Bogus v. City of Birmingham
| Decision Date | 11 April 2018 |
| Docket Number | Case No. 2:17-cv-00827-TMP |
| Parties | KESHA LASHAWN BOGUS, Plaintiff, v. CITY OF BIRMINGHAM, ALABAMA, et al. , Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
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. TheSupreme 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) ().
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 fellowfraternity 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: (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 andhaving 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 (Complain...
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