Henderson v. City of Birmingham

          MEMORANDUM OPINION ^[1]

          STACI G. CORNELIUS, U.S. MAGISTRATE JUDGE.

         The plaintiff, Erik Henderson, commenced this action pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981, naming the City of Birmingham as the defendant. (Doc. 1). Before the undersigned is the defendant's motion to dismiss Henderson's complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 4).^[2] For the reasons discussed below, the motion is due to be granted, and this action is due to be dismissed with prejudice.

         I. Allegations of Complaint

         Henderson is African America. (Doc 1 at ¶ 15). He has been employed by the defendant as a police officer since March 2007. (Id.). On January 9, 2017, a dispatcher for the Birmingham Police Department (the “BPD”) told Henderson to respond to a call from a citizen who wanted a theft report. (Id. at ¶ 19). Henderson asked Sergeant Charlie Newfield whether he should respond to the call or whether the desk officer should respond to the call, given Deputy Chief Cedric Stevens had instructed that due to a shortage of officers the desk officer should respond to citizens who walked in to obtain reports. (Id. at ¶¶ 18, 20). Sergeant Newfield got in Henderson's face, pointed his finger in a physically threatening manner, and stated in an angry, hostile tone, “[The dispatcher] gave you the call and you need to go answer it.” (Id. at ¶ 21). Henderson asked Sergeant Newfield why he was treating and talking to him so abusively. (Id. at ¶ 22). Sergeant Newfield replied, “Do you want me to write you up?” (Id.).

         Two things happened while Henderson was taking the citizen's report. First, Henderson noticed Sergeant Newfield was purposefully driving by slowly and observing Henderson's interaction with the citizen. (Id. at ¶ 23). Second, the citizen received a phone call from a BPD dispatcher, who asked the citizen questions in an apparent effort to elicit a complaint against Henderson. (Id. at ¶ 24). The dispatcher specifically asked the citizen whether he or she had any complaints. (Id.).

         Sergeant Newfield gave Henderson a Letter of Counseling for unnecessary use of a police radio in connection with this incident. (Id. at ¶ 25). Approximately four days before Henderson received the letter, which is a form of formal discipline, a similarly situated Caucasian officer identified as Melvin Godbee was instructed to stop arguing with a dispatcher over the radio but was not disciplined. (Id. at ¶¶ 25-26). Based on the foregoing, Henderson made a formal complaint of race discrimination against Sergeant Newfield to the City of Birmingham Human Resources Director, Peggy Polk. (Id. at ¶ 27).

         Some time after the dispatch incident, Deputy Chief Stevens issued a direct regarding procedures for checking a motel located within Henderson's patrol area. (Id. at ¶ 28). Sergeant Newfield instructed Henderson not to follow Deputy Chief Stevens' order. (Id. at ¶ 30). Henderson characterizes Sergeant Newfield's behavior as micromanagement, close scrutiny of and interference with his job performance, and interference with his working conditions. (Id. at ¶¶ 31-32). Similarly situated Caucasian officers were allowed to follow Deputy Chief Stevens' order without inference from Sergeant Newfield. (Id. at ¶ 33).

         Henderson spoke with Sergeant Norman Adams and Lieutenant Joe Roberts about the motel-check incident. (Id. at ¶ 34). He asked Lieutenant Roberts to prevent Sergeant Newfield from harassing him. (Id. at ¶ 35). Lieutenant Roberts told Henderson he could not do anything about Sergeant Newfield's behavior and Henderson had nothing about which to complain but that he would speak with Sergeant Newfield. (Id. at ¶ 36). Henderson also made a formal complaint to Polk regarding the motel check incident. (Id. at ¶ 37). Polk told Henderson she had received similar complaints from approximately seven other African American officers and would be meeting with Chief A.C. Roper regarding Sergeant Newfield. (Id.).

         On July 15, 2017, Officer Robert Lewis, Jr., overheard Sergeant Newfield discussing Henderson's criminal record with another sergeant. (Id. at ¶ 38). The only way Sergeant Newfield could have obtained his information was by running an unauthorized “NCIC/ACIC” search in violation of Henderson's rights. (Id.). Henderson made a formal complaint to Lynn Shobe regarding this incident. (Id. at ¶ 39).

         On September 21, 2017, Henderson filed a grievance with the Personnel Board of Jefferson County (“PBJC”), claiming the BPD was not conducting a proper investigation into his complaints of race discrimination. (Id. at ¶ 43). In response to the grievance, Sergeant Newfield stated he had been cleared of wrongdoing by the BPD's Internal Affairs Division (the “IAD”). (Id. at ¶ 40). Sergeant Newfield's wife, Rebecca Herrara, is a sergeant in the IAD. (Id. at ¶ 41). Chief Roper took the position he was not required to respond to Henderson's grievance because it had not been timely filed. (Id. at ¶ 42). Henderson alleges the grievance “was intentionally held and not submitted within the proper time.” (Id.).

         On October 23, 2017, Henderson received a phone call from IAD Officer Tasha Thomas, asking to inspect a ring Henderson's family was purchasing to celebrate his tenth anniversary with the BPD. (Id. at ¶¶ 45-46). The ring was to be a replica of Henderson's badge. (Id. at ¶ 45). Henderson told Officer Thomas that while the ring had been ordered, it had not been completed or paid for. (Id. at ¶ 46). Henderson asked Officer Thomas whether he had violated a rule or regulation, and Officer Thomas answered in the negative. (Id. at ¶ 47).

         IAD Lieutenant David Greyson also called Henderson and directed him to produce the ring for inspection on the following day, October 24, 2017. (Id. at ¶¶ 48-49). Henderson told Lieutenant Greyson he did not yet have possession of the ring. (Id. at ¶ 49). He also asked Lieutenant Greyson what rule or regulation he had violated, and Lieutenant Greyson stated none. (Id. at ¶ 50). Lieutenant Greyson had obtained a picture of the ring from someone else and could determine no copyright laws had been violated. (Id. at ¶ 51).

         Henderson filed a grievance with the PBJC regarding the ring incident. (Id. at ¶ 54). Chief Roper responded to the grievance by stating he had instructed the IAD to investigate a credible complaint against Henderson regarding a badge replication. (Id. at ¶ 55). Henderson questions the sincerity of this response because Officer Thomas and Lieutenant Greyson told him that he had not violated a rule or regulation and never indicated he was under investigation and because these officers did not follow investigation procedures when questioning him, such as by tape recording the conversations. (Id. at ¶¶ 52, 55).

         On January 16, 2018, Sergeant Newfield filed a complaint against Henderson for leaving his beat to provide a police presence at the Civil Rights Museum on Martin Luther King, Jr. Day after observing a large crowd gathered. (Id. at ¶ 56). Sergeant Newfield investigated his own complaint. (Id. at). Similarly situated Caucasian officers have performed duties off their beats without recourse. (Id. at ¶ 57).

         On March 21, 2018, Henderson filed a charge of discrimination with the Equal Employment Opportunity Commission (the “EEOC”). (Id. at ¶ 11). Henderson received a notice of suit rights from the EEOC on September 16, 2018. (Id. at ¶ 12).

         On October 18, 2018, Henderson received a letter documenting verbal counseling he had received because his productivity had allegedly been unacceptable. (Id. at ¶ 58). The BPD does not have “quota” or monthly minimum requirements for productivity. (Id. at ¶ 59).

         In addition to the foregoing allegations, Henderson identifies by name seven Caucasian officers he alleges are similarly situated, without alleging the officers received more favorable treatment from the defendant or how. (Id. at ¶ 108 (“Other similarly situated employees include Jonathan Robbins, Evan Orazine, Kyle Breece, Carl Endert, Ralph Burgin, Michael Raspbury and Christopher Graham.”)).

         Based on various combinations of the foregoing allegations, Henderson asserts claims for race discrimination and retaliation. He brings each of these claims under Title VII and § 1981.^[3] Although the defendant has filed a motion to dismiss Henderson's complaint, that motion contains substantive argument only with respect to one claim. (Doc. 4). Nonetheless, in the interest of the efficient disposition of this action and because Henderson has responded based on the assumption the defendant's ...