Bonenberger v. The St. Louis Metropolitan Police Department et al

Filing 61

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that defendants' motion for summary judgment [# 49] is granted only as to: Count V in its entirety, Title VII claims against defendants Isom, Harris, Muxo, Battle-Turner, Gray, Slay, Gerdine, and Lee in their individual capacities only, and as to all claims against the Board of Police Commissioners in that name. The motion is denied in all other respects. Signed by District Judge Catherine D. Perry on July 8, 2013. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DAVID BONENBERGER,
Plaintiff,
vs.
ST. LOUIS METROPOLITAN
POLICE DEPARTMENT, et al.
Defendants.

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Case No. 4:12CV21 CDP

MEMORANDUM AND ORDER
Plaintiff David Bonenberger, who is white, claims that he was not given the
position of Assistant Director of the St. Louis Police Academy because of his race.
Bonenberger has sued the St. Louis Metropolitan Police Department, the Board of Police
Commissioners, six former and current members of the Board of Police Commissioners
and three officers of the Police Department: Chief Daniel Isom, Lt. Col. Reggie Harris,
and Lt. Michael Muxo. Bonenberger‟s five-count complaint alleges racial discrimination
and conspiracy in violation of federal and state statutes.
Defendants now move for summary judgment, arguing that Bonenberger has not
adduced sufficient evidence on any of his claims and also claiming qualified immunity. I
conclude that Bonenberger has established issues of fact regarding racial discrimination
and civil conspiracy, and so I will deny summary judgment as to those issues. I also

conclude that the individual police officers are not entitled to qualified immunity.
However, Bonenberger has not shown any genuine disputes of fact that would allow his
claims of municipal liability to go forward, so I will grant summary judgment on Count
V.
I.

BACKGROUND

Plaintiff Sgt. David Bonenberger, a white male, alleges that he applied for the
Assistant Directorship of the St. Louis Police Academy and was denied the position
because of his race. The Assistant Director reports to Lt. Muxo, the Director of the
Academy. Muxo reports to Lt. Col. Harris, who, in turn, reports to Chief Isom.
The Department posting for the Assistant Academy Director position listed
minimal qualifications that included three years of supervisory experience. Three
candidates applied for the position: Sgt. Bonenberger, Sgt. Angela Taylor (an African
American female), and Sgt. James Buckeridge (a white male). None of the three
candidates met the minimum threshold of three years of supervisory experience. Only
Sgt. Buckeridge was interviewed; during this interview he was told that he would not be
considered because he lacked the full three years of supervisory experience. Lt. Muxo
eventually recommended to Lt. Col. Harris that Taylor be detached, meaning temporarily
placed into the position. Lt. Col. Harris passed that recommendation along to Chief
Isom, who instead transferred, or permanently assigned, Taylor into the Assistant
Directorship.
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Bonenberger filed a grievance with the Department requesting an interview with
unbiased personnel present. In his grievance, he did not mention racial discrimination,
but merely complained that departmental procedures were not followed. He also filed a
race-discrimination complaint with the EEOC, which issued a right-to-sue letter. In
response to Bonenberger‟s grievance, Chief Isom stated that he transferred Taylor
because of his own knowledge of Taylor‟s qualifications and Lt. Muxo‟s
recommendation. Isom specifically cited that Taylor had “the most time in rank and a
clean disciplinary background.” Neither of those things was actually true.
Bonenberger alleges that after the position was posted, but before he applied, Lt.
Muxo told him that he “shouldn‟t put in for it because the position was going to a black
female” and that the decision came from Lt. Col. Harris. Bonenberger further testified
that after he filed his grievance within the Department, Lt. Muxo sought him out and told
him that the position went to Sgt. Taylor because Lt. Muxo “had to bring color to the
Academy.” Sgt. Deborah Boelling, the Assistant Director immediately preceding Sgt.
Taylor, stated that when she recommended Bonenberger for the position, Lt. Muxo
responded that “Lt. Col. Harris wanted a black female in the position . . . [and] that there
was no way Lt. Col. Harris would put a white male in the position.”1 Lt. Muxo denies
making these statements. The Department has written policies prohibiting discrimination
of all types and setting forth procedures for addressing discrimination in the workplace.
1

For purposes of the qualified immunity analysis, these are the facts I am considering in the light most
favorable to Bonenberger. See Robbins v. Becker, 715 F.3d 691, 694 (8th Cir. 2013).

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II.

DISCUSSION

The standards for summary judgment are well settled. In determining whether
summary judgment should issue, the court must view the facts and inferences from the
facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party has the burden to
establish both the absence of a genuine issue of material fact, and that it is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby Inc., 477
U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the
moving party has met this burden, the nonmoving party may not rest on the allegations in
the pleadings but must set forth by affidavit or other evidence specific facts showing that
a genuine issue of material facts exists. Fed. R. Civ. P. 56(e). At the summary judgment
stage, I will not weigh evidence and decide the truth of the matter, but rather I need only
determine if there is a genuine issue of material fact. Anderson, 477 U.S. at 249.
A.

Claims Against the Board of Police Commissioners and Title VII Claims Against
Individual Defendants
As a preliminary matter, some defendants argue that they are entitled to summary

judgment because they are being sued under improper names or in capacities for which
they are exempt from liability.
Defendant Board of Police Commissioners argues that it is entitled to summary
judgment on all counts, because it may only be sued through its members. Plaintiff has
named the individual members as defendants, but also named the Board itself. The
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Missouri Court of Appeals has specifically held that “the St. Louis Board of Police
Commissioners may only be sued by bringing an action against the individual members
of the Board in their official capacity.” Best v. Schoemehl, 652 S.W.2d 740, 742 (Mo. Ct.
App. 1983). “An action against the „St. Louis Board of Police Commissioners‟ in that
name does not lie.” Id.; see also Edwards v. Baer, 863 F.2d 606, 609 (8th Cir. 1988)
(“The St. Louis Board of Police Commissioners is not a suable entity. Jurisdiction can
only be obtained by suing its individual members.”) (internal quotation and alteration
omitted). Therefore, the Board of Police Commissioners, in that name, is entitled to
summary judgment on all counts.
Bonenberger‟s complaint makes discrimination claims against officers Isom,
Harris, and Muxo and against commissioners Battle-Turner, Gray, and Slay in their
individual and official capacities. Bonenberger‟s complaint also asserts claims against
former board members Gerdine and Lee in their individual capacities only. All of these
claims are based on Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e, et seq., 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the Missouri Human Rights Act
(MHRA), R.S. Mo. §213.010, et seq. Title VII, unlike the other statutes, does not
authorize liability against individual supervisors or coworkers. Lenhardt v. Basic
Institute of Tech., Inc., 55 F.3d 377, 381 (8th Cir. 1995). For that reason, the Title VII
claims against those defendants, in their individual capacities only, will be dismissed.

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B.

Discrimination Claims
Counts I, II, and III of Bonenberger‟s complaint allege that he was discriminatorily

denied consideration for the position of Assistant Director because of his race, in
violation of Title VII, the MHRA, § 1983, and §1981. Defendants argue that they are
entitled to summary judgment because Bonenberger cannot show direct evidence of
discrimination or establish a prima facie case of discrimination.
Discriminatory intent is common to each of Bonenberger‟s claims in these counts,
and each claim uses the same analysis. See Tipler v. Douglas Cnty., Neb., 482 F.3d 1023,
1027 (8th Cir. 2007) (applying similar analysis for Title VII and § 1983 claims based on
equal-protection violations); Evans v. Siegel-Robert, Inc., 139 F. Supp. 2d 1120, 1124
(E.D. Mo. 2001) (Title VII, MHRA, 42 U.S.C. § 1981) (citing Kim v. Nash Finch Co.,
123 F.3d 1046, 1055 (8th Cir. 1997) and Finley v. Empiregas, Inc., 975 F.2d 467, 473 (8th
Cir. 1992)); Midstate Oil Co., Inc. v. Mo. Comm’n on Human Rights, 679 S.W.2d 842,
846 (Mo. banc 1984); see also Hill v. Ford Motor Co., 277 S.W.3d 659, 665 (Mo. banc
2009) (holding that the MHRA provides greater protection for workers than Title VII).
Therefore, I will analyze Bonenberger‟s Title VII, § 1981, MHRA, and § 1983
Fourteenth-Amendment claims together.
A plaintiff in a race discrimination case can proceed under two alternative theories.
First, the plaintiff can present evidence demonstrating that race was a motivating factor in
the employment decision. Univ. of Tex. Sw. Med. Ctr. v. Nassar, No. 12-484, 2013 WL
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3155234 (U.S. June 24, 2013) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 258
(1989)). In order to do so, the plaintiff must present direct or circumstantial evidence
“showing a specific link between discriminatory animus and the challenged decision,
sufficient to support a finding that an illegitimate criterion actually motivated the
challenged decision.” Philipp v. ANR Freight Sys., Inc., 61 F.3d 669, 673 (8th Cir. 1995)
(internal quotations omitted) (citing Stacks v. Sw. Bell Yellow Pages, 996 F.2d 200, 201
n.1 (8th Cir. 1993)). If the plaintiff makes this threshold showing, the burden of
persuasion shifts to the employer to prove that it would have made the same decision
even without the illegitimate criterion. Cram v. Lamson & Sessions Co., 49 F.3d 466, 471
(8th Cir. 1995). This showing by the employer will not defeat a discrimination claim but
instead restricts the plaintiff‟s available remedies. Nassar, 2013 WL 3155234, at *8
(citing 42 U.S.C. § 2000e-5(g)(2)).
If, however, the plaintiff fails to provide direct evidence, the court applies the
traditional burden shifting framework set forth in McDonnell-Douglas Corp. v. Green,
411 U.S. 792, 802–04 (1973). Hammer v. Ashcroft, 383 F.3d 722, 724 (8th Cir. 2004).
Within the McDonnell-Douglas framework, a plaintiff must establish a prima facie case
of discrimination, after which the burden shifts to the employer to establish a legitimate,
nondiscriminatory reason for taking the allegedly discriminatory action. Id. To establish
a prima facie case in a claim alleging reverse discrimination, a plaintiff must prove that 1)
he is white; 2) he applied and was qualified for an open position; 3) he was rejected; and
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4) after rejecting plaintiff, the employer hired someone of a minority race with the
plaintiff‟s qualifications. Id.; see also Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 957–58
(8th Cir. 1995). The plaintiff must also show “that background circumstances support the
suspicion that the defendant is that unusual employer who discriminates against the
majority.” Hammer, 383 F.3d at 724 (quotations and citations omitted). If the employer
establishes a legitimate, nondiscriminatory reason for acting, the plaintiff must then show
that the employer‟s proffered reason is pretextual or his claim will fail. Id. I conclude
that Bonenberger has presented sufficient evidence to survive summary judgment under
either test.
First, a genuine dispute exists regarding whether Bonenberger suffered an adverse
employment action. Adverse employment action refers to disadvantageous changes in
working conditions, including changes that affect future career prospects. See
MacGregor v. Mallinckrodt, Inc., 373 F.3d 923, 930 & n.5 (8th Cir. 2004). Defendants
argue that there was no adverse action, because the Assistant Director position did not
include increased rank or pay. Bonenberger has produced evidence from which a factfinder could conclude that the Assistant Director is a high-visibility position that provides
greater chances for promotion. This evidence is sufficient to show that a genuine dispute
exists to preclude summary judgment on this issue.
Defendants argue that there is no direct evidence of discrimination because Muxo‟s
statements to Bonenberger and Boelling constitute inadmissible hearsay. But Muxo‟s
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statements do not constitute hearsay when used against Muxo himself, in either his
individual or official capacity, as they are statements by an opposing party. Fed. R. Evid.
801(d)(2)(A). Additionally, Muxo‟s statements may be attributed to the Department and,
insofar as they are being sued in their official capacities, to Battle-Turner, Gray, Slay,
Irwin, Isom, and Harris under Rule 801(d)(2)(D), as they are statements “made by the
party‟s agent or employee on a matter within the scope of that relationship and while it
existed.” See English v. Dist. of Columbia, 651 F.3d 1, 7 (D.C. Cir. 2011) (citing Wilburn
v. Robinson, 480 F.3d 1140, 1148 (D.C. Cir. 2007)).
Defendants next argue that Muxo‟s statements do not show discrimination, because
Chief Isom, and not Muxo or Harris, was the ultimate decision maker. Under the “cat‟s
paw” theory, relied upon by Bonenberger, “an employer cannot shield itself from liability
for unlawful termination by using a purportedly independent person or committee as the
decisionmaker where the decisionmaker merely serves as the conduit, vehicle, or rubber
stamp by which another achieves his or her unlawful design.” Qamhiyah v. Iowa State
Univ. of Sci. & Tech., 566 F.3d 733, 742 (8th Cir. 2009) (quotation omitted); see also
Staub v. Proctor Hosp., 131 S. Ct. 1186, 1192 (2010) (likening employment
discrimination claims to torts that have potential multiple proximate causes). “[I]f a nondecisionmaker performs an act motivated by a discriminatory bias that is intended to
cause, and that does proximately cause, an adverse employment action, then the employer

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has cat‟s-paw liability.” Marez v. Saint-Gobain Containers, Inc., 688 F.3d 958, 964
(8th Cir. 2012).
Chief Isom testified that he primarily relied upon Muxo‟s recommendation when
filling the Assistant Director position. He further testified that when making transfer
decisions, he relies upon the operational needs of the police department, “a lot of [which]
depends upon the recommendation of the commander.” Viewing these facts in the light
most favorable to the plaintiff, Bonenberger has raised a question of fact as to whether
Muxo‟s recommendation caused Chief Isom to transfer Taylor instead of Bonenberger.
Because Bonenberger has presented direct evidence of discrimination, I need not
engage in the complete analysis under McDonnell-Douglas. But the evidence discussed
above shows that Bonenberger has established genuine disputes of material fact sufficient
to survive summary judgment on his claims of race discrimination under either standard.
C.

Conspiracy
Count IV is a § 1983 claim that Isom, Harris, and Muxo conspired to promote

Taylor over Bonenberger because of race and to cover up that discrimination in violation
of Bonenberger‟s right to equal protection. Defendants contend that they are entitled to
summary judgment for failure to show an agreement by the conspirators. In order to
show a constitutional conspiracy, a party must show that two or more individuals
conspired for the purpose of depriving, either directly or indirectly, a person or persons of
their right to equal protection of the laws or of equal privileges and immunities under the
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laws and that an act was done in furtherance of the conspiracy that caused an injury or
deprivation to another. Marti v. City of Maplewood, Mo., 57 F.3d 680, 685 (8th Cir.
1995). To withstand summary judgment, a plaintiff must “allege with particularity and
specifically demonstrate material facts that defendants reached an agreement.”
Reasonover v. St. Louis Cnty., Mo., 447 F.3d 569, 582 (8th Cir. 2006).
Bonenberger has provided sufficient evidence of a conspiracy between Harris,
Muxo, and Isom to show that a genuine issue remains for trial. Muxo told Bonenberger
and Boelling that Harris wanted a black female in the position, and told Bonenberger on a
second occasion that he had received orders to “bring color to the Academy.” This
evidence, if believed, is more than sufficient to show that Muxo and Harris conspired
with one another.
In response to Bonenberger‟s grievance, Isom replied that his decision to transfer
Taylor was made based in part upon his knowledge that Taylor had more time in rank
than Bonenberger and that she had a clean disciplinary record and in part upon
recommendations from Muxo. But Taylor and Bonenberger were promoted to sergeant
on the same day, so she did not have more time in rank. Moreover, Taylor‟s disciplinary
history included several sustained charges for which she was reprimanded and received
an extended probationary status, so she did not have a clean disciplinary record. Because
Bonenberger has evidence that Isom‟s initial stated reasons were false, a jury could
reasonably infer that Isom was also a party to the conspiracy between Harris and Muxo to
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use race in Taylor‟s promotion and to conceal that use by fabricating qualifications after
the fact.
D.

Qualified Immunity
Defendants‟ summary judgment motion initially claimed both qualified and

Eleventh Amendment immunity for Isom, Harris, and Muxo on the § 1983 and § 1981
claims. In their reply brief defendants conceded that Eleventh-Amendment immunity
does not apply; the reply brief does not even mention qualified immunity. Defendants‟
original brief does no more than cite the standards for qualified immunity, without
providing any argument for why it might apply here. I am required, nevertheless, to
conduct a qualified immunity analysis. See O’Neil v. City of Iowa City, 496 F.3d 915,
917 (8th Cir. 2007).
Qualified immunity protects a government official from liability “unless the
official‟s conduct violated a clearly established constitutional or statutory right of which a
reasonable person would have known.” Henderson v. Munn, 439 F.3d 497, 501 (8th Cir.
2006) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The standard “gives
ample room for mistaken judgments by protecting all but the plainly incompetent or those
who knowingly violate the law.” Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir.
2005) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)).
To determine whether an official is entitled to qualified immunity, the Court
conducts a two-part inquiry: (1) whether the facts alleged, viewed in the light most
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favorable to the plaintiff, show that the defendant violated a constitutional or statutory
right, and (2) whether the right at issue was clearly established at the time of the
offending conduct. Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009)
(citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). The Court may decide which
determination to make first, Pearson v. Callahan, 555 U.S. 223, 235–36 (2009), and “the
defendants are entitled to qualified immunity unless the answer to both of these questions
is yes.” McCaster v. Clausen, 684 F.3d 740, 746 (8th Cir. 2012).
“A right is clearly established when the contours of the right are sufficiently clear
that a reasonable official would understand that what he is doing violates that right.”
Mathers v. Wright, 636 F.3d 396, 399 (8th Cir. 2011) (internal quotation marks and
citation omitted). “A general constitutional rule already identified in the decisional law
may apply with obvious clarity to the specific conduct in question, even though the very
action in question has not previously been held unlawful.” Winslow v. Smith, 696 F.3d
716, 738 (8th Cir. 2012) (internal quotation marks and citation omitted). It has long been
clearly established that public officials cannot intentionally discriminate against
employees on the basis of their race; there is no doubt that the right at issue here was
clearly established, meeting the second part of the qualified immunity analysis. See
Lockridge v. Bd. of Trs. of Univ. of Ark., 315 F.3d 1005, 1016 (8th Cir. 2003) (Heaney, J.,
dissenting on other grounds).

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As to the first point of inquiry, I must consider the evidence that has been presented
in the light most favorable to Bonenberger. Viewing the facts in that light, Bonenberger
has produced evidence that Muxo and Harris explicitly used race as a factor in deciding
not to recommend Bonenberger for the job. Isom gave reasons for his decision that were
not actually true (that Taylor had more years in rank and a clean disciplinary record),
which, when considered in the light most favorable to Bonenberger, could be seen as
pretext for discrimination. Bonenberger has also shown that the three-year minimum
experience requirements that disqualified a white candidate did not equally disqualify
Taylor, the black candidate. This evidence shows that Muxo, Harris, and Isom are not
entitled to qualified immunity.
E.

Section 1983 Claims against the Commissioner Defendants and Isom in Their
Official Capacities (Municipal Liability)
Count V of Bonenberger‟s complaint is a § 1983 claim against Chief Isom and

commissioner-defendants Battle-Turner, Gray, Gerdine, Lee, Slay, and Irwin. This count
seeks to impose municipal liability based on allegations that the there was a custom and
policy of race discrimination and failure to train and supervise police department
employees with regard to discrimination.
The Eighth Circuit Court of Appeals recently described the contours of municipal
liability:
A plaintiff may establish municipal liability under § 1983 by proving
that his or her constitutional rights were violated by an action pursuant to
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official municipal policy or misconduct so pervasive among nonpolicymaking employees of the municipality as to constitute a custom or
usage with the force of law. To establish a city‟s liability based on its failure
to prevent misconduct by employees, the plaintiff must show that city
officials had knowledge of prior incidents of police misconduct and
deliberately failed to take remedial action. A plaintiff must establish (1) a
continuing, widespread, persistent pattern of unconstitutional misconduct by
the municipality‟s employees, (2) to which policymaking officials were
deliberately indifferent or which policymaking officials tacitly authorized
after notice to the officials of that misconduct, and (3) that custom of
deliberate indifference or tacit authorization was a moving force behind the
constitutional violation. A city will be liable only where a city‟s inaction
reflects a deliberate indifference to the constitutional rights of the citizenry,
such that inadequate training or supervision actually represents the city‟s
„policy.‟
Doe ex rel. Doe v. Gay, No. 12-20252, 2013 WL 3064619, at *5 (8th Cir. June 20, 2013)
(internal quotations and citations omitted).
It is undisputed that the police department had policies prohibiting discrimination
based on race (among other factors), but Bonenberger argues that the evidence shows the
policies were not followed. His evidence to support this consists of reports of other
claims of discrimination (based on race, age, and gender, some of which occurred after
the events at issue here), and evidence that the board settled some of the claims that
resulted in lawsuits. The evidence is disputed as to the exact number of complaints, and
whether they were all reported to the Board as required by the policies.
Merely showing that other complaints were made is not sufficient to show that
there was a custom or policy condoning or promoting racial discrimination. The very
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records Bonenberger relies upon show that the Department investigated the complaints,
even though they may not have been reported to the Board. Some of the complaints
allege that blacks were treated unfavorably, and some allege that whites like Bonenberger
were the victims of discrimination. What is lacking is any evidence that these complaints
were substantiated.
The Court of Appeals for the Eighth Circuit “has held municipalities liable
. . . when the plaintiffs have produced evidence of prior complaints sufficient to
demonstrate that the municipalities and their officials ignored police misconduct.”
Mettler v. Whitledge, 165 F.3d 1197, 1205 (8th Cir. 1999) (citing Parrish v. Luckie, 963
F.2d 201, 204–05 (8th Cir. 1992) (reviewing “detailed and compelling” evidence) and
Harris v. City of Pagedale, 821 F.2d 499, 501–06 (8th Cir. 1987) (finding a plaintiff had
proven a municipal custom through the presentation of detailed evidence regarding the
particular police officer‟s previous misconduct and the city‟s failure to investigate or
punish that conduct)). “Evidence that a police department failed to investigate previous
incidents similar to the incident in question may support a finding that a municipal
custom exists . . . .” Id. (emphasis added). “There must also be a showing that the
complaints had merit, however.” Rogers v. City of Little Rock, Ark., 152 F.3d 790, 799
(8th Cir. 1998). Absent such context, the mere existence of previous complaints does not
suffice to show a municipal custom of permitting or encouraging discrimination. See
Mettler, 165 F.3d at 1205.
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The settlement agreements generally recite that there is no admission of culpability.
Although Bonenberger cites to deposition testimony of one former Board member who
says the Board was not routinely told of discrimination complaints, that same Board
member said that they had multiple briefings on lawsuits at Board meetings and that
some of the lawsuits discussed included claims of employment discrimination.
The cases cited by Bonenberger in favor of culpability are distinguishable. In
Rohrbough v. Hall, No. 4:07CV996ERW, 2008 WL 4722742, at *13 (E.D. Mo. Oct. 23,
2008), Judge Webber found that the Board had “either intentionally or unwittingly
created an insulating barrier which prevents notice of complaints from reaching the
Commissioner Defendants.” That case involved claims of police brutality, and the
plaintiff provided evidence of 322 claims of physical abuse against the Department in the
five years prior to the incident. Similarly, in Lenderman ex rel. S.L. v. St. Louis Metro.
Police Dep’t Bd. of Comm’rs, No. 4:10CV2163 (CEJ), 2012 WL 3564030, at *9–10 (E.D.
Mo. Aug. 17, 2012), Judge Jackson found that sufficient evidence existed by which a jury
could find the Board ignored a widespread pattern of unlawful arrest and false reporting.
In that case, the plaintiff cited 23 instances of false reporting in the preceding five years
in which officers were found to have submitted false reports to conceal unlawful conduct;
the plaintiff also submitted the reports of 19 additional IAD investigations in which a
charge of false reporting was sustained. Id. Bonenberger‟s evidence falls far short of the

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voluminous complaints in Rohrbough and the number of actually sustained complaints in
Lenderman.
The evidence in this case is insufficient to show a genuine dispute regarding
whether the Board‟s “inaction reflects deliberate indifference to the constitutional rights”
of its employees to show a policy of tolerating racial discrimination, or otherwise “such
that inadequate training or supervision actually represents the city‟s „policy.‟” Gay, 2013
WL 3064619, at 5 (citing Szabla v. City of Brooklyn Park, Minn., 486 F.3d 385, 392 (8th
Cir. 2007)). I will grant summary judgment as to the claims presented in Count V.
Accordingly,
IT IS HEREBY ORDERED that defendants‟ motion for summary judgment [#
49] is granted only as to: Count V in its entirety, Title VII claims against defendants
Isom, Harris, Muxo, Battle-Turner, Gray, Slay, Gerdine, and Lee in their individual
capacities only, and as to all claims against the Board of Police Commissioners in that
name. The motion is denied in all other respects.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 8th day of July, 2013.

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