Bogus v. City of Birmingham, Alabama et al
MEMORANDUM OPINION and ORDER- The defts filed a Motion to Dismiss or, in the Alternative, Motion for More Definite Statement (Doc 10 ); The Motion to Dismiss is DENIED in so far as the claims described in Section VII remain pending; The Motion for More Definite Statement is DENIED; Pltf has fourteen (14) days to file any objection to the court's characterizations of the claims that remain pending in Section VII. Signed by Magistrate Judge T Michael Putnam on 4/11/18. (MRR, )
2018 Apr-11 PM 02:05
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
KESHA LASHAWN BOGUS,
CITY OF BIRMINGHAM,
ALABAMA, et al. ,
Case No. 2:17-cv-00827-TMP
MEMORANDUM OPINION and ORDER
The above-styled action was filed on May 19, 2017. (Doc. 1). On June 20,
2017, the City of Birmingham, the Birmingham Police Department, William A.
Bell, Sr., Herman Harris, and Paul Irwin (collectively “defendants”) filed a Motion
to Dismiss or, in the Alternative, Motion for More Definite Statement. (Doc. 10).
The motion has been fully briefed, and the parties have consented to dispositive
jurisdiction by a United States Magistrate Judge in accordance with 28 U.S.C
STANDARD FOR ASSESSING A MOTION TO DISMISS
Defendants contend that the Complaint should be dismissed pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim on
which relief can be granted. Before the Supreme Court decided Bell Atlantic v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), a court could
dismiss a complaint only where it was clear that no relief could be granted under
any set of facts that could be proved consistent with the allegations, as set forth in
Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). The wellestablished Rule 12(b)(6) standard set forth in Conley was expressly rejected in
Twombly when the Supreme Court examined the sufficiency of a plaintiff’s
complaint and determined:
Federal Rule of Civil Procedure 8(a)(2) 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,” Conley v. Gibson, 355
U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff’s obligation to provide the “grounds” of
his “entitle[ment] to relief” requests 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.
550 U.S. at 555 (citations omitted). The court went on to criticize Conley, stating
that “[t]he ‘no set of facts’ language has been questioned, criticized, and explained
away long enough” by courts and commentators, and “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.”
Twombly, 550 U.S. at 562-63.
Supreme Court emphasized, however, that “we do not require heightened fact
pleading of specifics, but only enough facts to state a claim to relief that is
plausible on its face.” 550 U.S. at 570.
The Supreme Court expanded on the Twombly standard when it decided
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868
(2009), reiterating the Twombly determination that a claim is insufficiently
pleaded if it offers only “labels and conclusions” or “a formulaic recitation of the
elements of a cause of action.” Iqbal, 129 S. Ct. at 1949. The Court further
Two working principles underlie our decision in Twombly. First, the
tenet that a court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions. Threadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements, do not suffice. . . . Rule 8 marks a notable and generous
departure from the hyper-technical, code-pleading regime of a prior
era, but it does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions. Second, only a complaint that
states a plausible claim for relief survives a motion to dismiss.
Determining whether a complaint states a plausible claim for relief
will, as the Court of Appeals observed, be a context-specific task that
requires the reviewing court to draw on its judicial experience and
common sense. But 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.”
Iqbal, 129 S. Ct. at 1949-50 (citation omitted). See also Sinaltrainal v. Coca-Cola
Co., 578 F.3d 1252 (11th Cir. 2009) (“The mere possibility the defendant acted
unlawfully is insufficient to survive a motion to dismiss” and “the well-pled
allegations must nudge the claim ‘across the line from conceivable to plausible’”
(quoting Iqbal and Twombly)).
FACTS AS PLEADED IN THE COMPLAINT 1
For the purposes of a motion to dismiss, the court must take as true the wellpleaded facts according to the nonmoving party; in this case, the plaintiff, Kesha
LaShawn Bogus (“Bogus”). As discussed above, the court is not required to accept
legal conclusions masquerading as facts. Accordingly, the following are the
Bogus is an African-American female, employed by the City of
Birmingham, Alabama (“City”), as a police officer since 1996. (Complaint, ¶ 8).
She currently holds the rank of sergeant, being promoted to that rank in 2015.
(Id.). Beginning in 2010, the plaintiff was assigned to Mayor William Bell’s
security detail. (Complaint, ¶ 20). During the summer of 2014, while she was
assigned to Mayor Bell’s (“Bell”) security detail, her supervisor became Sergeant
Herman Harris (“Harris”), whom she identifies as Bell’s cousin and fellow
It should be observed that the complaint was drafted and filed for the plaintiff by an
attorney, who has now withdrawn from representing her. This means, of course, that the liberal
reading of the complaint a court must give a pro se pleading does not apply. Following the
withdrawal of plaintiff’s original counsel, the court unsuccessfully undertook to look for other
counsel willing to represent the plaintiff. She now is pro se, which may implicate the reading of
any future amended complaints that may be required.
fraternity member. (Complaint, ¶ 23). Soon thereafter, Harris began to pursue her
romantically, but she rebuffed his advances. (Complaint, ¶ 26).
rejected his unwanted advances, Harris, known by Bell, denied her overtime duties
and compensation, despite assigning male employees overtime duties and
compensating those male employees accordingly. (Complaint, ¶ 28).
During this same time period (late summer 2014), another city employee,
April Odom, began making romantic overtures to Deputy Chief William Tubbs
(Complaint, ¶ 29), with whom the plaintiff already was romantically involved.
This led to a confrontation between Odom and the plaintiff outside a Logan’s
restaurant in Fultondale, a suburb north of Birmingham, in the presence of Deputy
Chief Tubbs, Mayor Bell, and other members of the mayor’s staff.
(Complaint, ¶ 30). As a result, Odom filed a “report” of the incident in September
2014, which led to an investigation of the plaintiff. (Id.). Rather than refer the
report to the Internal Affairs Division (“IAD”) of the police department, “outside
counsel” Matt Beam was retained to conduct an investigation of the incident.
(Complaint, ¶ 31). In late September or early October 2014, the plaintiff heard that
Odom might drop her complaint against the plaintiff. Bogus contracted the City’s
Chief of Operations (Jarvis Patton) to request that the complaint not be dropped
because she wanted a name-clearing hearing. (Complaint, ¶ 39).
As part of this investigation by Beam, the plaintiff reported to him that she
believed she was being subjected to discriminatory treatment by defendant Harris
because she had rebuffed his “sexually harassing overtures.” (Complaint, ¶ 33).
Specifically, she told Beam that she was being denied overtime assignments while
male employees (Jeffrey Wick and Eric Smith) were receiving overtime
assignments. (Complaint, ¶34). Likewise, on October 9, 2014, Bogus mailed a
letter to Harris, her supervisor, complaining that she was being discriminatorily
On October 13, 2014, after concluding that Odom’s complaint against the
plaintiff was unfounded, Beam dismissed it (Complaint, ¶ 32) and attempted to
convince Bogus, Tubbs, and Odom to sign a release following the complaint’s
dismissal. (Complaint, ¶ 40). While Tubbs and Odoms signed a release, Bogus
refused. She vaguely asserts that she suffered retaliation in the months following
her refusal to sign the release. (Id.).
Bell became aware of Bogus’s complaints, both by and against her, in
October of 2014. On October 25, 2014, during a parade, Bogus claims that Bell
called the male members of his security detail into his vehicle and raised his voice.
Bell then summoned Bogus into the vehicle and commented: “I don’t give a shit
about your personal relationship [with Tubbs]. I know about the email you sent
saying that you were the only female in the unit. I know what that means.”
(Complaint, ¶ 36).
Concurrent with the problems developing in her professional life, a tempest
soon began to develop in her personal life as well. Tubbs proposed marriage to
Bogus on September 23, 2014, despite being married, 2 and in October of 2014,
Bogus discovered that she was pregnant with Tubbs’ child. Bogus and Tubbs
enjoyed a nice Christmas holiday before their relationship spiraled out of control.
During the New Year’s holiday, Bogus entered Tubbs’s apartment and “made an ...
inappropriate gesture to inform Tubbs that she was upset at the thought that he
might have been seeing another woman and had abandoned her [after] she became
pregnant.” (Complaint, ¶ 51). Bogus further confronted Tubbs in his office at the
police department about her fears on January 2, 2015. (Complaint, ¶ 52).
Tubbs filed a complaint against Bogus on January 2, 2015, which he later
withdrew. Upon the filing of the complaint, the City immediately placed Bogus on
Apparently notwithstanding Tubbs’ withdrawal of the
complaint, the investigation continued. As a result of the City’s investigation,
Bogus “was substantially exonerated, but found to have engaged in conduct
unbecoming a police officer as a result of her having entered Tubbs’ apartment and
Tubbs admittedly was in the process of divorcing his wife at the time of the engagement.
having made the gesture of fear and concern aforementioned.”3 (Complaint, ¶ 56).
The plaintiff was suspended for two days, removed her from Mayor’s Bell security
detail, and compelled her to attend counseling. 4 (Complaint, ¶ 54). Upon leaving
the security detail, she was reassigned to the Community Resource Division and
was deprived of her badge and gun during this period. Her child was born on
July 7, 2015, at which time she went on maternity leave pursuant to the Family
Medical Leave Act (“FMLA”) until October of 2015.
Tubbs himself also was subsequently charged with misconduct by the
Internal Affairs Division (“IAD”) (hereinafter referred to as the “Tubbs
investigation”), and he took FMLA leave during the investigation. Although the
IAD concluded that Tubbs engaged in misconduct, he was allowed “to retire on a
full pension” following the conclusion of his FMLA leave. (Doc. 1, ¶ 57). 5 Her
“supervisor’s attitudes toward her [had] changed markedly.” 6 (Doc. 1, ¶ 71).
The “gesture of fear and concern” is not otherwise described in the complaint.
Although not entirely clear from the complaint, it appears the IAD investigation was
handled by Lt. David Grayson, or under his direction, as plaintiff alleges that it was Grayson
who ordered her to attend counseling. (Complaint, ¶ 54). Grayson is not named as a defendant in
It is not clear from the complaint when Tubbs learned of the investigation’s conclusion,
when he took FMLA leave, and when he officially retired. Additionally, the investigation was
not formally closed until June of 2016.
Although the plaintiff alleges that she was not restored to her position on Bell’s security
detail because of her complaints regarding Harris and her refusal to execute a release in the
After these events, Bogus filed an Equal Employment Opportunity
Commission (“EEOC”) charge on March 31, 2015. She vaguely claims that she
suffered retaliation in response to filing the charge and a later supplement to it.
She alleges only that other members of Bell’s staff and security detail engaged in
more egregious, unbecoming conduct than she, but they were not subjected to
punishment or prolonged investigation. When compared to these individuals, she
claims that she was treated much worse by the City, Bell, and Harris. Bogus
asserts that she would not have been subjected to discipline if she had not reported
what she had seen while serving on the mayor’s security detail.7
Bogus gave birth to Tubbs’s child on July 7, 2015, and she was placed on
maternity leave until October of 2015.
She suffered from post-partum
complications and general depression, and she was required to attend counseling.
Following her return from maternity leave, the City promoted Bogus to sergeant in
October 2015. Despite her promotion, Bogus alleges that, at least initially, none of
the captains in charge of the City’s four police precincts wanted Bogus under his
command. She alleges “on information and belief” that this was because she had
engaged in a relationship with a white former supervisor (Tubbs) and had given
Beam investigation, she admits that she does not know the reason she was not restored to the
security detail. (Complaint, ¶ 72).
It is not clear from the complaint when Bogus made the reports concerning misconduct
by Bell’s staff or to whom she made the reports. She alleges only that she did so “in accordance
with established procedure.” (Complaint, ¶ 65).
birth to a bi-racial child. The City assigned her to the West Precinct under the
command of Captain Paul Irwin (“Irwin”) in October of 2015.
assignment to the West Precinct, Bogus repeatedly applied for a shift
accommodation to care for her young children. She alleges that she was not
granted an accommodation for longer than six weeks, although several similarly
situated employees, male and female, had received shift accommodations longer
than six weeks. She alleges impliedly that she was denied accommodation because
(1) refused to release the City of Birmingham from all liability for its
prior wrongful actions; (2) … had… engaged in an inter-racial
relationship; (3) … had… given birth to a bi-racial baby; (4) … had…
been associated with the dismissal of a popular Deputy Chief; (5) …
had… been witness or privy to significant irregularities within Bell’s
office, and (6) … had… been the subject of inappropriate gossip,
rumor or “scuttlebutt”.
(Complaint, ¶ 88). Bogus alleges that Irwin ignored her accommodation requests
and “reports of racial unrest and other matters occurring within the West Precinct.”
(Doc. 1, ¶ 102). On November 18, 2015, Irwin suggested to Bogus that she “rollback” her rank as sergeant “to that of officer in order that she might receive the
same treatment as other police officers and supervisors had traditionally received.”
(Complaint, ¶ 97). She refused to do so.
Following these events, Bogus began to search for a new law enforcement
job within the area, but her search has proven fruitless.
Bogus ultimately filed a supplement to her EEOC charge on January 19,
2016. She filed an additional complaint with the City, alleging a hostile work
environment, and she was temporarily transferred to the South Precinct for six
weeks while the investigation of her hostile-work environment complaint
proceeded. Upon return to the West Precinct in May 2016, Bogus met with and
informed Chief of Police A.C. Roper (“Roper”) and Captain Theophilus Smith
(“Smith”) of her post-partum complications. Neither Roper nor Smith took her
concerns seriously. Irwin then, at some point, omitted Bogus from the supervisor’s
email list, which kept her “out of the official loop . . . [of] important information
regarding the daily operations of the West Precinct.” 8 (Complaint, ¶ 102). She did
not receive the information necessary to efficiently and effectively perform her job,
which diminished “her stature as a supervisor in the West Precinct.” (Complaint,
¶ 109). Bogus has subsequently attempted to regain her standing with Irwin and
other officials within the City.
In particular, the plaintiff alleges that as a result of being omitted from the email
circulation, she was unaware of a dangerous, mentally-ill woman known to other supervisors in
the West Precinct. Unaware that the woman was armed with a pistol, Bogus confronted her “on
more than one occasion” before the woman was finally hospitalized. Plaintiff does not allege she
suffered any injury due to these confrontations. (Complaint, ¶ 108).
LEGAL CLAIMS ALLEGED
Based on these factual allegations, the plaintiff has identified eight counts
Count I alleges that plaintiff suffered racial discrimination in
employment in violation of Title VII of the Civil Rights Act of 1964. Count II
asserts that she suffered pregnancy discrimination in violation of Title VII of the
Civil Rights Act of 1964, including presumably (although not explicitly stated) the
Pregnancy Discrimination Act. Count III alleges that plaintiff suffered from a
racially and sexually discriminatory hostile work environment, in violation of
Title VII of the Civil Rights Act of 1964.
Count IV of the complaint asserts that the plaintiff suffered employment
related “retaliation.” Although not as clearly stated as in the first three counts, this
count also seems to rest on the anti-retaliation provisions of Title VII of the Civil
Rights Act of 1964. In paragraph 129 of the count, for example, she alleges that
she “was repeatedly denied accommodations on account of her race, gender,
personnel history and opposition to the Defendants’ discriminatory practices,”
which seems to invoke the prohibitions of Title VII. Furthermore, in the next
paragraph, she explicitly states that she was “subject to retaliation for having filed
a charge of discrimination” with the EEOC, as well as a complaint for “a hostile
working environment claim against her superiors” with the Jefferson County
Personnel Board. Lastly, in paragraph 131, the plaintiff alleges that she was
“denied accommodations” and subjected to “retaliation for her having raised
legitimate concerns regarding the discrimination against her….”
therefore, reads Count IV to allege discriminatory retaliation under Title VII of the
Civil Rights Act.9
Count V purports to allege claims for violation of the plaintiff’s civil rights
under 42 U.S.C. § 1983. In particular, she first alleges that she was deprived of
property without due process of law in the form of “certain emoluments of her
employment…, a property interest protected by the Fourteenth Amendment to the
United States Constitution and made actionable by 42 U.S.C. §§1981 and 1983.”
(Complaint, ¶ 138).
She focuses of the “Beam investigation” and “the IAD
investigation.” In the former, she alleges that she “was provided with no notice of
or report of any ‘hearing’ nor any conclusion of any investigation conducted by
Beam…,” in violation of the rules and regulations of the police department.
(Complaint, ¶ 142). Likewise, in relation to the IAD investigation, she alleges that
“Harris and Bell provided Plaintiff with no notice of or report of any ‘hearing’ nor
Only in ¶ 128 is there a hint of a claim for retaliation not related to Title VII employment
discrimination. There the plaintiff alleges in conclusory manner that she suffered “arbitrary and
capricious decision-making by her superiors in retaliation” because “she was a witness or privy
to various instances of misconduct of elected or appointed public officials” of the City.
Presumably, these are the instances of misconduct outlined in ¶ 66 of the complaint. Her
complaint, however, never identifies what “arbitrary and capricious decisions” were the product
of retaliation, except for Mayor Bell’s verbal abuse during October 2014 and her removal from
the security detail in January 2015, both of which are time-barred by the two-year limitation
period applicable to § 1983 and § 1981 claims. All other allegations of retaliation in the
complaint seem to be based on her complaints of racial and sexual discrimination under Title
any conclusion of any investigation conducted by IAD…,” in violation of the rules
and regulations of the police department. (Complaint, ¶ 143).
Count V also asserts an alleged denial of due process with respect to a
liberty interest. In sum, the plaintiff alleges that unnamed city officials made
“improper and unauthorized disclosures,” which were “false and misleading,”
about the matters involved in the two investigations of her, and that these
disclosures caused the plaintiff to “suffer defamation of her character and [she]
was stigmatized, which resulted in damage to her reputation and to her loss of
future employment opportunities.”
(Complaint, ¶ 152).
As a result of this
defamation and stigmatization, Bogus “was caused to suffer the deprivation of
liberty without due process of law in connection with the malicious damage to her
good name and reputation and, thereafter, in the terms and conditions of her
employment with the City of Birmingham….” (Complaint, ¶ 155). She alleges
that she was entitled to a “name-clearing hearing” as a matter of due process.10
Count VII of the complaint 11 appears to rest on 42 U.S.C. § 1981, in that the
plaintiff alleges that “[t]he actions of the Defendants subjected Plaintiff to
At ¶ 146, the complaint also seems to allege a denial of equal protection because Harris
denied plaintiff the same opportunities to earn overtime pay afforded to male members of the
security detail. There is a separate count of the complaint alleging equal protection claims
(Count VIII). In any event, because these events occurred prior to January 2015, when she was
removed from the security detail, any claim for denial of equal protection based on these facts is
time-barred, having occurred more than two years before the filing of the complaint.
There is no Count VI. The complaint skips from Count V to Count VII.
discrimination, harassment and retaliation because of her race, color, and gender
within the meaning of 42 U.S.C. §1981, and Defendants’ actions, therefore,
constitute unfair employment practices against Plaintiff, for which they are liable
in damages to her.” (Complaint, ¶ 160). She asserts that she has lost “salary,
overtime and other benefits, has been denied employment opportunities and
advancement, present and future,” and will continue to suffer emotional pain and
Count VIII turns to the theme of denial of equal protection actionable under
42 U.S.C. § 1983. She alleges that, as set out throughout the complaint, the
defendants, jointly and severally, subjected her harassment, discrimination and
retaliation based upon her race, color, gender and other illegitimate factors,
resulting in loss of salary and benefits, loss of employment opportunities and
advancement, and mental and emotional pain, distress, and anguish.
Finally, Count IX of the complaint purports to allege a claim under Alabama
law for intentional infliction of mental anguish and emotional distress. She alleges
specifically that Bell “verbally and vulgarly abused” her during the meeting in his
car at the October 2015 parade. Further, she asserts that Irwin, knowing the
physical and emotional difficulties she was having following the birth of her child,
refused to give her a shift accommodation for longer than six weeks and he
attempted to induce her to accept a reduction in rank. She also alleges that he
failed to keep her informed or reports and memoranda undermining her
effectiveness as a sergeant and exposing her to a “life-threatening situation”
involving an armed woman with a mental illness. Lastly, she alleges that Harris
sexually harassed her and, when rebuffed, denied her valuable employment
opportunities to earn overtime pay. 12
As an initial matter, the defendants argue that Bogus’s complaint constitutes
an impermissible shotgun pleading. In Weiland v. Palm Beach Cty. Sheriff’s
Office, 792 F.3d 1313, 1321-23 (11th Cir. 2015), the Eleventh Circuit recognized
that complaints violating either Federal Rules of Civil Procedure 8(a)(2) or 10(b)
are “disparagingly referred to as ‘shotgun pleadings.’” Shotgun pleadings fall into
Because Bogus alleges specific actions by Bell, Irwin, and Harris, but says nothing about
the City of Birmingham in this count, it appears that she is not attempting to allege this claim
against the City. This, of course, is consistent with Alabama law, which makes a city liable only
for the negligent and careless acts of its employees, not for their intentional torts. See Brown v.
City of Huntsville, Ala., 608 F.3d 724, 743 (11th Cir. 2010) (“[U]nder § 11–47–190 [Code of
Ala.], a city is liable for negligent acts of its employees within the scope of their employment,
but not intentional torts of its employees.”); see also White v. City of Birmingham, Ala., 96
F. Supp. 3d 1260, 1296 (N.D.Ala. March 27, 2015).
The most common type—by a long shot—is a complaint containing
multiple counts where each count adopts the allegations of all
preceding counts, causing each successive count to carry all that came
before and the last count to be a combination of the entire complaint.
The next most common type, at least as far as our published opinions
on the subject reflect, is a complaint that does not commit the mortal
sin of re-alleging all preceding counts but is guilty of the venial sin of
being replete with conclusory, vague, and immaterial facts not
obviously connected to any particular cause of action. The third type
of shotgun pleading is one that commits the sin of not separating into
a different count each cause of action or claim for relief. Fourth, and
finally, there is the relatively rare sin of asserting multiple claims
against multiple defendants without specifying which of the
defendants are responsible for which acts or omissions, or which of
the defendants the claim is brought against.
Weiland, 792 F.3d at 1321-23 (internal footnotes omitted). Although the court
recognizes that Bogus’s complaint likely falls under the fourth category, the court
declines to hold that Bogus’s complaint is an impermissible shotgun pleading.
Given the procedural context of the case, a dismissal or order to file a more
definite statement under Rule 12(e) is inappropriate. While the complaint was
drafted by an attorney, Bogus is now pro se. Ordering Bogus to redraft the
complaint would likely prove futile. Furthermore, the court believes that Bogus
has alleged potential claims, which indicates that it is not in the interests of justice
to dismiss Bogus’s complaint wholesale. Therefore, the defendant’s motion to
dismiss the complaint as an impermissible shotgun pleading is due to be denied.13
Birmingham Police Department (“BPD”) is not a Proper
Defendant under any claim
The defendants argue that the BPD lacks the capacity to be sued. As a
general matter, “police departments are not usually considered legal entities subject
to suit.” Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (holding that police
departments are not legal entities subject to suit under 42 U.S.C. § 1983). Under
Federal Rule of Civil Procedure 17(b)(3), capacity to be sued is determined by the
“law of the state where the court is located” for those parties who are not an
individual or corporation. Under Alabama law, “departments and subordinate
entities of municipalities, counties, and towns that are not separate legal entities or
bodies do not have the capacity to sue or be sued in the absence of specific
statutory authority. . . . Among subordinate entities generally lacking the capacity
to sue or be sued separately are police departments. . . .” Ex parte Dixon, 55 So.
3d 1171, 1172 n.1 (Ala. 2010) (citing with approval 56 Am. Jur. 2d Municipal
Corporations § 787 (2000)). Therefore, BPD is not a proper defendant subject to
suit for any claim under 42 U.S.C. § 1983.
In Section VII, the court will briefly identify the surviving claims that Bogus may have.
Bogus may object to the court’s characterization of her claims within fourteen (14) days. If no
objections are filed, the court and the parties will proceed on the claims identified in Section VII.
Although a police department might qualify as an “employer” under Title
VII, 42 U.S.C. § 2000e et seq., see Dawson v. Henry Cty. Police Dep’t, 238 F.
App’x 545 (11th Cir. 2007) and Young v. Town of Fallsburg Police Dep’t, 774 F.
Supp. 205, 207-8 (S.D.N.Y. 1991) (holding that police department is an employer
and proper defendant in absence of naming the town as defendant), BPD is an
agency of the City, and the City will satisfy any potential judgment against BPD,
assuming arguendo that BPD is a proper employer. Yet, because Alabama law
does not recognize a police department as a legal entity subject to suit and because
the City has been named as a defendant in the above-styled, the City is the proper
employer under Title VII and 42 U.S.C. § 1981, and conversely, BPD is not.
BPD therefore is not a proper defendant subject to suit under any of Bogus’s
claims and is due to be dismissed as a defendant from the above-styled action.
III. Title VII Claims
A. Proper Defendants
As threshold matter for each cause of action under Title VII, the court must
determine which defendants may properly be sued on which claims. 14
defendants argue that the Title VII claims against Harris, Bell, and Irwin in their
official and individual capacities should be dismissed. Bogus may pursue any
This analytical approach equally applies to the other statutory claims contained in the
various counts of Bogus’s complaint.
claim for Title VII discrimination, hostile work environment, and retaliation
against only the City as a defendant.
Although Bogus names Bell, Harris, and Irwin as defendants, in both their
official and individual capacities, claims against these individuals under Title VII
are improper. “Individual capacity suits under Title VII are . . . inappropriate. The
relief granted under Title VII is against the employer, not individual employees
whose actions would constitute a violation of the Act.” Busby v. City of Orlando,
931 F.2d 764, 772 (11th Cir. 1991).15 Bogus asserts that the City is her employer,
meaning the claims against Bell, Harris, and Irwin in their individual capacities
under Title VII are improper and are due to be dismissed.
Similarly, official capacity suits are “redundant and needlessly confusing.”
Lewis v. Bentley, No. 2:16-cv-690-RDP, 2017 WL 432464, at *3 (N.D. Ala. Feb.
1, 2017); see also Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991)
(“Because suits against a municipal officer sued in his official capacity and direct
suits against municipalities are functionally equivalent, there no longer exists a
Of course, to the extent plaintiff’s Count VII alleges that the individual defendants
violated her rights under 42 U.S.C. § 1981 by interfering with her employment contract with the
City of Birmingham for racially discriminatory reasons, they remain proper defendants on that
claim. See Zaklama v. Mt. Sinai Med. Ctr., 842 F.2d 291, 293 (11th Cir. 1988) (holding nonemployer defendant liable for discriminatory dismissal of plaintiff by his employer under §
1981); Martinez v. Pavex Corp., 422 F. Supp. 2d 1284, 1291 (M.D. Fla. 2006) (“A defendant
who is not a plaintiff's employer may therefore be liable under § 1981 for interference with the
plaintiff's contractual rights with third parties.”).
need to bring official-capacity actions against local government officials, because
local government units can be sued directly”). Plaintiff’s direct Title VII action
against the City itself makes her claims against Bell, Harris, and Irwin in their
official capacities unnecessary.
Because Bogus has brought Title VII claims
against the City, there is no need to have duplicative Title VII claims against Bell,
Harris, and Irwin in their official capacities.
Accordingly, Counts I, II, III, and IV, insofar as they are alleged Title VII
claims against Bell, Harris, and Irwin individually or in their official capacities, are
due to be dismissed.
B. Statute of Limitations
Because she filed her EEOC charge of discrimination on March 31, 2015
(see doc. 3-1), Title VII claims based on any discriminatory, hostile, or retaliatory
actions by the City that occurred prior to October 2, 2014, are time-barred because
such actions were outside the 180-day time limit for the filing of her EEOC charge.
See 42 U.S.C. § 2000e-5(e)(1); Jordan v. City of Montgomery, 283 F. App’x 766,
767-68 (11th Cir. 2008).16 Subject to equitable doctrines, such as tolling and
The defendants have not advanced any argument that the plaintiff’s parallel employmentdiscrimination claims under 42 U.S.C. § 1981 are time-barred. The statute of limitation for
asserting a § 1981 claim in Alabama is two years after the plaintiff “‘knows or reasonably should
know that the discriminatory act has occurred, the same point from which the Title VII 180-day
limitations period runs.’” See Stafford v. Muscogee Cty. Bd. of Educ., 688 F.2d 1383, 1390
(11th Cir. 1982) (quoting McWilliams v. Escambia County School Board, 658 F.2d 326, 330 (5th
Cir. 1981). Because none of the defendants has raised this issue, plaintiff’s § 1981 claims will
proceed against the City and the individual defendants in their personal capacities only.
estoppel, Title VII requires an aggrieved employee to file a charge of
discrimination with the EEOC within 180 days after the discrete event of
discrimination or retaliation. See National Railroad Passenger Corp. v. Morgan,
536 U.S. 101, 113, 122 S. Ct. 2061, 2072, 153 L. Ed. 2d 106 (2002). Failure to do
so can be raised as an affirmative defense by the defendant employer. See Moore
v. Alabama State Univ., 945 F. Supp. 235, 240 (M.D. Ala. 1996) (holding that180day time bar is a matter to be raised as an affirmative defense). 17
discrimination, hostile work environment, or retaliation claim based on events
occurring after the filing of her EEOC charge on March 31, 2015, had to be
included in her January 19, 2016, Supplement to her EEOC charge, no more than
180 days after the occurrence of the event, unless such events were reasonably
related to the original 2015 charge. Thus, allegedly discrete discriminatory or
Although the time limits required by Title VII are in the nature of affirmative defenses,
the court may consider any such defense that appears on the face of the complaint. Because the
instant matter is before the court on a motion to dismiss, the defendant City has not yet filed an
answer in which to assert the affirmative defense. Nevertheless, time bars appearing on the face
of the complaint itself (without reference to any extrinsic materials) may be considered on a
Rule 12(b)(6) motion. See Quiller v. Barclays Am./Credit, Inc., 727 F.2d 1067, 1069 (11th Cir.
1984), on reh'g, 764 F.2d 1400 (11th Cir. 1985) (“[A] complaint may be dismissed under Rule
12(b)(6) when its own allegations indicate the existence of an affirmative defense, so long as the
defense clearly appears on the face of the complaint.”) (citing Concordia v. Bendekovic, 693
F.2d 1073 (11th Cir.1982); Mann v. Adams Realty Co., 556 F.2d 288, 293 n. 6 (5th Cir.1977));
see generally 5 C. Wright & A. Miller, FEDERAL PRACTICE AND PROCEDURE § 1357 (1969).
retaliatory actions by the City occurring after the filing of the March 2015 charge
but before July 23, 2015, would be time barred as well.
Notably, in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117
(2002), the Supreme Court held that
[a] hostile work environment claim is composed of a series of separate
acts that collectively constitute one “unlawful employment
practice.” 42 U.S.C. § 2000e–5(e)(1).... It does not matter, for
purposes of the statute, that some of the component acts of the hostile
work environment fall outside the statutory time period. Provided that
an act contributing to the claim occurs within the filing period, the
entire time period of the hostile environment may be considered by a
court for the purposes of determining liability.
See also Shields v. Fort James Corp., 305 F.3d 1280, 1282 (11th Cir. 2002)
(quoting with approval National Railroad Passenger Corp., 536 U.S. at 117)). “Put
simply, if the smallest portion of that [hostile work environment] “practice”
occurred within the limitations time period, then the court should consider it as a
whole.” Id. Therefore, any actions attributable to the hostile work environment
may be considered as long as some part of the action occurred during the time
limitations discussed above.
As applied to the facts alleged in the complaint, the 180-day time limit cuts
off any claims arising from Harris’s romantic overtures to the plaintiff during the
summer of 2014. Insofar as these “overtures” by Harris created any sexually
harassing hostile work environment, the complaint alleges that it ended in
September 2014, and thus was more than 180 days prior to the filing of the EEOC
charge of discrimination. Accordingly, this particular Title VII claim arising from
Harris’s actions fell outside of the deadlines discussed herein and is barred by the
180-day filing requirement of Title VII. This particular Title VII claim is due to be
42 U.S.C. § 1983 Claims
A. Proper Defendants
The defendants argue that (1) the holding in Monell v. Department of Social
Services of City of N.Y., 436 U.S. 658 (1978), prevents any suit under § 1983
against the City from proceeding, and (2) that the official capacity suits against
Harris, Bell, and Irwin are redundant of the suit against the City. Therefore,
defendants assert that the § 1983 claims brought against the City and Harris, Bell,
and Irwin in their official capacities are due to be dismissed.
(1) The City as a § 1983 Defendant
Although Bogus may sue the City directly under § 1983, the City cannot be
held vicariously liable for the actions of its employees under a theory of
respondeat superior. Monell, 436 U.S. at 690-91. In other words, the City may
not “be held liable unless action pursuant to official municipal policy of some
nature caused a constitutional tort.” Id. at 691; see also Skop v. City of Altanta,
Ga., 485 F.3d 1130, 1145 (11th Cir. 2007). To establish § 1983 municipality
liability, Bogus must prove: “(1) that [her] constitutional rights were violated; (2)
that the municipality had a custom 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). “In order for a
plaintiff to demonstrate a policy or custom, it is ‘generally necessary to show a
persistent and wide-spread practice.’” Id. at 1290.
As discussed above, Bogus has alleged three essential § 1983 claims: (1) that
she was denied procedural due process of law with respect to deprivation of a
property interest in her employment “benefits and emoluments,” (2) that she was
denied equal protection in the assignment of employment opportunities based on
her sex, and (3) that she was denied due process of law with respect deprivation of
a liberty interest in her good name and reputation. In each of these instances, the
plaintiff alleges that whatever action occurred took place was part of and pursuant
to longstanding City practice and procedures. At least as alleged in the complaint,
the Beam and IAD investigations were authorized by and pursuant to City policy
and practice, and thus were the actions of the City. The City can be held liable for
violations of the plaintiff’s constitutional rights (if any) that occurred during or as a
result of these authorized and official disciplinary investigations. Likewise, the
plaintiff alleges that the assignment of overtime opportunities was delegated by the
City to the plaintiff’s supervisor (Harris); the City authorized the supervisor to
assign such overtime opportunities as the plaintiff complains she was denied in
violation of equal protection. Hence, the assignment of overtime opportunities was
pursuant to City policy, practice, or custom for purposes of potential § 1983
Even though the complaint alleges due process and equal protection claims
for which the City might be a proper defendant, the court will explain below that
these claims are all time-barred. The City’s failure to provide appropriate due
process hearings and to not discriminate in the assignment of overtime-earning
opportunities all were fully accrued well more than two years prior to the filing of
this complaint. For this reason, the due process and equal protection claims against
the City under § 1983 are due to be dismissed.
(2) Official Capacity Claims against Harris, Bell, and Irwin
Bogus may not proceed against Harris, Bell, or Irwin in their official
capacities under § 1983. An official capacity suit under § 1983 “is considered a
suit against the local government entity he represents.”
McElroy v. City of
Birmingham, Ala., 903 F. Supp. 2d 1228, 1242 (N.D. Ala. 2012). As the Supreme
Court explained in Kentucky v. Graham, “Official-capacity suits… ‘generally
represent only another way of pleading an action against an entity of which an
officer is an agent.’ As long as the government entity receives notice and an
opportunity to respond, an official-capacity suit is, in all respects other than name,
to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 165–
66, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985) (quoting Monell v. New York
City Dept. of Social Services, 436 U.S. 658, 690, n. 55, 98 S. Ct. 2018, 2035, n. 55,
56 L.Ed.2d 611 1978)); see also Busby v. City of Orlando, 931 F.2d 764, 776 (11th
Cir. 1991). Therefore, “[w]hen suit is also filed against the local government
entity, the court should dismiss the individual defendant in [their] official
capacity[ies] as ‘redundant and possibly confusing to the jury.’” Id. Furthermore,
because official capacity suits are considered another way of suing the local
government entity, official capacity suits necessarily fail, by implication, when a
suit against the local government entity has been foreclosed upon. See id. Thus,
because the City is a named defendant in this action, any claims under § 1983
against Harris, Bell, or Irwin in their official capacities are due to be dismissed as
redundant of the claims against the City. As a result, Bogus may proceed against
Harris, Bell, and Irwin under § 1983 only in their individual capacities.
B. Claim of Deprivation of Property Without Due Process
Bogus appears to identify two instances in which she was denied procedural
due process of law by the defendants with respect to a claimed property interest.18
Because the plaintiff complains about the deprivation of a property interest in her
employment, the court understands this claim to allege a denial of procedural due process of
law, not substantive due process.
First, she asserts that she was denied due process during the Beam investigation in
September and October of 2014. Second, she claims that she was denied due
process during the IAD investigation in January of 2015. The City, Harris, Bell,
and Irwin argue that each of these claims is time-barred.
Because § 1983 claims are tort actions, the statute of limitations for such
claims is borrowed from the state where the claim is brought. Powell v. Thomas,
643 F.3d 1300, 1303 (11th Cir. 2011). Bogus brought this action in Alabama,
which has a two-year residual statute of limitations for tort claims, which has been
construed to apply to § 1983 claims. Ala. Code § 6-2-38(l); see also Jones v.
Preuit & Maudlin, 876 F.2d 1480, 1483 (11th Cir. 1989). Therefore, a two-year
statute of limitations applies to any claim under § 1983. Importantly, though,
federal standards determine when § 1983 claims accrue, and a claim under § 1983
“accrue[s] when the plaintiff knows or has reason to know of the injury which is
the basis of the action.” Corn v. City of Lauderdale Lakes, 904 F.2d 585, 588
(11th Cir. 1990).
The procedural due process claim arising out of the 2014 Beam investigation
Because Beam concluded his investigation of the Odom
It should also be noted that plaintiff suffered no deprivation of a property interest in the
Beam investigation. The plaintiff acknowledges that Beam exonerated her with respect to the
Odom complaint. She did not suffer any loss of pay or benefits or suffer a disciplinary
punishment as a result of the investigation. To the extent the plaintiff complains she was denied
a “name clearing” hearing as a form of deprivation of a liberty interest, that will be discussed
complaint in October of 2014, any potential liability for the 2014 Beam
investigation accrued at that time, meaning the statute of limitations would have
started to run and then expired at the latest in October of 2016. Bogus had notice
of any wrongdoing in the investigation process and the subsequent conclusion of
the investigation when Beam requested Bogus to sign a release on or around
October 13, 2014. She cannot now ground a claim under § 1983 on conduct
occurring more than two years prior to the filing of the complaint in this action.
The same is true of the IAD investigation that began in January 2015.
Although it is not clear from the record 20 when Bogus received notice of the
conclusion of the IAD investigation of her, it is clear that she suffered the
deprivations of property in January 2015. Upon Tubbs filing a complaint against
her on January 2, 2015, she was placed on administrative leave immediately,
removed from Mayor Bell’s security detail, and received a two-day suspension at
that time. While it may be unclear from the record when Bogus learned that IAD
had concluded its investigation of her, she acknowledges that she knew of the
proceedings no later than March 2015, when she filed her EEOC charge of
discrimination. Because she waited until May 2017 to commence her action, the
two-year limitation for § 1983 actions had expired with respect to any propertybelow. Thus, even if not time-barred, her procedural due process claim related to the Beam
investigation of the Odom complaint is meritless on the face of the complaint itself
Notably, the defendants failed to argue that Bogus did not state a plausible claim as
required by Fed. R. Civ. P. 12(b)(6).
interest deprivation arising from her two-day suspension and reassignment in
January 2015. This due process claim also is due to be dismissed.
C. Claim for Deprivation of a Liberty Interest Without Due Process
In connection with both the Beam and the IAD investigations, the plaintiff
asserts that she was denied a “name-clearing” hearing, thus depriving her of a
liberty interest in her good name and reputation without due process of law. 21 For
the reasons explained above, these claims also are time-barred by the two-year
limitation period applicable to § 1983 claims. Plaintiff admits that the Beam
investigation, in which she was exonerated, was completed in October 2014.
Further, in the complaint, she pleaded that she became the subject of an IAD
investigation in January 2015, although she also asserts that she was never given a
Form 466, upon which she could appeal the findings of the IAD investigation.
As set out in the complaint, the essence of her claim to a name-clearing
hearing is that Tubbs, “while serving in the capacity of Deputy Chief of Police,
[made] disparaging statements to individuals within the police department
regarding the Plaintiff and [that Plaintiff] was found to have engaged in conduct
unbecoming an officer as a result thereof.” (Compl., Doc. 1, ¶ 149). She alleges
that she discovered the fact of these disparaging remarks only when she obtained
As noted earlier, she alleges that Beam exonerated her with respect to the Odom complaint
against her. Even assuming she was entitled to and deprived of a name-clearing hearing, she
suffered no loss of a liberty interest because she was exonerated. The exoneration accomplished
the same, if not more, than a name-clearing hearing could accomplish. She suffered no loss of
reputation or good name. This claim is meritless on its face.
her EEOC notice of right to sue in February 2017. She asserts that she “was not
notified of Tubbs’ disparagement until long after the City became aware of it, and
was not accorded the name-clearing hearing she had requested….” Further, she
alleges that “the gossip and rumors that had been permitted by City officials, and
proliferated overtly and by their silence and secrecy, were caused to fester and
further damage the Plaintiff’s good name and reputation.”
As a result, the
complaint asserts that “Plaintiff was caused to suffer defamation of her character
and was stigmatized, which resulted in damage to her reputation and to her loss of
future employment opportunities.” (Compl., Doc. 1, ¶ 152). She alleges that the
four captains in charge of the four police precincts were given “selective
disclosures” of information developed during the Beam and IAD investigations,
causing her to suffer “malicious damage to her good name and reputation,” as well
as “unwarranted difficulty in finding new employment and lost future job
responsibilities….” Compl., Doc. 1, ¶¶ 155-156). 22
The plaintiff’s allegations that she did not know about Tubbs’ disparaging
statements about her until February of 2017 is implausible on the basis of the facts
alleged by her in the complaint. She admits that she knew Tubbs filed a complaint
against her in January 2015, and that this resulted in her being placed on
While the court doubts these allegations state a plausible claim for denial of procedural
due process in the form of a name-clearing hearing, the defendants have not moved to dismiss
the claim for failure to state a claim under Rule 12(b)(6). Their only argument is that it is time
administrative leave pending the completion of the investigation, receiving a twoday suspension, being removed from Mayor Bell’s security detail, and being
ordered to undergo counseling. As mentioned above, she was aware of these facts
no later than March 2015, when she filed her EEOC charge of discrimination. (See
EEOC Charge, Ex.1 to Compl., doc. 3-1). Her claim to a name-clearing hearing, if
she was entitled to one, fully accrued and was known to her well more than two
years prior to filing of this action. A due process claim based on this allegation
that Tubbs made disparaging statements is now time-barred.
Turning to the allegation that City officials allowed and even engaged in
gossip and rumor-mongering about the investigations of the plaintiff,
the defendants contend that the City cannot be liable because there is no allegation
that such gossip and rumor mongering were the product of City policy, practice, or
custom. Also, they assert that the individual defendants, Bell, Irwin, and Harris,
are entitled to qualified immunity on this claim.
To the extent they rely on the
time-bar argument, the plaintiff alleges these disclosures occurred when she
returned from maternity leave in October 2015, which is less than two years before
the filing of suit in May 2017 and so, to the extent she would be entitled to a nameclearing hearing, the claim is not time barred.
The court agrees that the complaint has not alleged a factual basis for
asserting that gossip and rumor-mongering allowed and engaged in by City
officials was official policy, practice, or custom of the City for purposes of
extending liability to the City under Monell v. Dep’t of Social Services, 436 U.S.
658 (1978). Indeed, the complaint repeatedly alleges that such gossip and rumor
mongering was contrary to stated police department and City policy. In order for
the City to be liable for failing to supply a name-clearing hearing, it must be an
official act of the City that creates the stigmatization the plaintiff complains
about. 23 The City is not responsible for the private acts of gossiping and rumor
mongering among its employees unless those acts are the direct product of official
government policy or practice, and that simply is not alleged here. Thus, the City
had no duty to provide a name-clearing hearing as alleged in this due process
As to the individual defendants, Bell, Irwin, and Harris, the complaint sets
out no factual allegations whatsoever that they allowed or engaged in such
gossiping and rumor-mongering. She does not allege that “selective disclosures”
were made by any of these individual defendants. From the complaint, there is no
reason to believe that either Mayor Bell or Sergeant Harris had access to the
See Buxton v. City of Plant City, Fla., 871 F.2d 1037, 1042–43 (11th Cir. 1989) (holding
that the elements of a due process claim for deprivation of a liberty interest in good name and
reputation are “(1) a false statement (2) of a stigmatizing nature (3) attending a governmental
employee’s discharge (4) made public (5) by the governmental employer (6) without a
meaningful opportunity for employee name clearing.” (italics added and internal footnotes
omitted)), citing Board of Regents v. Roth, 408 U.S. 564, 573, 92 S. Ct. 2701, 2707, 33 L.Ed.2d
investigative materials and files, and, while she alleges that Captain Irwin became
aware of the investigative matters, she does not allege that he made any
disparaging disclosures himself. He was the receiver of the information, not the
disseminator of it. Moreover, even if these individual defendants were involved in
making “selective disclosures” about her, they personally had no constitutional
duty to provide her with any type of name-clearing due process hearing. Such
would be the responsibility of the governmental employer, not the plaintiff’s coemployees. Thus, the complaint fails utterly to allege any factual basis whatsoever
for asserting this due process claim against these individual defendants.
Additionally, the individual defendants assert that they are entitled to
qualified immunity on this claim. The court agrees. Qualified immunity requires
Harris, Bell, and Irwin to first establish that they were performing discretionary
functions. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir.
2004). A discretionary function is one that is “of a type that [falls] within the
employee’s job responsibilities.”
Id. at 1265.
To determine whether the
defendants were engaged in a discretionary function, Harris, Bell, and Irwin must
have performed “a legitimate job-related function (that is, pursuing a job-related
goal)” and must have performed that function “through means that were within
[their] power to utilize[,]” i.e., in an authorized manner. Id. at 1265-66. To
determine whether a defendant was “engaged in legitimate a job related function,”
the court does “not ask whether it was within the defendant’s authority to suspend
an employee for an improper reason; instead, [the court asks] whether [the
defendant's] discretionary duties included the administration of discipline.” Id. at
1266 (internal citation and quotation marks omitted). “Each government employee
is given only a certain ‘arsenal’ of powers with which to accomplish her goals.”
Id. at 1267.
Assuming that the plaintiff has alleged sufficiently that the Bell, Harris, and
Irwin allowed or engaged in gossiping about her, or that they made “selective
disclosures” about the investigations of her, she must concede that they acted
within their duties and functions as City officials. If they did not, if they acted
only in a purely private capacity, they cannot be sued under § 1983 because they
would not have acted “under color of state law.” Thus, in order to attempt to state
a claim against them, the plaintiff must concede that they acted within the
discretionary functions of their positions with the City. Harris, Bell, and Irwin
undoubtedly exercised discretion in deciding, as supervisors, how to enforce the
City’s policy of prohibiting the proliferation of gossip. Even if Harris, Bell, and
Irwin may have potentially exercised their discretion “in an unconstitutional
manner[,]” that exercise “does not change the fact that [they were] fulfilling a
legitimate job-related function.” Holloman, 370 F.3d at 1267.
After it is determined that the individual defendants acted within their
discretionary functions, the first question the court must address in relation to the
assertion of qualified immunity is whether the actions of the defendants as alleged
by the plaintiff violated a constitutional right. See Mullenix v. Luna, ___U.S. ___,
136 S. Ct. 305, 313-14, 193 L. Ed. 2d 255 (2015) (When addressing the defense of
qualified immunity, “[f]irst, the court considers whether the officer in fact violated
a constitutional right.”) (Sotomayor, J., dissenting); Keating v. City of Miami, 598
F.3d 753, 762 (11th Cir. 2010) (“The court must determine ‘whether [the]
plaintiff’s allegations, if true, establish a constitutional violation.’” (quoting Hope
v. Pelzer, 536 U.S. 730, 736, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002))).
Qualified immunity has two elements: first, whether a constitutional right was
violated and, second, whether the constitutional right violated was “clearly
established.” Although holding that there is no rigid sequence in which these two
issues must be addressed, the Supreme Court in Pearson v. Callahan reiterated:
First, a court must decide whether the facts that a plaintiff has alleged
(see Fed. Rules Civ. Proc. 12(b)(6), (c)) or shown (see Rules 50, 56)
make out a violation of a constitutional right. Second, if the plaintiff
has satisfied this first step, the court must decide whether the right at
issue was “clearly established” at the time of defendant’s alleged
Pearson v. Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 815–16, 172 L. Ed. 2d 565
(2009) (citing Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272
(2001), overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009)). Thus,
inherent in the analysis of qualified immunity is the assessment of whether a
constitutional right has been violated.
Bogus has not plausibly demonstrated that Harris, Bell, or Irwin violated a
constitutional right because there was not a right to violate. See Cannon v. City of
West Palm Beach, 250 F.3d 1299, 1303 (11th Cir. 2001). Stigmatization by the
government, standing alone, does not violate of the Fourteenth Amendment Due
Process Clause. Paul v. Davis, 424 U.S. 693, 694 (1976).
Under Paul, Bogus
must claim stigmatization “‘plus’ the violation of some more tangible interest
before the plaintiff is entitled to invoke the procedural protections of the Due
Cannon, 250 F.3d at 1302.
The Eleventh Circuit requires
“‘discharge or more’ . . . in order to satisfy the ‘plus’ element of the stigma-plus
test. A transfer or a missed promotion is not enough.” Id. at 1303.
Here, Bogus has failed to establish a “loss of income or rank” or “discharge
or more” in order satisfy the stigma-plus test. See Cannon, 250 F.3d at 1303.
Irwin’s denial of a shift accommodation and Harris’s denial of overtime work and
Bell’s decision to reassign Bogus do not rise to the level of a “discharge or more.”
Bogus has not plausibly demonstrated how she suffered a loss of income; 24 in fact,
Although Bogus vaguely alleges that she “lost salary” in her complaint, she does not
sufficiently allege that her income rate was lowered by the City. (See doc. 1, ¶¶ 121.e., 161,
167). She has not pleaded facts setting forth her income level at various points during her tenure
Bogus acknowledges that she ultimately received a promotion to the rank of
sergeant in October of 2015. Because Bogus cannot point to the existence of a due
process right in this situation, Harris, Bell, and Irwin have not violated her due
process rights to a name-clearing hearing. Moreover, such a right to a nameclearing hearing in these circumstances (where the plaintiff suffered no loss of rank
or income) was not clearly established under the second element of qualified
immunity. Therefore, Harris, Bell, and Irwin in their individual capacities are
entitled to qualified immunity, and the stigmatization claim under § 1983 is due to
D. Claim for Denial of Equal Protection
Finally, the plaintiff appears to attempt to equal protection claims in two
places in the complaint. First, she alleges as part of Count V, seeking relief
pursuant to § 1983, that Harris violated her equal protection rights by denying her
opportunities to earn overtime compensation that were made available to male
members of Mayor Bell’s security detail.
Second, in a completely separate
Count VIII, she alleges in very general and conclusory terms that, as a public
with the City that would reveal any loss of income. Bogus has not alleged that the reassignment
from Bell’s security detail to an administrative position actually resulted in the reduction of her
pay rate. Furthermore, being deprived of the opportunity to earn overtime compensation is not
the same as suffering a loss of income; no employee has a guaranteed right to earn overtime
compensation. Finally, Bogus received a promotion to sergeant in October of 2015, which
presumably included a raise in salary. (See doc. 1, ¶ 172, where Bogus alleges that Irwin
“attempted to induce [Bogus] to accept a reduction in . . . rank and salary” for the proposition
that the promotion came with a salary increase). Bogus does not sufficiently allege that her
salary was reduced at any point during her assignment to the West Precinct.
employee of the City, “Defendants subjected [her] to harassment, discrimination
and retaliation based upon her race, color, gender and other illegitimate factors
hereinabove set forth.” (Compl., doc 1, ¶ 164). The defendants’ motion raise two
arguments: one, that Count VIII is too vague to answer and, two, that many of the
events referenced in the count occurred more than two years prior to the filing of
the complaint and are time-barred.
The court agrees that many potential claims for denial of equal protection
based on race, color, and gender are time-barred. As already discussed above, the
statute of limitation for pleading claims under § 1983 for violation of constitutional
rights is two years. As the complaint was filed on May 19, 2017, any event
involving a denial of equal protection occurring prior to May 19, 2015, is time
barred by the statute of limitation. For example, Bogus was removed from Bell’s
security detail in January of 2015 (which is, by implication, was the last month
Harris could have denied Bogus the opportunity to earn overtime compensation),
so that potential liability for the denial of opportunities to earn overtime
compensation was fully accrued no later than then. Likewise, any § 1983 claims
based on events described in Bogus’s March 2015 EEOC charge are also timebarred, as she necessarily was aware (or should have been aware) of such claims at
that time, but did not file her complaint until more than two years later. The statute
of limitations has expired on any equal protection claim that accrued before
May 19, 2015. Therefore, any equal protection claim accrued before May 19,
2015, is hereby dismissed as time barred. Those not fully accrued until May 19,
2015, or later remain pending.
V. 42 U.S.C. § 1981 Claim of Race Discrimination in Contract
For the same reasons discussed more fully in Section IV.A, above, the
official capacity suits brought against Harris, Bell, and Irwin are due to be
dismissed because the City has been named as a defendant. See McElroy, 903 F.
Supp. 2d at 1242. It would be redundant to allow the official capacity suits to
proceed and was potentially cause confusion. The § 1981 claims against them,
however, remain pending. See Zaklama v. Mt. Sinai Med. Ctr., 842 F.2d 291, 293
(11th Cir. 1988) (holding non-employer defendant liable for discriminatory
dismissal of plaintiff by his employer under § 1981); Martinez v. Pavex Corp., 422
F. Supp. 2d 1284, 1291 (M.D. Fla. 2006) (“A defendant who is not a plaintiff's
employer may therefore be liable under § 1981 for interference with the plaintiff's
contractual rights with third parties.”).
VI. Intentional Infliction of Emotional Distress Claim
Bogus appears to identify several incidents that she alleges caused her severe
emotional distress, for which she seeks a remedy under Alabama law: (1) Harris’s
unwanted romantic advances towards her; (2) Bell’s profane verbal abuse during
the October 2014 parade; (3) Bell’s decision to suspend and then transfer her from
his security detail; (4) irregularities in the 2014 Beam investigation and 2015
Tubbs investigation that led to her stigmatization; (5) Irwin’s denial of a shift
accommodation, his decision to exclude her from the supervisor’s email list and
circulated reports, and his attempt to induce her to accept a reduction in rank and
salary. The defendants argue that these incidents do not constitute extreme and
To recover for intentional infliction of emotional distress, which is also
known as the tort of outrage, Bogus must prove “that the defendant’s conduct
(1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused
emotional distress so severe that no reasonable person could be expected to endure
it.” Green Tree Acceptance, Inc. v. Standridge, 565 So. 2d 38, 44 (Ala. 1990); see
also Buckentin v. SunTrust Mortg. Corp., 928 F. Supp. 2d 1273, 1287 (N.D. Ala.
2013). The defendants’ conduct “must be so extreme in degree as to go beyond all
possible bounds of decency and be regarded as atrocious and utterly intolerable in
a civilized society.” Id. Bogus cannot recover for “mere insults, indignities,
threats, or annoyances, petty oppressions, or other trivialities.” American Road
Service Co. v. Inmon, 394 So. 2d 361, 364-65 (Ala. 1980). Typically, the tort of
outrage can be supported only in three circumstances: “(1) wrongful conduct in
the family-burial context . . .; (2) barbaric methods employed to coerce an
insurance settlement . . .; and (3) egregious sexual harassment. . . .” Wilson v.
Univ. of Ala. Health Services Found., P.C., __ So. 3d __, 2017 WL 6397654, at *3
(Ala. Dec. 15, 2017). However, the tort of outrage is not limited to just those three
categories. Id. In O’Rear v. B.H., 69 So. 3d 106 (Ala. 2011), abrogated on other
grounds by Ex parte Vanderwall, 201 So. 3d 525 (Ala. 2015), the Alabama
Supreme Court extended the tort of outrage to encompass a family physician’s
conduct of prescribing addictive medications to a boy, who subsequently became
addicted, in exchange for sexual favors when the boy was struggling with the stress
of his parents’ divorce.
Here, Bogus has failed to allege facts sufficient to state a plausible claim that
the defendants engaged in extreme and outrageous conduct. Neither the gossip
Bogus endured nor the alleged irregularities in the investigations rise to the harm
caused by the conduct identified in the three categories in Wilson or in O’Rear.
Additionally, neither Bell’s verbal lashing during the October 2014 parade nor his
decision to suspend and transfer Bogus is sufficiently extreme and outrageous that
no person could be expected to endure it. While Harris’s actions may appear to be
sexual harassment, they cannot be said to be “egregious sexual harassment.”
Wilson, 2017 WL 6397654, at *3. Bogus has not plausibly alleged how Harris’s
unwanted romantic advances rose to the level of “egregious sexual harassment.”
Id. She does not explain in detail the substance of those advances to allow the
court to determine whether the conduct was egregious, rising to a level harassment
that would be “atrocious and utterly intolerable in a civilized society,” Green Tree
Acceptance, 565 So. 2d at 44, and, thus, has failed to allege facts showing
entitlement to relief. Accordingly, because Bogus has failed to allege extreme and
outrageous conduct, her intentional infliction of emotional distress claim is due to
VII. Remaining Pending Claims
With the limitations of Sections II through VI in mind and based on a
reading of her complaint in a light favorably to the plaintiff, the following claims
survive the pending motion to dismiss and remain pending for resolution in this
(1) Claims asserted under Title VII claims against the City only, based on
the following allegations:
a. Bell’s and/or Harris’s decision to deny the plaintiff the opportunity to
earn overtime compensation.
b. Bell’s and/or Harris’s decision to transfer the plaintiff from the
Mayor’s security detail either because of her interracial relationship
with Deputy Chief Tubbs or due to her pregnancy.
c. Bell’s and/or Harris’s creation of a sexually hostile work environment.
The court’s identification of the claims alleged in Bogus’s complaint should not be read
to conclude that the court holds that Bogus has plausibly alleged each claim in a sufficient
manner. The defendants have not moved for relief under Rule 12(b)(6) for the claims identified
in this section.
d. Bell’s and/or Harris’s retaliation against the plaintiff because she
complained during the Beam investigation that Harris made unwanted
romantic advances to her.
e. Harris’s retaliation for plaintiff’s complaint to him that she was being
discriminatorily denied the opportunity to earn overtime.
f. Irwin’s decision to deny Bogus a shift accommodation due to her
prior interracial relationship with Tubbs and the birth of her bi-racial
g. Irwin’s harassment and creation of a racially hostile work
environment because of Bogus’s race and prior interracial relationship
h. Irwin’s creation of a racially and sexually hostile work environment in
retaliation for plaintiff having previously filed an EEOC charge.
(2) Claims under 42 U.S.C. § 1983 brought against Irwin in his individual
capacity based on:
a. Irwin’s retaliation against Bogus in violation of the First Amendment
for reporting misconduct that she observed occurring within the City.
b. Irwin’s decision to grant accommodations to other employees but not
to Bogus in violation of the Fourteenth Amendment Equal Protection
c. Irwin’s decision to exclude Bogus (1) from receiving reports and (2)
from the supervisor’s email list, while including all other supervisors,
in violation of the Fourteenth Amendment Equal Protection Clause.
(3) Claims under 42 U.S.C. § 1981 of race discrimination in contract
brought against the City, and Harris, Bell, and Irwin in their individual capacities.
The defendants’ Motion to Dismiss, or, in the Alternative, Motion for More
Definite Statement is GRANTED IN PART and DENIED IN PART. The Motion
to Dismiss is GRANTED in so far as the following claims are DISMISSED WITH
- Any claim brought against Birmingham Police Department as an entity
apart from the City.
- Any individual and official capacity claims brought against Harris, Bell,
and Irwin under Title VII.
- Any discrete Title VII claim accruing before September 22, 2014, and
between March 31, 2015, and July 23, 2015.
- Any claim under 42 U.S.C. § 1983 brought against Harris, Bell, and
Irwin in their official capacities.
- Any claim under 42 U.S.C. § 1983 brought against the
City or Harris, Bell, and Irwin in their individual capacities for due
process violations stemming from the 2014 Beam investigation, the 2015
IAD investigation, and the denial of opportunities to earn overtime
compensation while on the Mayor’s security detail.
- Any claim of stigmatization in violation of the Due Process Clause as
enforced by 42 U.S.C. § 1983 and brought against the City and Harris,
Bell, and Irwin in their individual capacities, stemming from the 2014
Beam investigation, the 2015 IAD investigation, and the denial of
opportunities to earn overtime compensation while on the Mayor’s
- Any claim under 42 U.S.C. § 1983 brought against the City or Harris,
Bell, and Irwin in their individual capacities for equal protection
violations occurring before May 19, 2015.
- Any official capacity claims brought against Harris, Bell, and Irwin under
42 U.S.C. § 1981.
- Any state law claim of intentional infliction of emotional distress brought
against any of the defendants individually or collectively.
The Motion to Dismiss is DENIED in so far as the claims described in Section VII
remain pending. Finally, the Motion for More Definite Statement is DENIED.
Bogus has fourteen (14) days from the entry of this order to file any objection to
the court’s characterization of the claims that remain pending in Section VII,
including claims that she believes were not included or overlooked.
objections are filed, the court and the parties will proceed on the claims identified
in Section VII, and the defendants shall file answers to the remaining claims in the
DONE this 11th day of April, 2018.
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE
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