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Martinez v. City of Birmingham

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

January 31, 2019




         In this action, Plaintiff Randy M. Martinez brings claims against his employer, the City of Birmingham, under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), and 42 U.S.C. §§ 1981 (“Section 1981”). (Doc. 16).[2] Specifically, Plaintiff alleges he was discriminated and retaliated against because of his race and national origin. (Id.). Defendant moves to dismiss the amended complaint[3] under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Doc. 17). For the reasons that follow, the motion to dismiss is due to be granted in part and denied in part.


         Federal Rule of Civil Procedure 12(b)(6) authorizes a motion to dismiss all or some of the claims in a complaint on the ground that its allegations fail to state a claim upon which relief can be granted. That provision is read in light of Federal Rule of Civil Procedure Rule 8(a)(2), which 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 (1957). The court is required to accept the well-pled factual allegations of the complaint as true and give the plaintiff the benefit of all reasonable factual inferences. See Hazewood v. Foundation Financial Group, LLC, 551 F.3d 1223, 1224 (11th Cir. 2008). However, “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (“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.”). Nor is it proper to assume that the plaintiff can prove facts it has not alleged or that the defendants have violated the law in ways that have not been alleged. Twombly, 550 U.S. at 563 n.8 (citing Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 526 (1983)).

         “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 entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id., 550 U.S. at 555 (citations, brackets, and internal quotation marks omitted). “Factual allegations must be enough to raise a right to relief above the speculative level . . . .” Id. Thus, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face, '” i.e., its “factual content . . . allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citations omitted). “[I]n practice, a complaint . . . must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.” Twombly, 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984) (internal quotation marks omitted; emphasis and omission in original)).


         Plaintiff Martinez, a Hispanic male of Mexican origin, began his employment with the City of Birmingham in November 1998 as a police officer. (Doc. 16 ¶¶ 16, 19). The City of Birmingham's workforce is made up of a relatively small percentage of Hispanic/Mexican Americans. (Id. ¶ 39). Plaintiff is currently employed as a sergeant and has been a supervisor for over seven years. (Id. ¶¶ 19, 21). Plaintiff's direct supervisor is Captain Nashonda Howard, an African American female. (Id. ¶ 22). Plaintiff contends Captain Howard has subjected him to a hostile work environment, verbal abuse, harassment, [5] and intimidation because of his race and national origin. (Id.).

         On January 18, 2017, Plaintiff was in a meeting with Captain Howard and Lieutenant Donald Gary, an African American male. (Id. ¶ 23). During that meeting, Captain Howard gave Plaintiff an illegal order to “dispose of cases with dispositions from officers no longer” with the Birmingham police department. (Id.). She instructed Lieutenant Gary to ensure that Plaintiff followed the order and said she wanted “20 cases a week.” (Id.). On January 31, 2017, Plaintiff requested to meet with Chief A.C. Roper, an African American male, about the way he was being treated by Howard and the illegal order. (Id. ¶ 24).[6]

         On February 6, 2017, Plaintiff met with Captain Howard and Deputy Chief Irene Williams, an African American female. (Id. ¶ 25). Captain Howard told Plaintiff all paperwork that “needs to be forwarded up through the chain of command” needed “to go through her.” (Id.). Deputy Williams also questioned Plaintiff about the dispositions Howard ordered Plaintiff to accomplish. (Id.).

         The next day, on February 7, 2017, Plaintiff was notified by an officer under his supervision there was inventory missing from the property room. (Id. ¶ 26). The missing inventory was $2, 318.00. (Id.). Plaintiff immediately opened an investigation pursuant to the City of Birmingham Rules and Regulations. (Id.).

         On February 9, 2017, Plaintiff was involuntarily assigned to the radio room. (Id. ¶ 27). The next day he was involuntarily assigned to report review. (Id. ¶ 28). Additionally, Plaintiff alleges at some unspecified time he was replaced as the supervisor over the property room by Sergeant Ronald Crumbley, an African American male, “who began illegally clearing the cases as ordered by Howard.” (Id. ¶ 86).

         Plaintiff notified the proper chain of command regarding the missing money from the property room on February 13, 2017. (Id. ¶ 29). On February 16, 2017, Captain Howard and Greenberg[7] called Plaintiff into a “closed-door meeting” where he “was written up for violating the City of Birmingham Police Department's Rules and Regulations regarding an ‘Unusual Occurrence.'” (Id. ¶ 30). Plaintiff denies he violated the rules. (Id.). Additionally, during this meeting, Captain Howard told Plaintiff he could no longer work any overtime and was ordered to only work 8-hour days. (Id. ¶ 31). Captain Howard further stated that he could only work overtime if he made a formal request and that request was approved in advance. (Id.). Plaintiff asserts this restriction was only enforced against Plaintiff. (Id.).

         Plaintiff filed a Charge of Discrimination with the EEOC on March 1, 2017. (Id. ¶ 32). Defendant was notified of Plaintiff's EEOC charge on or about March 6, 2017. (Id. ¶ 33). Defendant provided a response to the EEOC charge on April 1, 2017, stating it has completed an internal investigation regarding the charge. (Id. ¶ 34). “Any internal investigation conducted by the Defendant would begin and end with the Chief of Police, A.C. Roper.” (Id. ¶ 35).

         On May 3, 2017, Plaintiff was called into a “closed-door meeting” with Deputy Williams regarding a request for overtime approval Plaintiff submitted on April 24, 2017. (Id. ¶ 36). Plaintiff's request for overtime was denied. (Id. ¶ 37). Other similarly situated African American sergeants, in particular Sergeant Teresa Colston and Sergeant Ronald Crumbley, were allowed to work overtime. (Id. ¶ 38).

         Plaintiff alleges he “is a good employee with many accolades and accomplishments with the City and is well qualified to hold his supervisory position with the City.” (Id. ¶ 20). The City of Birmingham has never outwardly acknowledged Plaintiff for any of his “long list of accolades.” (Id. ¶ 40). For example, although Plaintiff was the first Latino/Mexican American to be promoted to sergeant in the City of Birmingham Police Department, he was not recognized in the 2016 Birmingham Police Department yearbook with other historically first races and genders acknowledged. (Id.).

         Finally, at some unspecified time during his employment, Plaintiff lost the use of a take home car. (Id. ¶ 42).


         Defendant contends Plaintiff's amended complaint is due to be dismissed because it fails to state a cognizable claim for discrimination and/or retaliation. (Doc. 17 at 3-7). The court first addresses Plaintiff's discrimination claims and then moves to his retaliation claims.

         A. Discrimination Allegations

         “Disparate-treatment cases present ‘the most easily understood type of discrimination,' Teamsters v. United States, 431 U.S. 324, 335, n.15 (1977), and occur where an employer has ‘treated [a] particular person less favorably than others because of' a protected trait. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 985-86 (1988).” Ricci v. DeStefano, 557 U.S. 557, 577 (2009). A disparate treatment plaintiff must establish “that the defendant had a discriminatory intent or motive” for taking a job-related action. Id. (quoting Watson, 487 U.S. at 986). Such a plaintiff must also establish that a challenged employment action was materially adverse, viewed objectively from the perspective of a reasonable employee. See Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1238-40 (11th Cir. 2001); see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006) (discussing “material adversity” requirement in the context of Title VII's anti-retaliation provision, 42 U.S.C. § 2000e-3(a)).

         A Title VII complaint need not allege facts sufficient to make out a classic McDonnell Douglas[8] prima facie case, but it must provide enough factual matter, taken as true, to plausibly suggest intentional discrimination based on a protected characteristic. See Edwards v. Prime, Inc., 602 F.3d 1276, 1300-01 (11th Cir. 2010); Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1270 (11th Cir. 2004). A plaintiff may generally do so by alleging facts supporting that the employer treated him less favorably than a similarly situated individual outside his protected class, see Faulk v. City of Orlando, 731 F.2d 787, 790 (11th Cir. 1984); Glover v. Donahoe, 626 Fed.Appx. 926, 931 (11th Cir. 2015);[9] Wells v. Willow Lake Estates, Inc., 390 Fed.Appx. 956, 959 (11th Cir. 2010), or by similarly alleging that the employer replaced him with, or passed him over for an employment benefit or opportunity in favor of, someone outside of his class. See Jacobs v. Biando, 592 Fed.Appx. 838, 841 (11th Cir. 2014); Hughley v. Upson Cty. Bd. Of Commissioners, 696 Fed.Appx. 932, 935-36 (11th Cir. 2017). However, a plaintiff may also survive a motion to dismiss by pleading “a convincing mosaic” of circumstances, Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011), that do not involve such a comparator but still otherwise raise an inference of discriminatory intent. See El-Saba v. University of S. Ala., 2015 WL 5849747, *13, 18 (S.D. Ala. Sept. 22, 2015); Arafat v. School Bd. Of Broward Cty., 549 Fed.Appx. 872, 874 (11th Cir. 2013) (stating on review of a Rule 12(b)(6) dismissal that judgment for the defendant is appropriate “[i]f a plaintiff fails to show the existence of a similarly-situated employee [and] no other plausible allegation of discrimination is present.” (citing Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)); cf. Smith, supra (applying a similar standard to assess the sufficiency of the plaintiff's non-comparator evidence to raise a necessary prima facie inference of discriminatory intent at summary judgment); Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1255-56 (11th Cir. 2012) (“[A] plaintiff may use non-comparison circumstantial evidence to raise a reasonable inference of intentional discrimination and thereby create a triable issue.”). Such an inference might be created, for example, by allegations regarding “the employer's criticism of the plaintiff's performance in . . . degrading terms” that reference the plaintiff's protected characteristic, “invidious comments about others in the employee's protected group, … or the sequence of events leading to the plaintiff's discharge.” El-Saba, 2015 WL 5849747 at *13 (quoting Littlejohn v. City of New York, 795 F.3d 297, 312 (2d Cir. 2015)).

         1. Count One - ...

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