Johnson v. Fulton Cnty., CIVIL ACTION FILE NO. 1:17-CV-03921-AT-WEJ
| Decision Date | 12 April 2018 |
| Docket Number | CIVIL ACTION FILE NO. 1:17-CV-03921-AT-WEJ |
| Parties | KENNETH JOHNSON, Plaintiff, v. FULTON COUNTY, GEORGIA, RUBY HARDY, and KATHLEEN TOOMEY, Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
This matter is before the Court on defendants' Motion to Dismiss [14] and plaintiff's Motion for Leave to Amend [20]. For the reasons explained below, the undersigned GRANTS plaintiff leave to amend the Complaint, and RECOMMENDS that defendants' Motion to Dismiss be GRANTED IN PART and DENIED IN PART.
In response to an Order [12] dated January 5, 2018, plaintiff, Kenneth Johnson, filed a First Amended Complaint [13] against his former employer, Fulton County, Georgia (the "County") and two of his former supervisors, Ruby Hardy and Kathleen Toomey. He alleges three claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII")— retaliation, sex discrimination, and hostile work environment.1 (See Sec. Am. Compl. [13], Counts One-Three, respectively.) Mr. Johnson also alleges a gender-based discrimination claim under the Equal Protection Clause of the Fourteenth Amendment and a First Amendment retaliation claim, seeking relief for both under 42 U.S.C. § 1983. (Id., Counts Four-Five, respectively.)
The County and the individual defendants filed a Motion to Dismiss [14] the Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on February 2, 2018. Plaintiff filed a Response [18] on February 26, 2018. Defendants filed a Reply Brief [19] on March 12, 2018. Then, on March 14, 2018, plaintiff filed a "Motion for Leave to Amend the Complaint to Correct Scrivener's Errors and Inadvertent Omissions" [20]. Mr. Johnson attached as Exhibit A to his Response Brief a proposed Third Amended Complaint [20-1].
The procedural posture of this case is again problematic. The Court has before it a Motion to Dismiss the Second Amended Complaint, but also a Motion for Leave to Amend to file a Third Amended Complaint, which plaintiff contends corrects scrivener's errors or inadvertent omissions in the Second Amended Complaint.
If this Court grants plaintiff leave to amend, then the Third Amended Complaint would supersede the Second Amended Complaint. See Dresdner Bank AG v. M/V Olympia Voyager, 463 F.3d 1210, 1215 (11th Cir. 2006) () (internal quotation marks and citation omitted). Typically, the filing of an amended complaint renders moot an earlier-filed motion to dismiss. See Lowery v. Ala. Power Co., 483 F.3d 1184, 1219 (11th Cir. 2007). However, that rule is not applicable where, as here, there is no discernible difference between the Second and Third Amended Complaints.
Defendants . . .
Jordan v. City of Philadelphia, 66 F. Supp. 2d 638, 641 (E.D. Pa. 1999) ().
Mr. Johnson contends that he did not intend any substantive modifications of his claims in the Third Amended Complaint, but sought to correct what he calls "scrivener's errors" in the Second Amended Complaint. Therefore, the Motion to Dismiss will not be rendered moot if the Court allows the filing of the ThirdAmended Complaint. Thus, the Court first considers plaintiff's Motion for Leave to Amend [20].
Plaintiff seeks leave to file the Third Amended Complaint under Rule 15 of the Federal Rules of Civil Procedure, which provides in relevant part as follows: Fed. R. Civ. P. 15(a)(2). "Courts have interpreted these provisions liberally, in line with the Federal Rules' overall goal of resolving disputes, insofar as possible, on the merits and in a single judicial proceeding." Breckenridge Creste Apts., Ltd. v. Citicorp Mortgage, Inc., 826 F. Supp. 460, 463 (N.D. Ga. 1993) (internal quotation marks omitted). District courts have only limited discretion to deny a party leave to amend the pleadings. Espey v. Wainwright, 734 F.2d 748 (11th Cir. 1984). Thus, this Court should allow plaintiff leave to amend unless there is a substantial countervailing reason. See Grayson v. K Mart Corp., 79 F.3d 1086, 1110 (11th Cir. 1996). "In determining whether to grant leave to amend, a court may consider undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and the futility of the amendment." Id.
Plaintiff seeks to amend the Second Amended Complaint to remove one phrase that he says is inappropriately repeated five times )2 and to cure his failure to include defendant Fulton County's name in three paragraphs (id. ¶¶ 83-85). Because plaintiff filed the instant Motion [20] quickly after having the errors pointed out to him in defendants' Reply Brief, there has been no undue delay. Defendants do not point to any bad faith or dilatory motive on the part of the movant. While there has been some failure to cure deficiencies by amendments previously allowed, plaintiff contends that he seeks to amend to ensure that his claims are adequately asserted and the proper remedies are sought.
Given the governing standards, and given that the Third Amended Complaint seeks to correct only what plaintiff calls "scrivener's errors," the CourtGRANTS the Motion for Leave to Amend [20]. The Clerk is DIRECTED to docket the Complaint that plaintiff filed [20-1] as the Third Amended Complaint.
Federal Rule of Civil Procedure 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In ruling on a motion to dismiss, all of the factual allegations in the complaint must be accepted and construed in the light most favorable to the plaintiff. Young Apts., Inc. v. Town of Jupiter, Fla., 529 F.3d 1027, 1037 (11th Cir. 2008). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must allege "enough facts to state a claim that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the pleaded 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.
A motion to dismiss does not test the merits of a case, but only requires that "the plaintiff's factual allegations, when assumed to be true, 'must be enough to raise a right to relief above the speculative level.'" Mills v. Foremost Ins. Co.,511 F.3d 1300, 1303 (11th Cir. 2008) (quoting Twombly, 550 U.S. at 555).3 "'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. (quoting Twombly, 550 U.S. at 555); see also Iqbal, 556 U.S. at 679 () (quoting Fed. R. Civ. P. 8(a)(2)).
Plaintiff is an African-American male, and although he is perceived to be male, he openly exhibits feminine traits. (Third Am. Compl. ¶¶ 15-16.) He speaks at a higher pitch, maintains long and well-manicured nails, and often wears feminine clothes and accessories. (Id. ¶ 17.) Plaintiff often wears feminine hair styles and makes feminine gestures when he speaks. (Id. ¶ 19.)
Before his employment with the County, plaintiff worked at the Georgia Department of Public Health, which terminated him for "allegations of fraudulent use of a state rental car and the associated gasoline card." (Third Am. Compl. ¶¶ 24, 26.) Plaintiff claims that he was never issued a gas card and never used the assigned rental car fraudulently. (Id. ¶ 27.) However, because this termination occurred during his probationary period, plaintiff asserts that he was unable to challenge it. (Id. ¶ 28.)
When he subsequently sought employment with Fulton County, plaintiff filled out an employment application and participated in an employment interview. (Third Am. Compl. ¶ 29.) When asked on his Fulton County employment application if he had ever been discharged or asked to resign, plaintiff responded "yes," and stated that he had not met the probationary period. (Id. ¶ 30.) Plaintiff also informed Fulton County of the circumstances of his discharge during his in-person interview. (Id. ¶ 31.) Defendant Hardy attended that interview and was aware of the reason for plaintiff's termination from the Georgia Department of Public Health. (Id. ¶ 32.)
Plaintiff was hired following that interview, because he alleges that he worked for Fulton County within the Communicable Disease Prevention Branch of its Department of Health and Wellness. (Third Am. Compl. ¶ 18.) One of hissupervisors was Ms. Hardy, an African-American female who conforms to...
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