DAVENPORT v. COLUMBUS CONSOLIDATED GOVERNMENT et al

Filing 25

ORDER granting 8 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 17 Motion for Leave to File Amended Complaint; granting 19 Motion to Stay. Ordered by U.S. DISTRICT JUDGE CLAY D. LAND on 9/25/15. (nmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
CCG DIVISION
ALICIA DAVENPORT,
Plaintiff,
vs.

*
*
*

COLUMBUS CONSOLIDATED
*
GOVERNMENT and GREGORY
COUNTRYMAN, individually and in *
his official capacity as
Marshal of Muscogee County,
*
Georgia,

CASE NO.4:14-CV-275 (CDL)

Defendants.
O R D E R
Plaintiff Alicia Davenport, a black female, is employed by
Defendant Columbus Consolidated Government (“CCG”).

She filed

this action pursuant to 42 U.S.C. § 1983 alleging that CCG and
Marshal Gregory Countryman violated her rights under the Equal
Protection Clause of the Fourteenth Amendment when Countryman
discriminated and retaliated against her based on her race and
gender.1
After CCG filed a motion to dismiss for failure to state a
claim (ECF No. 8), Davenport sought to improve her chances and
filed a motion to amend her complaint to add discrimination and

1

Davenport initially sued several other CCG employees but later agreed to
dismiss all individual defendants except Countryman.
Joint Stipulation of
Dismissal, ECF No. 2; Pl.’s Resp. to CCG’s Mot. to Dismiss 1, ECF No. 16.
Davenport sued Countryman in his individual and official capacities.
The
parties proceed as though Davenport’s official capacity claims against
Countryman are claims against CCG.

retaliation claims under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., and retaliation claims under 42
U.S.C. § 1981 (ECF No. 17).

Davenport also seeks to stay this

litigation

fully

until

she

has

exhausted

her

rights

to

administrative review by CCG and until criminal charges pending
against her that are related to the claims she asserts in this
action have been finally adjudicated (ECF No. 19).
For

the

Davenport’s

reasons

Fourteenth

discrimination
Davenport’s

brought

motion

to

that

follow,

Amendment

claims

pursuant
amend

her

CCG’s

to

motion

for
§

race

1983

complaint

to

to

dismiss

and

is

gender

granted;

assert

claims

against CCG pursuant to Title VII is granted, but her motion to
amend to assert a retaliation claim against

CCG

pursuant to

§§ 1981 and 1983 is denied; and Davenport’s motion to stay this
action after the amended complaint and answers to it are filed
is granted.
STANDARDS
Davenport’s motion for leave to amend her complaint should
be granted unless the proposed amended complaint fails to state
a claim and amendment is therefore futile.
Pro. 15(a).

See Fed. R. Civ.

“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.’” Ashcroft v.
Iqbal,

556

U.S.

662,

678

(2009)(quoting

2

Bell

Atl.

Corp.

v.

Twombly, 550 U.S. 544, 570 (2007)).

The “[f]actual allegations

must be enough to raise a right to relief above the speculative
level . . . on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).”
U.S. at 555.

Twombly, 550

Thus, “a well-pleaded complaint may proceed even

if it strikes a savvy judge that actual proof of those facts is
improbable.” Id. at 556.
FACTUAL ALLEGATIONS
Davenport’s

proposed

amended

complaint

(ECF

No.

17-1)

contains the following allegations.
I.

Davenport’s Initial Employment
Davenport began her employment with CCG as a police officer

for

the

CCG

Police

Department

in

2004.

In

2006,

Davenport

complained to CCG and the EEOC that the CCG Police Department
discriminated and retaliated against her based on her race and
gender.

In

response

to

these

complaints,

Davenport

was

transferred to the CCG Marshal’s Office as a Deputy Marshal.
She

was

assigned

to

field

services

under

Marshal

Gregory

Countryman.
During her employment at the Marshal’s Office, Davenport
verbally complained to Countryman several times that he failed
to promote her and failed to give her the same job “perks” as
male deputies.

Proposed First Am. Compl. ¶ 14, ECF No. 17-1.

In response, Countryman addressed the entire squad and promised

3

to

be

fairer.

According

to

Davenport,

however,

Countryman

continued to deny her promotions and other perks provided to
male

employees.

Notwithstanding

this

alleged

discriminatory

treatment, Davenport earned several accolades and honors during
her time at the Marshal’s Office.
II.

Davenport’s Incident with Dunlap and Punishment
On October 28, 2013, Davenport responded to a three-car

accident

and

injuries.
to

put

was

informed

that

the

accident

resulted

in

In her haste to assess the injuries, Davenport failed

on

her

microphone

before

entering

the

scene.

While

Davenport was assisting victims, Doug Dunlap, a white male CCG
police officer, arrived and took over the investigation.

Dunlap

refused Davenport’s assistance, so Davenport decided to leave
the scene. As Davenport was pulling her car away, Dunlap leapt
in

front

of

the

vehicle

to

prevent

her

from

leaving.

He

initiated a confrontation, but Davenport pulled her car away
from Dunlap and left the scene.
Dunlap

later

claimed

that

Davenport

made

inappropriate

comments as she walked to her vehicle and that she struck his
right leg with her patrol car.
In

fact,

on

the

day

of

the

Davenport denies both claims.
incident,

Sergeant

R.L.

Bowers

investigated Dunlap’s claims by interviewing witnesses at the
scene

and

retrieving

Sgt.

Bowers

the

determined

video
that

from

Davenport’s

Dunlap’s

4

claims

patrol
were

car.

“[n]ot

[s]ustained.”

Proposed First Am. Compl. ¶ 18.

Notwithstanding Sgt. Bower’s conclusion, Marshal Countryman
suspended Davenport for five days without pay plus twelve months
of

probation

for

not

wearing

unbecoming [of] an officer.”
the punishment.
could

use

her

her

microphone

Id. ¶ 19.

and

“conduct

Davenport objected to

Additionally, Davenport asked Countryman if she
vacation

days

sacrificing five days of pay.

for

the

suspension

in

lieu

of

She knew that Countryman had let

white male deputies with spouses do so.

Davenport emphasized

that she was a single mother of three and that five days without
pay would be a hardship for her family.

Although Countryman

admitted that he had allowed male deputies to use vacation days
in

lieu

of

suspensions

without

pay,

Countryman

denied

Davenport’s request.
In response, Davenport complained to Countryman that she
was being discriminated against because she was a black female.
Countryman reacted with hostility.

He told Davenport that she

could appeal the suspension, but added that she had abandoned
her oath and could be charged with a crime for the incident with
Dunlap.

Davenport believed that Countryman was threatening to

initiate

criminal

charges

against

her

if

she

appealed

her

suspension.
III. Davenport’s First Grievance and Countryman’s Response
Davenport

nevertheless

filed

5

an

appeal

under

CCG’s

Fair

Treatment

Policy

Countryman’s
hand

regarding

alleged

delivered

her

five-day

typed

letters

and

conduct.

discriminatory

suspension
Davenport

also

stating

her

grievance

Countryman, Sgt. Bowers, and other CCG officials.

to

The following

day, Countryman contacted the Georgia Bureau of Investigation to
have criminal charges brought against Davenport for the incident
with Dunlap.

The GBI launched a criminal investigation, and

Countryman placed Davenport on administrative assignment with
pay

until

Davenport,

the

investigation

Countryman

was

subsequently

complete.
made

false

According
reports

to

to
the

Georgia Peace Standards and Training Counsel that Davenport was
suspended because of an ongoing criminal investigation and that
Davenport refused to cooperate with the investigation.
On

December

12,

2013,

the

State

of

Georgia

charged

Davenport with a misdemeanor for reckless conduct and a felony
for

violation

of

her

oath

of

office.

Countryman

suspended

Davenport without pay, pending the resolution of the criminal
charges.

He

also

gave

Davenport

a

negative

performance

evaluation even though she was not due for an evaluation.
the

same

day,

Davenport

Response

from

human

upholding

Countryman’s

received

the

Fair

Treatment

On

Report

resources

director

Reather

Hollowell,

five-day

suspension

without

pay.

The

Response stated that City Manager Isaiah Hugley had waived his
right of review and approved a direct appeal to CCG’s Personnel

6

Review Board.

Davenport timely filed the appeal to the Board,

and she requested a hearing regarding her five-day suspension
without pay grievance.
IV.

Davenport’s Second Grievance and EEOC Complaint
On December 30, 2013, Davenport filed a second grievance

alleging

that

Countryman

was

retaliating

against

her

in

the

following ways: (1) showing a video of an in-office argument
between Davenport and Deputy Marshal Shannon Griffin to persons
outside

of

law

enforcement;

(2)

disciplining

Davenport

more

harshly than Griffin for this argument; (3) failing to prosecute
Griffin for making “terroristic threats” against Davenport; (4)
showing the patrol car video from the incident between Davenport
and Dunlap to persons outside of law enforcement; (5) describing
Davenport as “an angry black woman;” (6) claiming that Davenport
had been counseled for having a negative attitude toward coworkers in her December 2013 negative performance review when
Davenport had not been counseled; and (7) receiving a copy of
Davenport’s 2006 grievance against the CCG police department.
Proposed First Am. Comp. ¶ 30.
On April 4, 2014, although her state criminal charges and
appeal

to

Davenport
Employment

the
filed

Personnel
a

charge

Opportunity

Review
of

Board

were

discrimination

Commission.

still
with

Davenport

was

pending,
the

Equal

issued

a

Notice of Right to Sue on August 8, 2014 and filed this action

7

on November 3, 2014.
Currently, Davenport’s hearing with the Personnel Review
Board regarding her five-day suspension without pay has been
stayed pending resolution of the state criminal charges against
her.

The decision appears to be indefinitely stalled because

CCG alleges that Davenport has not even been indicted on the
criminal charges.
23.

Def.’s Resp. to Pl.’s Mot. to Stay 5, ECF No.

Davenport remains employed by CCG, but she is on indefinite

suspension without pay.
DISCUSSION
I.

Motion to Dismiss and Motion to Amend
Davenport

indefinite
charges

claims

suspension

were

imposed

that

her

without
by

five
pay

day

suspension

related

Countryman

to

her

because

of

her

and

her

criminal
race

and

gender and in retaliation for her complaints of race and gender
discrimination.
claims

against

discrimination
Protection
violation

Specifically, she seeks to assert the following
CCG
in

Clause
of

Title

in

her

violation
pursuant
VII

and

amended
of
to

complaint:

Title
§ 1983;

§ 1981

VII

and

(1) gender
the

Equal

(2) retaliation

pursuant

to

§ 1983;

in
and

(3) race discrimination in violation of Title VII, § 1981 and
the Equal Protection Clause pursuant to § 1983.2
2

Davenport initially asserted a retaliation claim under the Equal
Protection Clause, but she now concedes that she may not bring such a
claim.
Pl.’s Resp. 4, ECF No. 16.
Davenport also seeks leave to

8

1.

Davenport’s § 1983 Claims Against CCG

Davenport’s discrimination and retaliation claims against
CCG based on violations of the Fourteenth Amendment and § 1981
must be asserted pursuant to § 1983.

See Jett v. Dall. Indep.

Sch. Dist., 491 U.S. 701, 731 (1989)(declaring that a plaintiff
must use § 1983 to enforce § 1981 rights against state actors);
Butts v. Cty. of Volusia, 222 F.3d 891, 894 (11th Cir. 2000)
(rejecting the argument that Jett was superseded by the Civil
Rights Act of 1991).

And for CCG to be liable for Countryman’s

alleged discrimination

and/or retaliation

under § 1983,

CCG’s

policy or custom must have been a moving force in causing the
violations.

See Griffin v. City of Opa-Locka, 261 F.3d 1295,

1307 (11th Cir. 2001)(citing Monell v. Dep’t of Soc. Servs. of
N.Y.C., 436 U.S. 658, 663 (1978))(“[A] municipality cannot be
held liable for the actions of its employees under § 1983 based
on a theory of respondeat superior.”); see also Bd. of Cty.
Comm’rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 403-04
(1997)(reaffirming

that

a

municipality

is

liable

official policy or custom causes the violation).

when

its

There is no

allegation here that CCG had a policy or custom that had any
causal

connection

to

Countryman’s

alleged

discrimination

or

retaliation toward Davenport.
amend her complaint to add a § 1981 retaliation claim against
Countryman in his individual capacity.
Countryman did not object to
the amendment, so the Court will allow it.

9

In the absence of a discriminatory or retaliatory policy or
custom,

an

official’s

single

decision

can

constitute

the

official policy of a municipality but only if the official had
the “final policymaking authority” over the relevant decision.
Scala v. City of Winter Park, 116 F.3d 1396, 1399-1400 (11th
Cir.

1997).

An

“official

does

not

have

final

policymaking

authority over a particular subject matter when that official’s
decisions

are

subject

to

meaningful

administrative

review.”

Carter v. City of Melbourse, Fla., 731 F.3d 1161, 1166-67 (11th
Cir. 2013)(quoting Morro v. City of Birmingham, 117 F.3d 508,
514 (11th Cir. 1997)).
The Court finds that it may consider CCG’s Fair Treatment
Policy attached to CCG’s motion to dismiss in evaluating the
motion to dismiss and motion to amend because it is central to
Davenport’s

claims,

authenticity.
2005).

and

Davenport

does

not

Moreover,

Compl.

provides

¶¶ 28,

for

its

See Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir.
the

Policy

is

consistent

with

allegations regarding the Fair Treatment review.
Am.

dispute

29,

&

meaningful

32.

CCG’s

review

of

Fair

Davenport’s

Proposed First

Treatment

Countryman’s

Policy

employment

decisions, and Davenport does not plausibly allege facts to the
contrary.

Under the Policy, all CCG employees may appeal any

unfair treatment to CCG officials.

See Attachment to Def.’s

Mot. to Dismiss, Ex. 1, Fair Treatment Policy 1, ECF No. 8-2.

10

Adverse

actions

director.

are

first

Id. at 2-3.

at his option.

appealed

to

the

human

resources

The City Manager may review the action

Id. at 3.

If the employee remains dissatisfied

after this review, the employee may appeal the decision to the
Personnel Review Board.
Davenport

Id.

could

have

appealed

any

of

Countryman’s

employment decisions under the Policy—the five-day suspension,
the

administrative

investigation,

and

criminal charges.

assignment
the

suspension

based
without

on

the

pay

criminal

based

on

the

In fact, Davenport did appeal Countryman’s

five-day suspension decision.

The fact that Davenport did not

pursue appeals regarding the other two decisions does not mean
that meaningful administrative review was unavailable.
Davenport

does

not

plausibly

allege

that

Because

meaningful

administrative review did not exist for her complaints about
Countryman’s employment actions, the Court must conclude that
Countryman is not the final policymaker for CCG regarding those
adverse employment actions.
The Court rejects Davenport’s argument that she has been
denied meaningful review because the administrative review of
her claims has been stayed pending a resolution of her criminal
charges.

Davenport has alleged no facts suggesting that this

delay

an

is

review.

attempt

to

unreasonably

deny

her

administrative

Ironically, she seeks a stay of this civil action based

11

in part on the complications related to the existence of the
criminal charges against her.
Davenport is correct that there is still the possibility
that CCG could be responsible for discriminatory and retaliatory
conduct if the Personnel Review Board, on review of her appeal
of her five-day suspension, bases its decision upon an improper
discriminatory or retaliatory motive.
basis exists for such speculation.
is premature.
claims

But no current factual

Thus, any claim of this type

Based on the present alleged facts, Davenport’s

asserted

against

CCG

pursuant

to

§ 1983

must

be

dismissed, and her § 1981 retaliation claim against CCG, which
she seeks to assert in her amended complaint pursuant to § 1983,
is not plausible and thus cannot be permitted.
2.

Davenport’s Title VII Claims

Davenport seeks to amend her complaint to add Title VII
discrimination and retaliation claims.
to

amend

Davenport’s

“factual
[Davenport]

proposed

amended

allegations. . . [that]
suffered

an

(11th
motion

Cir.
to

complaint

plausibly

adverse

intentional. . . discrimination”
activity.

To succeed on her motion

employment

or

retaliation

must

contain

suggest
action
for

that
due

to

protected

Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1246
2015)(per
amend

to

curiam).
add

all

The
three

Court
Title

grants
VII

Davenport’s

claims

because

Davenport has stated plausible claims of gender discrimination,

12

race discrimination, and retaliation under Title VII.

Amendment

therefore is not futile and thus the motion is granted.

Fed. R.

Civ. P. 15(a); see Bryant v. Dupree, 252 F.3d 1161, 1163-64
(11th Cir. 2001)(per curiam).
II.

Motion to Stay
Davenport argues that the Court should stay this litigation

for

two

reasons.

First,

Davenport

contends

that

the

Court

should stay the litigation until there is a final decision by
CCG regarding her five-day suspension so that she may bring her
§ 1983

claims

against

CCG.

As

discussed

above,

however,

Davenport fails to allege any facts plausibly suggesting that
CCG will adopt Countryman’s discriminatory motive or that the
review

will

not

be

meaningful.

Thus,

the

fact

that

administrative review has not been exhausted does not authorize
a stay.
Second,

Davenport

argues

that

a

stay

is

necessary

to

preserve her constitutional rights to due process and against
self-incrimination.

The Court finds this argument persuasive.

Although a bare assertion of Fifth Amendment privilege is an
insufficient

basis

for

a

stay,

United

States

v.

Lot

5,

Fox

Grove, Alachua Cty. Fla., 23 F.3d 359, 364 (11th Cir. 1994), the
stay of a civil proceeding pending the resolution of a related
criminal case may be appropriate when “special circumstances”
require it in the “interests of justice.”

13

Id. (quoting United

States v. Kordel, 397 U.S. 1, 12 & n.27 (1970)).
finds special circumstances exist here.

The Court

Davenport contends that

the criminal charges she currently faces were brought against
her at the instigation of her boss, Marshal Countryman.

She

further alleges that he insisted that the GBI pursue the charges
because he had a discriminatory animus against her as a black
female

and

in

discrimination.

retaliation
Thus,

for

her

Countryman’s

complaints

conduct

about

regarding

the

assertion of these criminal charges is central to Davenport’s
claims in this civil action; and perhaps more significantly, her
explanation of her conduct is likewise essential to the pursuit
of her civil claims.

To fully pursue those claims, she must

risk potential incrimination in the criminal case to which she
would otherwise not be exposed absent this related civil action.
Accordingly,

the

Court

finds

that

discovery

in

this

action

should be stayed pending a resolution of the criminal charges.
CONCLUSION
In conclusion, the Court grants CCG’s motion to dismiss
Davenport’s claims against CCG that are asserted pursuant to
§ 1983 (ECF No. 8).

The Court also denies Davenport’s motion

for leave to amend to add a § 1981 retaliation claim against CCG
pursuant to § 1983 (ECF No. 17).3

3

Today’s rulings do not preclude Davenport from asserting § 1983
claims against CCG in the future if the final decisionmaker, the

14

The Court grants Davenport’s motion for leave to amend to
add her Title VII claims against CCG and her § 1981 retaliation
claim against Countryman in his individual capacity (ECF No.
17).

Davenport shall electronically file her amended complaint,

which shall be consistent with the rulings in this Order, within
fourteen days of today’s order.

Defendants shall answer the

amended complaint as required by law.
After the amended complaint and any responsive pleadings
are filed and served, this action shall be stayed pending the
resolution

of

(ECF No. 19).

the

current

criminal

charges

against

Davenport

Davenport shall file a status report every 90

days informing the Court of the status of those charges.

IT IS SO ORDERED, this 25th day of September, 2015.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

Personnel
Review
Board,
makes
discriminatory and/or retaliatory.

decisions

15

that

are

unlawfully