Smith v. Pleasant Grove, The City of et al

Filing 20

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 10/7/2016. (AVC)

FILED
2016 Oct-07 AM 11:50
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LANCE SMITH,
Plaintiff,
v.
THE CITY OF PLEASANT GROVE
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 2:16-cv-00373-JEO

MEMORANDUM OPINION
In this employment discrimination action, plaintiff Lance Smith, a
homosexual male, alleges that he was subjected to discriminatory treatment while
employed as a police officer in the Pleasant Grove Police Department and then
constructively discharged. Named as defendants are the City of Pleasant Grove;
the Pleasant Grove Police Department; Robert Knight (“Chief Knight”), the
Pleasant Grove Chief of Police1; and Jennifer Fredrick (“Lt. Fredrick”), a
Lieutenant in the Pleasant Grove Police Department. Before the court are three
motions: a motion to dismiss by Chief Knight and Lt. Fredrick (doc. 5); a separate
motion to dismiss by the City of Pleasant Grove and the Pleasant Grove Police
Department (doc. 7); and a motion for leave to file an amended and restated
complaint by Smith (doc. 16).
1

Upon consideration, the court concludes that

Robert Knight is mistakenly identified as “Roger Knight” in the complaint. (See Doc. 5, n.1).

Smith’s motion for leave to file an amended and restated complaint is due to be
granted and that the defendants’ motions to dismiss are due to be granted in part
and denied in part.
I.
A.

FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY
Facts as Alleged in Smith’s Original Complaint
In his original complaint, Smith alleges that he interviewed with Lt. Fredrick

in 2014 for an available police officer position in the Pleasant Grove Police
Department. Lt. Fredrick indicated that Smith would be offered the police officer
position and told him the salary he would be paid. At the end of the interview,
Smith informed Lt. Fredrick that he is a homosexual and has a male partner.
According to Smith, Lt. Fredrick’s demeanor changed at that point and she advised
him to reconsider working at the department. A few hours after the interview,
however, Smith received an email from Lt. Fredrick informing him that his
homosexuality would not be an issue. (Doc. 1 (Complaint) ¶¶ 17-25).
After Smith completed the required physical exam for the police officer
position, Lt. Fredrick informed him that he needed to meet with Chief Knight.
Smith then met with Chief Knight and Lt. Fredrick and was told by Chief Knight
that he would be paid a lower salary than he had been promised by Lt. Fredrick.
Smith began employment as a police officer with the Pleasant Grove Police

2

Department on July 8, 2014, at a yearly salary that was $5,000.00 less than he had
been promised by Lt. Fredrick. (Id. ¶¶ 16, 26-28).
According to Smith, upon being hired he was supposed to attend a threeweek field training course, but was only allowed to attend the course for less than
two weeks. He was assigned to ride with Field Training Officer Andy Reid
(“Officer Reid”). After Smith had ridden with Officer Reid for less than two
weeks, Lt. Fredrick convened a meeting with Smith and Officer Reid and asked
them whether Smith was capable of working on his own. Despite being advised by
Officer Reid that Smith was not ready to work on his own due to a lack of
experience, Lt. Fredrick ordered that Smith be moved to the night shift to patrol on
his own. (Id. ¶¶ 30-42).
Smith alleges that he was informed by the night shift police sergeant that Lt.
Fredrick had instructed the sergeant to write down everything Smith did wrong so
Lt. Fredrick could fire him. Smith also alleges that another night shift officer
warned him to be careful because a police corporal was a “homophobe.” (Id. ¶¶ 4346).
On September 9, 2014, Smith met with Lt. Fredrick and was told that he was
“not going to work out” and needed to resign. Lt. Fredrick refused to tell Smith
what he had done wrong, but did tell him that he was a good officer and would find
another department that would “fit” him better. Lt. Fredrick handed Smith a
3

resignation letter and informed Smith that he would go back on the list of eligible
officers if he signed the letter, but would be grounded, suspended, and then fired if
he did not resign. According to Smith, he resigned in the face of these “threats.”
(Id. ¶¶ 48-56).
Smith claims that Lt. Fredrick told him she would advise prospective
employers and the Jefferson County Personnel Board that he resigned in good
standing. However, since resigning Smith has applied for several police officer
positions through the Personnel Board without success. Smith alleges that he has
been unable to find employment because “Defendants” have falsely reported that
he was an unsatisfactory employee. (Id. ¶¶ 60-62).
B.

Procedural History
On December 9, 2014, Smith filed a Charge of Discrimination with the

Equal Employment Opportunity Commission (“EEOC”). In his EEOC Charge,
Smith checked the box for discrimination based on “sex” and alleged that he was
terminated from his employment with the Pleasant Grove Police Department
“because of stereotypes associated with [his] sex and because of [his] gender ….”
(Doc. 1 at 20-21).
On December 2, 2015, the EEOC issued a Dismissal and Notice of Rights
with respect to Smith’s EEOC Charge. (Doc. 1 at 23-24). Smith then filed this
action on March 1, 2016. In Count One of his complaint, Smith alleges that the
4

City of Pleasant Grove and the Pleasant Grove Police Department subjected him to
“discriminatory terms and conditions of employment because of his sexual
orientation, stereotypes associated with [his sex] and his gender,” in violation of
Title VII of the Civil Rights Act of 1964. (Doc. 1 ¶¶ 64-76). In Count Two, Smith
alleges that the City of Pleasant Grove, the Pleasant Grove Police Department,
Chief Knight in his official capacity, and Lt. Fredrick in her official capacity
deprived him of “his clearly established right to be free from gender/sexual
discrimination as guarantee[d] by the Equal Protection clause of the Fourteenth
Amendment to the United States Constitution. (Id. ¶¶ 77-89). In Count Three,
Smith alleges that “all Defendants” interfered with his “contractual or business
relationship with prospective employers.” (Id. ¶¶ 90-96).
In response to Smith’s complaint, Chief Knight and Lt. Fredrick have filed a
motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. (Doc. 5). They argue that all “official capacity” claims against them
are due to be dismissed as redundant of Smith’s claims against the City of Pleasant
Grove. (Id. at 1-2). They further argue that to the extent Smith contends he has
sued them in their individual capacities, they have qualified immunity from his
equal protection claim because he has not identified a similarly situated comparator
and cannot show that their alleged conduct violated clearly established law. (Id. at
2-11). Chief Knight and Lt. Fredrick also argue in a footnote that they cannot be
5

held liable for Smith’s claim for interference with a contractual or business
relationship because they are not “strangers” to the relationship Smith claims they
interfered with. (Id. at 3, n.3).
The City of Pleasant Grove and the Pleasant Grove Police Department have
also filed a motion to dismiss Smith’s complaint. (Doc. 7). They first argue that all
claims against the Pleasant Grove Police Department are due to be dismissed
because it is not a legal entity capable of being sued. (Id. at 2-3). The City of
Pleasant Grove then argues that Smith’s Title VII claim is due to be dismissed
because Title VII does not provide a remedy for alleged discrimination based
solely on sexual orientation. (Id. at 3-8). The City argues that Smith’s equal
protection claim should be dismissed because Smith’s factual allegations are
insufficient to establish that the City had an unconstitutional policy or custom that
caused his alleged injury. (Id. at 8-11). The City argues that Smith’s tort claim for
interference with a contractual or business relationship is due to be dismissed
because the tort requires intentional interference and a municipality cannot be held
liable for an intentional tort. 2 (Id. at 11-13). Finally, the City argues that Smith’s

2

The City also argues that Smith’s claim for interference with a contractual or business
relationship is due to be dismissed on the additional ground that the City cannot, as a matter of
law, interfere with the employment practices of the Jefferson County Personnel Board because
the City is expressly subject to the Personnel Board by statute and therefore is not a “stranger” to
the Personnel Board’s employment practices. (Doc. 7 at 13-16).
6

requests for injunctive relief and punitive damages are barred as a matter of law.
(Id. at 16-18).
Smith has not responded directly to either motion to dismiss. Instead, Smith
has filed a motion for leave to file an amended and restated complaint (“amended
complaint”). (Doc. 16).

The amended complaint is attached as an exhibit to

Smith’s motion. (Doc. 16-1). It is similar to Smith’s original complaint, but differs
in certain key respects 3:
1.

The Pleasant Grove Police Department is not named as a

defendant in the amended complaint.
2.

The amended complaint does not contain any demand for

punitive damages against the City of Pleasant Grove.
3.

The amended complaint clarifies that Chief Knight and Lt.

Fredrick are sued in their individual capacities for purposes of Smith’s claim
for intentional interference with a contractual or business relationship. (Doc.
16-1 ¶¶ 6-7). That claim is asserted against only Chief Knight and Lt.
Fredrick in their individual capacities and not against the City of Pleasant
Grove. (Id. ¶ 95).
4.

The amended complaint adds new factual allegations that

“[s]exual and gender-stereotyping comments were made to [Smith],
3

The following list does not include every difference between Smith’s original complaint and his
amended complaint.
7

including that ‘men should be men’” and that “[o]ther officers made jokes
about [Smith’s] attire and his mannerisms which were related to his
homosexuality and non-conformity with gender stereotypes.” (Id. ¶¶ 30-31).
5.

The amended complaint also adds the allegation that Smith

“informed Defendants that he was marrying his male partner of five years,
and the association with his male partner led to his being treated differently
in training and ultimately, his being constructively discharged.” (Id. ¶ 32).
6.

In his Title VII claim, Smith adds the allegations that he was

discriminated against because of his “non-conformity” with stereotypes
associated with his sex and gender and because of his “personal associations,
including his specific relationship and marriage to his male partner.” (Id. ¶¶
74-75).
7.

In his equal protection claim, Smith similarly adds the

allegation that he was deprived of his right to be free from “discrimination
based on non-conformity with gender stereotypes and personal associations
….” (Id. ¶ 83). He also adds the express allegation that the defendants acted
“in accord with the policy and custom” of the City of Pleasant Grove. (Id. ¶
90).
In his motion for leave to file his amended complaint, Smith asserts that the
amendments to his complaint “are based on and are responsive to the issues
8

asserted in” the defendants’ motions to dismiss and that the motions to dismiss are
moot as a consequence. (Doc. 16 ¶¶ 3, 5). The defendants do not agree. In their
reply in support of their motions to dismiss, the defendants assert that Smith’s
proposed amended complaint “fails to cure many of the legal problems” raised in
their motions to dismiss and that his proposed amendments are “futile.” (Doc. 18
at 1, 5-9). They thus argue that Smith’s motion for leave to file his amended
complaint should be denied and that his “defective claims” should all be dismissed.
(Id. at 5, 9).
II.
A.

DISCUSSION

Smith’s Motion for Leave to File his Amended Complaint
The court will first address Smith’s motion for leave to file his amended

complaint. Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that the
court should “freely give leave [to amend] when justice so requires,” and the
Eleventh Circuit has noted that Rule 15(a) “provides the district court with
extensive discretion to decide whether to grant leave to amend [even] after the time
for amendment as a matter of course has passed.” Hargett v. Valley Fed. Sav.
Bank, 60 F.3d 754, 761 (11th Cir. 1995). Here, no scheduling order had been
entered as of the time Smith filed his motion for leave to amend and the time for
amending the pleadings had not passed. In addition, for the reasons discussed
below, the court finds that Smith’s proposed amendments to his complaint are not
9

futile. Accordingly, the court is satisfied that Smith’s motion for leave to file his
amended complaint is due to be granted.
B.

The Defendants’ Motions to Dismiss
1.

Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a motion to
dismiss an action on the ground that the allegations in the complaint fail to state a
claim upon which relief can be granted. On such a motion, the “‘issue is not
whether a plaintiff will ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims.’” Little v. City of North Miami, 805 F.2d 962,
965 (11th Cir. 1986) (quoting Scheur v. Rhodes, 416 U.S. 232, 236 (1974)). In
considering a motion to dismiss, the court assumes the factual allegations in the
complaint are true and gives the plaintiff the benefit of all reasonable factual
inferences. Hazewood v. Foundation Financial Group, LLC, 551 F.3d 1223, 1224
(11th Cir. 2008) (per curiam).
Rule 12(b)(6) is read in light of Rule 8(a)(2), which requires only “a short
and plain statement of the claim showing that the pleader is entitled to relief,” in
order to “‘give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.’” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “While a complaint attacked
by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a
10

plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations, brackets, and internal quotation marks omitted). “Factual allegations
must be enough to raise a right to relief above the speculative level . . . .” Id.
Thus, “a complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face,’” i.e., its “factual content . . . allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations

omitted). “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.
(quoting Twombly, 550 U.S. at 557).
2.

Remaining Issues

Because the court has determined that Smith’s motion for leave to amend his
complaint is due to be granted, certain aspects of the defendants’ motions to
dismiss are now moot. Through his amended complaint, Smith has effectively
dismissed the Pleasant Grove Police Department as a defendant, withdrawn his
demand for punitive damages from the City of Pleasant Grove, withdrawn any
equal protection claim against Chief Knight and Lt. Fredrick in their individual
capacities (assuming that the original complaint included any such claim), and
11

withdrawn his claim against the City of Pleasant Grove for interference with a
contractual or business relationship. To the extent that the defendants’ motions to
dismiss address such issues, the motions to dismiss are moot.
Other aspects of the motions to dismiss are not moot and deserve further
consideration.

In particular, the defendants argue that (1) even as amended,

Smith’s Title VII claim against the City of Pleasant Grove is not actionable and is
due to be dismissed; (2) Smith’s equal protection claim against Chief Knight and
Lt. Fredrick in their official capacities is still redundant of his claim against the
City of Pleasant Grove and is still due to be dismissed; (3) Smith’s equal protection
claim against the City of Pleasant Grove is still due to be dismissed because the
amended complaint adds no new factual allegations demonstrating that the City
had an unconstitutional policy or custom that caused his alleged injury and because
Smith has still failed to identify a similarly situated comparator; (4) Smith has set
forth no new allegations refuting the argument that Chief Knight and Lt. Fredrick
are not “strangers” to the City’s relationship with the Jefferson County Personnel
Board and cannot be liable for interfering with the Personnel Board’s employment
practices; and (5) Smith’s requests for injunctive relief are still due to be stricken,
even if he has otherwise stated a valid underlying claim in his amended complaint.
(Doc. 18 at 3-9). The court will address each argument in turn.

12

a.

Smith’s Title VII Claim

In his amended complaint, Smith alleges that the City of Pleasant Grove
violated Title VII by discriminating against him based on his sexual orientation, his
nonconformity with stereotypes associated with his sex and his gender, and his
personal associations, specifically his relationship with and marriage to his male
partner. (Doc. 16-1 ¶¶ 75-76). The City argues that discrimination based on sexual
orientation is not actionable under Title VII and that Smith’s allegations of
discrimination based on his “association” with his male partner and his “nonconformity” with sex and gender stereotypes are simply different ways of alleging
discrimination based on sexual orientation. (Doc. 18 at 6-9).
Traditionally, courts in this circuit have held that Title VII does not provide
a remedy for discrimination based on sexual orientation. As another court of this
district explained:
Title VII prohibits discrimination with respect to an employee’s
“compensation, terms, conditions, or privileges of employment
because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e–2(a). Specifically, the statute provides
that it shall be unlawful for an employer:
to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to
his compensation, terms, conditions or privileges of
employment, because of such individual’s race, color, religion,
sex, or national origin.
2 U.S.C. § 2000e–2(a)(1). Noticeably absent from the statute is any
protection against discrimination on account of sexual orientation.
13

The Eleventh Circuit Court of Appeals has held that same-sex
harassment, such as a homosexual supervisor’s advances upon a
same-sex employee, can be actionable under Title VII, but specifically
noted: “We do not hold that discrimination because of sexual
orientation is actionable.” Fredette v. BVP Mgmt. Assocs., 112 F.3d
1503, 1510 (11th Cir. 1997). Other circuit courts of appeal have
similarly recognized that sexual orientation is not a protected class
under Title VII. See Vicker v. Fairfield Med. Ctr., 453 F.3d 757, 762
(6th Cir. 2006); Medina v. Income Support Div., 413 F.3d 1131, 1135
(10th Cir.2005); Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061,
1063 (9th Cir. 2002) (en banc); Bibby v. Philadelphia Coca Cola
Bottling Co., 260 F.3d 257, 265 (3d Cir. 2001); Simonton v.
Runyon, 232 F.3d 33, 35 (2d Cir. 2000); Hamner v. St. Vincent Hosp.
and Health Care Ctr., Inc., 224 F.3d 701, 707 (7th Cir.
2000); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259
(1st Cir. 1999). Courts within the Eleventh Circuit have consistently
rejected Title VII claims where the complaints were based upon
discrimination that arose from the plaintiff’s sexual orientation or
perceived sexual orientation. See, e.g., Bostick v. CBOCS, Inc., 2014
WL 3809169 (M.D. Fla. Aug. 1, 2014); Valencia v. Department of
Interior, 2008 WL 4495694 *13 (M.D. Ala. Oct. 7, 2008); Hudson v.
Norfolk So. Ry. Co., 209 F. Supp. 2d 1301, 1315 (N.D. Ga.
2001); Fitzpatrick v. Winn–Dixie Montgomery, Inc., 153 F. Supp. 2d
1303, 1306 (M.D. Ala. 2001).
Stevens v. Ala. Dep’t of Corrections, Case No. 1:12-cv-3782-TMP, 2015 WL
1245355, *7 (N.D. Ala. Mar. 18, 2015). The Equal Employment Opportunity
Commission, however, recently concluded that “an allegation of discrimination
based on sexual orientation is necessarily an allegation of sex discrimination under
Title VII.” Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641,
*5 (July 15, 2015). At least one court in this circuit, noting that the question is “an
open one,” has agreed with the EEOC and has found that “claims of sexual

14

orientation-based discrimination are cognizable under Title VII.” Isaacs v. Felder
Servs., LLC, 143 F. Supp. 3d 1190, 1193 (M.D. Ala. 2015) (citing Foxx).
Here, regardless of whether sexual orientation discrimination is necessarily
sex discrimination, Smith has also alleged discrimination based on his failure to
conform to sex and gender stereotypes.4 In Price Waterhouse v. Hopkins, 490 U.S.
228, 251 (1989), a plurality of the Supreme Court stated that “[i]n forbidding
employers to discriminate against individuals because of their sex, Congress
intended to strike at the entire spectrum of disparate treatment of men and women
resulting from sex stereotypes.” (internal citations and quotation marks omitted).
The Eleventh Circuit has cited Price Waterhouse for the holding that “Title VII
bar[s] not just discrimination because of biological sex, but also gender
stereotyping—failing to act and appear according to expectations defined by
gender.” Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (citing Price
Waterhouse, 490 U.S. at 250-51 (plurality opinion), 258-61 (White, J., concurring),
and 272-73 (O’Connor, J., concurring)). 5

In Brumby, the Eleventh Circuit

4

To the extent Smith also alleges discrimination based on his “association” with his male
partner, the court agrees with the City of Pleasant Grove that this allegation is simply a recasting
of his allegation of discrimination based on his sexual orientation. As the City has observed,
Smith’s amended complaint says nothing about his partner’s specific characteristics other than
the fact that he is male (and, by implication, homosexual). Without more, Smith’s association
with his male partner is merely reflective of his sexual orientation.

5

Although Brumby involved the question “whether discriminating against someone on the basis
of his or her gender non-conformity constitutes sex-based discrimination under the Equal
15

observed that “[a]ll persons … are protected from discrimination on the basis of
gender stereotypes,” noting that “courts have held that plaintiffs cannot be
discriminated against for wearing jewelry that was considered too effeminate,
carrying a serving tray too gracefully, or taking too active a role in child-rearing.”
Id. at 1318-19 (footnotes omitted). See also Isaacs, 143 F.3d at 1194 (“To the
extent that sexual orientation discrimination occurs … based on [an individual’s]
perceived deviations from ‘heterosexually defined gender norms,’ this, too, is sex
discrimination, of the gender-stereotyping variety.”); Foxx, 2015 WL 4397641, at
*7 (“Sexual orientation discrimination also is sex discrimination because it
necessarily involves discrimination based on gender stereotypes.”).
In his amended complaint, Smith alleges that “[s]exual and genderstereotyping comments” were made to him during his employment with the
Pleasant Grove Police Department, including the comment that “men should be
men,” which led him to conclude that other members of the department did not feel
he was “manly” enough to be a police officer. (Doc. 16-1 ¶ 30). He also alleges
that other officers made jokes about his attire and his mannerisms. (Id. ¶ 31).
These factual allegations are “enough to raise a right to relief [under Title VII]
above the speculative level.” Twombly, 550 U.S. at 555 (insertion added). They
are sufficient to allow the court to draw the reasonable inference that the City of
Protection Clause,” the court cited and relied on many Title VII cases, including Price
Waterhouse.
16

Pleasant Grove could be liable for discriminating against Smith because of his
failure to conform to sex and gender stereotypes. Accordingly, the City of Pleasant
Grove’s motion to dismiss Smith’s Title VII claim is due to be denied.
b.

Smith’s Equal Protection Claim

Smith’s amended equal protection claim is asserted against the City of
Pleasant Grove, Chief Knight in his official capacity as the Chief of Police for the
City, and Lt. Fredrick in her official capacity as a Lieutenant for the City. Smith
alleges that these defendants deprived him of his equal protection right to be free
from “gender/sexual discrimination, discrimination based on non-conformity with
gender stereotypes and [discrimination based on] personal associations ….” (Doc.
16-1 ¶¶ 83, 90).

He further alleges that the defendants’ actions were taken

“intentionally and/or with reckless indifference to [his] clearly established rights in
accord with the policy and custom of” the City. (Id. ¶ 90).
Chief Knight and Lt. Fredrick argue that claims against municipal officers in
their official capacities are redundant of claims against the municipality itself. The
court agrees. In Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991), the
Eleventh Circuit noted that “[b]ecause suits against a municipal officer sued in his
official capacity and direct suits against municipalities are functionally equivalent,
there no longer exists a need to bring official-capacity actions against local
government officials, because local government units can be sued directly ….”
17

See also Kelley v. City of Fairfield, Case No. 2:13-cv-01012-MHH, 2015 WL
4229872, *3 (N.D. Ala. July 13, 2015) (“The Court will dismiss Mr. Kelley’s
official capacity claims against Chief Davis, Officer Hunter, and Officer Dudley
because the Court treats suits against municipal officers in their official capacities
as suits against the municipality itself. … Mr. Kelley has named the City of
Fairfield as a defendant in this action, so his official capacity claims against Chief
Davis and Officers Hunter and Dudley are unnecessary.”). Therefore, to the extent
Smith’s equal protection claim is asserted against Chief Knight and Lt. Fredrick in
their official capacities, the claim is due to be dismissed.
The more difficult question is whether Smith’s equal protection claim
against the City of Pleasant Grove is due to be dismissed as well. The statutory
vehicle for bringing a claim against a municipality for an alleged constitutional
violation is 42 U.S.C. § 1983. “The Supreme Court has placed strict limitations on
municipal liability under § 1983.” Grech v. Clayton County, 335 F.3d 1326, 1329
(11th Cir. 2003). It is only when “execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be said
to represent official policy, inflicts the injury that the government as an entity is
responsible under § 1983.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978). To hold a municipality liable under § 1983, “a plaintiff must show: (1)
that his constitutional rights were violated; (2) that the municipality had a custom
18

or policy that constituted deliberate indifference to that constitutional right; and (3)
that the policy or custom caused the violation.” McDowell v. Brown, 392 F.3d
1283, 1289 (11th Cir. 2004). To demonstrate the existence of a policy or custom,
“it is generally necessary to show a persistent and wide-spread practice.” Id. at
1290 (internal quotation marks and citation omitted). “Proof of a single incident of
unconstitutional activity is not sufficient to impose liability against a
municipality.” Craig v. Floyd County, 643 F.3d 1306, 1310 (11th Cir. 2011)
(citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (plurality
opinion)) (internal quotation marks omitted).

Rather, “[a] pattern of similar

constitutional violations … is ordinarily necessary” to impose liability. Id. (citing
Connick v. Thompson, 563 U.S. 51, 62 (2011)) (internal quotation marks omitted).
Having thoroughly reviewed Smith’s amended complaint, the court agrees
with the City of Pleasant Grove that Smith has failed to adequately allege a claim
against the City for violation of his equal protection rights. Even assuming that
Smith’s equal protection rights were violated, his amended complaint does not
contain sufficient factual matter to allow the court to draw the reasonable inference
that the City has a policy or custom that caused the violation. He has not alleged
any facts evidencing a persistent and wide-spread City practice of discriminating
against individuals, and violating their equal protection rights, based on their

19

sexual orientation, nonconformity with gender stereotypes, or personal
associations.
In addition, Smith has failed to adequately allege the existence of a similarly
situated comparator, an essential component of an equal protection claim. To
prevail on his equal protection claim, Smith must show “a satisfactory comparator
who was in fact similarly situated and yet treated differently.”
Bieluch, 203 F. App’x 257, 264 (11th Cir. 2006).

Eggleston v.

The comparator must be

“‘similarly situated in all relevant respects.’” Id. (quoting Knight v. Baptist Hosp.
of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003)).

Failure to show a

satisfactory comparator is fatal to an equal protection claim.

See Hayden v.

Coppage, 533 F. Supp. 2d 1186, 1194-95 (M.D. Ala. 2008) (granting motion to
dismiss plaintiff’s equal protection claim where his amended complaint failed to
show a similarly situated comparator).
Here, Smith’s amended complaint contains two boilerplate references to
“similarly situated employees.” He alleges that he was not awarded the pay he was
initially promised and was paid at a lower pay grade than “similarly situated
employees were paid.” (Doc. 16-1 ¶ 28). He also alleges that he was “singled out
because of [his] association with his male partner … while similarly situated
employees were not.” (Id. ¶ 32). His amended complaint, however, contains no
specificity regarding any of the alleged “similarly situated employees.”
20

In

particular, Smith does not identify any other officer with his level of experience
who was hired at a higher pay grade, much less any other officer who was
similarly situated to him in all relevant respects. He does not identify a single
comparator who was allegedly treated more favorably than he was.
For these reasons, the court concludes that Smith has failed to state a claim
against the City of Pleasant Grove under § 1983 for violation of his equal
protection rights. Accordingly, his equal protection claim is due to be dismissed in
its entirety.
c.

Smith’s Claim for Interference with a Contractual or
Business Relationship

Smith’s final claim, for interference with a contractual or business
relationship, is asserted against Chief Knight and Lt. Fredrick in their individual
capacities. Smith alleges in his amended complaint that Chief Knight and Lt.
Fredrick have directly interfered with his “contractual or business relationship with
prospective employers” by providing “false information to the Jefferson County
Personnel Board regarding [Smith] and/or his employment as a police officer for
the City of Pleasant Grove.”6 (Doc. 16-1 ¶¶ 96, 98). He alleges that as a result of

6

In his amended complaint, Smith does not identify any existing contractual or business
relationship with which Chief Knight and Lt. Fredrick allegedly interfered. The crux of his
claim is that they interfered with his prospective employment opportunities. Such claims are
recognized in Alabama. See Byars v. Baptist Medical Centers, Inc., 361 So. 2d 350 (Ala. 1978)
(recognizing a justiciable claim for wrongful interference with prospective employment).
21

their “false statements” to the Personnel Board, he has been unable to obtain
employment through the Personnel Board. (Id. ¶ 97).
Chief Knight and Lt. Fredrick argue that they cannot be held liable for
Smith’s claim for interference with a contractual or business relationship because
“they are not ‘strangers’ to the relationship with which [Smith] claims they
interfered.” (Doc. 5 at 3, n.3). They assert that “any communications from [them]
to the Personnel Board of Jefferson County … concerning their evaluation of
[Smith’s] employment could only have been done as part of carrying out the City’s
employment relationship” with the Personnel Board. (Id.)
Chief Knight and Lt. Fredrick are correct that a defendant cannot be liable
for interference with a contractual or business relationship unless he or she is a
“stranger” to the relationship. See BellSouth Mobility v. Cellulink, Inc., 814 So. 2d
203, 212 (Ala. 2001) (“it is essential to a claim of tortious interference with
contractual relations that the plaintiff establish that the defendant is a ‘third party,’
i.e., a ‘stranger’ to the contract with which the defendant allegedly interfered”
(citation and internal quotation marks omitted)); see also Lolley v. Howell, 504 So.
2d 253, 255 (Ala. 1987) ( “[A] party to a contract cannot, as a matter of law, be
liable for tortious interference with the contract.”). They are also correct that the
City of Pleasant Grove is served by the Jefferson County Personnel Board. “For
more than seventy-three years, the professional staff and employees of the public
22

institution known as the Personnel Board of Jefferson County, Alabama … have
been governed by a three-person board, the members of which are vested by the
terms of a state enabling act with the primary responsibility of promulgating rules
regulating the employment and promotion of persons in the classified public
service of twenty-two county and municipal governmental entities.” United States
v. Jefferson County, Alabama, Case Nos. CV-75-S-666-S, CV-74-S-17-S, and CV74-S-12-S, 2008 WL 9391105, *1 (N.D. Ala. 2008) (footnotes omitted). “The
governmental entities (‘appointing authorities’) served by the Personnel Board
include … Pleasant Grove ….” Id. at *1, n.2. Together, “[t]he Personnel Board
and appointing authorities share responsibility for hiring and promoting
employees.” Id. None of this is disputed.
However, the fact that the Jefferson County Personnel Board and the City of
Pleasant Grove share responsibility for hiring employees does not make Chief
Knight and Lt. Fredrick, in their individual capacities, parties to the Personnel
Board’s hiring practices or parties to Smith’s prospective employment
relationships with other municipalities, which is what Chief Knight and Lt.
Fredrick seem to be arguing here. Again, Smith has expressly alleged in his
amended complaint that Chief Knight and Lt. Fredrick were acting in their
individual capacities, not their official capacities, when they allegedly provided
false information about him to the Jefferson County Personnel Board. In their
23

individual capacities, Chief Knight and Lt. Fredrick were “strangers” to any
prospective employment opportunities Smith might seek through the Personnel
Board. Therefore, Smith has stated a viable claim against Chief Knight and Lt.
Fredrick for interference with a contractual or business relationship, at least for
purposes of their motion to dismiss.
In the City of Pleasant Grove’s motion to dismiss, the City argues that “a
defendant does not have to be a ‘party’ to a contract in the strict sense for a court to
find that it is not a ‘stranger’ to the contract or business relationship.” (Doc. 7 at
15). The City cites Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.
2d 1143, 1157 (Ala. 2003), for the following explanation:
For the sake of clarity, we adopt the term “participant” to
describe an individual or entity who is not a party, but who is
essential, to the allegedly injured relationship and who cannot be
described as a stranger. One cannot be guilty of interference with a
contract even if one is not a party to the contract so long as one is a
participant in a business relationship arising from interwoven
contractual arrangements that include the contract. In such an
instance, the participant is not a stranger to the business relationship
and the interwoven contractual arrangements define the participant's
rights and duties with respect to the other individuals or entities in the
relationship. If a participant has a legitimate economic interest in and
a legitimate relationship to the contract, then the participant enjoys a
privilege of becoming involved without being accused of interfering
with the contract.
Assuming that Chief Knight and Lt. Fredrick have adopted the City’s argument on
this point, the court is still satisfied that Chief Knight and Lt. Fredrick, in their
individual capacities, were strangers to Smith’s prospective contractual or business
24

relationships with other municipalities and were not “participants” in those
prospective relationships. In their individual capacities, Chief Knight and Lt.
Fredrick did not have a “legitimate economic interest in and a legitimate
relationship to” any contract or business relationship Smith might secure through
the Jefferson County Personnel Board.
d.

Smith’s Request for Injunctive Relief

In his amended Title VII claim (as well as in his original Title VII claim),
Smith requests the court to grant a permanent injunction enjoining the City of
Pleasant Grove and its agents from violating Title VII. 7 (Doc. 16-1 at 13-14). The
City of Pleasant Grove asserts that Smith’s request for injunctive relief is due to be
stricken as a matter of law. (Doc. 7 at 16-17). The court agrees with the City. “It
is well-established in this circuit that an injunction demanding that a party do
nothing more specific than ‘obey the law’ is impermissible.” Elend v. Basham,
471 F.3d 1199, 1209 (11th Cir. 2006); see also Burton v. City of Belle Glade, 178
F.3d 1175, 1201 (11th Cir. 1999). That is what Smith is effectively requesting
here—an injunction requiring the City of Pleasant Grove to obey the law.
Accordingly, his request for such injunctive relief is due to be stricken from his
amended complaint.

7

Smith also requests a similar injunction in his equal protection claim, but the court has
determined above that his equal protection claim is due to be dismissed.
25

III.

CONCLUSION

Based on the foregoing, the court concludes as follows:
1.

Smith’s motion for leave to file his amended and restated

complaint (doc. 16) is due to be granted.
2.

The Pleasant Grove Police Department is due to be dismissed

from this action with prejudice.
3.

Chief Knight and Lt. Fredrick’s motion to dismiss (doc. 5) is

due to be granted as to Smith’s amended equal protection claim and denied as to
Smith’s amended claim for interference with a contractual or business relationship.
4.

The City of Pleasant Grove’s motion to dismiss (doc. 7) is due

to be denied as to Smith’s amended Title VII claim and granted as to his amended
equal protection claim.
5.

Smith’s request for an injunction enjoining the City of Pleasant

Grove from violating Title VII is due to be stricken from his amended complaint.
6.

In all other respects the defendants’ motions to dismiss (docs. 5

& 7) are moot.
A separate order consistent with this opinion will be entered.

26

DATED this 7th day of October, 2016.

_________________________________
JOHN E. OTT
Chief United States Magistrate Judge

27