Lard v. Alabama Beverage Control Board et al

Filing 43

MEMORANDUM OPINION AND ORDER that the Partial Motion to Dismiss 36 is GRANTED and DENIED as follows: 1. The Motion is GRANTED in favor of Jean Turner. 2. The Motion is DENIED as to the ABC Board and Jeff Rogers based on third-party retaliation, but GRANTED as to the contention that Plaintiff's refusal to resign constituted protected activity. 3. This case will now go forward on Count I; on Count II against the ABC Board based on Title VII, as limited above; on Count III against Rogers and Turner; and on Count IV against Rogers as limited above. Signed by Honorable Judge W. Harold Albritton, III on 11/28/2012. (Attachments: # 1 Civil Appeals Checklist)(jg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

ANDY LARD,
Plaintiff,
v.
ALABAMA ALCOHOLIC BEVERAGE
CONTROL BOARD (STATE OF
ALABAMA), CHIEF JEFF ROGERS, in his
individual capacity, and JEAN
TURNER, in her individual capacity,
Defendants.

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) CIVIL ACTION NO. 2:12-cv-452-WHA
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(WO)
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MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This case is before the court on a Partial Motion to Dismiss Retaliation Claims (Doc.
#36) filed on September 21, 2012 by Defendants Alabama Alcoholic Beverage Control Board
(“ABC Board”), Jeff Rogers (“Rogers”), and Jean Turner (“Turner”).
The Plaintiff, Andy Lard, filed a Complaint (Doc. #1) in this court on May 24, 2012,
against the ABC Board, Rogers, and Stan Goolsby (“Goolsby”). The Complaint raised various
claims: Count I – race discrimination and racial harassment against the ABC Board under Title
VII of the Civil Rights Act of 1991; Count II – retaliation against the ABC Board under Title
VII; Count III – race discrimination and racial harassment against Rogers and Goolsby under the
Fourteenth Amendment and 42 U.S.C. § 1981 through § 1983; and Count IV – retaliation against
Rogers and Goolsby under 42 U.S.C. § 1981 through § 1983. The Plaintiff voluntarily dismissed
Stan Goolsby as a Defendant. The court dismissed without prejudice the Plaintiff’s retaliation

claims against the ABC Board and Rogers, giving the Plaintiff extended time to file an Amended
Complaint to allege additional facts as to that claim, and also authorized the Amended Complaint
to allege additional facts as to the hostile environment claim in Count I (Doc. #23). The Plaintiff
filed an Amended Complaint (Doc. #28) on August 29, 2012, after which the court denied the
earlier Partial Motion to Dismiss as to the hostile environment claim against the ABC Board in
Count I. The Plaintiff then filed a Second Amended Complaint (Doc. #33) on September 4,
2012, which pled additional facts as to the retaliation claims, added a harassment claim to Count
II, and added Turner as a Defendant in Counts III and IV.
The Defendants now move to dismiss the retaliation claims against them in Counts II and
IV and raise various grounds in support of their contention. The Plaintiffs filed a Response to
Defendants’ Partial Motion to Dismiss (Doc. #41) on October 15, 2012.
For reasons to be discussed, the Motion to Dismiss is due to be DENIED in part and
GRANTED in part.
II. MOTION TO DISMISS STANDARD
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,

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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) (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 555, 570. The
factual allegations “must be enough to raise a right to relief above the speculative level.” Id. at
555.
III. FACTS
The factual allegations of the Plaintiff’s Second Amended Complaint are as follows:
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. After several years of
employment, Lard began working in the undercover drug unit. In 2004, he was promoted to
ABC Enforcement Agent II (sergeant). In January 2006, he was promoted to ABC Enforcement
Agent III (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 repeatedly asked Rogers to assign a sergeant to the
district, but the requests were 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 April 2010, Kesia Perry (“Perry”), an African-American agent whom Lard was dating,
complained to Rogers that a pay disparity she had noticed was race discrimination. After she

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complained, Perry was disciplined for alleged misuse of state property, and she observed that she
was being watched by ABC Board agents. Other African-American agents were monitored with
GPS tracking devices. Rogers questioned Perry about her and Lard’s relationship. In late June
2010,1 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. After his
termination, Lard was publicly arrested and taken to the Clarke County Jail. Lard states that
white employees were not disciplined or terminated for criminal conduct.
IV. DISCUSSION
Count II and Count IV contain claims of retaliation. Count II is asserted against the ABC
Board pursuant to Title VII of the Civil Rights Act, and Count IV is asserted against Rogers and
Turner pursuant to 42 U.S.C. § 1981.2 A retaliation claim requires a showing (1) that the
plaintiff engaged in a statutorily protected activity; (2) that he suffered a materially adverse
employment 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 first element is established if the plaintiff
shows that he opposed an unlawful employment practice he reasonably believed occurred. Bigge

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Lard’s Second Amended Complaint states that Lard’s vehicle was monitored in late
June 2011. The court assumes that Lard intended for this date to be June 2010 because the
surrounding occurrences took place from April to August, 2010.
2

Title VII and § 1981 have the same requirements of proof and analytical framework.
See Shields v. Fort James Corp., 305 F.3d 1280, 1282 (11th Cir. 2002).
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v. Albertsons, Inc., 894 F.2d 1497, 1501 (11th Cir. 1990).
The Defendants’ main argument is that Lard did not allege sufficient facts to show he
engaged in a protected activity by opposing unlawful employment practices, but merely alleged
various acts of discrimination against him. In addition to arguing that his refusal to accept a
pattern of acts of discrimination in treating him differently from white employees constitutes
opposition, Lard contends specifically that his refusal to resign his employment when ordered to
do so by a white officer and his girlfriend Kesia Perry’s complaint regarding race discrimination
constitute opposition to an unlawful employment practice, which satisfies the first prong of the
prima facie retaliation case.
Refusal to Accept Acts of Discrimination
Lard’s allegations of repeated requests for things which he did not receive but which
were given to white employees, go to his claims of racial discrimination but, in the absence of
allegations that he specifically made complaints that this was based on his race, do not allege
opposition. See Gray v. City of Montgomery, 756 F. Supp. 2d 1339, 1349 (M.D. Ala. 2010)
(citing Pipkins v. City of Temple Terrace, Fla., 267 F.3d 1197, 1201 (11th Cir. 2001). Lard has
cited numerous cases concerning vicarious liability for acts of supervisors and retaliation for
refusal to accept discriminatory acts, such as sexual advances, none of which are analogous to
the facts of this case so as to require discussion.
Lard’s Refusal to Resign
Lard specifically contends that his refusal to resign when ordered to do so was an act of
opposition which constitutes protected activity. He cites Crawford v. Metro. Gov’t of Nashville
& Davidson Co., 555 U.S. 271 (2009) to support his argument. He points to the Court’s

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statement that, “we would call it ‘opposition’ if an employee took a stand against an employer’s
discriminatory practices not by ‘instigating’ action, but by standing pat, say, by refusing to
follow a supervisor’s order to fire a junior worker for discriminatory reasons.” Id. at 277.
In Crawford, a human resources officer of the employer asked Crawford whether she had
witnessed sexually harassing behavior on the part of another employee, and Crawford answered
that she had. Crawford was fired soon after this incident. She filed suit, claiming that her former
employer retaliated against her for giving an account of another employee’s sexual harassment.
The Supreme Court noted that the ordinary meaning of “oppose”—“to resist or
antagonize”—described Crawford’s action against her employer. Id. at 276 (citing Webster’s
New Int’l Dictionary 1710 (2d ed. 1958)). The Court held that Crawford’s communication to her
employer that she believed the employer had engaged in a form of employment discrimination is
sufficiently antagonistic to satisfy the opposition clause. Id.
Lard argues that his refusal to comply with his employer’s allegedly discriminatory act of
ordering him to resign constitutes opposition under the Crawford definition. It would be a
substantial stretch of the language in Crawford to hold that it also applied to Lard’s refusal to
resign, when that and the termination itself are discrete acts of racial discrimination alleged, and
this court will not do so. There is no allegation that Lard complained that his being directed to
resign was an act of racial discrimination before he was terminated. In fact, the Second
Amended Complaint (¶ 41) merely says that “[t]he Plaintiff refused to resign since he had not
done anything wrong.”
Perry’s Complaint of Race Discrimination
Lard’s other argument is that he experienced third-party retaliation after his girlfriend

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and co-worker Kesia Perry (“Perry”) complained to Rogers of race discrimination. He alleges
that after Perry complained to Rogers that a pay disparity between white and African-American
employees was race discrimination, Rogers ordered that GPS devices be placed on several
African-American agents’ vehicles, including Lard’s. Lard also alleges that Rogers questioned
Perry about her relationship with Lard, and shortly afterward Lard was ordered to resign. Rogers
terminated Lard’s employment less than a month later.
In Thompson v. North American Stainless, LP, the Supreme Court held that an
employer’s firing of an employee after the employee’s fiancé and co-worker filed a
discrimination complaint constituted unlawful retaliation. Thompson, 131 S.Ct. 863, 867–68
(2011). “Title VII’s antiretaliation provision should be construed to cover a broad range of
employer conduct,” which includes employer retaliation against someone in a close relationship
with an employee engaged in protected conduct. Id. at 868 (citing Burlington N. & Sante Fe Ry.
Co. v. White, 548 U.S. 53 (2006)). The Court, however, declined to identify a fixed class of
relationships for which third-party reprisals would trigger unlawful retaliation. See Thompson,
131 S.Ct. at 868. Recognizing the potentially difficult line-drawing problems regarding the
types of relationships protected, the Court stated that “the significance of any given act of
retaliation will often depend on the particular circumstances” of each case. Id. (quoting
Burlington, 548 U.S. at 69).
As alleged in the Second Amended Complaint, Perry’s complaint constitutes protected
activity, which satisfies the first prong of a retaliation prima facie case. Although Perry and Lard
were not engaged at the time of the alleged retaliation, Thompson allows for Lard’s retaliation
claims to go forward against Rogers past the pleading stage. See Thompson, 131 S.Ct. at 868

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(“We expect that firing a close family member will almost always meet the Burlington standard,
and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that
we are reluctant to generalize.”) Therefore, Lard and Perry’s relationship provides a basis for
the first prong of Lard’s third-party retaliation claim against Rogers, at least at this stage of the
proceedings. The matter may be revisited by proper motion after factual development.
As to Turner, however, there are no allegations of actions by her related to Perry’s
complaint of racial discrimination which could subject her to a third-party retaliation claim, and
this claim will be dismissed as to her.
V. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that the Partial Motion to Dismiss
(Doc. #36) is GRANTED and DENIED as follows:
1. The Motion is GRANTED in favor of Jean Turner.
2. The Motion is DENIED as to the ABC Board and Jeff Rogers based on third-party
retaliation, but GRANTED as to the contention that Plaintiff’s refusal to resign constituted
protected activity.
3. This case will now go forward on Count I; on Count II against the ABC Board based
on Title VII, as limited above; on Count III against Rogers and Turner; and on Count IV against
Rogers as limited above.
Done this 28th day of November, 2012.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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