Bradford v. City of Kansas City,Missouri
ORDER granting 21 defendant's Motion to Dismiss for Failure to State a Claim. This case is dismissed with prejudice. Signed on 5/16/17 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
City of Kansas City, Missouri,
Case No. 16-0289-CV-W-FJG
Pending before the Court is Defendant’s Motion to Dismiss (Doc. No. 21).
Plaintiff Martha Bradford initially brought a two-count complaint against the city of
Kansas City, Missouri. Doc. No. 1, filed on March 31, 2016. Count one alleged 42 U.S.C.
§ 1983 retaliation. Count three alleged 42 U.S.C. § 1983 violation of the right to freedom
of association, due process of law and equal protection under the First and Fourteenth
amendments of the U.S. Constitution. On June 3, 2016, defendant moved to dismiss for
failure to state a claim. On November 16, 2016, before the motion to dismiss was ruled,
plaintiff filed a motion to amend her complaint. On January 12, 2017, the Court granted
plaintiff’s motion for leave to amend complaint, making the motion to dismiss moot. On
January 23, 2017, plaintiff filed her amended complaint (Doc. No. 20). Plaintiff’s amended
complaint contains three counts: (1) Race-based hostile work environment; (2) 42 U.S.C.
§ 1983 – violation of the right to freedom of association; due process of law and equal
protection of the laws under the first and fourteenth amendments of the U.S. Constitution;
and (3) 42 U.S.C. § 1983 retaliation.
Plaintiff alleges that she is an African American woman formerly employed with the
City of Kansas City, Water Services Department. Plaintiff asserts that the “Defendant City
of Kansas City has exclusive responsibility for establishing and implementing appropriate
policy, procedure, custom and practice for its employees including human resources
policies and practices for the City of Kansas City, Missouri, and for ensuring those
policies, procedures, customs and practices are followed by its employees.” Doc. No. 20
In 2009, plaintiff alleges she and other African-American employees in the Water
Services Department began receiving threatening messages at work through the mail.
Plaintiff alleges that the incidents were reported to her immediate supervisor, Curtis
Braden, who forwarded them to human resources. Plaintiff alleges that human resources
did not follow up with her.
Plaintiff alleges that she was suspended in 2011 after she had inquired about the
status of the investigation. Plaintiff alleges she also was reprimanded for talking with her
co-workers about alleged discrimination, and she and other African American co-workers
were banned from speaking about the incident in the workplace. Plaintiff asserts that she
was engaging in protected speech because “the inquiry was about harassment which
occurred in Defendant’s place of employment and which was authorized by Defendant’s
human resources policy, custom.” Doc. No. 20, ¶ 20. She asserts her free speech rights
outweighed defendant’s rights of promoting efficient public service. Plaintiff alleges that
because of the hostilities in the Water Services Department, plaintiff suffered a nervous
breakdown and took early retirement.
Plaintiff alleges that “Defendant is the final arbiter, decision-maker and supervisor
of a policy, custom and practice which was callous, reckless, and deliberately indifferent to
the United States Constitutional rights of Plaintiff because Defendant was complicit in the
Defendant’s established human resources policy, custom to complain about discriminatory
conduct through speech. The Defendant through its established policy and or custom of
tacit indifference to African-Americans routinely punished African-Americans for
complaining of harassment”.
Doc. No. 20, ¶ 26.
As examples, plaintiff asserts that
“defendant” punished non-parties Beverly Rogers, Deborah Hendrix, Tina Williams,
Rhonda Sutton, and LaJoyce Riley.1 Id. Plaintiff asserts that “defendant” allowed a policy
or custom or routine discrimination of its African-American employees.
With respect to Count I, plaintiff pleads that she was subject to racial harassment in
that based upon her race she was not allowed to associate, and she was punished when
she used defendant’s human resources “policy, custom to inquire about what
investigations” were being conducted. Doc. No. 20, ¶¶ 31-32. She asserts “Defendant’s
policy, custom of systematic indifference to its African-American employees . . . was the
precise reason why Defendant suspended the Plaintiff . . .” Id. ¶ 34. Plaintiff states “The
pattern of looking the other way when African-Americans filed complaints is a well
entrenched policy, custom of Defendant.” Id. ¶ 35.
With respect to Count II, plaintiff asserts that, “In accordance with Defendant’s
policy, custom as described [above], Defendant’s policy, a custom of chilling the speech of
African-American employees intimidating them by ignoring complaints of harassment
coupled with punishment, Defendant similarly punished Plaintiff by suspending her.” Id. ¶
Plaintiff also asserts that defendant was acting “under color of law and the
established policy, custom of curtailing the speech rights of African-Americans to
This Court dismissed Ms. Riley’s lawsuit in December 2016. See Riley v. City of Kansas
City, Case No. 16-0188.
deliberately conceal racial animus . . .” Id. ¶ 44.
In Count III, plaintiff alleges, “Defendant in the same manner it treated Beverly
Rogers, Deborah Hendrix, Tina Williams, Rhonda Sutton, and LaJocye [sic] Riley,
policy/custom devised by Defendant where in routinely ignores complaints of
discrimination by African-Americans coupled with retaliatory acts of reprimands,
suspensions, and firings; continued its policy/custom by ignoring Plaintiff’s complaint and
suspended her.” Id. ¶ 50. Plaintiff states that “Defendant had knowledge of its illegal
conduct if due diligence was exercised and had the power to prevent the commission of
any further wrong but instead intentionally and, [sic] knowingly, and with deliberate
indifference to the plight and rights of Plaintiff retaliated by suspending plaintiff.” Id. ¶ 52.
Defendant again filed a motion to dismiss (Doc. No. 21, filed on February 6, 2017).
Defendant asserts that plaintiff has failed to plead a causal connection between a
municipal policy or custom and the alleged constitutional deprivations.
When ruling a motion to dismiss, the court must accept plaintiff’s factual allegations
as true and construe them in the light most favorable to the plaintiff. Patterson Oil Co. v.
VeriFone, Inc., No. 2:15-cv-4089, 2015 U.S. Dist. LEXIS 141635, at *9 (W.D. Mo. Oct. 19,
2015) (citing Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008)). A
pleading must contain a “short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “The pleading standard Rule 8 announces
does not require ‘detailed factual allegations,’ but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 677678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, (2007)). In order
for a claim 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, 677-678 (2009). A plaintiff must plead facts which support the prima
facie elements of the claims asserted in order to avoid dismissal under Rule 12(b)(6).
Parker v. Dir. of Mental Health, No. 04-0599, 2005 U.S. Dist. LEXIS 33515, *6 (W.D. Mo.
Apr. 20, 2005).
Defendant moves to dismiss, arguing that plaintiff’s claims all are brought pursuant
to 42 U.S.C. § 1983 and plaintiff has failed to properly allege that she was harmed by a
custom, policy, or practice of the defendant. Plaintiff again responds that her Complaint
pled sufficient facts which demonstrate a custom of indifference to her complaints.
In order to avoid dismissal in a Section 1983 case against a municipal corporation,
plaintiff must also “plead facts demonstrating that the defendants violated a constitutional
right either pursuant to official municipal policy or as part of a custom or usage with the
force of law.” Kelly v. City of Omaha, 813 F.3d 1070, 1073 (8th Cir. 2016). “Misconduct
among a municipality's employees must be continuing, widespread, and persistent to
establish such a custom…. the municipality will not be liable unless policymaking officials
exhibit deliberate indifference to or tacit authorization of such conduct after notice to the
officials of that misconduct.” Id. at 1073. “A municipality cannot be held liable solely
because it employs a tortfeasor -- or, in other words, a municipality cannot be held liable
under 42 U.S.C.S. § 1983 on a respondeat superior theory.” Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 660 (1978). “There must be a causal connection between the
municipal policy or custom and the alleged constitutional deprivation in order to state a
valid claim under § 1983.” Ulrich v. Pope County, 715 F.3d 1054, 1061 (8th Cir. 2013)
(citing City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 103 L. Ed. 2d 412
The Court finds that plaintiff has not alleged a custom or policy of the only
defendant, a municipality, which resulted in the deprivation of her rights or privileges
protected by the constitution. Plaintiff has used the terms “policy, custom” throughout her
complaint, without describing in any specificity what the policy or custom was, who
implemented such a policy or custom, how the policy or custom was actually applied to
plaintiff and others, when the policy or custom was applied or development, etc. In other
words, plaintiff has failed to plead facts supporting her claims. With respect to policy, the
plaintiff has pointed to no specific policy of the defendant that violates the constitution, nor
does she plausibly allege that the specific individuals mentioned in her amended
complaint were given policy-making authority. Although in her suggestions in opposition
to the motion to dismiss plaintiff suggests that the director of human resources may have
created unconstitutional policies, none of the matter (described at pp. 2-3 of defendant’s
reply suggestions, Doc. No. 25) is present in the amended complaint, and the time for
filing amended pleadings has long passed. Furthermore, plaintiff asserts that the city’s
anti-harassment policy has been used unfairly against plaintiff. However, the city’s antiharassment policy, on its face, prohibits discrimination, including the alleged
discriminatory acts in this case. See § 2-364(b) of the Charter of Kansas City, Missouri
(“It shall be the policy of the city that discrimination directed at or harassment of
employees based on race, religion, color, ancestry, sex, national origin, age (over 40),
disability, or sexual orientation will not be tolerated in the workplace and is hereby
prohibited.”). The Court finds that plaintiff has failed to plead a plausible claim that the
defendant has a policy which resulted in deprivation of her constitutional rights.
In addition, with respect to a custom or usage, plaintiff has only pled mistreatment
of herself and a few other co-workers within the Water Services Department, which is
insufficient to show a pervasive custom of the municipality. Moreover, plaintiff has only
pled conclusory statements that policymakers had notice of or otherwise authorized
misconduct. Pleading a violation by the “defendant” is insufficient where the only named
defendant is the municipality, not a specifically-named policymaker. Therefore, the Court
finds that the amended complaint asserts nothing more than re-packaged allegations that
the City should be liable under a respondeat superior theory, which is impermissible under
Section 1983. Monell, 436 U.S. at 660.
Given that the time for filing amended pleadings has closed, as has the time for
discovery, the Court finds that defendant’s motion to dismiss should be granted with
Therefore, for the foregoing reasons, Defendant’s Motion to Dismiss (Doc. No. 21)
is GRANTED. This case is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Date: May 16, 2017
Kansas City, Missouri
S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge
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