Franklin v. City of Athens et al

Filing 25

MEMORANDUM OPINION and ORDER denying 9 MOTION to Dismiss; granting 17 MOTION to Amend/Correct; Cedrick Franklin brings this employment discrimination suit against his employer; As stated within, the court finds that Franklin's amende d complaint successfully alleges a racial discrimination claim and that his request to amend his complaint is not futile; Accordingly, the court DENIES the City's motion to dismiss, 9 , except as to the Public Works Department which is DISMISSE D as a defendant; The court GRANTS Franklin's motion to amend, 17 , and Franklin is DIRECTED to file his amended complaint as a separate docket entry; Further, the court LIFTS the stay of deadlines in this case, and reminds the parties of their obligations under the Federal Rules of Civil Procedure. Signed by Judge Abdul K Kallon on 4/12/2018. (KBB)

FILED
2018 Apr-12 AM 10:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
CEDRICK FRANKLIN,
Plaintiff,

vs.
CITY OF ATHENS, et al.,
Defendants.

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Civil Action Number
5:17-cv-01506-AKK

MEMORANDUM OPINION AND ORDER
Cedrick Franklin brings this employment discrimination suit pursuant to 42
U.S.C. § 1983 claiming that his employer, the City of Athens (the City), violated
42 U.S.C. § 1981. He also alleges a separate, free-standing violation of the Age
Discrimination in Employment Act of 1967 (the ADEA), 29 U.S.C. § 621 et seq.1
1

While Franklin’s complaint contains several allegations arguably related to potential
hostile work environment or retaliation claims, Franklin concedes he does not allege a retaliation
claim, doc. 24 at 5, and he has largely removed those allegations from his proposed amended
complaint. See Doc. 21 at 3 n.1. Instead, Count I of Franklin’s amended complaint alleges only
a § 1981 disparate treatment claim based on the City’s decision to discharge him, rehire him,
place him on probation, and finally discharge him for a second time. See Doc. 17-1 at 8–12.
The court notes however, that, to the extent the amended complaint suggests that municipal
liability for these actions is appropriate based on either the City’s failure to properly train its
employees or a longstanding practice or custom of racial discrimination, id. at 11–12, those
theories are supported by only vague, conclusory allegations insufficient to meet the
requirements of Rule 8 of the Federal Rules of Civil Procedure. Additionally, the proposed
amended complaint has abandoned the requests for punitive damages and, as to the ADEA, for
pain and suffering damages in recognition of the settled law governing ADEA and § 1983
claims. Id. at 13, 15–16; See Goldstein v. Manhattan Indus., Inc., 758 F.2d 1435, 1446 (11th Cir.
1985) (“neither punitive damages nor compensatory damages for pain and suffering are
recoverable under the ADEA”); City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981)

The City has now moved to dismiss Franklin’s § 1983 claim in its entirety, doc. 9,
arguing broadly that Franklin has failed to adequately allege that the municipality
is liable for purportedly discriminating against him. In response, Franklin sought
leave of court to file an amended complaint, doc. 17, which the City opposes on
the grounds of futility. Doc. 21. Both motions are now fully briefed, docs. 10; 17;
18; 20; 21; and 24, and ripe for review. Upon careful consideration of the parties’
briefs and Franklin’s proposed amended complaint, doc. 17-1, the court finds the
City’s motion is due to be denied and Franklin’s motion is due to be granted with
certain exceptions delineated herein.
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) (quoting Bell
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. Id.
(quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders
(“a municipality is immune from punitive damages under 42 U.S.C. § 1983”). Accordingly, as
to these issues, Franklin’s proposed amended complaint renders the City’s motion MOOT.

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‘naked assertion[s]’ devoid of ‘further factual enhancement.’”

Id.

(quoting

Twombly, 550 U.S. at 557).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to comply with Rule 8(a)(2) or does not otherwise state a claim
upon which relief can be granted. When evaluating a motion under Rule 12(b)(6),
the court accepts “the allegations in the complaint as true and constru[es] them in
the light most favorable to the plaintiff.” Hunt v. Aimco Props., L.P., 814 F.3d
1213, 1221 (11th Cir. 2016). However, “[t]o survive a motion to dismiss, a
complaint must . . . ‘state a claim to relief that is plausible on its face.’” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 570). 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.

While the plausibility standard does not impose a

“probability requirement,” the allegations in a plaintiff’s complaint must establish
“more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also
Twombly, 550 U.S. at 555 (emphasizing that the “[f]actual allegations [included in
the complaint] must be enough to raise a right to relief above the speculative
level”). Ultimately, the line between possibility and plausibility is a thin one, and
making this determination is a “context-specific task that requires the reviewing

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court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at
679.
Moreover, the court notes that ordinarily a plaintiff is allowed to amend her
complaint “once as a matter of course within . . . 21 days after service of a motion
under Rule 12(b).” Fed. R. Civ. P. 15(a)(1)(B). Franklin, however, declined to
avail himself of this option and instead opted to file “an unnecessary motion to
amend, with the proposed amendments attached.”

Coventry First, LLC v.

McCarty, 605 F.3d 865, 869 (11th Cir. 2010). In doing so, Franklin “waived [his]
right to amend as a matter of course and . . . invited [this court] to review [his]
proposed amendments.” Id. at 870. In conducting this review, the court bears in
mind that “[i]f the underlying facts or circumstances relied upon by a plaintiff may
be a proper subject of relief, [she] ought to be afforded an opportunity to test [her]
claim on the merits.” Foman v. Davis, 371 U.S. 178, 182 (1962). The Federal
Rules of Civil Procedure buttress this conclusion and provide that the court
“should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P.
15(a)(2).

However, “a district court may properly deny leave to amend the

complaint under Rule 15(a) when such amendment would be futile.” Hall v.
United Ins. Co. of Am., 367 F.3d 1255, 1262–63 (11th Cir. 2004). The Eleventh
Circuit has explained that an amendment is futile if “‘the complaint as amended is
still subject to dismissal.’” Id. at 1263 (quoting Burger King Corp. v. Weaver, 169
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F.3d 1310, 1320 (11th Cir. 1999)). Thus, the same standard applies to the City’s
motion to dismiss and to Franklin’s motion to amend. Moreover, because the
proposed amended complaint is, in relevant part, substantively identical to
Franklin’s original pleading, see doc. 21 at 2–3, the court’s analysis applies equally
to both documents.
II.

FACTS2
Franklin is an African-American man over the age of forty who began

working as an equipment operator for the City’s Public Works Department in
2015. Doc. 17-1 at 3–5. Less than a year later, Franklin’s supervisor, Earl Glaze,
without explanation, offered Franklin a choice between resignation or discharge
despite his unblemished disciplinary record. Id. at 5, 7. Franklin declined to
resign and informed Glaze that he intended to seek legal advice regarding his
treatment. Id. at 5–6. Glaze promptly discharged Franklin, but hours thereafter
sought to rehire him. Id. Franklin accepted this offer and returned to work several
weeks later. Id. at 6, 9.
During the rehiring process, Glaze asked Franklin to sign a purportedly false
report of disciplinary action related to an event that occurred several months prior
to Franklin’s discharge. Id. When Franklin refused to sign the report, Glaze
placed him on probation for thirty days pending a permanent decision regarding his

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The “facts” are taken directly from Franklin’s complaint. See Hunt, 814 F.3d at 1221.
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employment status. Id. at 6. At the conclusion of the probationary period, Glaze
discharged Franklin for purportedly failing to complete job assignments promptly.
Id.at 7. Franklin alleges that other similarly situated white employees also failed to
promptly complete their assignments without suffering any repercussions from
Glaze, and that Glaze brushed off Franklin’s complaints of racial bias. Id. at 7, 10–
11. The City subsequently hired a younger white employee to replace Franklin.
Id. at 7.
III.

DISCUSSION
To state a plausible claim under § 1983 the complaint must name a

defendant capable of being sued. See Dean v. Barber, 951 F.2d 1210, 1214 (11th
Cir. 1992). The requisite “capacity to sue or be sued shall be determined by the
law of the state in which the district court is held.” Id. (quoting Fed. R. Civ. P.
17(b)).

Franklin’s complaint names both the City and its Public Works

Department as defendants. Doc. 17-1 at 3. However, as explained by the Alabama
Supreme Court, “[g]enerally, the 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.” Ex parte Dixon, 55 So. 3d 1171, 1172 n.1 (Ala. 2010) (quotation
omitted); see also Dean, 951 F.2d at 1215 (concluding that under “Alabama law, a
county sheriff’s department lacks the capacity to be sued”); Hardin v. City of Troy
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Pub. Works Dep’t, No. 2:10-CV-663-MEF, 2013 WL 5231872, at *7 (M.D. Ala.
Sept. 16, 2013) (relying on Alabama law to conclude that a municipality’s public
works department is “not a separate entity” and lacks the capacity to be sued).
Franklin has failed to identify any statutory authority authorizing municipal public
works department to sue or be sued, and the court therefore concludes that the
Public Works Department lacks the requisite legal capacity to be subject to a §
1983 claim. Accordingly, the Department is due to be dismissed from this action.
A. Franklin has Plausibly Alleged a § 1983 Claim Against the City of
Athens3
Franklin alleges that the City discriminated against him on the basis of race
by: (1) initially terminating him, (2) rehiring him and placing him on probation, (3)
attempting to force him to sign a purportedly false disciplinary report, and (4)
3

The court notes as a threshold matter some confusion regarding the precise legal basis for the
racial discrimination claim Franklin raises against the City. The City repeatedly argues that
Franklin’s § 1981 claim is duplicative of his § 1983 claim and due to be dismissed on that basis.
Doc. 21 at 3. This confusion is understandable given the often loose language employed by
courts in this context. However, “[s]ection 1983 ‘is not itself a source of substantive rights,’ but
merely provides ‘a method for vindicating federal rights elsewhere conferred.’” Albright v.
Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). In
other words, § 1983 provides a vehicle for a plaintiff’s substantive claim, but it does not provide
the legal parameters for the claim. Instead, the first step in evaluating “any such claim is to
identify the specific . . . right allegedly infringed.” Id. This underlying right, here § 1981,
provides the substantive law governing the plaintiff’s claim asserted against a government actor
via § 1983. However, to the extent the City is simply arguing that Franklin may not assert a freestanding § 1981 claim in this case, the court agrees. The Supreme Court has held that “the
express cause of action for damages created by § 1983 constitutes the exclusive federal remedy
for violation of the rights guaranteed in § 1981 by state governmental units.” Jett v. Dallas
Indep. Sch. Dist., 491 U.S. 701, 733 (1989); see also Busby v. City of Orlando, 931 F.2d 764,
771 n.6 (11th Cir. 1991) (explaining that § 1981 claims for racial discrimination against state
actors effectively merges with the cause of action provided by § 1983). In any event, the court
does not read Franklin’s complaint as encompassing a free-standing § 1981 claim rendering the
foregoing discussion academic.
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permanently discharging him at the end of his probationary period. Doc. 17-1 at
8–11. Claims of racial discrimination in the employment context predicated on
disparate treatment and brought via § 1983 share elements of proof with ordinary
employment discrimination suits filed under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. See Crawford v. Carroll, 529 F.3d 961, 970 (11th
Cir. 2008) (explaining that the legal elements of claims of disparate treatment
under Title VII and sections 1981 and 1983 “are identical”) (quotation omitted).
Thus, where direct evidence of discrimination is absent, as here, “a plaintiff
establishes a circumstantial, prima facie case of racial discrimination . . . by
showing . . . ‘(1) [she] belongs to a racial minority; (2) [she] was subjected to
adverse job action; (3) [her] employer treated similarly situated employees outside
[her] classification more favorably; and (4) [she] was qualified to do the job.’”
Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003)
(quoting Holifield v. Reno, 115 F.3d 1555, 1561–62 (11th Cir. 1997)).
Importantly, however, “[a]lthough, . . . local government may be subject to
liability under § 1983, a plaintiff cannot rely upon the doctrine of respondeat
superior.” Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1328 (11th
Cir. 2015). Instead, “a municipality can be found liable under § 1983 only where
the municipality itself causes the constitutional violation at issue.” City of Canton
v. Harris, 489 U.S. 378, 385 (1989) (emphasis in original). Thus, for a plaintiff to
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prevail on such a claim, it is necessary to show that “there is a direct causal link
between a municipal policy or custom and the alleged . . . deprivation.” Id.
There are many avenues the plaintiff may pursue to establish the requisite
causal connection. As is principally relevant to Franklin’s claims, a municipality is
liable for decisions made by its officials if the “decisionmaker possesses final
authority to establish municipal policy with respect to the action ordered.”
Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). However, municipal
liability may also attach based on the enactment of an official policy, the
acquiescence of municipal policymakers to a “longstanding practice that
constitutes the entity’s standard operating procedure,” or when a subordinate
official’s decision is later ratified by a supervisor with final policy making
authority. Hoefling v. City of Miami, 811 F.3d 1271, 1279 (11th Cir. 2016).
Critically, “proving that a final policymaker acted on behalf of a municipality is
‘an evidentiary standard, and not a pleading requirement.’” Id. at 1280 (quoting
Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510 (2002)).
The City does not quibble with the sufficiency of the pleadings with regard
to Franklin’s prima facie case.

Instead, in light of Franklin’s proposed

amendments to his complaint, and the court’s construction of those amendments
discussed above, the sole remaining issue before the court is the City’s contention
that Franklin’s complaint fails to plausibly establish municipal liability under §
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1983 by alleging that a municipal policy or custom was the “moving force” behind
the alleged discrimination Franklin experienced. See Doc. 9 at 2 (citing City of
Oklahoma City v. Tuttle, 471 U.S. 808, 819 (1985)). Here, Franklin’s allegations
train specifically on the conduct of his supervisor, Glaze. While Franklin does not
specifically allege that Glaze possessed final policymaking authority with respect
to the various employment actions at issue in this case, the complaint contains
enough factual material to create the inference that Glaze did, in fact, possess the
requisite authority to act for the City. Among other things, the amended complaint
alleges that Glaze personally offered Franklin a choice between resignation and
discharge, doc. 17-1 at 5, rehired Franklin after discharging him, id. at 5–6, placed
Franklin on probation for thirty days after rehiring him, id. at 6, and discharged
Franklin permanently upon the conclusion of his probationary period. Id. at 7.
Franklin neither claims that other municipal employees were involved in these
events, nor suggests that the City ever reviewed Glaze’s actions. Instead, the
complaint directly alleges that Glaze made particular hiring and firing decisions on
his own without the need for consultation or administrative review. Id. at 5–13;
See Quinn v. Monroe County, 330 F.3d 1320, 1325 (11th Cir. 2003) (explaining
that “[f]inal policymaking authority over a particular subject area does not vest in
an official whose decisions in the area are subject to meaningful administrative
review”) (quotation omitted).
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The court recognizes that whether a particular municipal employee is a
“final policymaker” is a question of state law, City of St. Louis v. Praprotnik, 485
U.S. 112, 124 (1988), and that Alabama law vests final policymaking authority for
a municipality in the mayor and the city council. See Ala. Code. §§ 11-43-81, 1143-43. But, the Alabama Code, standing alone, is not dispositive at the pleading
stage because the “authority to make municipal policy may be delegated.” Church
v. City of Huntsville, 30 F.3d 1332, 1343 (11th Cir. 1994). As explained above, the
complaint is rife with allegations establishing that Glaze made a series of final
employment decisions related to Franklin by discharging him twice and placing
him on probation when he was rehired. Id. at 5–7. Therefore, because the City has
not argued that Glaze acted ultra vires, the court finds that the allegations related to
Glaze’s direct actions plausibly establish that Glaze had final policymaking
authority with respect to Franklin’s employment status with the City.

See

Pembaur, 475 U.S. at 481, 483.4
4

Municipal liability may also exist even if Glaze was not a final, authorized municipal
policymaker. See Praprotnik, 485 U.S. at 127 (explaining that if an “authorized policymaker[]
approve[s] a subordinate’s decision and the basis for it, their ratification would be chargeable to
the municipality”); see also Hoefling, 811 F.3d at 1279 (explaining that “a municipality can be
held liable ‘on the basis of ratification when a subordinate public official makes an
unconstitutional decision and when that decision is then adopted by someone who does have
final policymaking authority’”) (quoting Matthews v. Columbia Cty., 294 F.3d 1294, 1297 (11th
Cir. 2004)). Indeed, the amended complaint provides a basis for the court to plausibly infer
ratification of Glaze’s employment decisions by a city official with the requisite authority, even
without conclusively identifying such an individual. See Hoefling, 811 F.3d at 1281. As
described above, the complaint specifically details numerous employment actions taken against
Franklin by Glaze. The City does not argue that Glaze was a rogue actor or that he failed to
follow appropriate procedures. Instead, the complaint indicates that these employment actions
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IV.

CONCLUSION AND ORDER
To survive a motion to dismiss, it is not necessary that Franklin “prov[e] that

a final policymaker acted on behalf of [the] municipality.” Hoefling, 811 F.3d at
1280.

Nor must Franklin “specifically identify the municipality’s final

policymaker by name.” Id. at 1281. Instead, Franklin need only provide factual
allegations sufficient “to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. He has met that burden here with respect to his
disparate treatment claim based on his initial discharge, his rehire and probation,
and his discharge for a second time within the space of roughly a month.
Therefore, the court finds that Franklin’s amended complaint successfully
alleges a § 1981 racial discrimination claim and that his request to amended his
complaint is not futile. Accordingly, the court DENIES the City’s motion to
dismiss, doc. 9, except as to the Public Works Department which is DISMISSED
as a defendant. The court GRANTS Franklin’s motion to amend, doc. 17, and
Franklin is DIRECTED to file his amended complaint, doc. 17-1, as a separate
were taken as a matter of routine. Drawing all reasonable inferences in favor of Franklin, the
court concludes that even if Glaze lacked the authority to discharge or discipline Franklin, at this
stage, Franklin’s allegations are sufficient to establish that Glaze’s decisions, and the alleged
underlying animus, were ratified by an authorized policymaker and are, accordingly, chargeable
to the municipal entity. Praprotnik, 485 U.S. at 127; see also Salvato v. Miley, 790 F.3d 1286,
1296 (11th Cir. 2015) (explaining that a ratification theory does not require pattern evidence and
instead the plaintiff must merely show “that local government policymakers had an opportunity
to review the subordinate’s decision and agreed with both the decision and the decision’s basis”);
See Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999) (explaining that a
showing that “the decisonmaker [acted] as a mere conduit . . . to give effect to the
recommender’s discriminatory animus” is sufficient to establish municipal liability).
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docket entry. Further, the court LIFTS the stay of deadlines in this case, and
reminds the parties of their obligations under Rule 26 of the Federal Rules of Civil
Procedure.
DONE the 12th day of April, 2018.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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