Byrne v. Alabama Alcoholic Beverage Control Board et al

Filing 35

MEMORANDUM OPINION AND ORDER that Dfts' 25 Motion to Dismiss for failure to State a Claim upon which Relief Can Be Granted is DENIED in part and GRANTED in part as follows: (A) It is DENIED as to Ms. Byrne's 42 USC 1983 Fourteenth Amendme nt claim against Mr. Folmar in his individual and official capacities, alleging that Ms. Byrne was denied procedural due process when she attempted to file a complaint of gender discrimination against Mr. Folmar with the Board's personnel office , but was told that she could not file a complaint against him because he was not a merit system employee; (B) It is DENIED as to Ms. Byrne's Title VII claims against the Board; (C) It is GRANTED as to Ms. Byrne's 42 USC 1983 Fourteenth Ame ndment claims against Mr. Folmar in his individual and official capacities, alleging (1) a deprivation of a protected liberty interest in violation of the Due Process Clause and (2) intentional gender and age discrimination, in violation of the Equal Protection Clause; (D) It is GRANTED as to Ms. Byrne's 1983 Fourteenth Amendment procedural due process claim against Mr. Folmar in his individual and official capacities, alleging that she had a protected property interest in her job duties as a division chief. Signed by Honorable William Keith Watkins on 9/3/2008. (Attachments: # 1 Civil Appeals Checklist)(wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION JA N BYRNE, P l a i n t if f , v. A L A B A M A ALCOHOLIC BEVERAGE CONTROL BOARD, et al., D e f e n d a n ts . ) ) ) ) CASE NO. 2:06-CV-1084-WKW ) (W O ) ) ) ) ) )

MEMORANDUM OPINION AND ORDER B e f o re the court is Defendants Alabama Alcoholic Beverage Control Board ("Board") a n d Emory Folmar's ("Folmar") Motion to Dismiss for Failure to State a Claim upon which R e lie f Can Be Granted (Doc. # 25), seeking dismissal of all claims in this civil rights and e m p l o ym e n t discrimination lawsuit. The motion is filed pursuant to Rule 12(b)(6) of the F e d e ra l Rules of Civil Procedure and is accompanied by a brief (Doc. # 26). Ms. Byrne filed a Response (Doc. # 31), to which Defendants filed a Reply (Doc. # 32). After careful c o n si d e r a t io n of the arguments of counsel and the applicable law, the court finds that the m o tio n to dismiss is due to be granted in part and denied in part. I . JURISDICTION AND VENUE T h e court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1331 for all c la im s arising under federal law. The court also has original jurisdiction over claims based

u p o n violations of civil rights. See 28 U.S.C. § 1343. The parties do not contest personal ju ris d ic tio n or venue, and the court finds that there are allegations sufficient to support both. II. STANDARD OF REVIEW A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the le g a l standard set forth in Rule 8: "a short and plain statement of the claim showing that the p lea d e r is entitled to relief." Fed. R. Civ. P. 8(a)(2). A complaint "requires more than labels a n d conclusions, and a formulaic recitation of the elements of a cause of action will not do." B e ll Atl. Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955, 1965 (2007). Factual allegations in a complaint need not be detailed but "must be enough to raise a right to relief above the s p e c u la tiv e level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1964-65 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n .1 (2002)); see also Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) (stating that the c o u r t accepts the allegations in the complaint as true and construes them in the light most fa v o ra b le to the plaintiff). III. BACKGROUND F o r purposes of resolving the motion to dismiss, the court accepts as true the facts alleg ed in the Second Amended Complaint. (2d Am. Compl. (Doc. # 21).) Those facts are a s follows. The Board is an agency of the State of Alabama. (Id. ¶ 4.) Ms. Byrne, who has been e m p lo y e d by the Board since 1991, works as the Responsible Vendor Program Alcohol A w a re n e s s Coordinator. (Id. ¶¶ 8-9.) In this position as a division chief, Ms. Byrne has been 2

in s tr u m e n t a l on both the state and national level in formulating alcohol and tobacco policies. (Id . ¶¶ 9, 11.) Considered "an expert in retail and youth abuse prevention," she helped the B o a r d receive "several national awards." (Id. ¶ 11.) Ms. Byrne, along with seven other d i v is io n chiefs, "works under the immediate supervision of [Mr.] Folmar." (Id. ¶ 10.) Mr. F o lm a r is the administrator of the Board. (Id.) As the Responsible Vendor Program Alcohol Awareness Coordinator, Ms. Byrne o rig inally occupied a supervisory position. One of her subordinates was Andy Knight ("Mr. K n ig h t" ). (Id. ¶ 14.) Mr. Knight is "substantially younger" than 59-year-old Ms. Byrne. (Id. ¶ ¶ 12, 14.) Mr. Knight, who did not agree with Ms. Byrne's management style, filed two g rie v a n c e s against Ms. Byrne with the Board. (Id. ¶ 15.) The Board's investigation into the f ir st grievance "showed no grounds for [Mr. Knight's] complaint." (Id.) When Mr. Knight filed the second grievance, Mr. Folmar "refused to support" Ms. Byrne and "counseled her" f o r failing to "get[] along" with her subordinates, notwithstanding that the investigation r e v e a le d that Ms. Byrne "had done nothing wrong." (Id. ¶ 16.) Mr. Folmar also told Mr. K n ig h t to report directly to him if he had any complaints concerning Ms. Byrne's supervision, th e r e b y "undermining [Ms.] Byrne's authority . . . ." (Id.) Mr. Folmar "ultimately removed [ M r .] Knight from [Ms.] Byrne's supervision." (Id. ¶ 17.) B e lie v i n g that Mr. Folmar had discriminated against her because of her gender, Ms. B yrn e tried to file a complaint against him on November 14, 2005. The acting personnel d i re c to r , however, told Ms. Byrne that Mr. Folmar "was outside the Merit System" and, thus,

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c o u ld not be the subject of a grievance. (Id. ¶ 18.) After Ms. Byrne's failed attempt to file a grievance against Mr. Folmar, Mr. Folmar "refuse[d] to communicate with her," "to include h e r in agency-level conferences and decision-making processes," and to provide technical s u p p o rt for her division. (Id. ¶ 19.) He also "denied her requests to attend national m e e tin g s ," as well as "her staffing and budget requests." (Id.) He began to "ostracize[]" her. (Id . ¶ 19.) For example, once in a public meeting, Mr. Folmar announced that Ms. Byrne was " o u t of control" and "incapable of managing and supervising a division." (Id. ¶ 28.) Ultimately, in May 2006, Mr. Folmar transferred the Responsible Vendor Program to th e enforcement division and renamed Ms. Byrne's division a bureau. (Id. ¶¶ 20, 30.) At the s a m e time, he divested Ms. Byrne of all of her supervisory responsibilities. While her job title has not changed, Ms. Byrne no longer supervises any employees, when previously she h a d supervised nine. (Id. ¶¶ 21, 24.) Mr. Folmar also no longer allows her to participate on ta s k forces or to attend conferences, (id. ¶ 22), and he relegated her job to "clerical duties," (id . ¶ 25.) At internal staff meetings, she is required to sit with the "clerical staff," rather than w ith the "professional staff," and is "dismissed with the clerical staff," while "the p r o f e s s io n a l staff remains to conduct business." (Id. ¶ 30.) Moreover, Mr. Folmar now requires Ms. Byrne to report directly to Mr. Knight and to Vance Patton ("Mr. Patton"), the assistant director of enforcement, who like Mr. Knight is "substantially younger" than Ms. Byrne. (Id. ¶ 24.) During internal staff meetings, Mr. P a tto n has commented on "how much better things are now" that he oversees Ms. Byrne's

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f o rm e r division. (Id. ¶ 30.) Mr. Patton also directed Ms. Byrne's former employees not to c o m m u n ic a te with her. (Id. ¶ 31.) Both Mr. Patton and Mr. Knight have communicated to s ta te and national researchers and program participants that Ms. Byrne has been "removed f r o m her position." (Id. ¶ 34.) Seeking redress for alleged discrimination from the Board and Mr. Folmar, Ms. Byrne c o m m e n c ed this lawsuit on December 6, 2006. The original complaint has been amended tw ice (Docs. # 11 & 21), the second time in response to the court's Order to comply with R u l e 10(b) of the Federal Rules of Civil Procedure, to clarify the capacity in which Ms. B y rne is suing Mr. Folmar, and to remedy shotgun allegations. (Doc. # 19.) The Second Amended Complaint (Doc. # 21), which is the operative complaint, c o n ta in s eight counts. In those eight counts, Ms. Byrne contends that, during her

e m p lo ym e n t, she has been subjected to unlawful employment discrimination by reason of her g e n d e r and age and also has endured retaliation for opposing discrimination in the workplace. S h e alleges further that she has been denied procedural due process. She predicates liability u n d e r Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title V I I" ), and the Due Process Clause of the Fourteenth Amendment, as enforced by 42 U.S.C. § 1983.

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I V . DISCUSSION D efen d an ts move for dismissal of the eight counts in the Second Amended Complaint. T h e court will address the arguments in turn. A. 42 U.S.C. § 1983 Fourteenth Amendment Claims: C o u n ts One, Two, Three and Four C o u n t s One, Two, Three and Four are captioned "Fourteenth Amendment" claims. (2 d Am. Compl. at 7, 9,11, 13.) They are brought against Mr. Folmar pursuant to 42 U.S.C. § 1983. (Id. ¶¶ 41, 54, 67, 81.) Counts One and Three are individual-capacity claims, while C o u n ts Two and Four are official-capacity claims. Mr. Folmar seeks dismissal of Counts O n e and Three based upon absolute legislative immunity or, alternatively, qualified im m u n ity . As to Counts Two and Four, Mr. Folmar raises Eleventh Amendment immunity a s a defense to any damages claims. (Doc. # 26 at 3-14.) 1 . Abandoned Claims B efo re delving into a discussion on the immunity issues, it is helpful first to clarify w h ic h Fourteenth Amendment claims Ms. Byrne concedes are not at issue. Counts One, T w o , Three and Four contain allegations which arguably could be construed as Fourteenth A m e n d m e n t claims alleging (1) a protected liberty interest under the Due Process Clause and (2 ) gender and age discrimination in violation of the Equal Protection Clause. (2d Am. C o m p l. at 7-15.) In response to Mr. Folmar's arguments interposing qualified immunity as a defense to these due process and equal protection claims, however, Ms. Byrne states that th e Second Amended Complaint does not allege the deprivation of a liberty interest under

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th e Due Process Clause or intentional gender or age discrimination under the Equal P rotec tio n Clause. (Doc. # 31 at 4-5.) While it is not as clear to the court as it is to Ms. Byrne that these claims are absent f ro m the Second Amended Complaint, it is clear that Ms. Byrne is not pursuing these claims a g a in s t Mr. Folmar in either his individual capacity or official capacity; thus, to the extent th a t Fourteenth Amendment claims alleging a deprivation of a protected liberty interest and a violation of equal protection are included in the Second Amended Complaint, the court f in d s that they are abandoned. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 5 9 9 (11th Cir. 1995) ("grounds alleged in the complaint but not relied upon in summary j u d g m e n t are deemed abandoned"). To streamline the claims in the Second Amended C o m p lain t which are at issue, the court finds that Mr. Folmar's motion to dismiss is due to b e granted as to any § 1983 Fourteenth Amendment claims in Counts One, Two, Three and F o u r pertaining to a deprivation of liberty and intentional gender and age discrimination in v io la tio n of the Equal Protection Clause. Accordingly, Ms. Byrne proceeds only on her § 1983 Fourteenth Amendment claim against Mr. Folmar in his individual and official c a p ac itie s, alleging that she was deprived of a property interest without procedural due p ro c e s s .

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2 . Individual-Capacity Claims a . Absolute Legislative Immunity A s to Ms. Byrne's remaining § 1983 Fourteenth Amendment claim, alleging the d e p riv a tio n of a property interest without procedural due process, Mr. Folmar argues that, in his individual capacity, he is entitled to absolute legislative immunity. It is undisputed that M r . Folmar, as the administrator of the Board, did not occupy a legislative office. The p a rtie s agree, though, that it is not the title of the office, but, rather, "the nature of the act w h i c h determines whether legislative immunity shields the individual from suit." Yeldell v. C o o p e r Green Hosp., 956 F.2d 1056, 1062 (11th Cir. 1992). Moreover, "[a]bsolute

l e g is la tiv e immunity attaches to all actions taken 'in the sphere of legitimate legislative a c tiv i ty ,'" regardless of "the motive or intent of the official performing it." Bogan v. S c o tt-H a rr is, 523 U.S. 44, 54 (1998). Mr. Folmar argues that, in his individual capacity, he is entitled to absolute immunity f o r damages arising out of the performance of his legitimate legislative activities. S p e c ific a lly , citing paragraphs 20, 21, 22, 24 and 30 of the Second Amended Complaint and a ss u m in g , as he must, the truth of those allegations, Mr. Folmar says that he was acting in a legislative capacity when he took away Ms. Byrne's supervisory responsibilities, prohibited h e r from serving on various committees, and transferred the Responsible Vendor Program to a different division. (Doc. # 26 at 9.) As support for his position, Mr. Folmar relies p rin c ip a lly on Bogan. (Id.) Ms. Byrne, on the other hand, argues that Mr. Folmar's actions a g a in s t her were "administrative in nature," not legislative. (Doc. # 31 at 2.) She says that 8

B o g a n is "highly distinguishable" from the facts of this case. (Id.) The issue, thus, is w h e th e r Mr. Folmar's actions about which Ms. Byrne complains are considered legislative o r administrative. See, e.g., Kamplain v. Curry County Bd. of Commrs., 159 F.3d 1248, 1251 (1 0 th Cir. 1998) (a post-Bogan case recognizing the distinction between legislative and ad m inistrat iv e acts for purposes of absolute legislative immunity). In Bogan, the mayor proposed multiple budget cuts in anticipation of a reduction in s ta te aid. 523 U.S. at 47. Those cuts included the elimination of a city department of which th e plaintiff was the sole employee. The city council approved, and the mayor signed into la w , an ordinance eliminating the city department. Id. The plaintiff responded by filing a § 1983 action, alleging that the elimination of her position was motivated by racial animus a n d retaliatory motives because she had filed a complaint against a co-worker. Id. In re sp o n s e , the mayor and council member raised the defense of absolute legislative immunity. O n appeal, the First Circuit held that the challenged conduct was administrative, not le g is la tiv e . See id. The Supreme Court reversed. The Supreme Court ruled that the mayor and council member were entitled to le g is la tiv e immunity. The council member's "acts of voting for an ordinance were, in form, q u in t e ss e n tia lly legislative." Id. at 55. Likewise, the mayor's "introduction of a budget and s ig n in g into law an ordinance also were formally legislative, even though he was an e x e c u tiv e official." Id. The mayor's "actions were legislative because they were integral s te p s in the legislative process." Id. Also, looking beyond the formal actions of the mayor a n d the council member, the Supreme Court observed that the ordinance itself "bore all the 9

h a llm a rk s of traditional legislation," as it "reflected a discretionary, policymaking decision im p lica tin g the budgetary priorities of the city and the services the city provides to its c o n s titu e n ts ." Id. at 55-56. The Supreme Court also distinguished the facts from a decision to hire or fire an individual employee, explaining that a decision to eliminate a position in a budget "may have prospective implications that reach well beyond the particular occupant o f the office." Id. at 55; see also Wright v. Montgomery County, 215 F.3d 367, 377 (3d Cir. 2 0 0 0 ) ("Firing a particular employee is a personnel decision that does not involve general p o licy making."). T h e court finds that the facts in the Second Amended Complaint are distinguishable fro m the facts in Bogan on at least three grounds. First, there are no allegations in the S e c o n d Amended Complaint suggesting that the alteration of Ms. Byrne's job duties and the tra n sfe r of her program to a different division were taken because of "budgetary priorities of th e [Board]" or other financial reasons. Bogan, 523 U.S. at 55. The court, thus, is not p e rs u a d e d by Mr. Folmar's position that the actions taken by him were "budgetary decisions." (D o c . # 26 at 4.) In fact, this statement is contradicted by Mr. Folmar's contentions in other s e c tio n s of his brief which specifically focus on the absence of an allegation in the Second A m e n d e d Complaint that Ms. Byrne suffered an economic loss in either "pay or benefits as a result of the alleged actions of [Mr.] Folmar." (Id. at 13.) Second, in Bogan, the city officials made a legislative decision to eliminate an entire d ep artm en t which resulted in the eradication of the plaintiff's position. Here, though, Mr. F o l m a r 's decision did not "involve[] the termination of a position." Bogan, 523 U.S. at 56. 10

M s . Byrne's position was not abolished. To the contrary, she "still holds" her job title. (2d A m . Compl ¶ 24.) Rather, her primary complaint is that Mr. Folmar left her in her position, b u t stripped her of all her supervisory responsibilities and assigned those duties to two other e x is tin g male employees to whom Ms. Byrne now reports. (Id. ¶¶ 24, 30.) According to the M s . Bryne's pleading, Mr. Folmar specifically targeted her and implemented personnel c h a n g es which detrimentally affected only her job role. It is difficult for the court to envision o n the present facts how the decision to divest Ms. Byrne of her supervisory duties is '''an in t e g ra l part of the deliberative and communicative processes' by which legislators pass la w s ." Yeldell, 956 F.2d at 1062. Mr. Folmar's personnel decision appears to be much like th o s e employment decisions regarding hiring and firing which have been found by the E l e v e n th Circuit to fall outside the scope of legislative immunity. Id. Third, there are no a lleg a tio n s that the elimination of Ms. Byrne's job duties and the transfer of her program to a different division were effectuated by a vote, ordinance or other procedure bearing "the h a l lm a r k s of traditional legislation." Bogan, 523 U.S. at 55. Under the facts of the Second Amended Complaint, the court finds that Mr. Folmar's a c tio n s more closely resemble administrative decisions pertaining to employment matters, ra th e r than legislative acts. Since there are insufficient facts in the Second Amended C o m p la in t from which the court can find that Mr. Folmar was involved in a legislative a c tio n , the court finds that Mr. Folmar is not entitled to dismissal on the basis of legislative im m u n ity .

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b . Qualified Immunity A s an alternative to absolute legislative immunity, Mr. Folmar contends he is entitled t o qualified immunity. Qualified immunity may protect government officials performing d is c re tio n a ry functions from being sued in their individual capacities. Williams v. Ala. State U n iv ., 102 F.3d 1179, 1182 (11th Cir. 1997). It shields government actors from liability to th e extent "their conduct does not violate clearly established . . . constitutional rights of w h i c h a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1 9 8 2 ). "The purpose of this immunity is to allow government officials to carry out their d is c re tio n a ry duties without the fear of personal liability or harassing litigation, protecting fr o m suit all but the plainly incompetent or one who is knowingly violating the federal law." L e e v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal quotation marks and citations o m i tt e d ) . T h e qualified immunity defense involves a two-step inquiry. The first step, which c o n c e rn s whether the government official was engaged in a "discretionary function," M a d iw a le v. Savaiko, 117 F.3d 1321, 1324 (11th Cir. 1997), is not in contention, (Doc. # 26 a t 5; Doc. # 31 at 3). The court, thus, proceeds directly to the second inquiry. "Once the defendant establishes that he was acting within his discretionary authority, th e burden shifts to the plaintiff to show that qualified immunity is not appropriate." Lee, 2 8 4 F.3d at 1194. This second inquiry is itself a two-part test. First, the court asks, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show [the g o v e r n m e n t official's] conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 12

1 9 4 , 201 (2001). If so, the "next, sequential step is to ask whether the right was clearly e s ta b l is h e d . " Id. This inquiry focuses on whether the "state of the law" at the time of the a lle g e d violation provided the government officials with "fair warning that their alleged tr e a tm e n t of [the plaintiff] was unconstitutional." Hope v. Pelzer, 536 U.S. 730, 741 (2002). M s. Byrne is pursuing a § 1983 claim predicated on the deprivation of a property in te re st without procedural due process, in violation of the Fourteenth Amendment. (Doc. # 31 at 3-4.) The claim is twofold. First, Ms. Byrne says that she had a property right in her jo b and the "freedom to perform her job" and that she was divested of all her essential job fu n c tio n s without any process and "a chance to be heard." (2nd Am. Compl. ¶¶ 41, 43, 54, 5 6 , 67, 69, 81, 83; Doc. # 31 at 3-4.) Second, Ms. Byrne alleges that she was denied p ro c e d u ra l due process when she attempted to file a complaint of gender discrimination a g a in s t Mr. Folmar with the Board's personnel office, but was told that she could not file a c o m p la in t against him because he was not a merit system employee. (Doc. # 31 at 4, citing 2 d Am. Compl. ¶¶ 112-13.) Mr. Folmar does not address the second claim and, thus, neither w ill the court. "Procedural due process imposes constraints on governmental decisions which deprive in d iv id u a ls of . . . `property' interests within the meaning of the . . . Fourteenth Amendment." M a th e w s v. Eldridge, 424 U.S. 319, 332 (1976). Analysis of procedural due process claims re q u ire s a dual inquiry: "Did the plaintiff have a property interest of which he was deprived b y state action? If so, did the plaintiff receive sufficient process regarding that deprivation?" R o s s v. Clayton County, Ga., 173 F.3d 1305, 1307 (11th Cir. 1999). 13

F o c u sin g on the first Ross inquiry, Mr. Folmar argues that, at best, Ms. Bryne only has a protected property interest in the economic benefits of her position, not in the duties which s h e performs, and that, absent an allegation by Ms. Byrne "that she suffered any loss of pay o r benefits as a result of the alleged actions of [Mr.] Folmar," (Doc. # 26 at 7), she fails to a lle g e the violation of a Fourteenth Amendment procedural due process right. In support of h i s argument, Mr. Folmar relies on Harris v. Board of Education, 105 F.3d 591 (11th Cir. 1 9 9 7 ). For the reasons to follow, the court agrees with Mr. Folmar. In Harris, the facts established that, during the middle of the plaintiff's four-year c o n tra c t as superintendent, the school board relieved the plaintiff of his duties, but agreed to p a y the plaintiff his salary and other benefits for the duration of the contract. Id. at 593-94. T h e plaintiff brought a § 1983 action against the school board and its members, alleging that h e had been deprived of his property interest in his job as superintendent without procedural d u e process. Id. at 594. As to the § 1983 individual-capacity claims, the board members a rg u e d that they were entitled to qualified immunity. The Eleventh Circuit agreed. "[A] p u b lic official has a constitutionally protected property interest only in the economic benefits o f his position and does not have any right to actually hold the position and execute the duties o f the office." Id. at 596-97; see also Holloway v. Reeves, 277 F.3d 1035, 1040 (8th Cir. 2 0 0 2 ) (holding "that there is no constitutionally protected property interest in a public policym a k in g position, aside from what are commonly called its economic benefits"). The court finds that Harris supports Mr. Folmar's position that Ms. Byrne has no c o n s t itu tio n a lly protected property interest in actually performing her job and that any 14

p ro p e rty interest she may have in her job is limited to the position's economic benefits. At th e same time, the court is not persuaded that Ms. Byrne has raised a distinction between the f a cts of this case and those in Harris which makes a substantive difference. Ms. Byrne says th a t the holding in Harris cannot be applied to her situation because the employment contract in Harris was for a set four-year term which made it easy to calculate the "full economic v alue of [the plaintiff's] employment." (Doc. # 31 at 4.) She contends that, because her term o f employment "is not fixed," any attempt to assign a monetary value to it "would be s p e c u l a tiv e ." (Id.) She, however, has not cited any authority in support of her position (id.), a n d , in reaching its holding, the Harris court did not focus on, or for that matter mention, the f a c t that the employment contract was for a specified duration. Harris, 105 F.3d at 596-97. In his reply brief, Mr. Folmar says that Ms. Byrne's focus on the absence of a contract a c tu a lly cuts against Ms. Byrne's claim that she has a protected property interest in her p o s itio n . (Doc. # 32 at 3.) Mr. Folmar's argument finds support in case law. In Holloway v . Reeves, for example, it was the existence of an employment contract which "strongly s u p p o r t[ e d ] " the conclusion that the public employee's "entitlement to the job [was] su f f icie n tly certain so as to amount to a constitutionally protected property interest" and that, th e re f o re , the public employee had an "expectation of continued employment." 277 F.3d 1 0 3 5 , 1038 (8th Cir. 2002). Having considered the parties' competing arguments, the court finds that Harris is re le v a n t. Pursuant to Harris, the court finds that, at best, Ms. Byrne has a protected property

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in te re st in the economic benefits of her employment and that any property interest she has in her continued employment is constitutionally safeguarded by the payment of her full salary a n d benefits. In other words, Ms. Byrne cannot go forward on her claim that she has been d e n ie d procedural due process if she has not been deprived of any economic benefits a tte n d a n t with her job. Going one step further, applying Harris at the motion to dismiss s ta g e , the court finds that, without an allegation that her salary or benefits have been reduced, M s . Byrne's claim is deficient under Rule 8(a), as well as under the "heightened pleading re q u ire m e n t" applicable when qualified immunity is at issue. GJR Invs., Inc. v. County of E sc a m b ia , 132 F.3d 1359, 1367 (11th Cir. 1998); see also Epps v. Watson, 492 F.3d 1240, 1 2 4 2 (11th Cir. 2007) (reiterating that the Eleventh Circuit "imposes a heightened pleading re q u ire m e n t in section 1983 claims against individuals"). In her Second Amended Complaint, Ms. Byrne alleges that, while she still is e m p lo ye d by the Board and has the same "title," she "has suffered loss of position, title, p re stig e and status[,] loss of authority and responsibility[,] and loss of opportunities for job a d v a n c e m e n t ." (2d Am. Compl. ¶¶ 24, 37.) There, however, are no allegations that Ms. B yrn e suffered a loss of any economic or financial benefits of her position when Mr. Folmar to o k away her primary job duties, and Ms. Byrne does not challenge Mr. Folmar's assertion th a t she continues to receive her full pay and benefits. The court observes also that it gave M s . Bryne an opportunity to cure her pleading deficiencies (Doc. # 19), but she failed to do s o as to her Fourteenth Amendment claim alleging that she was divested of her primary job

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d u tie s without procedural due process. As pleaded, the facts are insufficient to "raise a right to relief above the speculative level." Twombly, 127 S. Ct. at 1965. In sum, because there are no allegations in the Second Amended Complaint su gg estin g that Ms. Bryne has been deprived of a constitutionally-protected property interest, th e court finds that Ms. Byrne fails to state a Fourteenth Amendment procedural due process c la im against Mr. Folmar in his individual capacity. Because Ms. Byrne is entitled to q u a lifie d immunity on the first Saucier inquiry, the court need not address the second Saucier in q u iry. See 533 U.S. at 201 ("If no constitutional right would have been violated were the a lle g a tio n s established, there is no necessity for further inquiries concerning qualified im m u n ity." ). Mr. Folmar, therefore, is entitled to qualified immunity in his individual c a p ac ity, and his motion to dismiss as to this claim is due to be granted. 3 . Official-Capacity Claims A s stated above, Ms. Byrne's Fourteenth Amendment procedural due process claim p re d ic a te d on the deprivation of a property interest is twofold. The court's finding, above, t h a t Ms. Byrne fails to state a § 1983 individual-capacity claim under Rule 8(a) on her F o u rte e n th Amendment claim alleging that she was divested of her primary job duties w ith o u t procedural due process also means that Ms. Byrne's official-capacity claim p r e d ic a te d on the same allegations likewise fails. See Hoard v. Sizemore, 198 F.3d 205, 2 2 1 -2 2 (6th Cir. 1999) (plaintiffs' failure to establish a constitutional violation under the q u a lif ie d immunity analysis with respect to individual-capacity claims necessarily disposed

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o f plaintiffs' claims against government officials in their official capacities); Fed. R. Civ. P. 8 (a ). Accordingly, the court finds that Mr. Folmar, in his official capacity, also is not liable o n Ms. Byrne's due process claim addressed in the preceding section. As to Ms. Byrne's remaining § 1983 official-capacity claim against him,1 Mr. Folmar u rg e s dismissal of any claims for relief, other than injunctive relief, based on the Eleventh A m e n d m e n t and for the additional reason that, in his official capacity, he is not a "person" w ith in the meaning of § 1983. (Doc. # 26 at 14, citing Will v. Michigan Dep't of State Police, 4 9 1 U.S. 58, 71 (1989)); (id. at 15.) Ms. Byrne responds that her claims against Mr. Folmar in his official-capacity are limited to "proper" claims for injunctive relief (Doc. # 31 at 5). In Ex parte Young, 209 U.S. 123 (1908), the Supreme Court of the United States held th a t Eleventh Amendment immunity does not extend to suits against state officers seeking p ro s p e c tiv e equitable relief to end continuing violations of federal law. See Fla. Assoc. of R e h a b . Facilities v. State of Florida Dept. of Health & Rehabilitative Servs., 225 F.3d 1208, 1 2 1 9 (11th Cir. 2000). Likewise, government officials sued for prospective equitable relief, in c lu d in g reinstatement, are persons under § 1983. Melo v. Hafer, 912 F.2d 628, 635-37 (3d C ir. 1990); Cross v. Ala. Dept. of Mental Health & Mental Retardation, 49 F.3d 1490, 1503 (1 1 th Cir. 1995).

Again, that claim is a Fourteenth Amendment claim by Ms. Byrne that she was d e n ie d procedural due process when she attempted to file a complaint of gender d is c rim in a tio n against Mr. Folmar with the Board's personnel office, but was told that she c o u ld not file a complaint against him because he was not a merit system employee. 18

1

H e re , as set out in the Second Amended Complaint's "Prayer for Relief," Ms. Byrne s e e k s reinstatement from Mr. Folmar in his official capacity. (2d Am. Compl. at 19.) The "P ra ye r for Relief" does not contain a claim for monetary damages against Mr. Folmar in his o f f ic ia l capacity. Based on Florida Association of Rehabilitation Facilities and Cross, the c o u rt finds that the injunctive relief sought by Ms. Byrne is appropriate and that Mr. Folmar's a rg u m e n ts for dismissal are moot. B . Title VII: Counts Five, Six, Seven and Eight 1 . Exhaustion of Administrative Remedies A s to Title VII's exhaustion requirement, the Board says that the "Second Amended C o m p la in t is deficient in that it is silent on the subject of either having filed a charge of d is c rim in a tio n or having received a right-to-sue letter from the [Equal Employment O p p o rtu n ity Commission]." (Doc. # 26 at 15.) The Board argues that "[t]he vague assertion th a t 'all conditions precedent' have been fulfilled for the action, is not sufficient to establish th a t the court should entertain [Ms.] Byrne's Title VII claims." (Id., citing 2d Am. Compl. ¶ 38.) Ms. Byrne, however, maintains that her general averment is sufficient based upon the a u th o rity of Jackson v. Seaboard Coast Line R. Co., 678 F.2d 992 (11th Cir. 1982). For the re a s o n s to follow, the court agrees with Ms. Byrne. In Jackson, the Eleventh Circuit held that "a plaintiff must generally allege in his [or h e r] complaint that 'all conditions precedent to the institution of the lawsuit have been f u l f ille d .'" Id. at 1010 (citing Fed. R. Civ. P. 9(c)). Jackson imposes no further pleading b u rd e n on a plaintiff.

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H e re , Ms. Byrne's allegations mirror the language in Jackson, as Ms. Byrne avers that s h e "has fulfilled all conditions precedent to the filing of this action." (2d Am. Compl. ¶ 38.) B a se d upon Jackson, the court finds that Ms. Byrne meets her burden of alleging general c o m p lia n c e with Title VII's EEOC filing requirements. Accordingly, the court is not p e rs u a d e d by the Board's argument for dismissal that Ms. Byrne did not sufficiently allege e x h a u s tio n of administrative remedies in the Second Amended Complaint. 2. Prima Facie Elements T h e Board's remaining arguments focus on Ms. Byrne's alleged failure to state a claim i n Counts Five, Six, Seven and Eight for gender discrimination based upon theories of d is p a ra te treatment and hostile work environment, and for unlawful retaliation. (Doc. # 26 at 15-29.) Specifically, the Board contends that Ms. Byrne has failed to plead the Title VII p rim a facie elements under the burden-shifting framework set out in McDonnell Douglas C o r p . v. Green, 411 U.S. 792 (1973). (Doc. # 26 at 15-29.) T h e Supreme Court, however, has held that the prima facie case under McDonnellD o u g la s is an evidentiary standard, not a pleading requirement. See Swierkiewicz v. Sorema N .A ., 534 U.S. 506, 514 (2002). A complaint predicated on a Title VII violation based upon in te n tio n a l discrimination or retaliation, thus, "need not allege facts sufficient to make out a classic McDonnell Douglas prima facie case." Davis v. Coca-Cola Bottling Co. Consol., 5 1 6 F.3d 955, 974 (11th Cir. 2008) (citing Swierkiewicz, 534 U.S. at 511). It need only p ro v id e "'enough factual matter (taken as true) to suggest'" intentional discrimination or re ta lia tio n . Id. (citing Twombly, 127 S. Ct. at 1965). The sufficiency of the allegations, thus,

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m u s t be evaluated against the Swierkiewicz standard. It is not necessary that Ms. Byrne plead a prima facie case of discrimination or retaliation in order to survive a motion to dismiss. A p p lyin g the relevant standard, the court finds that Counts Five, Six, Seven and Eight s a tis f y the requirements set out in Swierkiewicz. In Count Five, Ms. Byrne alleges that, n o tw ith s ta n d in g that she was qualified to perform all the duties of her position, she was s u b j e c te d to adverse employment actions because of her gender. (2d Am. Compl. ¶¶ 94, 9 6 -97 .) For example, she avers that Mr. Folmar stripped her of most of her supervisory re s p o n s ib ilitie s , leaving her only with clerical duties, (id. ¶¶ 25, 94, 97), and the inferences su p p o rt Ms. Byrne's position (Doc. # 31 at 6) that other male division chiefs were similarly s itu a te d to her, but were accorded preferential treatment. (Id. ¶¶ 36, 95.) These allegations, w h e n considered in combination with the lengthy "Facts" section of the Second Amended C o m p l a in t (Doc. # 21 ¶¶ 7-38), outline the events leading to the adverse actions, provide re le v a n t dates, name the individuals involved in the adverse actions, and reference the gender an d title of the proposed comparators. The court finds that these allegations give the Board a d e q u ate notice of Ms. Byrne's claim of intentional gender discrimination and the grounds u p o n which the claim rests. Swierkiewicz, 534 U.S. at 514 (holding that plaintiff provided s u f f ic ie n t details in his Title VII national origin discrimination claim when he alleged that h e was terminated based on his national origin and "[h]is complaint detailed the events l e a d in g to his termination, provided relevant dates, and included the . . . nationalities of at le a s t some of the relevant persons involved with his termination").

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In Count Six, Ms. Byrne alleges that, because she is female, she was subjected to at le a s t nine adverse acts which she enumerates, and that these acts, considered in their totality, c o n stitu te a hostile work environment under Title VII. (2d Am. Compl. ¶¶ 100-01, 103.) She alleg es that other male employees, which as stated above include male division chiefs, were n o t subjected to the same adverse treatment. (Id. ¶ 101.) Again, against the backdrop of the "F ac ts" section of the Second Amended Complaint, the court finds that these allegations are su ff icien t to provide the Board with "fair notice" that Ms. Byrne brings a Title VII genderb a s e d hostile work environment claim, Swierkiewicz, 534 U.S. at 514, and that the claim rests o n grounds "'that similarly situated persons not of [her] sex were treated differently and b e t te r .'" Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1302 (11th Cir. 2007) (q u o tin g Mendoza v. Borden, Inc., 195 F.3d 1238, 1254 n.3 (11th Cir. 1999)); see also R e e ve s v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139, 1143 (11th Cir. 2008) ("in hostile w o rk environment cases, '[t]he critical issue . . . is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex a re not exposed'") (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1 9 9 8 )). Moreover, the court finds that Count Six puts forth "enough facts to state a claim f o r relief that is plausible on its face." Twombly, 127 S. Ct. at 1974. Counts Seven and Eight are retaliation claims, predicated on theories of tangible em p loym en t action and hostile work environment. (2d Am. Compl. ¶¶ 112-18.) The court h as considered the Board's arguments urging dismissal of these claims. The arguments are s im ila r to the ones the Board raises as to the sufficiency of Counts Five and Six. (See, e.g.,

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D o c . # 26 at 25, arguing for dismissal of Counts Seven and Eight and incorporating by r e f e re n c e the Board's arguments for dismissal of Counts Four and Five.) The Board argues, f o r instance, that the acts of which Ms. Byrne complains "fall short of alleging an actionable re talia to ry hostile environment," and that other acts are not serious enough to demonstrate a n "adverse employment action" under the Title VII retaliation prima facie model. (Id. at 2 5 - 2 7 .) Having carefully considered the Board's arguments, the court finds that the issues, w h ich focus on Ms. Byrne's failure to plead adequately the prima facie elements, are more a p p ro p ria tely explored under the evidentiary review available to the Board pursuant to Rule 5 6 of the Federal Rules of Civil Procedure. See Swierkiewicz, 534 U.S. at 512 (Rule 8(a)'s " sim p lif ie d notice pleading standard relies on liberal discovery rules and summary judgment m o tio n s to define disputed facts and issues and to dispose of unmeritorious claims."). Under S w ie r k ie w i c z , the court finds that these Title VII retaliation claims may go forward, re g a rd le s s of the probability of success on the merits. See Swierkiewicz, 534 U.S. at 515 (" In d e e d , it may appear on the face of the pleadings that a recovery is very remote and u n lik e ly but that is not the test."). In sum, the court concludes that Counts Five, Six, Seven a n d Eight survive the Board's motion to dismiss. V . CONCLUSION A c c o rd in g ly, it is ORDERED that Defendants Alabama Alcoholic Beverage Control B o a rd and Emory Folmar's Motion to Dismiss for Failure to State a Claim upon which Relief C a n Be Granted (Doc. # 25) is DENIED in part and GRANTED in part as follows:

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(A )

It is DENIED as to Ms. Byrne's 42 U.S.C. § 1983 Fourteenth Amendment

c la im against Mr. Folmar in his individual and official capacities, alleging that Ms. Byrne w a s denied procedural due process when she attempted to file a complaint of gender d is c rim in a tio n against Mr. Folmar with the Board's personnel office, but was told that she c o u ld not file a complaint against him because he was not a merit system employee. (B ) (C ) It is DENIED as to Ms. Byrne's Title VII claims against the Board. It is GRANTED as to Ms. Byrne's 42 U.S.C. § 1983 Fourteenth Amendment

c la im s against Mr. Folmar in his individual and official capacities, alleging (1) a deprivation o f a protected liberty interest in violation of the Due Process Clause and (2) intentional g e n d e r and age discrimination, in violation of the Equal Protection Clause. (D ) It is GRANTED as to Ms. Byrne's § 1983 Fourteenth Amendment procedural

d u e process claim against Mr. Folmar in his individual and official capacities, alleging that s h e had a protected property interest in her job duties as a division chief. DONE this 3rd day of September, 2008. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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