Lard v. Alabama Beverage Control Board et al

Filing 30

MEMORANDUM OPINION AND ORDER that the portion of the ABC Board's Partial Motion to Dismiss which had been held in abeyance is DENIED as further set out in the opinion and order. Signed by Honorable Judge W. Harold Albritton, III on 8/30/2012. (Attachments: # 1 Civil Appeals Checklist)(dmn, )

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),
et al.,
Defendants.

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Civil Action No. 2:12cv452-WHA
(wo)

MEMORANDUM OPINION AND ORDER
This cause is before the court on a Partial Motion to Dismiss filed by the Alabama
Alcoholic Beverage Control Board (“the ABC Board”) (Doc. #11).
The Plaintiff, Andy Lard (“Lard”), filed a Complaint in this case on May 24, 2012. The
court ruled on Motions to Dismiss, and dismissed some claims with prejudice, and other claims
without prejudice, allowing Lard additional time to more specifically plead retaliation claims
against Defendant Jeff Rogers and the ABC Board. In ruling on aspects of the ABC Board’s
Partial Motion to Dismiss, the court determined that the portion of the Partial Motion to Dismiss
which was directed to the hostile environment claim in Count I was to be held in abeyance, that
Lard would be given additional time to amend his Complaint, and Lard would be given an
opportunity to address new arguments raised by the ABC Board in its Reply brief in support of
the Partial Motion to Dismiss. Having been given leave to do so by the court, Lard has filed a
supplemental response, and has filed an Amended Complaint which more fully states the factual

basis of his hostile environment claim.1 In evaluating the Partial Motion to Dismiss as to the
hostile environment claim against the ABC Board, the court will consider the factual allegations
of the Amended Complaint.
In support of its Motion for Partial Dismissal, the ABC Board has argued both that
discrete acts of discrimination identified as a basis for disparate treatment claims should not be
considered by the court in evaluating the sufficiency of the hostile environment claim, and that
the allegations of the Complaint are not as extensive as those made in another case pending in
this court against the ABC Board.
The ABC Board’s argument that the court ought not consider any discrete acts of
discrimination in evaluating the sufficiency of Lard’s pleading was based largely on the Eleventh
Circuit’s decision in McCann v. Tillman, 526 F.3d 1370 (11th Cir. 2008), and cases applying it.
As Lard points out, however, the Eleventh Circuit has recently decided a case which clarifies the
application of McCann to hostile environment claims.
In Gowski v. Peake, 682 F.3d 1299, 1312 (11th Cir. 2012), the Eleventh Circuit held for
the first time that a claim of retaliatory harassment is actionable under Title VII. The court then
went on to evaluate the sufficiency of proof of retaliatory harassment in that case, applying the
standard generally applicable to Title VII harassment claims. Id. The court cited McCann for the
proposition that discrete acts alone cannot form the basis of a hostile work environment claim,
but then stated that a jury can “consider discrete acts as part of a hostile work environment.” Id.

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Lard’s Amended Complaint exceeds the scope of the court’s Order, adding an additional
Defendant and additional claims. The court expresses no opinion at this time as to the propriety
of the Plaintiff’s filing and, for purposes of this motion, considers only the additional facts pled
in support of the hostile environment claim against the ABC Board.
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at 1313 (emphasis in original). The court went on to reason that in that case, “although the
discrete acts of retaliation played a role . . . they were not the only conduct that supported the
hostile environment claim.” Id. In view of this binding precedent, which takes McCann into
account, the court will not exclude discrete acts of discrimination in its consideration of Lard’s
claim.
The claim as originally pled did not contain the factual detail that the Amended
Complaint does. For instance, in the original Complaint, there was no reference to the use of
racial slurs. In the Amended Complaint, however, in addition to discrete acts of alleged racebased disparate treatment, there is an allegation of the use of a racial epithet on multiple
occasions, known to Lard during his employment, and used once in reference to Lard, as well as
allegations with regard to surveillance targeted only at African Americans. In light of these new
allegations, the court concludes that the Partial Motion to Dismiss is due to be DENIED as to the
hostile environment claim brought against the ABC Board. The court will, of course evaluate the
sufficiency of proof of Lard’s claim, if called upon to do so in a motion for summary judgment
timely-filed, after factual development in this case.
V. CONCLUSION
For the reasons discussed, it is hereby ORDERED that the portion of the ABC Board’s
Partial Motion to Dismiss (Doc. #11) which had been held in abeyance is DENIED.
Done this 30th day of August, 2012.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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