Scruggs v. Water Works Board of the City of Birmingham

Filing 16

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 10/20/14. (SAC )

FILED
2014 Oct-20 PM 05:01
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHRISTOPHER G. SCRUGGS,
Plaintiff,
v.
THE WATER WORKS BOARD OF THE
CITY OF BIRMINGHAM,
Defendant.

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CIVIL ACTION NO.
2:14-CV-1329-WMA

MEMORANDUM OPINION
This action comes before the court on a motion to dismiss
filed by defendant The Water Works Board of the City of Birmingham
(“the Board”) on August 26, 2014 (Doc. 6), seeking dismissal of
plaintiff Christopher Scruggs’s action as stated in the original
complaint, and on a motion to dismiss filed by the Board on
September 29, 2014 (Doc. 13), seeking dismissal of the action as
stated in Scruggs’s amended complaint. This court has jurisdiction
under 28 U.S.C. § 1331. For the reasons stated below, the Board’s
original motion to dismiss will be denied as moot, and its second
motion to dismiss will be granted in part and denied in part.
BACKGROUND1
Scruggs, a black man, began work for the Board in October
2005, as a Utility Worker. (Doc. 12 at 3, ¶¶ 7, 10). In April 2011,
1

Pursuant to the standard of review applicable to motions to dismiss
under Fed. R. Civ. P. 12(b)(6), all of Scruggs’s factual allegations, as
stated in the amended complaint, will be taken as true. See M.T.V. v. DeKalb
Cnty. Sch. Dist., 446 F.3d 1153, 1156 (11th Cir. 2006).

1

he filed an internal written complaint against Reginald Nall, one
of his supervisors, alleging threats of adverse employment action.
(Doc. 12 at 4, ¶ 13). In September 2011, he filed a written
complaint against Melvin Cloud, another supervisor, alleging a
hostile work environment due to harassment and threats. (Doc. 12 at
4, ¶ 14). In July 2013, Scruggs filed two such complaints against
a white coworker, Adam Pruden, alleging misconduct, a refusal to
work, and violations of the employer’s code of conduct. (Doc. 12 at
4, ¶¶ 15-16).
On November 30, 2013, Scruggs and Dewey Blackston, a white
coworker, were dispatched to make a repair at the home of Heather
Lewis. (Doc. 12 at 4, ¶ 17). Three days later, the Board was
contacted by Lewis’s father, who complained that Scruggs had
charged Lewis for the repair and immediately accepted payment in
the amount of $250 (Doc. 12 at 4, ¶ 18), even though the customer
was not responsible for the cost (Doc. 7-1). Scruggs denied the
allegations. (Doc. 12 at 5, ¶ 19). Blackston provided a statement
regarding the incident, though he withdrew it and provided another
statement because “his first statement included false information
and omitted pertinent details.” (Doc. 12 at 5, ¶ 20).
The Board placed Scruggs on paid administrative leave on
December 16, 2013. He was fired three days later. (Doc. 12 at 7, ¶¶
23, 24). Blackston, on the other hand, was suspended for five days.
(Doc. 12 at 6, ¶ 28). Scruggs filed a charge of discrimination with

2

the EEOC on December 27. (Doc. 7-1). On the EEOC form, he checked
the boxes to allege discrimination based on race and age, but not
retaliation. His allegations appear as follows:
I am Black. I am also in the protected age group. I was
hired to work for the above named employer on October 25,
2005, as a Utility Worker I. Prior to my discharge I was
classified as a Utility Worker II. On November 30, 2013,
Dewey Blackston, a similarly situated younger White
employee, and I were dispatched to a customers’ residence
on an emergency service call. The repair required was not
on the customer’s property; therefore, the City of
Birmingham was responsible for the cost of the repair.
On December 2, 2013, I was informed by the Superintendent
Mike Arrington that I was being accused of using
organization time and equipment for unauthorized or
personal purposes. Specifically, Mr. Arrington informed
me that the customer reported that she paid me for the
cost of the repair, which I deny. On December 16, 2013,
I was placed on administrative leave with pay pending the
outcome of an investigation. On December 26, 2013, I
received a letter which was dated December 19, 2013,
informing me that the decision was made to terminate my
employment. Upon information and belief Mr. Blackston was
not placed on administrative leave or subjected to the
investigative process. Mr. Blackston also remains
employed.
I believe that I have been subjected to discrimination
because of my race Black in violation of Title VII of the
Civil Rights Act of 1964, as amended. I also believe that
I have been subjected to discrimination because of my age
in violation of the Age Discrimination in Employment Act
of 1967, as amended.
(Doc. 7-1). Scruggs appealed his termination to the Board on
January 7, 2014, but the Board upheld his termination and denied
him reinstatement on January 22, 2014. (Doc. 12 at 6, ¶ 26).
Scruggs received a Notice of Rights from the EEOC and timely
commenced this action on July 10, 2014. (Doc. 12 at 6, ¶ 26). In
his original complaint, he asserted claims for race discrimination

3

and retaliation under Title VII of the Civil Rights Act of 1964, as
amended. (Doc. 1). The Board filed its first motion to dismiss on
August 26. (Doc. 6). In response, Scruggs sought and was granted
leave to amend his complaint (Docs. 10, 11), which he did on
September 15 (Doc. 12).
In the amended complaint, Scruggs again asserts claims for
race discrimination and retaliation under Title VII, as well as
under 42 U.S.C. § 1981. He claims that the Board treated him
differently than similarly situated white employees “with respect
to the terms and conditions of his employment, including but not
limited

to

scrutiny,

discipline,

termination,

and

denial

of

reinstatement.” (Doc. 12 at 7, ¶ 32). Scruggs alleges that race was
a “substantial or motivating factor” in the disparate treatment.
(Doc. 12 at 7, ¶ 34). He lists Dewey Blackston, Jed Rowan, and Adam
Pruden as comparators. (Doc. 12 at 7, ¶ 33). Scruggs also claims
that he was subjected to a hostile work environment based on his
race and that he was subjected to retaliation after reporting his
supervisors’ and Pruden’s conduct to Human Resources and after
filing his EEOC charge. (Doc. 12 at 7-8, ¶ 39-43). The Board again
moved to dismiss the action on September 29, pursuant to Fed. R.
Civ. P. 12(b)(6). (Doc. 13).
DISCUSSION
A. The Original Complaint and Motion to Dismiss
The Board moved to dismiss the original complaint on August

4

26, 2014, to which Scruggs responded by requesting and receiving
leave to amend; he filed his amended complaint on September 15. “As
a general matter, ‘[a]n amended pleading supersedes the former
pleading; the original pleading is abandoned by the amendment, and
is

no

longer

a

part

of

the

pleader's

averments

against

his

adversary.’” Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241,
1243 (11th Cir. 2007) (quoting Dresdner Bank AG v. M/V Olympia
Voyager, 463 F.3d 1210, 1215 (11th Cir. 2006)). Because Scruggs’s
claims in his original complaint are now abandoned or superseded,
the Board’s first motion to dismiss will be denied as moot. See
Washington v. Potter, No. 1:09–CV–1774–JOF–RGV, 2010 WL 2635647
(N.D. Ga. Apr. 16, 2010) (“Since plaintiff has abandoned the claims
asserted

in

her

original

complaint,

it

is

RECOMMENDED

that

defendant's motion to dismiss plaintiff's original complaint, [Doc.
7], be DENIED as moot.”).
B. The Amended Complaint and Motion to Dismiss
In its second motion to dismiss, the Board advanced four
arguments in favor of dismissal; three are well taken. As explained
below, the second motion will be granted in part and denied in
part.
1. Claims under 42 U.S.C. § 1981
In his response to the motion to dismiss, Scruggs voluntarily
abandoned his race discrimination and retaliation claims under 42
U.S.C. § 1981. (Doc. 15 at 10). Such claims will consequently be
5

dismissed.
2. Exhaustion of Administrative Remedies
“Prior to filing a Title VII action . . . a plaintiff first
must file a charge of discrimination with the EEOC.” Gregory v. Ga.
Dep’t of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004). Scruggs
filed such a charge on December 27, 2013. (Doc. 7-1). The Board,
however, presents two challenges to the sufficiency of the charge:
(1) no conduct occurring before November 30, 2013, is alleged in
the charge, so claims based on such conduct are barred; and (2) an
EEOC charge must be filed within 180 days of the alleged unlawful
conduct, so Scruggs’s claims regarding conduct occurring prior to
June 30, 2013, are barred. (Doc. 13-1). Because the Board’s first
given reason is plainly sufficient, there is no need to consider
the second.
“[A] ‘plaintiff's judicial complaint is limited by the scope
of the EEOC investigation which can reasonably be expected to grow
out of the charge of discrimination.’” Gregory, 355 F.3d at 1280
(quoting Alexander v. Fulton Cnty., Ga., 207 F.3d 1303, 1332 (11th
Cir. 2000)). “The purpose of this exhaustion requirement ‘is that
the [EEOC] should have the first opportunity to investigate the
alleged discriminatory practices to permit it to perform its role
in

obtaining

voluntary

compliance

and

promoting

conciliation

efforts.’” Id. at 1279 (quoting Evans v. U.S. Pipe & Foundry Co.,
696 F.2d 925, 929 (11th Cir. 1983)). “Judicial claims which serve
6

to

amplify,

complaints

clarify,
are

or

more

appropriate.

clearly

focus

Allegations

of

earlier
new

EEO[C]

acts

of

discrimination, offered as the essential basis for the requested
judicial review are not appropriate.” Wu v. Thomas, 863 F.2d 1543,
1547 (11th Cir. 1989) (quoting Ray v. Freeman, 626 F.2d 439, 443
(5th Cir. 1980)). “Courts are nonetheless ‘extremely reluctant to
allow procedural technicalities to bar claims brought under [Title
VII],’” so “‘the scope of an EEOC complaint should not be strictly
interpreted.’” Gregory, 355 F.3d at 1280 (quoting Sanchez v.
Standard Brands, Inc., 431 F.2d 455, 460-61, 465 (5th Cir. 1970)).
Even interpreting Scruggs’s EEOC complaint liberally, it does
not support

all

of

the

allegations contained

in

the

amended

complaint. In the EEOC charge, Scruggs only alleges discrimination
based

on

one

incident

—

the

November

30,

2013,

repair

and

subsequent discipline. (Doc. 7-1). He discusses the details of the
service call, the accusations against him, and his suspension and
termination. He did not include a single word concerning former
complaints about his supervisors or coworkers, acts that he now
claims sparked retaliation against him. These claims clearly do not
appear in the EEOC charge; neither could the claims “reasonably be
expected to grow out of the charge of discrimination,” Gregory, 355
F.3d at 1280. The purpose of the exhaustion requirement is to give
the EEOC notice of potential violations and to allow the EEOC the
first opportunity to investigate, but Scruggs’s charge in no way

7

provided the EEOC with any notice of his prior complaints and
possible

retaliation,

or

even

with

any

reason

to

further

investigate such a possibility.
Scruggs contends that he should not be penalized for failing
to check the “Retaliation” box on the charge form, especially since
his charge was filed without assistance of counsel. See Gregory,
355 F.3d at 1280 (finding that the charge alleged facts supporting
a retaliation claim, even though the plaintiff failed to check the
appropriate box). Even forgiving the failure to check the box,
Scruggs alleges absolutely no facts relating to retaliation, so the
court’s finding that he failed to exhaust his administrative
remedies is not a penalty for failing to check the appropriate box;
rather, it is a finding that he alleged no facts to put the EEOC on
notice of a potential retaliation claim. See Green v. Elixir
Industries, Inc., 152 Fed. App’x 838, 840-41 (11th Cir. 2005).
Scruggs has, however, asserted one retaliation claim that is
permissible. In his amended complaint, Scruggs alleges that he was
retaliated against for filing the EEOC charge, when the Board
subsequently denied his appeal and application for reinstatement.
(Doc. 12 at 8, ¶ 43). Retaliation for filing an EEOC charge does
not need to be separately exhausted, since it could reasonably be
expected to grow out of the original charge. See Baker v. Buckeye
Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988) (“‘[I]t is
unnecessary for a plaintiff to exhaust administrative remedies

8

prior to urging a retaliation claim growing out of an earlier
charge; the district court has ancillary jurisdiction to hear such
a claim when it grows out of an administrative charge that is
properly before the court.’”) (quoting Gupta v. East Tex. State
Univ., 654 F.2d 411, 414 (5th Cir. Unit A 1981)).
Therefore,

Scruggs

failed

to

exhaust

the

required

administrative remedies in regards to all claims of discrimination
and retaliation occurring prior to the November 30, 2013, incident,
so all such claims are due to be dismissed.
3. Plausibility under Twombly and Iqbal
The Board contends that each of the counts in the amended
complaint fails to meet the pleading requirements set out in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009). When reviewing a motion to dismiss
under Fed. R. Civ. P. 12(b)(6), the court must “‘accep[t] the
allegations in the complaint as true and constru[e] them in the
light most favorable to the plaintiff.’” M.T.V. v. DeKalb Cnty.
Sch. Dist., 446 F.3d 1153, 1156 (11th Cir. 2006) (quoting Hill v.
White, 321 F.3d 1334, 1335 (11th Cir. 2003)). A complaint must,
however, “state a claim to relief that is plausible on its face” to
survive such a motion. Twombly, 550 U.S. at 570. The Supreme Court
has identified two working principles for district courts to apply
in determining plausibility. “First, the tenet that a court must
accept as true all of the allegations contained in a complaint is
9

inapplicable to legal conclusions. Threadbare recitals of the
elements of

a

cause

of

action, supported

by

mere

conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678. “Second, only
a complaint that states a plausible claim for relief survives a
motion to dismiss.” Id. at 679. “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678. “The plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id.
In

Count

I

of

the

amended

complaint,

Scruggs

alleges

discrimination based on race in violation of Title VII. (Doc. 12 at
6-7). A prima facie case of discrimination under Title VII exists
if the plaintiff shows that: “(1) she is a member of a protected
class; (2) she was subjected to an adverse employment action; (3)
her employer treated similarly situated employees outside of her
protected class more favorably than she was treated; and (4) she
was qualified to do the job.” Burke-Fowler v. Orange Cnty., Fla.,
447 F.3d 1319, 1323 (11th Cir. 2006).
The Board argues that Scruggs has not pled sufficient facts
with regard to his alleged comparators to give rise to an inference
of discrimination. In order to satisfy the similarly situated
prong,

particularly

in

an

action

involving

misconduct,

“the

plaintiff must show that the ‘employees are similarly situated in

10

all relevant respects. . . . In determining whether employees are
similarly situated . . . it is necessary to consider whether the
employees are involved in or accused of the same or similar conduct
and are disciplined in different ways.’” Knight v. Baptist Hosp. of
Miami, 330 F.3d 1313, 1316 (11th Cir. 2003) (quoting Holifield v.
Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)).
Scruggs names three white coworkers as comparators in his
amended complaint: Dewey Blackston, Jed Rowan, and Adam Pruden.
(Doc. 12 at 7, ¶ 33). As to the latter two, the complaint alleges
no facts to show that they are similarly situated to Scruggs. This
is not the case, however, as to Dewey Blackston. Scruggs alleges
that Blackston is a white male who was dispatched with Scruggs to
Lewis’s residence on November 30, 2013. (Doc. 12 at 4, ¶ 17). After
the incident, Scruggs was suspended and terminated, and his appeal
and request for reinstatement were denied, while Blackston was only
suspended

for

five

days.

(Doc.

12

at

5-6,

¶¶

23-29).

These

allegations are sufficient to establish Blackston as a potential
comparator,

particularly

in

light

of

the

Supreme

Court’s

instruction that “[t]he burden of establishing a [Title VII] prima
facie case of disparate treatment is not onerous,” Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
The Board argues that Blackston is not a sufficient comparator
because: (1) Scruggs does not allege that Blackston was involved in
charging the customer for the repairs; and (2) Scruggs alleges that

11

Blackston made a false statement about the incident. (Doc. 13-1 at
8-9). First, while a more specific allegation as to Blackston’s
conduct would be helpful, this court will not find Blackston to be
an insufficient comparator simply because such an allegation is
missing. The court is instructed to draw all reasonable factual
inferences in favor of the non-movant, M.T.V., 446 F.3d at 1156,
and such an inference would be that because Blackston was present
and involved in the repair and was subsequently disciplined, he was
also involved in the alleged improper charging. While this may need
to be proven at a later stage, the court will draw this reasonable
inference

presently

and

find

Blackston

to

be

a

sufficient

comparator. As to the false statement Blackston gave, this does not
disqualify

his

comparator

status

—

because

Blackston

was

sufficiently involved in the November 30 incident, this additional
misconduct does not prevent Scruggs from alleging his prima facie
case. Therefore, Blackston is, as of now, a proper comparator.
Accordingly, Scruggs has alleged a prima facie Title VII violation
for race discrimination, and Count I states a plausible claim for
relief.
The Board also seeks dismissal of Count II (Retaliation under
Title VII). The Board’s arguments relate only to incidents that
were not included in Scruggs’s EEOC charge; those aspects of the
claim are already due to be dismissed for non-exhaustion. The Board
makes no argument for dismissing Scruggs’s claim of retaliation for

12

filing the EEOC charge, so Scruggs’s retaliation claim will not be
dismissed to the extent that it alleges such retaliation.
4. Punitive Damages
In his amended complaint, Scruggs seeks an award of punitive
damages. (Doc. 12 at 9). Punitive damages are permitted for Title
VII violations, but only against non-governmental entities. 42
U.S.C. § 1981a(b)(1) (2012) (“A complaining party may recover
punitive damages under this section against a respondent (other
than a government, government agency or political subdivision) . .
. .”); see also Scott v. Estes, 60 F. Supp. 2d 1260, 1274 (M.D.
Ala.

1999)

(“Governmental

entities

are

expressly

exempt

from

punitive damages under Title VII . . . .” ). The Board is a public
corporation created under Ala. Code § 11-50-230 et seq. See Water
Works and Sewer Bd. of City of Birmingham v. Shelby Cnty., 624 So.
2d 1047, 1048 (Ala. 1993). Therefore, Scruggs’s claims for punitive
damages will be dismissed.
A separate order will be entered.

DONE this 20th day of October, 2014.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

13