Sharkins v. Montgomery County Board of Education et al

Filing 23

MEMORANDUM OPINION AND ORDER directing as follows: 1. The Motion to Dismiss (Doc. 10 ) is GRANTED as to the § 1981 claim; 2. The Motion to Dismiss (Doc. 10 ) is DENIED as to the Title VII claim, as further set out. Signed by Magistrate Judge Kelly F. Pate on 10/23/2024. (KCF)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
KIMBERLY SHARKINS,
Plaintiff,
v.
MONTGOMERY COUNTY BOARD OF
EDUCATION; MONTGOMERY
PUBLIC SCHOOLS,
Defendants.

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CASE NO. 2:24-CV-428-KFP
[WO]

MEMORANDUM OPINION AND ORDER
Now pending before the Court is Defendants’ Motion to Dismiss. Doc. 10.
Defendants argue that Plaintiff has failed to state a claim for both her Title VII claim and
her 42 U.S.C. § 1981 claim. Plaintiff filed a Response in Opposition, (Doc. 18), and
Defendants replied, (Doc. 19). The issue is now fully briefed and ripe for review. Upon
consideration, the undersigned finds the motion should be GRANTED in part and DENIED
in part, as explained below.
I.

STANDARD OF REVIEW
When evaluating a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), a court must take the facts alleged in the complaint as true and construe them in
the light most favorable to the plaintiff. Resnick v. AvMed, Inc., 693 F.3d 1317, 1321–22
(11th Cir. 2012). To survive Rule 12(b)(6) scrutiny, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)).
Under Rule 8 of the Federal Rules of Civil Procedure, a complaint must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief,” and
each factual allegation should be “simple, concise, and direct.” Fed. R. Civ. P. 8(a)(2) &
(d)(1). To “state a claim to relief that is plausible on its face,” a plaintiff must “plead[]
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
555, 570). With this in mind, the Court accepts Plaintiff’s factual allegations as true and
construes the Complaint in her favor. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th
Cir. 2008).
II.

BACKGROUND1
Plaintiff is a Caucasian woman who holds a bachelor’s degree in biology, a master’s

degree in public health, and a Ph.D. in early childhood education. Defendants hired
Plaintiff as an Early Childhood Director, and until March 2023, she received satisfactory
job performance evaluations. In March 2023, during the “evaluation close-out interview”
with her previous boss, Chief Academic Officer Bernard Mitchell, an African American
man, she presented evidence to support a job performance rating of four on a scale of one
to five. Doc. 1 at 3, ¶ 9. Mitchell informed Plaintiff that even though she had presented
ample evidence to support this score, the Assistant Superintendent Jamie Wilson, an
African American woman, and Superintendent Dr. Melvin Brown, an African American

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The Court recites only the facts pertinent to resolving Plaintiff’s Motion to Dismiss.
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man, would not allow Mitchell to give Plaintiff that rating. Plaintiff alleges that on at least
two occasions, Mitchell advised Plaintiff that “if I were you I would be looking for another
job.” Id. ¶ 11.
On May 2, 2023, Plaintiff was informed via a “Memo of Concern” from the new
Chief Academic Officer, Dr. Monte Linebarger, an African American man, that her job
duties and responsibilities required an Administrative Certification. Plaintiff did not have
an Administrative Certification because it was not required when she was hired for her
position. When she offered to take classes to acquire the newly required Administrative
Certification, her African American male supervisors refused her the opportunity.
“In September 2023, central office personnel began being relocated to the newly
renovated Montgomery Public School Leadership Center,” a plan that had been in place
for more than a year. Id. at 6, ¶ 26. During the week of October 16, 2023, all the personnel
on Plaintiff’s floor, except her, moved to the new facility. The moved personnel included
Plaintiff’s secretary, who is African American, and the Education Specialist associated
with Plaintiff’s department, who is African American. New furniture was purchased for
everyone except Plaintiff. Consequently, beginning in mid-October, Plaintiff was the only
person on her floor. The only other occupants of the building were members of the Finance
Department on the first floor; the ground and second floor were unoccupied. Because there
were so few people in the building, the air conditioning/heating maintenance person
informed Plaintiff that the boiler system in the building would not be turned on. Plaintiff
remained alone on her unheated floor until she resigned her employment on December 31,
2023.
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III.

DISCUSSION
Plaintiff brought two causes of action against Defendants. She alleges that she had

been: (1) discriminated against and constructively discharged because of her race and sex
in violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights
Act of 1991; and (2) discriminated against in violation of 42 U.S.C. §§ 1983 and 1981.
Defendants argue that Plaintiff fails: (1) to establish a “Section 1983/1981 claim,” (Doc.
10 at 5), (2) to establish a Title VII constructive discharge claim as a matter of law, and (3)
to state a viable § 1981 race discrimination claim. The Court addresses each of Defendants’
arguments in turn.
A.

§ 1981 through § 1983 Claim

Defendants argue that Plaintiff fails to establish a § 1981 claim against them because
she has not alleged a custom or policy that caused her injuries. Plaintiff responded that the
“unofficial custom or practice was shown through repeated acts of discrimination
perpetuated against [her] by the Defendants policymakers.” Doc. 18 at 11.
Plaintiff brought her § 1981 claim against the Montgomery County Board of
Education and Montgomery Public Schools, entities considered state actors. See Jaffree v.
Wallace, 705 F.2d 1526, 1533 (11th Cir. 1983) (“Alabama county school boards are
creatures of the state and are controlled by the state.”). “The law is clear that claims against
state actors for violations of § 1981 claim must be brought pursuant to 42 U.S.C. § 1983.”
Mack v. Wilcox Cnty. Comm’n, 2009 WL 4884310, at *5 (S.D. Ala. Dec. 9, 2009) (citing
Bryant v. Jones, 575 F.3d 1281, 1288 n.1 (11th Cir. 2009)). Plaintiff properly alleged that
her § 1981 claim was through § 1983. But because it must be brought through § 1983, there
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is an additional constraint to her § 1981 claim: “the discrimination must be a ‘custom or
policy’ of that entity.” Dunklin v. Montgomery Cnty. Bd. of Educ., 652 F. Supp. 2d 1226,
1234 (M.D. Ala. 2009) (quoting Webster v. Fulton Cnty., 283 F.3d 1254, 1257 n.8 (11th
Cir. 2002)); see also McCarthy v. City of Cordele, 111 F.4th 1141, 1146 (11th Cir. 2024)
(“When the employer is a municipality, the employee must allege that the racial
discrimination was a municipal ‘policy or custom.’” (citing Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 694 (1978))). “To allege a custom or policy, a plaintiff must plead either (1)
an ‘officially promulgated’ policy or (2) ‘an unofficial custom or practice . . . shown
through the repeated acts of a final policymaker for the [governmental entity].’” Sharp v.
City of Montgomery, 2021 WL 5989104, at *3 (M.D. Ala. Dec. 17, 2021) (alterations in
original) (quoting Grech v. Clayton Cnty., 335 F.3d 1326, 1329 (11th Cir. 2003) (en banc));
see also Cuesta v. Sch. Bd. of Miami-Dade Cnty., 285 F.3d 962, 966 (11th Cir. 2002). In
either scenario, Plaintiff must establish “that the local governmental entity . . . has authority
and responsibility over the governmental function in issue and [] [] identify those officials
who speak with final policymaking authority for that local governmental entity concerning
the act alleged to have caused the particular [] violation in issue.” Grech, 335 F.3d at 1330
(citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989); Hill v. Clifton, 74 F.3d
1150, 1152 (11th Cir. 1996)); see also Thomas v. Cobb Cnty. Sheriff’s Dep’t, 2010 WL
431468, at *5 (N.D. Ga. Feb. 4, 2010) (applying the tests outlined in Grech to a § 1981
claim).
Plaintiff did not allege that her injuries resulted from an officially promulgated
policy. Thus, her complaint must sufficiently allege an unofficial custom or practice, which
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she can do by describing “a widespread practice that, although not authorized by written
law or express municipal policy, is so permanent and well settled as to constitute a custom
or usage with the force of law.” Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481
(11th Cir. 1991) (citation and quotation marks omitted). “Normally random acts or isolated
incidents are insufficient to establish a custom or policy.” Depew v. City of St. Marys, 787
F.2d 1496, 1499 (11th Cir. 1986) (citation omitted).
Plaintiff alleges a number of discriminatory acts in her complaint. However, her
complaint does not plead that these discriminatory acts constituted a custom or policy of
Defendants. While Plaintiff’s response brief asserts that the repeated acts of discrimination
amounted to an unofficial custom or practice, “a plaintiff cannot amend a complaint
through arguments in briefs.” Henderson v. McMurray, 611 F. Supp. 3d 1287, 1295 (N.D.
Ala. 2020). The Court is bound by the allegations contained in the complaint, and the
complaint failed to allege that the repeated acts of discrimination amounted to an unofficial
custom or policy by Defendants. Moreover, even if the Court could consider the
policy/custom allegations made in the response brief, in neither the complaint nor the
response brief did Plaintiff plead factual allegations which identified officials who speak
with final policymaking authority for Defendants concerning the alleged discriminatory
acts, nor plead that Defendants were directing anyone to perform the alleged discriminatory
acts. See Grech, 335 F.3d at 1330.
Accordingly, Defendants’ Motion to Dismiss the § 1981 claim is due to be granted.
See Matthews v. Clayton Cnty. Pub. Sch., 2019 WL 13273267, at *9 (N.D. Ga. Feb. 20,
2019), report and recommendation adopted, 2019 WL 13273268 (N.D. Ga. Mar. 26, 2019)
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(granting the defendants’ motion to dismiss the plaintiff’s § 1981 claim because the
complaint did not “contain any factual allegations asserting that her injury result[ed] from
the application of a policy or custom.”); Moore v. Miami-Dade Cnty., 502 F. Supp. 2d
1224, 1232 (S.D. Fla. 2007) (granting defendants’ motion to dismiss because plaintiff
“fail[ed] to identify an unofficial custom or practice of [defendant], shown through
repeated acts of a final policymaker, that caused [p]laintiff’s alleged constitutional
deprivation.”); Varn v. City of Nashville, 2023 WL 2589224, at *5 (M.D. Ga. Mar. 21,
2023) (granting defendant’s motion to dismiss because plaintiff never alleged that
defendant was directing the practices and policies of the alleged discriminatory employer).
Because the Court finds that the § 1981 claim fails under the § 1983 analysis, it will not
consider the Defendants’ argument that the § 1981 claim fails on the merits.
B.

Title VII Constructive Discharge Claim

Defendants argue that Plaintiff’s Title VII constructive discharge claim fails as a
matter of law. They assert that Plaintiff “has not alleged facts that establish that her
resignation was in response to a change in her employment status or situation,” (Doc. 10
at 6), nor do her allegations “amount to unbearable working conditions that would cause a
reasonable person to resign,” (Id. at 7). Plaintiff responded that the “overt and unabashed
pattern of discrimination that forced her to quit” is analogous to the plaintiff in Bryant, 575
F.3d at 1298–99. Doc. 18 at 10.
“A constructive discharge occurs when a discriminatory employer imposes working
conditions that are ‘so intolerable that a reasonable person in [the employee’s] position
would have been compelled to resign.’” Fitz v. Pugmire Lincoln-Mercury, Inc., 348 F.3d
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974, 977 (11th Cir. 2003) (quoting Poole v. Country Club of Columbus, Inc., 129 F.3d 551,
553 (11th Cir. 1997)). A constructive discharge does not have to be prompted by an official
act; it can be in response to harassment, which creates a hostile environment constructive
discharge claim. Gray v. Koch Foods, Inc., 580 F. Supp. 3d 1087, 1118 (M.D. Ala. 2022).
Plaintiff alleges she was given an inaccurate performance review, she was told to
look for another job, and she was not given the opportunity to obtain the newly required
credential for her job. She further alleges that her employer purchased new furniture for all
other employees except her and that she was systematically left behind as the only
personnel on her floor in a mostly empty building, in which the boiler system was turned
off. Plaintiff insists that all these instances were due to discrimination based on her race
and sex, and that these actions amount to “constructive[] discharge[] because the
Defendants deliberately made [her] working conditions intolerable and thereby forced her
to quit her job.” Doc. 1 at 7. The Court finds that these instances, taken together and viewed
as true, nudge her complaint across the line from conceivable to plausible, making her
claim sufficient to survive a motion to dismiss. Accordingly, Defendants’ Motion to
Dismiss the constructive discharge claim is due to be denied. See Alvarez v. Lakeland Area
Mass Transit Dist., 406 F. Supp. 3d 1348, 1355 (M.D. Fla. 2019).
VI.

CONCLUSION
For these reasons, the undersigned ORDERS as follows:
1. The Motion to Dismiss (Doc. 10) is GRANTED as to the § 1981 claim;
2. The Motion to Dismiss (Doc. 10) is DENIED as to the Title VII claim.

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DONE this 23rd day of October, 2024.

/s/ Kelly Fitzgerald Pate
KELLY FITZGERALD PATE
UNITED STATES MAGISTRATE JUDGE

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