Patrick v. City Of Houston et al

Filing 24

MEMORANDUM AND ORDER granting in part and denying in part 8 First MOTION to Dismiss ( Miscellaneous Review (Internal Use Only) due by 2/5/2009). (Signed by Magistrate Judge Stephen Wm Smith) Parties notified. (jmarchand)

U N IT E D STATES DISTRICT COURT S O U T H E R N DISTRICT OF TEXAS H O U S T O N DIVISION P ATRICIA PATRICK, P l a i n t i ff , vs. T HE CITY OF HOUSTON, LINDA HUNTER, INDIVIDUALLY AND IN HER OFFFICIAL C APACITY, LILIANA RAMBO, INDIVIDUALLY AND IN HER OFFICIAL C APACITY, BRENDA BAZAN, INDIVIDUALLY AND IN HER OFFICIAL C APACITY, AND DAWN ULRICH, INDIVIDUALLY AND IN HER OFFICIAL C A P A C IT Y , D e fe n d a n ts . § § § § § § § § § § § § § §

C IVIL ACTION H-08-2629

M E M O R A N D U M AND ORDER T h is employment dispute is before the court on the second motion to dismiss filed by the City of Houston and the individual defendants in their official capacities (Dkt. 15).1 D e f e n d a n ts' motion is granted in part and denied in part.2

1

This motion is contained within a pleading titled "Defendants' First Amended Answer Subject to Their Rule 12 Motion to Dismiss" (Dkt. 15), which was filed in response to Patrick's first amended complaint (Dkt. 13). In light of this second motion, defendants' initial motion to dismiss (Dkt. 8) is denied as moot. The parties have consented to the jurisdiction of this magistrate court for all purposes, including final judgment (Dkt. 21).

2

B a c k gro u n d3 In January 2006, Patricia Patrick began working for the City of Houston as an ad m inistrat iv e associate in the Convention and Entertainment Facilities Department. In M a rc h 2006, Patrick reported to City officials that her supervisor, Linda Hunter, was co n d u ctin g personal business using City resources. A few weeks after reporting Hunter's a c tiv itie s, Patrick was assaulted by a fellow employee in the department. She was

s u b s e q u e n tly transferred to the Department of Parking Management under the supervision o f Derrick Williams. A few months later, in August 2007, Patrick was the subject of unwanted sexual c o m m e n ts by a fellow employee. She reported the incident the Williams's superior, Liliana R a m b o , who allegedly did not investigate or take prompt action. In September 2007, Patrick's allegations against Hunter were sustained in large part. In October 2007, allegedly in retaliation for her complaints of misconduct, Patrick was re a ss ig n e d to work from home and have no contact with other City employees. She was re q u ire d to report to Williams or Rambo regularly throughout the day and secure permission f o r leaving her home during the work day, just as if she were at work. Apparently, she was there af ter placed on indefinite suspension and then discharged, because these actions were u p h e ld by the Civil Service Commission after a hearing on March 11, 2008.

3

These allegations are taken from Patrick's amended complaint, and are assumed to be true of purposes of this motion only. 2

P la in t if f has sued the City, as well as Hunter, Rambo, and two other City employees, B re n d a Bazan and Dawn Ulrich, in their individual and official capacities. Plaintiff asserts c a u s e s of action under 42 U.S.C. § 1983 and Title VII for retaliatory discharge, as well as s t a t e law tort claims. Defendants contend that plaintiff has not pled an unconstitutional p o lic y or custom that supports a claim against the City under 42 U.S.C. § 1983, and that the in d iv i d u a l defendants cannot be personally liable in their official capacities.4 A n a ly sis A. R u le 12(b)(6) Legal Standards

T h e "court accepts `all well-pleaded facts as true, viewing them in the light most f a v o ra b le to the plaintiff.' " Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F .3 d 464, 467 (5th Cir.2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.1999)). T o survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1 9 7 4 (2007). Twombly makes clear that the oft-cited standard of whether it "appears beyond d o u b t that plaintiff can prove no set of facts in support of his claim which would entitle him to relief," established in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), is not the minimum s ta n d a r d of adequate pleading to govern a complaint's survival. In re Katrina Canal B r e a c h es Litig., 495 F.3d 191, 205 n.10 (5th Cir. 2007). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations
4

Although defendants' initial motion to dismiss (Dkt. 8) asserted governmental immunity as to plaintiffs' tort claims, that grounds for dismissal is not raised in the current motion. 3

in the complaint are true (even if doubtful in fact)." Twombly, 127 S. Ct. at 1965 (quotation m ark s, citations, and footnote omitted). B. P la in tiff's § 1983 Claim

P la in tif f alleges that the City has a custom or policy of using disciplinary measures a n d tactics and administering unscheduled Employee Performance Evaluations to retaliate a g a in st employees who exercise their constitutional right of free speech. Plaintiff also asserts th a t defendants' policy and custom of negligent training, supervision, and retention resulted in the deprivation of her First Amendment rights by the individual defendants. Defendant a rg u e s simply that negligent supervision is not a constitutional violation.5 But plaintiff c le a rly alleges a violation of her First Amendment right to free speech; negligent supervision is not the alleged constitutional violation, but the policy or custom that resulted in a co n stitutio n al violation. Plaintiff's allegations may be "doubtful in fact," but they are s u f f i c i e n t to state a claim that is "plausible on its face." p la in tif f 's § 1983 claim against it is denied. C. P la in t iff's Claims Against Individuals in Their Official Capacities The City's motion to dismiss

O f f ic ia l capacity suits "generally represent only another way of pleading an action a g a in s t an entity of which an officer is an agent." Kentucky v. Graham, 473 U.S. 159, 165 (1 9 8 5 ) (quoting Monell v. Department of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). "As lo n g as the government entity receives notice and an opportunity to respond, an official-

5

Defendant's motion (Dkt. 15), at 3. 4

c a p ac ity suit is, in all respects other than name, to be treated as a suit against the entity." Id. a t 166. Patrick has sued the City of Houston itself for damages. Patrick does not seek any in ju n c tiv e relief for which an individual defendant might be responsible while acting in her o f f ic ia l capacity. See Graham, 473 U.S. at 167, n. 14 (citing Ex parte Young, 209 U.S. 123, 1 5 9 -1 6 0 (1908)). Therefore, Patrick's official capacity claims are superfluous, and

d e f e n d a n ts' motion to dismiss claims against Hunter, Rambo, Bazan, and Ulrich in their o f f ic ia l capacities is granted. P lain tiff 's claims against the individual defendants in their individual capacity remain p e n d in g at this time. However, defendants contend that the individual defendants have not b ee n properly served.6 Therefore, it is further ordered that Plaintiff shall have until February 5 , 2009 to serve the individual defendants, or if plaintiff contends that proper individual s e rv ic e has been effected,7 to respond to defendants' assertion to the contrary or move for d e f a u lt judgment, if appropriate. Conclusion Defendants' motion to dismiss (Dkt. 15) is granted in part and denied in part. P la in tif f 's claims against the individual defendants in their official capacities are dismissed.

6

Defendants' motion, n.1. The docket reflects that copies of the summons and complaint for each individual defendant were with Kimberly Young-Payne at the place of business at 900 Bagby, Houston, Texas 77002 on September 29, 2008. 5

7

P la in tif f shall properly serve individual defendants or take other appropriate action as set f o rth above on or before February 5, 2009. S ig n e d at Houston, Texas on January 6, 2009.

6