Odom v. Holder

Filing 8

MEMORANDUM OPINION; Signed by Judge L Scott Coogler on 5/11/2012. (BST, )

FILED
2012 May-11 AM 09:33
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NORMAN L. ODOM,
Plaintiff,
vs.
ERIC H. HOLDER, JR., in his Official
Capacity as Attorney General of the
United States of America,
Defendant.

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MEMORANDUM OF OPINION
I.

Introduction.
The Court has for consideration “Defendant’s Motion for Partial Dismissal or,

Alternatively, for More Definite Statement.” (Doc. 4.) Plaintiff Normon L. Odom
sued Eric H. Holder, Jr., the Attorney General of the United States, in his official
capacity, for: (1) conspiracy under 42 U.S.C. § 1985(3); (2) “deliberate indifference”
under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et
seq.; (3) failure to “accept proper issues”; (4) violation of the Fifth Amendment under
42 U.S.C. § 1983; (5) “ongoing retaliation” under Title VII; and (6) a “continuing
violation” of Title VII. (Doc. 1.) The issues raised in Defendant’s motion have been

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fully briefed and are ripe for decision. Upon full consideration and for the reasons
stated herein, Defendant’s motion for partial dismissal will be granted.
II.

Background.
Norman L. Odom (“Odom” or “Plaintiff”) is a fifty-five year old Caucasian

male. Odom has been an employee of the Federal Bureau of Investigation (“FBI”)
for thirty-three years.

During the time period at issue, Odom worked as an

Administrative Officer in the Birmingham, Alabama division. In that role, Odom
advised executive management on FBI policy.
Starting in 2007, Odom formed the opinion that EEO Coordinator/Counselor
Lorenza Moore (“Moore”) and FBI Special Agent in Charge Carmen Adams
(“Adams”) were depriving FBI employees of their Title VII rights. Odom contends
that he was retaliated against for participating in EEO meetings. He alleges that
Moore and Adams refused to follow EEO procedures, and he suffered threats and
intimidation because of reports that he was planning to file an EEO complaint. Odom
maintains that when he did file an EEO complaint in January 2009, he was charged
with knowingly providing false information under oath, obstruction, and engaging in
conduct that dishonored, disgraced, or discredited the FBI. Odom believes the
charges against him are a result of his participation in activities protected by Title VII.

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III.

Standard.
A defendant may move to dismiss a complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6) if the plaintiff has failed to state a claim upon which relief may be
granted. “The standard of review for a motion to dismiss is the same for the appellate
court as it [is] for the trial court.” Stephens v. Dep’t of Health & Human Servs., 901
F.2d 1571, 1573 (11th Cir. 1990). “When considering a motion to dismiss, all facts set
forth in the plaintiff’s complaint ‘are to be accepted as true and the court limits its
consideration to the pleadings and exhibits attached thereto.’”

Grossman v.

Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000)(quoting GSW, Inc. v. Long
County, 999 F.2d 1508, 1510 (11th Cir. 1993)). All “reasonable inferences” are drawn
in favor of the plaintiff. St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir.
2002).
To survive a 12(b)(6) motion to dismiss for failure to state a claim, the
complaint “does not need detailed factual allegations;” however, the “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. Factual allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint are true

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(even if doubtful in fact).”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007)(internal citations omitted).1 The plaintiff must plead “enough facts to state
a claim that is plausible on its face.” Id. at 570. Unless a plaintiff has “nudged [his]
claims across the line from conceivable to plausible,” the complaint “must be
dismissed.” Id.
“[U]nsupported conclusions of law or of mixed fact and law have long been
recognized not to prevent a Rule 12(b)(6) dismissal.” Dalrymple v. Reno, 334 F.3d 991,
996 (11th Cir. 2003) (quoting Marsh v. Butler County, Ala., 268 F.3d 1014, 1036 n.16
(11th Cir. 2001)). And, “where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has
not ‘show[n]’—‘that the pleader is entitled to relief.” Ashcroft v. Iqbal, --- U.S. ----,
129 S. Ct. 1937, 1950 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). Therefore, the U.S.
Supreme Court suggested that courts adopt a “two-pronged approach” when
considering motions to dismiss: “1) eliminate any allegations in the complaint that are
merely legal conclusions; and 2) where there are well-pleaded factual allegations,
1

In Bell Atlantic Corp. v. Twombly, the U.S. Supreme Court abrogated the oft-cited standard
that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”
set forth in Conley v. Gibson, 355 U.S. 41 (1957). Bell Atl. Corp., 550 U.S. at 560-63. The Supreme
Court stated that the “no set of facts” standard “is best forgotten as an incomplete, negative gloss
on an accepted pleading standard: once a claim has been stated adequately, it may be supported by
showing any set of facts consistent with the allegations in the complaint.” Id. at 563.
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‘assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.’” American Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290
(11th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1950). Importantly, “courts may infer
from the factual allegations in the complaint ‘obvious alternative explanation[s],’
which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask
the court to infer.” Id. (quoting Iqbal, 129 S. Ct. at 1951-52). However, “[a]
complaint may not be dismissed because the plaintiff’s claims do not support the legal
theory he relies upon since the court must determine if the allegations provide for
relief on any possible theory.” Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d
1364 (11th Cir. 1997).
IV.

Discussion.
Defendant only filed for partial dismissal. Specifically, Defendant moved to

dismiss Plaintiff’s claims under 42 U.S.C. §§ 1983 and 1985(3), as well as Counts II,
III, and VI, to the extent they state a separate cause of action from Plaintiff’s Title VII
retaliation claim. In the course of briefing, Plaintiff concedes that his 42 U.S.C. § 1983
claim is due to be dismissed. (Doc. 6 at 1, 5.) Therefore, the Court turns to the
remaining disputed issues.

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A.

42 U.S.C. § 1985(3).

Plaintiff contends that Defendant violated 42 U.S.C. § 1985(3) (“§ 1985(3)”)
when Moore and Adams allegedly conspired to deprive him of his Title VII rights.
However, Plaintiff does not cite any law opposing Defendant’s contention that a
§ 1985(3) claim is unavailable in this case. The U.S. Supreme Court has held that
“§ 1985(3) may not be invoked to redress violations of Title VII.” Great Am. Fed.
Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 378 (1979). Moreover, Plaintiff sued Eric
Holder in his official capacity. A lawsuit against a government official in his official
capacity is effectively a lawsuit against the governmental entity, and the government
official is entitled to all the immunities available to the governmental entity. See, e.g.,
Hafer v. Melo, 502 U.S. 21, 25 (1991). The United States has not consented to suit
under the civil rights statutes, which include § 1985. Unimex, Inc. v. U.S. Dept. of
Housing and Urban Dev., 594 F.2d 1060, 1061 (5th Cir. 1979).2 Accordingly, Plaintiff’s
§ 1985(3) claim must be dismissed.
B.

Counts II, III, and VI.

In Count II of the Complaint, Plaintiff alleges that Defendant is liable for
“deliberate indifference and failure to prevent violation of Title VII rights.” (Doc.
2

In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit Court of Appeals adopted as binding precedent all decisions of the former Fifth Circuit
handed down prior to close of business on September 30, 1981.
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1 at 19.) In Count III, Plaintiff contends that Defendant “failed to accept proper
issues” for investigation of his employment claims. (Id. at 20.) In Count VI, Plaintiff
purports to state a claim for a “continuing violation of Title VII,” despite a claim for
“ongoing retaliation” in violation of Title VII in Count V. (Id. at 23-24.)
Plaintiff does not dispute that Count II fails to state a separate cause of action.
However, Plaintiff argues that Counts III and VI state a claim for a hostile work
environment. (Doc. 6 at 5-8.) In order to establish a hostile-work-environment claim,
a plaintiff must show that he belongs to a protected group and the harassment was
based on a characteristic protected by Title VII. See, e.g., Miller v. Kenworth of Dothan,
Inc., 277 F.3d 1269, 1275 (11th Cir. 2002)). Plaintiff is a Caucasian male. He has not
alleged any facts in the Complaint to support a claim that he suffered harassment
because of his race, sex, national origin, or religion. Instead, all of the enumerated
facts relate to purported retaliation for participating in EEO investigations and/or
complaining about mistreatment of other FBI employees. The Court agrees with
Defendant that Counts II, III, and VI, as written, do not state viable causes of action
separate from the Title VII retaliation claim in Count V. Accordingly, Counts II, III,
and VI will also be dismissed.

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V.

Conclusion.
For the reasons outlined above, Defendant’s motion to dismiss will be granted

in all respects. A separate order will be entered.
Done this 11th day of May 2012.

____________
L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
139297

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