 818
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 conduct. in committing the allegedly unconstitutional
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
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 defense of court also properly 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." Dismiss at 8. it is not Defs.' Reply M.
Hughes and Reed then push the argument that a violation to of clearly an established based
decision was also based partially on a legitimate, nondiscriminatory 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 and is no record undisputably 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. provided enough factual Furthermore, Bush has (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 heightenedpleading 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.").
conceivable to plausible." Iqbal, ___ U.S. at ____,129 S.Ct. at 1951 (quoting Twombly, 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. (2) This claim is dismissed. 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. DONE, this the 8th day of September, 2009. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE
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