Clemons v. City Of Memphis, Tennessee et al

Filing 23

ORDER GRANTING 19 DEFENDANTS CITY OF MEMPHIS AND MEMPHIS POLICE DEPARTMENTS MOTION ON THE PLEADINGS TO PARTIALLY DISMISS PLAINTIFFS TITLE VII CLAIM. Signed by Judge Jon Phipps McCalla on 12/28/2016. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

DAVIN D. CLEMONS,
Plaintiff,
v.
CITY OF MEMPHIS, TENNESSEE; and
MEMPHIS POLICE DEPARTMENT,
Defendants.

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No. 16-cv-02333-JPM-cgc

ORDER GRANTING DEFENDANTS CITY OF MEMPHIS AND MEMPHIS POLICE
DEPARTMENT’S MOTION ON THE PLEADINGS TO PARTIALLY DISMISS
PLAINTIFF’S TITLE VII CLAIM

Before the Court is Defendants City of Memphis and Memphis Police Department
(collectively “Defendants”)’s Motion on the Pleadings to Partially Dismiss Plaintiff’s Title
VII Claim, filed October 19, 2016. (ECF No. 19.) Plaintiff Davin Clemons filed a response
in opposition on November 16, 2016. (ECF No. 21.) Defendants filed a reply on November
30, 2016. (ECF No. 22.) For the reasons stated below, the Court GRANTS Defendant’s
Motion on the Pleadings to Partially Dismiss Plaintiff’s Title VII Claim as to Plaintiff’s claim
of discrimination based on sexual orientation WITH PREJUDICE, and as to Plaintiff’s claim
of discrimination based on gender stereotyping WITHOUT PREJUDICE.
I.

BACKGROUND
Plaintiff Davin Clemons, a TACT officer for Defendant Memphis Police Department,

brings suit against Defendants City of Memphis and Memphis Police Department, for

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damages and injunctive relief for discrimination, harassment, and retaliation against him
based on his sexual orientation, his position at the police department as an LGBTQ Liaison,
his disability, and his religion. Plaintiff asserts violations of Title VII of the Civil Rights Act,
the Fourteenth Amendment and local ordinance, and the Americans with Disabilities Act.
(Compl., ECF No. 1.)
Plaintiff’s Title VII claim specifically seeks relief for “[t]he harassing and
discriminatory actions, conduct and/or omissions . . . [that] were motivated by Officer
Clemons’ sex (male) in that sexual orientation discrimination encompasses treating an
employee less favorably because of his sex (in that Officer Clemons did not conform to sex
stereotypes and norms) . . . [and that occurred] because the other employees and [Plaintiff’s]
objected to [his] having romantic and sexual association with a male partner.” (Id. ¶ 116.)
The alleged actions Plaintiff deems discriminatory based on his sex and sexual
orientation include being told that superiors did not approve of Plaintiff’s “homosexual
lifestyle” (id. ¶¶ 47, 57); the circulation of Plaintiff’s engagement video in the workplace in
conjunction with Defendants’ employees “mocking and making negative comments about the
engagement of Officer Clemons to a same-sex male Officer and that Officer Clemons is gay”
(id. ¶ 91); the disparate treatment by Defendants’ employees of Plaintiff compared to
heterosexual officers (id. ¶¶ 45, 69, 88); and the inconsistent application of department
policies as applied to Plaintiff (id. ¶¶ 40-42, 48, 56, 58, 68-70, 78-80).
On October 19, 2016, Defendants moved to dismiss Plaintiff’s Title VII claim,
asserting that “Title VII prohibits discrimination based on sexual orientation, and Plaintiff has
failed to state a claim for discrimination based on sex stereotyping.” (ECF No. 19 at PageID

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85.) Plaintiff argues that Title VII “should be read and interpreted to encompass
discrimination due to sexual orientation,” but even if the Court rejects this interpretation,
“Plaintiff has asserted sufficient facts to support a claim of sex discrimination due to gender
stereotyping and gender non-conforming conduct under Title VII.” (ECF No. 20 at PageIDs
101-02.)
II.

LEGAL STANDARDS
A.

Motions to Dismiss for Failure to State a Claim Under Title VII

Federal Rule of Civil Procedure 12(c) governs motions for judgment on the pleadings.
Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008). A motion for
judgment on the pleadings is treated the same as a motion to dismiss under Rule 12(b)(6). Id.
Pursuant to Rule 12(b)(6), a court may dismiss a claim for “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). “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) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)).
A complaint must contain a short and plain statement of the claim showing that the
pleader is entitled to relief. . . . A claim is facially plausible when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged. . . . [T]he court need not accept as true allegations that are
conclusory or require unwarranted inferences based on the alleged facts.
Newberry v. Silverman, 789 F.3d 636, 640 (6th Cir. 2015) (citations and internal quotation
marks omitted).
“Plausibility is not the same as probability, but it requires ‘more than a sheer
possibility that a defendant has acted unlawfully.’” Mik v. Fed. Home Loan Mortg. Corp.,
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743 F.3d 149, 157 (6th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). A court must “construe[]
the complaint in a light most favorable to the plaintiff.” HDC, LLC v. City of Ann Arbor, 675
F.3d 608, 611 (6th Cir. 2012).
Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating
against an individual “with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1). “In order to establish a prima facie case of sex discrimination under
Title VII, a plaintiff must show (1) that he is a member of a protected class, (2) that he was
subject to an adverse employment decision, (3) that he was qualified for the position, and (4)
that he was treated differently than a similarly situated individual outside the protected class.”
Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006). Notably, for Title VII
claims, the plaintiff is not required to establish a prima facie case to withstand a motion to
dismiss for failure to state a claim. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-14
(2002). The Sixth Circuit has continued to apply Swierkiewicz's holding even after the
Supreme Court's decisions in Twombly and Iqbal. See Keys v. Humana, Inc., 684 F.3d 605,
609 (6th Cir. 2012).
B.

Title VII and Discrimination Based on Gender Stereotyping

The Sixth Circuit has recognized that, in light of the Supreme Court's opinion in Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), the prohibition against gender discrimination in
Title VII can extend to certain situations where the plaintiff fails to conform to stereotypical
gender norms. Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004) (collecting cases).
The anomalies to stereotypical gender norms, however, must be “characteristics that were

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readily demonstrable in the workplace, such as the plaintiff's manner of walking and talking at
work, as well as her work attire and her hairstyle . . . . [In essence,] where gender nonconformance is demonstrable through the plaintiff's appearance or behavior.” Vickers, 453
F.3d at 763.
C.

Title VII and Discrimination Based on Sexual Orientation

The Sixth Circuit has dismissed “sex-stereotyping” claims that were “more properly
viewed as harassment based on [the plaintiff's] perceived homosexuality, rather than based on
gender non-conformity.” Gilbert v. Country Music Ass'n, Inc., 432 Fed.Appx. 516, 519-20
(6th Cir. 2011) (quoting Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 763 (6th Cir. 2006)). In
Gilbert, the Sixth Circuit found that the plaintiff's assertion—that a threat to be stabbed
because of his sexual orientation was discrimination because he did not conform to his
employer's male stereotypes—was simply a “formulaic recitation” of the elements of a
gender-stereotyping claim and would not grant him Title VII protection for sexual orientation
under a guise of a claim based on gender-stereotyping. Id. at 520 (quoting Vickers, 452 F.3d
at 764; Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)) (“For all we know, Gilbert fits every
male ‘stereotype’ save one—sexual orientation—and that does not suffice to obtain relief
under Title VII.”).
Since Gilbert, the Equal Employment Opportunity Commission (“EEOC”) has issued
a decision in Baldwin v. Foxx, EEOC Appeal No. 0120133080, stating that “allegations on
the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex”
and therefore should be included within Title VII protection. 2015 WL 4397641,*10 (July
16, 2015). While at least one other circuit has recently noted in conjunction with the EEOC
that “disentangling gender discrimination from sexual orientation discrimination may be
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difficult,” the Sixth Circuit has yet to comment on what, if anything, that decision may mean
for claims based on sexual orientation discrimination. See Hively v. Ivy Tech. Community
College, ___ F.3d ____, 2016 WL 4039703, *7-10 (7th Cir. July 28, 2016) (noting that
Obergefell v. Hodges, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015) was decided on
constitutional grounds and did not “impact[ ] the statutory interpretations of Title VII” as it
“did not address the issue of gender nor of workplace discrimination.”). Until the Sixth
Circuit or the Supreme Court provides further commentary on this issue, this Court is bound
by Sixth Circuit precedent. Gilbert, 432 Fed.Appx. at 519-20 (6th Cir. 2011) (quoting
Vickers, 453 F.3d at 763.
III.

ANALYSIS
A.

Plaintiff’s Title VII Claim for Discrimination Based on Sexual Orientation

Sixth Circuit precedent clearly precludes Plaintiff’s Title VII claim for discrimination
based on sexual orientation. For this reason, the Court DISMISSES Plaintiff’s Title VII
claims of discrimination based on sexual orientation WITH PREJUDICE.
B.

Plaintiff’s Title VII Claim for Discrimination Based on Sexual
Stereotyping

Defendants contend that “[n]othing in Clemons’ complaint supports a claim that he is
being discriminated against for failing to conform to any gender norm, and his homosexuality
alone is not sufficient.” (ECF No. 19-1 at PageID 94.) Defendants specifically allege that
Plaintiff “fails to set forth any actual examples of his non-conformance other than his sexual
orientation. . . . [and that Plaintiff] does not allege that he has been the subject of
discrimination because of his appearance or mannerisms are not masculine. Instead,
[Plaintiff] concludes that his homosexuality is non-conforming.” (Id. at PageID 95.) Plaintiff
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asserts that he has pled “sufficient facts to support a claim of sex discrimination due to gender
stereotyping and gender non-conforming conduct under Title VII.” (ECF No. 20 at PageIDs
101-02.) Plaintiff specifically points to several assertions in his complaint where he asserts
that he is the victim of sexual stereotyping (id. at PageIDs 100-02), and contends that
“Plaintiff has not had an opportunity, as discovery is still open, to fully develop all the ways in
which his allegations are supported by facts” (id. at PageID 103).
The Court first addresses Plaintiff’s assertion that discovery is still pending, impeding
Plaintiff from fully developing factual support for his legal allegations. The Court construes
this assertion as a request for additional discovery, which is improper with regards to a motion
to dismiss. Unlike motions for summary judgment, motions to dismiss are decided solely
based on allegations and factual assertions contained in the relevant pleadings, as opposed to
the facts developed in discovery. Accordingly, the Court DENIES Plaintiff’s request for
additional discovery and looks solely at the allegations in the Complaint when ruling on
Defendants’ Motion on the Pleadings to Partially Dismiss Plaintiff’s Title VII Claim.
The Court finds that Plaintiff’s Complaint fails to contain sufficient factual matter on
its face that, when accepted as true, states a claim for discrimination based on gender
stereotyping on which relief can be granted. A claim for discrimination based on gender
stereotyping requires a claim that an observable, gender non-conforming characteristic
subjected the plaintiff to discrimination. Vickers, 452 F.3d at 764. As the Complaint stands,
Plaintiff alleges, with specific facts, that his homosexuality was the root of the harassment he
experienced. (ECF No. 1 ¶¶ 57, 37.) Plaintiff then claims that the disparate treatment he
endured based on his sexual orientation was “due to sexual stereotypes and, in particular, a
belief that [he] was not sufficiently masculine, was too feminine, or due to a belief that men
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should only date women, not other men.” (ECF No. 1 ¶ 39.) Plaintiff’s Complaint, however,
does not allege an observable, non-conforming gender characteristic that subjected him to
discrimination; 1 “[f]or all we know, [Plaintiff] fits every male ‘stereotype’ save one—sexual
orientation—and that does not suffice to obtain relief under Title VII.” Gilbert, 432
Fed.Appx. at 520. Plaintiff’s Complaint appears to impermissibly seek Title VII protection
for sexual orientation under a guise of a claim based on gender-stereotyping; and thus, the
Court GRANTS the Motion on the Pleadings to Partially Dismiss Plaintiff’s Title VII Claim
as to Plaintiff’s Title VII claim based on gender stereotyping WITHOUT PREJUDICE. The
Court further grants Plaintiff leave to move to amend his Complaint to allege additional facts,
if available, and to for conform to the requirements of Title VII and Sixth Circuit precedent.
IV.

CONCLUSION
For the reasons stated above, the Court GRANTS Defendants’ Motion on the

Pleadings to Partially Dismiss Plaintiff’s Title VII Claim as to Plaintiff’s claim of
discrimination based on sexual orientation WITH PREJUDICE, and as to Plaintiff’s claim of
discrimination based on gender stereotyping WITHOUT PREJUDICE. Plaintiff may file a
motion to amend his Complaint to conform to the requirements of Title VII and Sixth Circuit
precedent. Plaintiff may move to file an amended complaint by no later than 14 days after the
entry of this Order. Defendants may respond in accordance with local and federal rules.

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Notably, Plaintiff does allege one observable characteristic that became a specific focal point of harassment: his
beard. (ECF No. 1 ¶¶ 54, 76.) Unlike other officers in his unit, Plaintiff was not clean-shaven. (Id. ¶ 55.)
Plaintiff’s Complaint highlights disparate treatment tied to this characteristic. (Id. ¶¶ 54, 76.) This observable
characteristic, however, does not qualify as a gender non-conforming characteristic in this case because Plaintiff
is male, self-identifies as male, and facial hair is considered a masculine characteristic.

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IT IS SO ORDERED, this 28th day of December, 2016.
/s/ Jon P. McCalla
JON P. McCALLA
UNITED STATES DISTRICT COURT JUDGE

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