Calcaterra v. St. Louis Metropolitan Police Department

Filing 40

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the motion of Defendant the St. Louis Board of Police Commissioners and its members for judgment on the pleadings is DENIED. (Doc. No. 30.) re: 30 MOTION for Judgment on the Pleadings filed by Defendant St. Louis Metropolitan Police Department Board of Police Commissioners Signed by District Judge Audrey G. Fleissig on 12/13/12. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAVID CALCATERRA,
Plaintiff,
vs.
THE ST. LOUIS METROPOLITAN
POLICE DEPARTMENT BOARD OF
POLICE COMMISSIONERS, namely
THE HONORABLE FRANCIS SLAY,
COL THOMAS IRWIN, COL. BETTYE
BATTLE-TURNER, COL. RICHARD H.
GRAY,
and JOHN DOES I, II, and III,
Defendants.

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Case No. 4:12CV00858 AGF

MEMORANDUM AND ORDER
This action for damages for employment discrimination under Title VII of the
Civil Rights Act of 1964 is before the Court on the motion of Defendants the St. Louis
Board of Police Commissioners (the “Board”) and its members for judgment on the
pleadings. In his second amended complaint, Plaintiff, a St. Louis City police officer,
lists various actions by his supervisors beginning on October 20, 2010, which he claims
constitute unlawful harassment and discrimination based on age, race, gender, and
disability.
Named as Defendants are the Board and its members, who Plaintiff specifically
states are being sued in their official capacities; and three John Does, who Plaintiff states
“were officers, agents, employees, members and/or servants of the Board and of the [St.

Louis Metropolitan Police Department],” and whose identities would be uncovered
through discovery. Plaintiff claims that, “Defendants’ employment discrimination acts
include but are not limited to Defendants’ failure to take corrective, curative and
preventive action after being put on notice by Plaintiff that harassment was occurring
based inter alia on said discriminations which surrounded same.”
The Board asserts that it is entitled to judgment on the pleadings because the
complaint “has not alleged that Defendant Board or its members were personally involved
in or tacitly authorized any allegedly unconstitutional act.” Plaintiff relies on case law
under 42 U.S.C. § 1983, for the proposition that for supervisory liability a plaintiff must
allege and show that the supervisor personally participated in or had direct responsibility
for the alleged violations or actually knew of, and was deliberately indifferent to or tacitly
authorized, the unconstitutional acts.
But this is not an action under § 1983, but rather an action under Title VII. Title
VII imposes liability on an employer who engages in certain discriminatory practices, and
in this case, the Board and its members are proper Defendants. See, e.g., Arnold v. St.
Louis Metro. Police Dep’t Bd. of Police Comm’rs, No. 4:11-CV-1155-CDP, 2011 WL
3235722, at *1 (E.D. Mo. July 27, 2011).
“Judgment on the pleadings is appropriate where no material issue of fact remains
to be resolved and the movant is entitled to judgment as a matter of law.” Faibisch v.
Univ. of Minn., 304 F. 3d 797, 803 (8th Cir. 2002) (citation omitted). When presented
with a motion for judgment on the pleadings, a district court must “accept as true all
factual allegations set out in the complaint” and “construe the complaint in the light most
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favorable to the plaintiff, drawing all inferences in [his] favor.” Ashley Cnty., Ark. v.
Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009) (citation omitted). The standard for
judgment on the pleadings is the same as that for failure to state a claim under Rule
12(b)(6) of the Federal Rules of Civil Procedure. Id. “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) (citation
omitted).
The Court concludes that under this standard, the Board’s motion for judgment on
the pleadings fails.
Accordingly,
IT IS HEREBY ORDERED that the motion of Defendant the St. Louis Board of
Police Commissioners and its members for judgment on the pleadings is DENIED. (Doc.
No. 30.)

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

Dated this 13th day of December, 2012.

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