Criss et al v. Dakota County Board of Commissioners et al

Filing 61

MEMORANDUM AND ORDER - The motion to dismiss filed by defendants County of Dakota, James L. Wagner and Rodney Herron in their official capacities (Filing No. 31 ) is granted with respect to the plaintiffs' substantive due process and conspirac y claims and denied in all other respects. The motion to dismiss filed by defendant Rodney Herron in his individual capacity (Filing No. 33 ) is granted with respect to the plaintiffs' substantive due process and conspiracy claims and denied in all other respects. The motion to dismiss filed by defendant James L. Wagner in his individual capacity (Filing No. 38 ) is granted with respect to the plaintiffs' substantive due process and conspiracy claims and denied in all other respects. Ordered by Chief Judge Joseph F. Bataillon. (AOA)

-TDT

Criss et al v. Dakota County Board of Commissioners et al

Doc. 61

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA RICHARD CRISS, AMANDA NAVIN, KRYSTAL RAMIREZ, COLLEEN MCMAHON-LEVINE, ANNE CUTSINGER, RONALD FINK JR., JOHN GILLES, DIANA MOCTEZUMA, and HEATHER SHELBY, Plaintiffs, v. COUNTY OF DAKOTA, NEBRASKA, JAMES L. WAGNER, in his official and individual capacities, and RODNEY HERRON, in his official and individual capacities, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

8:09CV387

MEMORANDUM AND ORDER

This matter is before the court on the defendants' motions to dismiss, Filing Nos. No. 31, 33, and 38. This is an action for discrimination in employment under 42 U.S.C. § 2000e ("Title VII") and 42 U.S.C. §§ 1983 and 1985(3) ("the Civil Rights Act"). I. BACKGROUND The plaintiffs are present and former employees of the Dakota County Jail. All of the plaintiffs allege that the defendants, individually and collectively, violated their rights to equal protection by offering and granting promotions and other job benefits in exchange for sex; treating employees differently because of their gender; and creating and maintaining a sexually hostile workplace. Further, they allege that defendants conspired to deprive them of their rights. Plaintiffs Gilles and Fink allege that the defendants' arbitrary and capricious conduct deprived plaintiffs of their rights to substantive due

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process. Plaintiff Navin asserts an employment discrimination claim under title VII against Defendant County of Dakota, Nebraska ("the County").1 In the amended complaint, the plaintiffs allege common facts regarding sexual harassment and/or sexual discrimination. The amended complaint alleges widespread sexual favoritism. The plaintiffs allege that defendants Wagner and Herron promoted a sexually hostile work environment by allowing or permitting sexually offensive emails; by watching or allowing others to watch sexually explicit material on their computer screens; by making or permitting others to make lewd and offensive or inappropriate jokes, comments and remarks; by displaying lewd and sexually inappropriate photographs and pictures; and engaging in other similar conduct. Additionally, the plaintiffs allege

defendants Herron and Wagner asked female employees for dates and granted female employees special privileges and benefits in hopes of developing sexual relationships with those employees. Plaintiffs McMahon-Levine, Criss, Gilles, and Fink allege they were treated differently than the co-workers who gave in to Wagner's or Herron's sexual advances or who engaged in sexual activity with Wagner or Herron. Plaintiffs Cutsinger, McMahon-Levine, Criss, Gilles, and Fink allege that, although they were more qualified in terms of education and training for promotions, the promotions were routinely given to females who had sexual relationships with Herron and/or Wagner. Plaintiffs Fink and Gilles also complain of harassment by Herron that put them at risk for serious bodily injury, including shooting a pepper ball gun at or near them, throwing handsanitizer into their eyes, spraying pepper spray into an occupied restroom, and engaging

The plaintiffs concede that the Title VII action can be pursued only against the County as Navin's e m p lo ye r . 2

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in other forms of offensive or assaultive conduct. Plaintiff Navin alleges that she was constructively discharged and that she has completed all of the administrative prerequisites to suit under Title VII. Further, the plaintiffs allege that the County, through its agents, servants and employees, particularly Wagner and Herron, discriminated against women by creating a sexually hostile work environment and thereby treated women differently than men. They also allege that the sexually hostile work environment was the result of a policy, custom or practice and that the County and its policy-makers had actual or constructive knowledge of the defendant officers' conduct. Additionally, they allege that the plaintiffs' concerns were reported to a Dakota County Commissioner. They further allege that Wagner and Herron retaliated against the female employees who spurned their advances and against those who complained to superiors about the behavior or "refused to countenance""the sexually hostile work environment. Defendants Wagner and Herron, in their official capacities, and the County move to dismiss the equal protection claims asserted by plaintiffs Ramirez, Cutsinger, McMahon-Levine, Criss, and Fink; the retaliation claims asserted by all the plaintiffs; and the substantive due process claims asserted by plaintiffs John Gilles and Ronald Fink, Jr. Defendant Herron also moves to dismiss the plaintiffs' equal protection and substantive due process claims filed against him in his individual capacity. Defendant Wagner also asserts that the plaintiffs' complaint fails to state an equal protection claim against him in his individual capacity. The defendants collectively raise several arguments. They argue that plaintiffs have failed to allege that the defendants' conduct affected a term or condition of employment.
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Further, they argue that the allegations of the complaint do not give rise to a substantive due process claim. II. DISCUSSION A. The Law
U n d e r the Federal Rules, a complaint must contain "a short and plain statement of th e claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Rules r e q u ir e a "`showing,' rather than a blanket assertion, of entitlement to relief." Bell Atlantic C o r p . v. Twombly, 550 U.S. 544, 556 n.3. (2007) (quoting Fed. R. Civ. P. 8(a)(2)). "Specific fa c ts are not necessary; the statement need only `give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2 0 0 7 ) (quoting Twombly, 550 U.S. at 555). In order to survive a motion to dismiss under F e d . R. Civ. P. 12(b)(6), "a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the e le m e n ts of a cause of action will not do." Twombly, 550 U.S. at 555. In addition, when ruling on a defendant's motion to dismiss, a judge must accept as tru e all of the factual allegations contained in the complaint. Erickson, 551 U.S. at 94. The c o m p la in t must plead "enough facts to state a claim for relief that is plausible on its face." Id . at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows th e court to draw the reasonable inference that the defendant is liable for the misconduct a lle g e d ." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (stating that the plausibility

s ta n d a rd does not require a probability, but asks for more than a sheer possibility that a d e fe n d a n t has acted unlawfully).

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P la in tiffs ' "right to be free from gender discrimination is secured by the equal p r o t e c tio n clause of the Fourteenth Amendment." Tipler v. Douglas County, Neb., 482 F.3d 1 0 2 3 , 1027 (8th Cir. 2007); Ottman v. City of Independence, 341 F.3d 751, 756 (8th Cir. 2 0 03 ) ("intentional gender discrimination in public employment by persons acting under color o f state law violates the Equal Protection Clause of the Fourteenth Amendment"). Equal p ro te c tio n claims may be asserted under 42 U.S.C. § 1983. See, e.g., Mercer v. City of C e d a r Rapids, 308 F.3d 840, 844 (8th Cir. 2002). Discrimination based on gender that c re a te s a hostile or abusive working environment also violates § 1983. Weger v. City of L a d u e , 500 F.3d 710, 171 (8th Cir. 2007) (hostile work environment claims under Title VII a n d § 1983 are subject to the same analysis). To state a claim for hostile environment d is c rim in a tio n , an employee must show: (1) she belongs to a protected group; (2) she was s u b je c t to unwelcome harassment: (3) the harassment was based on race or disability; (4) th e harassment affected a term, condition, or privilege of employment; and (5) her employer k n e w or should have known of the harassment and failed to take proper remedial action. M c C o w n v. St. John's Health System, Inc., 349 F.3d 540, 542 (8th Cir. 2003). An

e m p lo ym e n t discrimination plaintiff need not plead a prima facie case of discrimination to s u rv iv e a Rule 12(b)(6) motion because the McDonnell Douglas framework is an evidentiary s ta n d a rd , not a pleading requirement. Swierkiewicz v. Sorema, 534 U.S. 506, 510 (2002). A ls o , in the Eighth Circuit, claims for retaliation can be pursued under § 1983. King .v H a rd e s ty , 517 F.3d 1049, 1064 (8th Cir. 2008).

Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Kentucky v. Graham, 473 U.S. 159, 165 (1985); Parrish v. Ball, 594 F.3d 993, 996 (8th Cir. 2010). "Official-capacity suits, in
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contrast, `generally represent only another way of pleading an action against an entity of which an officer is an agent.'" Graham, 473 U.S. at 165-66 (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n.55, 1978). An official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. Id. at 166 (noting that "it is not a suit against the official personally, for the real party in interest is the entity"). Because vicarious liability is inapplicable to § 1983 suits, in order to establish liability under § 1983 against a defendant in his individual capacity, a plaintiff must plead that each government-official defendant, through the official's own individual actions, has violated the Constitution. Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010); Ashcroft v. Iqbal, 129 S. Ct. at 1948. "Thus, `each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.'" Parrish, 594 F.3d at 1001 (quoting Iqbal, 129 S. Ct. at 1949). To "establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right." Kentucky v. Graham, 473 U.S. at 166 (emphasis in original). In contrast, because the governmental entity is liable in an official-capacity claim, a plaintiff must demonstrate that the entity's policy or custom played a part in the violation of the plaintiff's rights--"to sustain the action against [a Sheriff] in his official capacity, [the plaintiff] must prove that the county `itself caused the constitutional violation at issue.'" Parrish, 594 F.3d at 997 (quoting Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006); see also Monell v. Department of Social Servs. of New York, 436 U.S. 658, 694 (1978) (when the execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts an injury, the government as an entity can be held responsible under § 1983). Thus,
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a lth o u g h government entities are not liable under section 1983 for an employee's actions u n d e r a theory of respondeat superior, the entity may be liable if the plaintiff can prove an o ffic ia l policy or a widespread custom that violated the law and caused the plaintiff's injury. S e e Artis v. Francis Howell North Band Booster Ass'n, Inc., 161 F.3d 1178, 1181 (8th Cir. 1 9 9 8 ). Locating a "policy" ensures that a municipality is held liable only for those

d e p r iv a tio n s resulting from the decisions of its duly constituted legislative body or of those o f f ic ia ls whose acts may fairly be said to be those of the municipality. Board of County C o m m 'rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 403-04 (1997). "[A]n act p e rf o rm e d pursuant to a `custom' that has not been formally approved by an appropriate d e c is io n m a k e r may fairly subject a municipality to liability on the theory that the relevant p r a c tic e is so widespread as to have the force of law." Id. at 404 (citing Monell v. Dep't of S o c . Serv. of City of New York, 436 U.S. 668, 690-91 (1978). Under 42 U.S.C. § 2000(e), the timely filing of a charge of discrimination with the E E O C is a prerequisite to the later commencement of a civil action in federal court. Cobb v. S trin g e r, 850 F.2d 356, 358 (8th Cir. 1988). The purpose of filing the charge is to provide th e EEOC with an opportunity to investigate and attempt to resolve the controversy through c o n c ilia tio n before permitting the aggrieved party to pursue a lawsuit. Id. at 359. A Title VII p la in tiff must also receive a "right to sue" letter from the EEOC in order to exhaust her re m e d ie s . Shannon v. Ford Motor Co., 72 F.3d 678, 684 (8th Cir. 1996). T o establish a substantive due process violation in an employment context, plaintiffs m u s t show that defendants acted arbitrarily and capriciously, or in a way that shocks the c o n s c ie n c e . Satcher v. University of Arkansas at Pine Bluff Bd. of Trustees, 558 F.3d 731, 7 3 6 (8th Cir. 2009). W h e th e r actions rise to this conscience-shocking level is contextual, d e p e n d in g in large part on the level of culpability of the defendants. Sitzes v. City of West
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M e m p h is Ark., 606 F.3d 461, 467 (8th Cir. 2010). Substantive due process liability is narrow, a p p lyin g only to the most egregious conduct, and the Fourteenth Amendment is not a font o f tort law to be superimposed upon whatever systems may already be administered by the S ta te s . Id. Because the conscience-shocking standard is intended to limit substantive due p ro c e s s liability, it is an issue of law for the judge, not a question of fact for the jury. Id. To state a claim for conspiracy to deprive an individual of civil rights, a plaintiff must a lle g e that the defendants: (1) conspired (2) for the purpose of depriving, either directly or in d ire c tly, any person or class of persons of the equal protection of the laws, or of equal p riv ile g e s and immunities under the laws. Bogren v. Minnesota, 236 F.3d 399, 409 (8th Cir. 2 0 0 0 ); 42 U.S.C. § 1985(3). A plaintiff must then assert that one or more of the conspirators d id , or caused to be done, "any act in furtherance of the object of [the] conspiracy," whereby a n o th e r was"injured in his person or property" or "deprived of having and exercising any right o r privilege of a citizen of the United States." Id. (quoting Andrews v. Fowler, 98 F.3d 1069, 1 0 7 9 (8th Cir. 1996)). The showing requires a plaintiff to prove an agreement between the c o n s p ira to r s , which can be satisfied by "pointing to at least some facts which would suggest th a t appellees reached an understanding to violate her rights." Id. (quoting Larson by Larson v . Miller, 76 F.3d 1446, 1454 (8th Cir.1996)). "The language requiring intent to deprive of e q u a l protection, or equal privileges and immunities, means that there must be some racial, o r perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' a c tio n ." Griffin v. Breckenridge, 403 U.S. 88, 102 (1971) (footnote omitted). B. Analysis The court first finds that plaintiff Navin has adequately stated a claim for discrimination u n d e r Title VII. She alleges that she has satisfied administrative prerequisites to suit. F u rth e r, the court finds that the plaintiffs have stated a plausible claim for deprivation of
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f e d e r a l ly-p ro te c te d rights against the County and against defendants Herron and W a g n e r in their official and individual capacities under 42 U.S.C. § 1983. The allegations of the c o m p la in t are sufficient to state a claim for gender-based hostile environment and quid-proq u o discrimination under § 1983. Plaintiffs John Gilles and Ronald Fink, Jr. allege conduct (u s e of a pepper-ball gun, spraying of pepper spray and throwing hand-sanitizer in their fa c e s ) that is severe or pervasive enough that a reasonable person would find it hostile or a b u s iv e . Further, the plaintiffs have alleged conduct by defendants Herron and W a g n e r that c o u ld give rise to individual liability. The plaintiffs allege that defendants were acting under c o lo r of state law and that they deprived the plaintiffs of federal rights. Nothing more is re q u ire d to allege personal liability. Also, the plaintiffs have adequately alleged the actions w e re taken by policy-makers or pursuant to official policy or custom and practice of the C o u n t y. The allegations of the complaint, however, do not rise to the conscience-shocking le v e l so as to state a claim for violation of substantive due process rights. Similarly, the p la in tiffs have failed to state a claim for a civil rights conspiracy. The plaintiffs have not a lle g e d a class-based invidious discriminatory animus required to state a claim under § 1985(3). Further, the plaintiffs have failed to describe any meeting of the minds to support a viable conspiracy claim under section 1985(3). Accordingly, the court finds the defendants' m o t io n s should be granted with respect to the substantive due process and conspiracy c la im s and denied in all other respects.

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IT IS ORDERED: 1. The motion to dismiss filed by defendants County of Dakota, James L. Wagner and Rodney Herron in their official capacities (Filing No. 31) is granted with respect to the plaintiffs' substantive due process and conspiracy claims and denied in all other respects. 2. The motion to dismiss filed by defendant Rodney Herron in his individual capacity (Filing No. 33) is granted with respect to the plaintiffs' substantive due process and conspiracy claims and denied in all other respects. 3. The motion to dismiss filed by defendant James L. Wagner in his individual

capacity (Filing No. 38) is granted with respect to the plaintiffs' substantive due process and conspiracy claims and denied in all other respects. DATED this 18th day of October, 2010. BY THE COURT:

s/ Joseph F. Bataillon Chief United States District Judge

*This opinion m a y contain hyperlinks to other docum e n ts or W e b sites. The U.S. District Court for th e District of Nebraska does not endorse, recom m e n d , approve, or guarantee any third parties or the services o r products they provide on their W e b sites. Likewise, the court has no agreem e n ts with any of these third p a r tie s or their W e b sites. The court accepts no responsibility for the availability or functionality of any h yp e r lin k . Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect t h e opinion of the court. 10