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Bogus v. City of Birmingham

United States District Court, N.D. Alabama, Southern Division

April 11, 2018

CITY OF BIRMINGHAM, ALABAMA, et al., Defendants.



         The above-styled action was filed on May 19, 2017. (Doc. 1). On June 20, 2017, the City of Birmingham, the Birmingham Police Department, William A. Bell, Sr., Herman Harris, and Paul Irwin (collectively “defendants”) filed a Motion to Dismiss or, in the Alternative, Motion for More Definite Statement. (Doc. 10). The motion has been fully briefed, and the parties have consented to dispositive jurisdiction by a United States Magistrate Judge in accordance with 28 U.S.C § 636(c).


         Defendants contend that the Complaint should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim on which relief can be granted. Before the Supreme Court decided Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a court could dismiss a complaint only where it was clear that no relief could be granted under any set of facts that could be proved consistent with the allegations, as set forth in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The well-established Rule 12(b)(6) standard set forth in Conley was expressly rejected in Twombly when the Supreme Court examined the sufficiency of a plaintiff's complaint and determined:

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief, ” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests, ” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requests more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.

550 U.S. at 555 (citations omitted). The court went on to criticize Conley, stating that “[t]he ‘no set of facts' language has been questioned, criticized, and explained away long enough” by courts and commentators, and “is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Twombly, 550 U.S. at 562-63. The Supreme Court emphasized, however, that “we do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” 550 U.S. at 570.

         The Supreme Court expanded on the Twombly standard when it decided Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009), reiterating the Twombly determination that a claim is insufficiently pleaded if it offers only “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Iqbal, 129 S.Ct. at 1949. The Court further explained:

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not “show[n]”-“that the pleader is entitled to relief.”

Iqbal, 129 S.Ct. at 1949-50 (citation omitted). See also Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009) (“The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss” and “the well-pled allegations must nudge the claim ‘across the line from conceivable to plausible'” (quoting Iqbal and Twombly)).


         For the purposes of a motion to dismiss, the court must take as true the well-pleaded facts according to the nonmoving party; in this case, the plaintiff, Kesha LaShawn Bogus (“Bogus”). As discussed above, the court is not required to accept legal conclusions masquerading as facts. Accordingly, the following are the relevant facts:

         Bogus is an African-American female, employed by the City of Birmingham, Alabama (“City”), as a police officer since 1996. (Complaint, ¶ 8). She currently holds the rank of sergeant, being promoted to that rank in 2015. (Id.). Beginning in 2010, the plaintiff was assigned to Mayor William Bell's security detail. (Complaint, ¶ 20). During the summer of 2014, while she was assigned to Mayor Bell's (“Bell”) security detail, her supervisor became Sergeant Herman Harris (“Harris”), whom she identifies as Bell's cousin and fellow fraternity member. (Complaint, ¶ 23). Soon thereafter, Harris began to pursue her romantically, but she rebuffed his advances. (Complaint, ¶ 26). Because she rejected his unwanted advances, Harris, known by Bell, denied her overtime duties and compensation, despite assigning male employees overtime duties and compensating those male employees accordingly. (Complaint, ¶ 28).

         During this same time period (late summer 2014), another city employee, April Odom, began making romantic overtures to Deputy Chief William Tubbs (Complaint, ¶ 29), with whom the plaintiff already was romantically involved. This led to a confrontation between Odom and the plaintiff outside a Logan's restaurant in Fultondale, a suburb north of Birmingham, in the presence of Deputy Chief Tubbs, Mayor Bell, and other members of the mayor's staff. (Complaint, ¶ 30). As a result, Odom filed a “report” of the incident in September 2014, which led to an investigation of the plaintiff. (Id.). Rather than refer the report to the Internal Affairs Division (“IAD”) of the police department, “outside counsel” Matt Beam was retained to conduct an investigation of the incident. (Complaint, ¶ 31). In late September or early October 2014, the plaintiff heard that Odom might drop her complaint against the plaintiff. Bogus contracted the City's Chief of Operations (Jarvis Patton) to request that the complaint not be dropped because she wanted a name-clearing hearing. (Complaint, ¶ 39).

         As part of this investigation by Beam, the plaintiff reported to him that she believed she was being subjected to discriminatory treatment by defendant Harris because she had rebuffed his “sexually harassing overtures.” (Complaint, ¶ 33). Specifically, she told Beam that she was being denied overtime assignments while male employees (Jeffrey Wick and Eric Smith) were receiving overtime assignments. (Complaint, ¶34). Likewise, on October 9, 2014, Bogus mailed a letter to Harris, her supervisor, complaining that she was being discriminatorily denied overtime.

         On October 13, 2014, after concluding that Odom's complaint against the plaintiff was unfounded, Beam dismissed it (Complaint, ¶ 32) and attempted to convince Bogus, Tubbs, and Odom to sign a release following the complaint's dismissal. (Complaint, ¶ 40). While Tubbs and Odoms signed a release, Bogus refused. She vaguely asserts that she suffered retaliation in the months following her refusal to sign the release. (Id.).

         Bell became aware of Bogus's complaints, both by and against her, in October of 2014. On October 25, 2014, during a parade, Bogus claims that Bell called the male members of his security detail into his vehicle and raised his voice. Bell then summoned Bogus into the vehicle and commented: “I don't give a shit about your personal relationship [with Tubbs]. I know about the email you sent saying that you were the only female in the unit. I know what that means.” (Complaint, ¶ 36).

         Concurrent with the problems developing in her professional life, a tempest soon began to develop in her personal life as well. Tubbs proposed marriage to Bogus on September 23, 2014, despite being married, [2] and in October of 2014, Bogus discovered that she was pregnant with Tubbs' child. Bogus and Tubbs enjoyed a nice Christmas holiday before their relationship spiraled out of control. During the New Year's holiday, Bogus entered Tubbs's apartment and “made an ... inappropriate gesture to inform Tubbs that she was upset at the thought that he might have been seeing another woman and had abandoned her [after] she became pregnant.” (Complaint, ¶ 51). Bogus further confronted Tubbs in his office at the police department about her fears on January 2, 2015. (Complaint, ¶ 52).

         Tubbs filed a complaint against Bogus on January 2, 2015, which he later withdrew. Upon the filing of the complaint, the City immediately placed Bogus on administrative leave. Apparently notwithstanding Tubbs' withdrawal of the complaint, the investigation continued. As a result of the City's investigation, Bogus “was substantially exonerated, but found to have engaged in conduct unbecoming a police officer as a result of her having entered Tubbs' apartment and having made the gesture of fear and concern aforementioned.”[3] (Complaint, ¶ 56). The plaintiff was suspended for two days, removed her from Mayor's Bell security detail, and compelled her to attend counseling.[4] (Complaint, ¶ 54). Upon leaving the security detail, she was reassigned to the Community Resource Division and was deprived of her badge and gun during this period. Her child was born on July 7, 2015, at which time she went on maternity leave pursuant to the Family Medical Leave Act (“FMLA”) until October of 2015.

         Tubbs himself also was subsequently charged with misconduct by the Internal Affairs Division (“IAD”) (hereinafter referred to as the “Tubbs investigation”), and he took FMLA leave during the investigation. Although the IAD concluded that Tubbs engaged in misconduct, he was allowed “to retire on a full pension” following the conclusion of his FMLA leave. (Doc. 1, ¶ 57).[5] Her “supervisor's attitudes toward her [had] changed markedly.”[6] (Doc. 1, ¶ 71).

         After these events, Bogus filed an Equal Employment Opportunity Commission (“EEOC”) charge on March 31, 2015. She vaguely claims that she suffered retaliation in response to filing the charge and a later supplement to it. She alleges only that other members of Bell's staff and security detail engaged in more egregious, unbecoming conduct than she, but they were not subjected to punishment or prolonged investigation. When compared to these individuals, she claims that she was treated much worse by the City, Bell, and Harris. Bogus asserts that she would not have been subjected to discipline if she had not reported what she had seen while serving on the mayor's security detail.[7]

         Bogus gave birth to Tubbs's child on July 7, 2015, and she was placed on maternity leave until October of 2015. She suffered from post-partum complications and general depression, and she was required to attend counseling. Following her return from maternity leave, the City promoted Bogus to sergeant in October 2015. Despite her promotion, Bogus alleges that, at least initially, none of the captains in charge of the City's four police precincts wanted Bogus under his command. She alleges “on information and belief” that this was because she had engaged in a relationship with a white former supervisor (Tubbs) and had given birth to a bi-racial child. The City assigned her to the West Precinct under the command of Captain Paul Irwin (“Irwin”) in October of 2015. After her assignment to the West Precinct, Bogus repeatedly applied for a shift accommodation to care for her young children. She alleges that she was not granted an accommodation for longer than six weeks, although several similarly situated employees, male and female, had received shift accommodations longer than six weeks. She alleges impliedly that she was denied accommodation because she:

(1) refused to release the City of Birmingham from all liability for its prior wrongful actions; (2) … had… engaged in an inter-racial relationship; (3) … had… given birth to a bi-racial baby; (4) … had… been associated with the dismissal of a popular Deputy Chief; (5) … had… been witness or privy to significant irregularities within Bell's office, and (6) … had… been the subject of inappropriate gossip, rumor or “scuttlebutt”.

(Complaint, ¶ 88). Bogus alleges that Irwin ignored her accommodation requests and “reports of racial unrest and other matters occurring within the West Precinct.” (Doc. 1, ¶ 102). On November 18, 2015, Irwin suggested to Bogus that she “rollback” her rank as sergeant “to that of officer in order that she might receive the same treatment as other police officers and supervisors had traditionally received.” (Complaint, ¶ 97). She refused to do so.

         Following these events, Bogus began to search for a new law enforcement job within the area, but her search has proven fruitless.

         Bogus ultimately filed a supplement to her EEOC charge on January 19, 2016. She filed an additional complaint with the City, alleging a hostile work environment, and she was temporarily transferred to the South Precinct for six weeks while the investigation of her hostile-work environment complaint proceeded. Upon return to the West Precinct in May 2016, Bogus met with and informed Chief of Police A.C. Roper (“Roper”) and Captain Theophilus Smith (“Smith”) of her post-partum complications. Neither Roper nor Smith took her concerns seriously. Irwin then, at some point, omitted Bogus from the supervisor's email list, which kept her “out of the official loop . . . [of] important information regarding the daily operations of the West Precinct.”[8] (Complaint, ¶ 102). She did not receive the information necessary to efficiently and effectively perform her job, which diminished “her stature as a supervisor in the West Precinct.” (Complaint, ¶ 109). Bogus has subsequently attempted to regain her standing with Irwin and other officials within the City.


         Based on these factual allegations, the plaintiff has identified eight counts for relief. Count I alleges that plaintiff suffered racial discrimination in employment in violation of Title VII of the Civil Rights Act of 1964. Count II asserts that she suffered pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964, including presumably (although not explicitly stated) the Pregnancy Discrimination Act. Count III alleges that plaintiff suffered from a racially and sexually discriminatory hostile work environment, in violation of Title VII of the Civil Rights Act of 1964.

         Count IV of the complaint asserts that the plaintiff suffered employment related “retaliation.” Although not as clearly stated as in the first three counts, this count also seems to rest on the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964. In paragraph 129 of the count, for example, she alleges that she “was repeatedly denied accommodations on account of her race, gender, personnel history and opposition to the Defendants' discriminatory practices, ” which seems to invoke the prohibitions of Title VII. Furthermore, in the next paragraph, she explicitly states that she was “subject to retaliation for having filed a charge of discrimination” with the EEOC, as well as a complaint for “a hostile working environment claim against her superiors” with the Jefferson County Personnel Board. Lastly, in paragraph 131, the plaintiff alleges that she was “denied accommodations” and subjected to “retaliation for her having raised legitimate concerns regarding the discrimination against her….” The court, therefore, reads Count IV to allege discriminatory retaliation under Title VII of the Civil Rights Act.[9]

         Count V purports to allege claims for violation of the plaintiff's civil rights under 42 U.S.C. § 1983. In particular, she first alleges that she was deprived of property without due process of law in the form of “certain emoluments of her employment…, a property interest protected by the Fourteenth Amendment to the United States Constitution and made actionable by 42 U.S.C. §§1981 and 1983.” (Complaint, ¶ 138). She focuses of the “Beam investigation” and “the IAD investigation.” In the former, she alleges that she “was provided with no notice of or report of any ‘hearing' nor any conclusion of any investigation conducted by Beam…, ” in violation of the rules and regulations of the police department. (Complaint, ¶ 142). Likewise, in relation to the IAD investigation, she alleges that “Harris and Bell provided Plaintiff with no notice of or report of any ‘hearing' nor any conclusion of any investigation conducted by IAD…, ” in violation of the rules and regulations of the police department. (Complaint, ¶ 143).

         Count V also asserts an alleged denial of due process with respect to a liberty interest. In sum, the plaintiff alleges that unnamed city officials made “improper and unauthorized disclosures, ” which were “false and misleading, ” about the matters involved in the two investigations of her, and that these disclosures caused the plaintiff to “suffer defamation of her character and [she] was stigmatized, which resulted in damage to her reputation and to her loss of future employment opportunities.” (Complaint, ¶ 152). As a result of this defamation and stigmatization, Bogus “was caused to suffer the deprivation of liberty without due process of law in connection with the malicious damage to her good name and reputation and, thereafter, in the terms and conditions of her employment with the City of Birmingham….” (Complaint, ¶ 155). She alleges that she was entitled to a “name-clearing hearing” as a matter of due process.[10]

         Count VII of the complaint[11] appears to rest on 42 U.S.C. § 1981, in that the plaintiff alleges that “[t]he actions of the Defendants subjected Plaintiff to discrimination, harassment and retaliation because of her race, color, and gender within the meaning of 42 U.S.C. §1981, and Defendants' actions, therefore, constitute unfair employment practices against Plaintiff, for which they are liable in damages to her.” (Complaint, ¶ 160). She asserts that she has lost “salary, overtime and other benefits, has been denied employment opportunities and advancement, present and future, ” and will continue to suffer emotional pain and anguish.

         Count VIII turns to the theme of denial of equal protection actionable under 42 U.S.C. § 1983. She alleges that, as set out throughout the complaint, the defendants, jointly and severally, subjected her harassment, discrimination and retaliation based upon her race, color, gender and other illegitimate factors, resulting in loss of salary and benefits, loss of employment opportunities and advancement, and mental and emotional pain, distress, and anguish.

         Finally, Count IX of the complaint purports to allege a claim under Alabama law for intentional infliction of mental anguish and emotional distress. She alleges specifically that Bell “verbally and vulgarly abused” her during the meeting in his car at the October 2015 parade. Further, she asserts that Irwin, knowing the physical and emotional difficulties she was having following the birth of her child, refused to give her a shift accommodation for longer than six weeks and he attempted to induce her to accept a reduction in rank. She also alleges that he failed to keep her informed or reports and memoranda undermining her effectiveness as a sergeant and exposing her to a “life-threatening situation” involving an armed woman with a mental illness. Lastly, she alleges that Harris sexually harassed her and, when rebuffed, denied her valuable employment opportunities to earn overtime pay.[12]


         I. Shotgun Pleading

         As an initial matter, the defendants argue that Bogus's complaint constitutes an impermissible shotgun pleading. In Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1321-23 (11th Cir. 2015), the Eleventh Circuit recognized that complaints violating either Federal Rules of Civil Procedure 8(a)(2) or 10(b) are “disparagingly referred to as ‘shotgun pleadings.'” Shotgun pleadings fall into four categories:

The most common type-by a long shot-is a complaint containing multiple counts where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint. The next most common type, at least as far as our published opinions on the subject reflect, is a complaint that does not commit the mortal sin of re-alleging all preceding counts but is guilty of the venial sin of being replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action. The third type of shotgun pleading is one that commits the sin of not separating into a different count each cause of action or claim for relief. Fourth, and finally, there is the relatively rare sin of asserting multiple claims against multiple defendants without specifying which of the defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against.

Weiland, 792 F.3d at 1321-23 (internal footnotes omitted). Although the court recognizes that Bogus's complaint likely falls under the fourth category, the court declines to hold that Bogus's complaint is an impermissible shotgun pleading. Given the procedural context of the case, a dismissal or order to file a more definite statement under Rule 12(e) is inappropriate. While the complaint was drafted by an attorney, Bogus is now pro se. Ordering Bogus to redraft the complaint would likely prove futile. Furthermore, the court believes that Bogus has alleged potential claims, which indicates that it is not in the interests of justice to dismiss Bogus's complaint wholesale. Therefore, the defendant's motion to dismiss the complaint as an impermissible shotgun pleading is due to be denied.[13]

         II. Birmingham Police Department (“BPD”) is not a Proper Defendant under any claim

         The defendants argue that the BPD lacks the capacity to be sued. As a general matter, “police departments are not usually considered legal entities subject to suit.” Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (holding that police departments are not legal entities subject to suit under 42 U.S.C. § 1983). Under Federal Rule of Civil Procedure 17(b)(3), capacity to be sued is determined by the “law of the state where the court is located” for those parties who are not an individual or corporation. Under Alabama law, “departments and subordinate entities of municipalities, counties, and towns that are not separate legal entities or bodies do not have the capacity to sue or be sued in the absence of specific statutory authority. . . . Among subordinate entities generally lacking the capacity to sue or be sued separately are police departments. . . .” Ex parte Dixon, 55 So.3d 1171, 1172 n.1 (Ala. 2010) (citing with approval 56 Am. Jur. 2d Municipal Corporations § 787 (2000)). Therefore, BPD is not a proper defendant subject to suit for any claim under 42 U.S.C. § 1983.

         Although a police department might qualify as an “employer” under Title VII, 42 U.S.C. § 2000e et seq., see Dawson v. Henry Cty. Police Dep't, 238 Fed.Appx. 545 (11th Cir. 2007) and Young v. Town of Fallsburg Police Dep't, 774 F.Supp. 205, 207-8 (S.D.N.Y. 1991) (holding that police department is an employer and proper defendant in absence of naming the town as defendant), BPD is an agency of the City, and the City will satisfy any potential judgment against BPD, assuming arguendo that BPD is a proper employer. Yet, because Alabama law does not recognize a police department as a legal entity subject to suit and because the City has been named as a defendant in the above-styled, the City is the proper employer under Title VII and 42 U.S.C. § 1981, and conversely, BPD is not.

         BPD therefore is not a proper defendant subject to suit under any of Bogus's claims and is due to be dismissed as a defendant from the above-styled action.

         III. Title VII Claims

         A. ...

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