Lard v. Alabama Beverage Control Board et al

Filing 23

MEMORANDUM OPINION AND ORDER: 1. Stan Goolsby having been voluntarily dismissed by the Plaintiff, Stan Goolsby is DISMISSED without prejudice as a Defendant in this case, and his name shall be removed from the caption. The Motion to Dismiss filed by Stan Goolsby 8 is DENIED as moot. 2. The Partial Motion to Dismiss filed by Jeff Rogers 5 is GRANTED to the extent that any claim in Count II asserted against Rogers is DISMISSED with prejudice as toRogers, and Count IV is dismissed without p rejudice as to Rogers. 3. The Partial Motion to Dismiss filed by the Alabama Beverage Control Board ("ABC Board") 11 is GRANTED as to Count IV, and Count IV is dismissed without prejudice as to the ABC Board. 4. The portion of the Parti al Motion to Dismiss 11 which is directed to the hostile environment claim in Count I is held in abeyance. 5. Lard is given until August 22, 2012 to file an Amended Complaint as further set out. 6. Lard is given until August 22, 2012 to file an a dditional response to the ABC Board's arguments regarding the sufficiency of his hostile environment allegations. The remaining portion of the Partial Motion to Dismiss 11 will be taken under submission at that time. Signed by Honorable Judge W. Harold Albritton, III on 8/10/2012. (jg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ANDY LARD,
Plaintiff,
v.
ALABAMA BEVERAGE CONTROL
BOARD (STATE OF ALABAMA),
CHIEF JEFF ROGERS, in his individual
capacity, and STAN GOOLSBY in his
individual capacity,
Defendants.

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Civil Action No. 2:12cv452-WHA

(wo)

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This cause is before the court on a Partial Motion to Dismiss filed by Jeff Rogers (Doc.
#5), a Motion to Dismiss filed by Stan Goolsby (Doc. #8), and a Partial Motion to Dismiss filed
by the Alabama Alcoholic Beverage Control Board (“the ABC Board”) (Doc. #11).
The Plaintiff filed a Complaint in this case on May 24, 2012. In the Complaint he brings
claims of race discrimination and racial harassment under Title VII of the Civil Right Act of
1964 against the ABC Board (Count I), a retaliation claim under Title VII (Count II), race
discrimination and racial harassment claims under the Fourteenth Amendment and 42 U.S.C. §
1981 against Jeff Rogers and Stan Goolsby (Count III), and retaliation claims under 42 U.S.C. §
1981 against Jeff Rogers and Stan Goolsby (Count IV).
The court has federal subject matter jurisdiction in this case.
Defendant Jeff Rogers (“Rogers”) has moved to dismiss two counts of the Complaint,
Defendant Stan Goolsby (“Goolsby”) has moved to dismiss all claims asserted against him, and

the ABC Board has moved to dismiss two counts of the Complaint.
For the reasons to be discussed, Goolsby is due to be DISMISSED as a Defendant in this
case, Rogers’s Motion is due to be GRANTED, and the ABC Board’s Motion is due to be
GRANTED in part, but Lard will be given additional time to amend his Complaint, and to
address arguments raised by the ABC Board in its Reply brief in support of the Partial Motion to
Dismiss.
II. MOTION TO DISMISS
The court accepts the plaintiff's factual 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). In analyzing the sufficiency of pleading, the court is guided
by a two-prong approach: one, the court is not bound to accept conclusory statements of the
elements of a cause of action and, two, where there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to entitlement
to relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

“[A] plaintiff's obligation to

provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007). Id. (citation omitted). To survive a motion to dismiss, a
complaint need not contain “detailed factual allegations,” but instead the complaint must contain
“only enough facts to state a claim to relief that is plausible on its face.” Id. at 570. The factual
allegations “must be enough to raise a right to relief above the speculative level.” Id. at 555.
III. FACTS
The allegations of the Plaintiff’s Complaint are as follows:
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The Plaintiff, Andy Lard (“Lard”), is an African American who had been employed by the
ABC Board. He began working for the ABC Board in August 1999 as an Agent I. After several
years of employment, Lard began working in the undercover drug unit. In 2004, he was
promoted to ABC Enforcement Agent II. In January 2006, he was promoted to ABC
Enforcement Lieutenant.
Lard alleges that Defendant Jeff Rogers and Vance Patton took over as his supervisors,
and at that point, he began to experience race discrimination. Lard states that no sergeant was
assigned to the district office to replace him when he became a lieutenant, which meant that he
was on call all of the time. He states that he asked Rogers to assign a sergeant to the district, but
the request was denied. Lard also states that his district was the last one to receive equipment
when equipment was provided to the districts. He finally states that his requests for necessary
items were routinely denied.
In late June 2010, Rogers ordered other ABC Board agents to place a GPS tracking
device on Lard’s car. Lard states that he was subjected to scrutiny not experienced by white
officers. On August 4, 2010, Vance Patton demanded that Lard resign for stealing time and
misusing a state vehicle. Lard alleges that when he refused to resign, he was falsely accused of
stealing money from the evidence locker. Rogers terminated Lard on August 30, 2010. Lard
states that white employees were not disciplined or terminated for criminal conduct.
IV. DISCUSSION
At the outset, the court notes that in his combined response to the pending Motions and
Partial Motions to Dismiss, Lard has stated that he voluntarily dismisses Stan Goolsby as a

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Defendant. (Doc. #18 at p. 2).1 Therefore, Goolsby’s Motion to Dismiss is due to be DENIED
as moot, and Goolsby will be DISMISSED as a Defendant in this case without prejudice. See
Fed. R. Civ. P. 41(a)(1)(B). The court, therefore, addresses below only the grounds for dismissal
raised by Rogers and the ABC Board.
A. Rogers’s Partial Motion to Dismiss
Rogers moves to dismiss claims against him in his individual capacity, and specifically
identifies Counts II and III in his motion. (Doc. #5). In his brief in support of his motion,
however, Rogers seeks dismissal of Counts II and IV. (Doc. #6 at p.6). In his Reply, Rogers
clarifies that the reference to Count III in the motion was an error. (Doc. #20 at p.3 n.4).
As to Count II, Lard has stated that the Count is not asserted against Rogers. In his
Reply, Rogers points out that the Complaint refers to more than one Defendant within Count II,
and that the Title VII claim against the individual Defendant, Rogers, is improper and due to be
dismissed. To the extent that the Complaint has attempted to state a claim against the individual
Defendant, Rogers, for violation of Title VII, the Motion to Dismiss is due to be GRANTED.
See Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991).
Count IV is a claim of retaliation, asserted against the individual Defendant pursuant to
42 U.S.C. § 1981. A retaliation claim requires a showing (1) that the plaintiff engaged in
statutorily protected expression; (2) that he suffered a materially adverse action; and (3) that there
is a causal relation between the two events. McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir.
2008). The required relationship may be shown if the plaintiff shows the decision maker was

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No answer or motion for summary judgment having been filed by Goolsby, the Plaintiff
has a right to do this under Fed. R. Civ. P. 41(a)(1)(A).
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aware of the protected conduct, and if there was close temporal proximity between the awareness
and the adverse action. Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir.
1999).
Rogers has argued that Lard has not identified a protected activity, and has not alleged
knowledge of any protected activity by his employer, because Lard has not identified any type of
complaint of discrimination in his Complaint. Rogers points out that the Complaint only refers
to denials or requests for services, and then cites to several non-binding, but persuasive, cases for
the proposition that a plaintiff must do more than make a generalized complaint, but must show
that he complained of discrimination for there to be statutorily protected expression. See Demers
v. Adams Homes of Northwest Florida, Inc., 321 F. App’x 847, 852 (11th Cir. 2009); Pate v.
Chilton County. Bd. of Educ., No. 2:09cv1172-WKW, 2012 WL 12872 (M.D. Ala. Jan. 4, 2012).
In Demers, an unpublished opinion, the Eleventh Circuit explained that a mere request for
maternity leave is not sufficient to constitute protected activity, because by itself it does “not
announce opposition to the discriminatory basis for its denial,” but an expression of resistance or
antagonism toward a discriminatory denial of that request could be sufficient. Demers, 321 F.
App’x at 852. Courts have also required plaintiffs to allege a complaint of discrimination to
withstand a motion to dismiss. See, e.g., Foster v. Humane Society of Rochester and Monroe
County, Inc., 724 F. Supp. 2d 382, 395 (W.D. N.Y. 2010) (granting a motion to dismiss as to a
retaliation claim, reasoning that the plaintiff failed to allege that she engaged in protected activity
because, while the allegations established that she did “complain about certain problems she was
having at work, she did not complain that she was being discriminated against on account of her
sex.”).

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Lard argues in his brief that he engaged in protected activity by being persistent in his
effort to obtain a new sergeant, and requesting equipment and office essentials which were
routinely provided to white lieutenants. In his brief, but not the Complaint, Lard states that his
requests for equipment and office essentials were made in objection to the denial of access to
resources given to white lieutenants. (Doc. #18 at p.14). The Complaint, however, merely
states that Lard requested a sergeant, that “[w]hen the Department provided new equipment to
the districts, Lard’s district was the last one to receive it,” and that his requests for necessary
items were routinely denied. (Doc. #1 at ¶¶ 23, 25, 26).
The allegations of the Complaint do not state a claim for retaliation against Rogers,
because they do not identify any complaint of discrimination made known to Rogers. Given the
characterization of Lard’s requests for supplies and equipment made in his brief, however, the
court will give Lard an opportunity to amend his Complaint, if he can do so within the
requirements of Rule 11 of the Federal Rules of Civil Procedure, to plead facts which show that
his requests were made in the form of an objection made known to Rogers about a discriminatory
denial of resources.
B. ABC Board’s Motion to Dismiss
The ABC Board moves to dismiss the hostile work environment claim included within
Count I and the Title VII retaliation claim in Count II of the Complaint. For the reasons
discussed above in connection with the retaliation claim asserted against Rogers, the retaliation
claim in Count II against the ABC Board is due to be dismissed. The court will give Lard an
opportunity to amend his Complaint, if he can do so within the limitations of Rule 11 of the
Federal Rules of Civil Procedure, to plead facts which show that his requests were made in the

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form of an objection made known to his employer about a discriminatory denial of resources.
As to the claim for hostile work environment in Count I, the ABC Board initially moved
for dismissal on the ground that Lard’s cited incidents of harassment are workplace disputes and
do not constitute severe or pervasive conduct. In its reply brief, the ABC Board has refined this
argument to state that the discrete acts of discrimination identified as a basis for disparate
treatment claims in Count I of the Complaint should not be considered by the court in evaluating
the sufficiency of the hostile environment claim also contained within Count I. The ABC Board
also argues that the allegations of the Complaint are not as extensive as those made in another
case pending in this court against the ABC Board. Because Lard has not had the opportunity to
respond to these arguments, the court will allow Lard additional time in which to file a brief in
response. So as not to unduly delay the proceedings, however, and because the court is already
allowing Lard time in which to amend his Complaint, if Lard feels that additional factual
allegations regarding his hostile environment claim are necessary in light of the ABC Board’s
arguments, the court will also allow Lard to include additional facts relating to the hostile
environment claim in an Amended Complaint. The court will rule on the Motion to Dismiss as
to the hostile environment claim in Count I at that time.
V. CONCLUSION
For the reasons discussed, it is hereby ORDERED as follows:
1. Stan Goolsby having been voluntarily dismissed by the Plaintiff, Stan Goolsby is
DISMISSED without prejudice as a Defendant in this case, and his name shall be removed from
the caption. The Motion to Dismiss filed by Stan Goolsby (Doc. #8) is DENIED as moot.
2. The Partial Motion to Dismiss filed by Jeff Rogers (Doc. #5) is GRANTED to the

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extent that any claim in Count II asserted against Rogers is DISMISSED with prejudice as to
Rogers, and Count IV is dismissed without prejudice as to Rogers.
3. The Partial Motion to Dismiss filed by the Alabama Beverage Control Board (“ABC
Board”) (Doc. #11) is GRANTED as to Count IV, and Count IV is dismissed without prejudice
as to the ABC Board.
4. The portion of the Partial Motion to Dismiss (Doc. #11) which is directed to the
hostile environment claim in Count I is held in abeyance.
5. Lard is given until August 22, 2012 to file an Amended Complaint, complete unto
itself within the requirements of M.D. Ala. Local Rule 15.1, as follows:
a. retaliation claims against Rogers and the ABC Board in Counts II and IV–the
Amended Complaint must state sufficient facts to demonstrate that a complaint of discrimination
was made known to Rogers and the ABC Board, as discussed above, if Lard can do so within the
requirements of Rule 11 of the Rules of Civil Procedures.
b. hostile environment claim in Count I–the Amended Complaint may also include
additional facts regarding Lard’s hostile environment claim, should Lard feel that additional facts
are needed and can be included consistent with Rule 11.
6. Lard is given until August 22, 2012 to file an additional response to the ABC Board’s
arguments regarding the sufficiency of his hostile environment allegations. The remaining
portion of the Partial Motion to Dismiss (Doc. #11) will be taken under submission at that time.
Done this 10th day of August, 2012.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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