United States District Court, N.D. Alabama, Southern Division
RANDY M. MARTINEZ, Plaintiff,
CITY OF BIRMINGHAM, Defendant.
MEMORANDUM OPINION AND ORDER
E. OTT CHIEF UNITED STATES MAGISTRATE JUDGE
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). Specifically,
Plaintiff alleges he was discriminated and retaliated against
because of his race and national origin. (Id.).
Defendant moves to dismiss the amended
complaint 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.
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)).
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)).
FACTUAL ALLEGATIONS 
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,  and intimidation because of his race and
national origin. (Id.).
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).
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
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.).
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).
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 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.).
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).
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).
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.).
at some unspecified time during his employment, Plaintiff
lost the use of a take home car. (Id. ¶ 42).
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.
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. §
VII complaint need not allege facts sufficient to make out a
classic McDonnell Douglas 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); 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)).
Count One - ...