Bowman v. City of Birmingham

Filing 11

MEMORANDUM OPINION AND ORDER GRANTING 3 MOTION to Dismiss solely as to the allegations of conduct Bowman could have challenged in Bowman I, in all other respects the motion is DENIED; RENDERING MOOT 5 MOTION to Stay. Signed by Judge Abdul K Kallon on 7/10/2018. (AFS)

FILED
2018 Jul-10 AM 10:07
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CALVIN BOWMAN,
Plaintiff,

v.
CITY OF BIRMINGHAM,
Defendant.

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Civil Action Number
2:18-cv-364-AKK

MEMORANDUM OPINION AND ORDER
Calvin Bowman, proceeding pro se, asserts a hostile work environment
claim under Title VII against the City of Birmingham. The court has for
consideration the City’s Motion to Dismiss, doc. 3, which is fully briefed, docs. 7,
8, 10, and ripe for review. For the reasons explained more fully below, as to the
portion of Bowman’s complaint not barred by res judicata, the City’s motion is due
to be denied.
I. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere “labels and conclusions”
or “a formulaic recitation of the elements of a cause of action” are insufficient.
Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). “Nor does
a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (citing Bell Atl. Corp., 550 U.S. at 557).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief can be granted. “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678
(citations and internal quotation marks omitted). A complaint states a facially
plausible claim for relief “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citation omitted). The complaint must establish “more
than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Bell
Atl. Corp., 550 U.S. at 555 (“Factual allegations must be enough to raise a right to
relief above the speculative level.”). Ultimately, this inquiry is a “context-specific
task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.
Additionally, because the Plaintiff is pro se, the court must construe the
complaint more liberally than it would pleadings drafted by lawyers. Hughes v.
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Rowe, 449 U.S. 5, 9 (1980). “Pro se pleading are held to a less stringent standard
than pleadings drafted by attorneys and will, therefore, be liberally construed.”
Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006).
II. FACTUAL BACKGROUND 1
This is Bowman’s second lawsuit against the City related to his
employment. See Bowman v. City of Birmingham, No. 17-CV-255-AKK
(“Bowman I”). The vast majority of the facts alleged in the current complaint
repeat the contentions made in Bowman I. See doc. 2. Thus, the court will only
recount the allegations that are new to this lawsuit.
In October 2017, during a mediation hearing related to Bowman I, the City
falsely accused Bowman of using his work email account for personal purposes
and demanded that Bowman resign and accept a settlement offer for $5,000, or
face a disciplinary hearing and termination. Doc. 2 at 35. After Bowman rejected
the settlement offer, his supervisor issued him a written reprimand for the email
infraction. Id. at 35-36. These actions led Bowman to file an EEOC charge alleging
a retaliatory hostile work environment. Doc. 2 at 36-37. Allegedly, the City
retaliated further by: (1) temporarily assigning Bowman the responsibilities of a
maintenance manager without promoting him to that position, (2) denying a

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The court recites the facts as alleged in Bowman’s Complaint. See Grossman v. Nationsbank,
N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (citation omitted).
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request to work on a Saturday, and (3) instructing him to work as a cashier during
one event while assigning management roles to less qualified employees. Id. at 3738. As a result, Bowman filed this lawsuit, pleading a retaliatory hostile work
environment claim under Title VII.
III. ANALYSIS
The City seeks to dismiss this lawsuit on the grounds that (1) res judicata
bars portions of Bowman’s claim, (2) the City’s conduct during mediation is
inadmissible to support Bowman’s claim, and (3) Bowman fails to state a hostile
work environment claim. Doc. 3. The court addresses each argument in turn.
1. Res Judicata
As stated previously, this is Bowman’s second lawsuit before the
undersigned.2 Given that the allegations here overlap with Bowman I, the court
begins its analysis with the City’s contention that the doctrine of res judicata bars
portions of Bowman’s claim. This doctrine bars a subsequent action if: “(1) the
prior decision was rendered by a court of competent jurisdiction; (2) there was a
final judgment on the merits; (3) the parties were identical in both suits; and (4) the
prior and present causes of action are the same.” Davila v. Delta Air Lines, Inc.,
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The court may “consider judicially noticed documents” at the motion to dismiss stage without
converting the motion to a motion for summary judgment. United States ex rel. Osheroff v.
Humana, Inc., 776 F.3d 805, 811 (11th Cir. 2015). Judicially noticeable documents include
“publicly filed documents” which may be considered “for the limited purpose of determining
which statements the documents contain (but not for determining the truth of those statements).”
Id. at 811 n.4. Accordingly, the court takes judicial notice of all filings in Bowman I.
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326 F.3d 1183, 1187 (11th Cir. 2003) (quoting Jang v. United Techs. Corp., 206
F.3d 1147, 1149 (11th Cir. 2000)). The res judicata bar pertains not only to the
claims actually raised in the prior action, but also to existing claims that were not
raised. Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1271 (11th Cir. 2002). In
determining whether the prior and present causes of action are the same, the court
must decide whether the actions arise “out of the same nucleus of operative fact, or
[are] based upon the same factual predicate.” In re Piper Aircraft Corp., 244 F.3d
1289, 1297 (11th Cir. 2001) (internal quotation marks omitted), cert. denied sub
nom. TDY Indus., Inc. v. Kaiser Aerospace & Elec. Corp., 534 U.S. 827 (2001).
To the extent Bowman’s new claim implicates conduct that occurred prior to
the filing of Bowman I, all four res judicata factors apply. First, the court properly
exercised jurisdiction over Bowman I pursuant to 42 U.S.C. §§ 1981 and 1983. See
doc. 1 in Bowman I. Second, the court dismissed Bowman I on the merits,
satisfying step two. See doc. 57 in Bowman I. Third, the parties are identical, as
Bowman filed Bowman I against the City and two employees, and brings this
action solely against the City. See doc. 1 in Bowman I.
Finally, the two causes of action are the same in some respects. In Bowman
I, Bowman pleaded retaliation and retaliatory hostile work environment claims
under §§ 1981 and 1983 against the City based on allegations that he repeats nearly
verbatim in his current complaint. See doc. 1 in Bowman I. Although Bowman did
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not plead a Title VII claim in Bowman I, his current lawsuit challenges the same
underlying conduct, and a Title VII claim based on the same facts was clearly
available in Bowman I. See Trustmark, 299 F.3d at 1271; see also Adams v. Fulton
Cty., Ga., 397 F. App’x 611, 612 (11th Cir. 2010) (“Both §§ 1981 and 1983
contain the same elements of proof and analytical framework as a Title VII, 42
U.S.C. § 2000e-2, claim in the employment context”) (citations omitted). Thus, as
to events preceding the filing of Bowman I, based on the pleadings in both cases, it
is readily apparent that the causes of action arise out of the “same nucleus of
operative fact.” In re Piper, 244 F.3d at 1297. Accordingly, res judicata bars
Bowman’s claim as it relates to events preceding the filing of his prior lawsuit.
But the court cannot end its analysis here, as Bowman contends that
equitable estoppel bars the City from asserting res judicata. 3 Doc. 7 at 6-8.
Bowman asserts the City acquiesced to the filing of this lawsuit when it failed to
move for reconsideration of the order in Bowman I that denied Bowman leave to
amend and permitted him to pursue claims relating to the City’s conduct in
mediation in a new lawsuit. See doc. 41 at 2 in Bowman I. However, the order
stated only that “Bowman is obviously free to pursue his new claim in a separate
lawsuit.” Id. (emphasis added). This is far different from stating that Bowman
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A traditional equitable estoppel claim requires “(1) words, acts, conduct or acquiescence
causing another to believe in the existence of a certain state of things; (2) wilfulness or
negligence with regard to the acts, conduct or acquiescence; and (3) detrimental reliance by the
other party upon the state of things so indicated.” Bokum v. C.I.R., 992 F.2d 1136, 1141 (11th
Cir. 1993) (quoting United States v. Aetna Ins. Co., 923 F.2d 1521, 1526 (11th Cir. 1991)).
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could relitigate all his claims from Bowman I. Thus, there is nothing in the order to
support a finding that the City acquiesced to Bowman filing this lawsuit to the
extent it is premised on events that occurred prior to the filing of Bowman I.
Similarly, Bowman’s contention that the City’s failure to move for reconsideration
caused him not to file his own motion for reconsideration or seek interlocutory
review of the order, doc. 7 at 8, is unavailing. The City had no obligation to move
to reconsider on an issue it prevailed on, and its decision not to do so has no legal
bearing on Bowman’s own actions in prosecuting his case. Accordingly, equitable
estoppel does not bar the City from asserting its res judicata defense.
To sum up, except to the extent Bowman’s claim arises out of the City’s
alleged conduct that occurred after the filing of Bowman I, res judicata bars
Bowman’s claim. 4
2. Admissibility of Statements Made in Mediation
The City next contends Rule 408 of the Federal Rules of Evidence prohibits
Bowman from relying on its conduct during mediation to support his claims. See
Fed. R. Evid. 408 (“[C]onduct or a statement made during compromise
negotiations” “is not admissible . . . to prove or disprove the validity or amount of
a disputed claim”). But the court must take a plaintiff’s factual allegations as true

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Relatedly, this portion of Bowman’s claim is also barred by his failure to file it within 90 days
of receipt of a right-to-sue letter from the EEOC. See Bell v. Eagle Motor Lines, 693 F.2d 1086,
1086 (11th Cir. 1982) (citing 42 U.S.C. § 2000e-5(f)).
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when considering a motion to dismiss, and must not factor in Rule 408. Malibu
Media, LLC v. Roldan, No. 8:13-CV-3007-T-30TBM, 2014 WL 3805494, at *2
(M.D. Fla. Aug. 1, 2014) (holding argument that plaintiff’s claim relies on
inadmissible evidence is inappropriate at motion to dismiss stage) (citing Brooks v.
Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997)); see
Finjan, Inc. v. SonicWall, Inc., No. 17-CV-04467-BLF, 2018 WL 2234370, at *5
(N.D. Cal. May 16, 2018) (denying motion to dismiss on Rule 408 grounds
because “[a]t this stage, [the plaintiff] only needs to plead factual allegations, when
accepted as true, ‘state a claim to relief that is plausible on its face’”) (quoting
Twombly, 550 U.S. at 570). Accordingly, the court gives this contention no weight
in determining this motion.
3. The Sufficiency of Bowman’s Claim
Finally, the City challenges the merits of Bowman’s claim. To establish a
prima facie claim of a retaliatory hostile work environment claim, a plaintiff must
plead that “(1) she engaged in protected activity; (2) after doing so, she was
subjected to unwelcome harassment; (3) her protected activity was a ‘but for’
cause of the harassment; (4) the harassment was sufficiently severe or pervasive to
alter the terms or conditions of her employment; and (5) a basis exists for holding
her employer liable either directly or vicariously.” Swindle v. Jefferson Cty.
Comm’n, 593 F. App’x 919, 929 (11th Cir. 2014) (citing Univ. of Texas Sw. Med.
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Ctr. v. Nassar, 570 U.S. 338, 339 (2013); Gowski v. Peake, 682 F.3d 1299, 131112 (11th Cir. 2012); Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th
Cir. 2002)). The harassment must be both objectively severe or pervasive to a
reasonable person and subjectively severe or pervasive to the plaintiff. Gowski, 682
F.3d at 1312 (citing Miller, 277 F.3d at 1276). In evaluating the objective severity
of the harassment, this court looks at the totality of the circumstances and
considers, among other things: “(1) the frequency of the conduct; (2) the severity
of the conduct; (3) whether the conduct is physically threatening or humiliating, or
a mere offensive utterance; and (4) whether the conduct unreasonably interferes
with the employee’s job performance.” Miller, 277 F.3d at 1276.
After disposing of the allegations barred by res judicata, Bowman’s claim
rests on allegations that the City threatened to discharge him if he did not accept its
settlement offer, and that his supervisor issued him a written reprimand, assigned
him additional work responsibilities, denied a request to work on a Saturday, and
assigned him to work as a cashier for an event. Doc. 2 at 35-38. As pleaded, these
allegations seem insufficient to rise to the objectively severe level. But there may
be nuances to the alleged conduct that testimony can offer to possibly carry the
contentions to the required level. Whether Bowman can take his claim beyond the
“ordinary tribulations of the workplace,” which “cannot form the basis of a claim
for actionable harassment or hostile work environment,” Corbett v. Beseler, 635 F.
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App’x 809, 816 (11th Cir. 2015) (quoting Faragher v. City of Boca Raton, 524
U.S. 775, 788 (1998)) (internal quotation marks omitted), remains to be seen.
However, construing his complaint liberally, as it must at this juncture, the court
finds that Bowman has satisfied his burden of stating a facially plausible claim for
relief. See Iqbal, 556 U.S. at 678. Accordingly, the City’s motion is due to be
denied.
IV. CONCLUSION AND ORDER
For the reasons stated above, the City’s motion, doc. 3, is GRANTED solely
as to the allegations of conduct Bowman could have challenged in Bowman I. In all
other respects, the motion is DENIED. Bowman’s motion to stay this case, doc. 5,
is MOOT in light of the court ruling on his motion to vacate in Bowman I, see doc.
61 in Bowman I.
Given that this lawsuit is a single-claim action alleging a hostile work
environment which consists of five acts, it is well-suited for expedited discovery.
Accordingly, the parties are ORDERED to submit, by July 16, 2018, a proposed
discovery schedule that has a discovery cutoff of October 9, 2018, and that will
have this case ready for a trial in January 2019.
DONE the 10th day of July, 2018.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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