United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION 
G. CORNELIUS, U.S. MAGISTRATE JUDGE.
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). For the reasons discussed below, the
motion is due to be granted, and this action is due to be
dismissed with prejudice.
Allegations of Complaint
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
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.).
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).
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).
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.).
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).
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.).
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).
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).
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).
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).
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).
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).
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
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. 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 ...