CLEMMONS v. COLUMBUS CONSOLIDATED GOVERNMENT

Filing 9

ORDER denying 4 Motion for Judgment on the Pleadings. Ordered by US DISTRICT JUDGE CLAY D LAND on 9/29/2015. (vac)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
MARILYN CLEMMONS,

*

Plaintiff,

*

vs.

*

COLUMBUS CONSOLIDATED
GOVERNMENT,

*

CASE NO. 4:15-CV-54 (CDL)
*
Defendant.
*
O R D E R
Marilyn Clemmons is employed as a firefighter by Columbus
Consolidated

Government

(“CCG”).

After

being

indicted

for

criminal racketeering, CCG placed her on administrative leave
without

pay.

When

the

criminal

charges

were

eventually

dismissed two years later, she returned to active duty, but CCG
refused to compensate her for the pay she lost while she was on
administrative leave.

Clemmons contends that her white male

colleagues, who have been charged with criminal violations more
serious than hers, have been allowed to work pending resolution
of the charges or have received backpay.
CCG’s

failure

to

compensate

her

for

She maintains that
her

lost

pay

is

discriminatory; and she also claims that CCG retaliated against
her

when

she

complained

of

discrimination.

She

brings

the

present action against CCG for race and gender discrimination

and retaliation pursuant to Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981,
and 42 U.S.C. § 1983.
CCG

responds

that

Clemmons

never

exhausted

her

administrative remedies under CCG’s Fair Treatment Policy and
that Clemmons’s supervisors, including Chief Jeff Meyer, were
not final decisionmakers for CCG.
it

cannot

be

liable

to

Therefore, CCG maintains that

Clemmons

for

the

decisions

of

her

supervisors, including Chief Meyer, on her § 1981 claim brought
pursuant to § 1983.
that claim.
exists

as

CCG seeks judgment on the pleadings as to

The Court finds that a genuine factual dispute
to

meaningful

whether

CCG

prevented

administrative

Clemmons

review

of

from

her

obtaining

grievances.

Accordingly, CCG is not entitled to judgment on the pleadings,
and its motion (ECF No. 4) is denied.
MOTION TO AMEND COMPLAINT
In

her

response

to

CCG’s

motion

for

judgment

on

the

pleadings, Clemmons describes additional facts in support of her
contention

that

she

was

not

provided

administrative review of her grievances.
included in her complaint.

with

meaningful

These facts were not

Generally, a party may not amend her

pleadings in a brief responding to a motion for judgment on the
pleadings.

But a party certainly may seek leave to amend her

complaint.

See Fed. R. Civ. P. 15(a).

2

Clemmons has done so

here.

See Pl.’s Resp. in Opp’n to Def.’s Mot. for Partial J. on

the Pleadings 11, ECF No. 7.

The Court grants Clemmons leave to

amend her complaint to add the allegations that she included in
her brief in opposition to CCG’s motion for judgment on the
pleadings.

The next question is whether the Court should defer

ruling on the motion for judgment on the pleadings until after
the amended complaint has been filed and served.

The Court

finds that judicial economy counsels against such an approach.
Instead, the Court finds it appropriate to decide CCG’s motion
for

judgment

on

the

pleadings

taking

into

consideration

the

additional facts that Clemmons seeks to allege in her amended
complaint.
JUDGMENT ON THE PLEADINGS STANDARD
Judgment on the pleadings “is appropriate when there are no
material

facts

in

dispute,

and

judgment

may

be

rendered

by

considering the substance of the pleadings and any judicially
noticed facts.”
2002).

Horsley v. Rivera, 292 F.3d 695, 700 (11th Cir.

“If upon reviewing the pleadings it is clear that the

plaintiff would not be entitled to relief under any set of facts
that could be proved consistent with the allegations, the court
should dismiss the complaint.”

Id.

The Court “must accept all

facts in the complaint as true and ‘view them in the light most
favorable to the’ plaintiff[].”
Ins.

Co.,

267

F.3d

1209,

1213

3

Moore v. Liberty Nat'l Life
(11th

Cir.

2001)

(quoting

Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th
Cir. 1998)).
FACTUAL BACKGROUND
Accepting the allegations in Clemmons’s
complaint

as

true

and

viewing

all

facts

proposed

in

the

amended

light

most

favorable to Clemmons, the relevant facts in the record reveal
the following.
Marilyn Clemmons is a black woman.

She has worked as a

firefighter at the Columbus Fire and Emergency Medical Services
Department (“Department”) for over twenty-five years.

Clemmons

alleges that she has endured ongoing discrimination based on her
race and gender over the course of her tenure at the Department.
The discrimination came to a head in March of 2012 when Clemmons
was indicted on racketeering charges.

Clemmons’s supervisors

immediately put her on administrative leave without pay pending
resolution of her criminal charges.

Clemmons contends that this

decision was discriminatory, as white male firefighters facing
more

severe

criminal

charges

resolution of their charges.
While

Clemmons

allegedly told by a

was

on

have

continued

working

pending

Compl. ¶ 25.
administrative

leave,

human resources employee

she

was

that she would

receive backpay for her time on administrative leave if her
criminal charges were dismissed.

Id. ¶ 21.

In March of 2014,

two years after Clemmons was indicted, the charges against her

4

were dismissed.

She returned to work shortly thereafter, but

the Department refused to give her backpay.
that

this

also

was

discriminatory

Clemmons contends

because

her

white

male

colleagues that faced criminal charges were awarded backpay “if
a favorable disposition was reached in their matter.”
In

April

complaining

of

of

2014,

unfair

leave and backpay.
that

provides

a

Clemmons

treatment

Id. ¶ 24.
process

filed

a

regarding

formal
the

Id. ¶ 25.
grievance

administrative

CCG has a Fair Treatment Policy

for

aggrieved

employees

allegedly discriminatory or unfair employment actions.1

to

appeal

Mot. for

J. on the Pleadings, Ex. 1 Fair Treatment Policy, ECF No. 4-2.
Clemmons contends that she followed this Policy by filing
formal

complaint

with

Deputy

Mike

Higgins

challenging

a

the

Department’s decision to put her on administrative leave without
pay and to deny her backpay.

Higgins denied her complaint, and

Clemmons then appealed to Chief Jeff Meyer.

Meyer concluded

that the Department did not treat Clemmons unfairly and that she
was not entitled to backpay.

The Policy provides that employees

who are still unsatisfied “should ask for an appointment with
the

Human

denial.

Resources

Id. at 3.

Director”

within

ten

days

of

the

last

Clemmons alleges that she attempted to make

1

CCG asks the Court to take judicial notice of the Fair Treatment
Policy. The Court takes judicial notice of the Policy as a publicly
available record. See Fed. R. Evid. 201(b); see also Bryant v. Avado
Brands Inc., 187 F.3d 1271, 1278 (11th Cir. 1999) (explaining that
district courts may take judicial notice of public records without
converting a Rule 12(b)(6) motion to a Rule 56 motion).

5

an appointment with human resources director Reather Hollowell
by

calling

messages.

Hollowell

multiple

times

and

But Hollowell did not respond.

leaving

several

Clemmons alleges

that Hollowell’s failure to respond prevented her from further
appealing Chief Meyer’s decision.
After

Clemmons

complained

to

her

superiors

about

discriminatory treatment, Clemmons contends that her supervisor,
Bobby Dutton, repeatedly reassigned her to new stations because
he did not want Clemmons in his battalion.

Compl. ¶ 26-28.

Clemmons then began experiencing medical complications that were
allegedly caused by the discrimination at work.

In August of

2014, Clemmons’s physician ordered her to take time off work.
The physician released Clemmons from medical leave a few weeks
later, and wrote a letter to Clemmons’s supervisors stating that
she was fit to return to her regular duties.
Despite the physician’s letter, human resources officials
refused to allow Clemmons to return to work unless she returned
on “light duty” and reported to yet another new location.

Id.

¶ 33.

Clemmons reported to the new location on September 15,

2014.

But when she arrived, she was told that she could not

work until she exhausted all of her vacation and sick leave.
Id. ¶ 35.

Clemmons was then sent home for nearly three months.

Since returning to work on December 6, 2014, she “continues to

6

be harassed and discriminated against based on her gender and
race.”

Id. ¶ 39.
DISCUSSION

The only issue presented by CCG’s motion is whether it is
entitled to judgment as a matter of law on Clemmons’s § 1981
racial discrimination and retaliation claims.

Clemmons’s § 1981

claims are brought pursuant to 42 U.S.C. § 1983.

“A local

government may be held liable under § 1983 only for acts for
which

it

is

actually

responsible,

‘acts

which

government] has officially sanctioned or ordered.’”

the

[local

Turquitt v.

Jefferson Cty., 137 F.3d 1285, 1287 (11th Cir. 1998) (en banc)
(alteration in original) (quoting Pembaur v. City of Cincinnati,
475 U.S. 469, 479-80 (1986)).
municipality

cannot

be

It has long been settled that a

held

liable

for

the

actions

officers under the theory of respondeat superior.

of

its

See Bannum,

Inc. v. City of Fort Lauderdale, 901 F.2d 989, 997 (11th Cir.
1990).
the

Generally, municipal liability can only be imposed if

municipality’s

policy

or

custom

causing the discriminatory treatment.
Opa-Locka,

261

F.3d

Discriminatory
municipality,

1295,

conduct
however,

1307

by

a

can

&

was

subject

moving

force

in

See Griffin v. City of
1312

final

a

(11th

Cir.

decisionmaker
the

2001).

for

the

municipality

to

liability.

Grech v. Clayton Cty., 335 F.3d 1326, 1329 (11th

Cir.

(en

2003)

banc).

Whether

7

an

officer

is

the

final

decisionmaker for the municipality depends in part on whether
that officer’s decision was subject to meaningful administrative
review.
(11th

See Scala v. City of Winter Park, 116 F.3d 1396, 1401
Cir.

particular

1997)
subject

(“Final
area

does

policymaking
not

vest

authority

in

an

over

official

a

whose

decisions in the area are subject to meaningful administrative
review.”).
CCG contends that the pleadings establish that Chief Meyer
was

not

the

grievances

final

that

decisionmaker

form

the

basis

regarding
of

her

§

any
1981

of

Clemmons’s

claim

because

Clemmons’s grievances were subject to meaningful administrative
review by the city manager and personnel review board.

If such

review was in fact available, CCG is correct that it cannot be
liable pursuant to §§ 1981 and 1983 for

Chief Meyer’s decision.

In support of its argument, CCG points to its Fair Treatment
Policy, which affords employees with the opportunity to appeal
their grievances to the city manager and the personnel review
board.
Policy,

The Court has previously found that CCG’s Fair Treatment
as

written,

administrative review.

purports

to

provide

meaningful

See Riley v. Columbus Consol. Gov’t, No.

4:12-CV-38 (CDL), 2013 WL 3227733, at *7 (M.D. Ga. June 25,
2013).

And it is undisputed that Clemmons did not appeal Chief

Meyer’s decision to the city manager or the personnel review
board.

But unlike the plaintiff in Riley, who absolutely failed

8

to exercise his right to review under the CCG policy, Clemmons
alleges that she attempted to obtain review but was deprived of
her right to do so.
The

Policy

employment

requires

decisions

(2) department

in

employees

the

director,

to

following

(3) human

appeal

unfavorable

order: (1) supervisor,

resources

director,

then

(4) city manager and personnel review board.

Mot. for J. on the

Pleadings, Ex. 1 Fair Treatment Policy 3.

Clemmons followed

this process by filing a complaint with Deputy Higgins and then
appealing to Chief Meyer.

The Policy provides that an employee

who is still unsatisfied “should ask for an appointment with the
human

resources

director”

director’s denial.
attempts

to

meet

Id.
with

within

ten

not

respond

in

of

the

department

Clemmons alleges that she made multiple
human

resources

leaving messages and voicemails.
did

days

the

director

Hollowell

by

She contends that Hollowell

ten-day

period

for

appeals,

which

effectively prevented her from appealing further to the city
manager or personnel review board.
Based on the present record with all inferences construed
favorably

toward

Clemmons,

the

Court

finds

that

a

genuine

factual dispute exists as to whether meaningful administrative
review of Chief Meyer’s decision was available to Clemmons and
thus

whether

decisionmaker

Chief
for

CCG

Meyer
when

did
he

in

fact

denied

9

act

as

Clemmons’s

the

final

request

for

backpay and found that she was not treated unfairly.

The Policy

arguably makes a meeting with the human resources director a
prerequisite
decision.

for

obtaining

further

review

of

a

supervisor’s

Id. (“[T]he Human Resources Director will meet with

you to resolve the complaint . . . .

[I]f you are still not

satisfied with the answer of the Human Resources Director, you
may request a review by the City Manager.”).

Clemmons alleges

that she was not able to satisfy this condition precedent to
administrative

review

because

the

human

resources

director

refused to schedule the meeting required under the CCG policy.
If the CCG human resources director did in fact prevent such a
meeting,

which

would

deter

an

employee

from

seeking

further

review, then the CCG Policy under such circumstances does not
provide

meaningful

administrative

review.

Since

a

factual

dispute exists on whether meaningful administrative review was
available under the facts alleged here, the Court cannot find as
a matter of law that Chief Meyer was not the final decisionmaker
for CCG regarding Clemmons’s request for backpay.

Accordingly,

CCG’s motion for judgment on the pleadings as to

Clemmons’s

§§ 1981 and 1983 claims is denied.
CONCLUSION
For the reasons discussed above, CCG’s motion for judgment
on the pleadings as to Clemmons’s §§ 1981 and 1983 claims (ECF
No. 4) is denied.

Clemmons’s motion for leave to amend her

10

complaint

is

granted,

and

she

shall

electronically

amended complaint within seven days of today’s Order.

file

her

Also, the

Clerk is directed to issue a Rules 16/26 order.
IT IS SO ORDERED, this 29th day of September, 2015.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

11