Perry v. Alabama Beverage Control Bd.
| Decision Date | 23 September 2011 |
| Docket Number | Case No. 2:11cv464-WHA |
| Parties | KESIA J. PERRY, VALENCIA AARON, and STACY D. TAYLOR, Plaintiffs, v. ALABAMA BEVERAGE CONTROL BOARD, (STATE OF ALABAMA), CHIEF JEFF ROGERS, in his individual capacity, LT. KENNETH DAVIS, in his individual capacity, JEAN TURNER, in her individual capacity, Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
This cause is before the court on a Motion to Dismiss (Doc. #18), filed by Defendants Alabama Beverage Control Board, Jeff Rogers, Stan Goolsby, Kenneth Davis, and Jean Turner.
Kesia J. Perry filed a Complaint in this case on June 14, 2011, bringing claims against the Alabama Beverage Control Board, and against Chief Jeff Rogers and Stan Goolsby in their individual capacities. She amended the Complaint, adding Valencia Aaron as a plaintiff and Lt. Kenneth Davis, in his individual capacity, as a defendant. A Second Amended Complaint was then filed, adding Stacy D. Taylor as a plaintiff and Jean Turner, in her individual capacity, as a defendant. The Plaintiffs bring the following claims: Kesia Perry-Title VII race discrimination and hostile environment against the ABC Board (Count I); Kesia Perry-retaliation against the ABC Board (Count II); Kesia Perry- 42 U.S.C. § 1983 equal protection and 42 U.S.C. § 1981, asserted under § 1983, claims against Jeff Rogers and Stan Goolsby for race discrimination andracial harassment (Count III); Kesia Perry- § 1981, under § 1983, retaliation claim against Jeff Rogers, Mark Hatfield,1 and Stan Goolsby (Count IV); Valencia Aaron-Title VII race discrimination and hostile work environment against the ABC Board (Count V); Valencia Aaron-retaliation against the ABC Board (Count VI); Valencia Aaron- 42 U.S.C. § 1983 equal protection and 42 U.S.C. § 1981, under § 1983, claims against Jeff Rogers, Stan Goolsby, Kenneth Davis (Count VII); Valencia Aaron-§ 1981, under § 1983, retaliation claim against Rogers, Stan Goolsby, and Kenneth Davis (Count VIII); Stacy D. Taylor-Title VII race discrimination and hostile work environment against the ABC Board (Count IX); Stacy D. Taylor-retaliation against the ABC Board (Count X); Stacy D. Taylor- 42 U.S.C. § 1983 equal protection and 42 U.S.C. § 1981, under § 1983, claims against Jeff Rogers, Stan Goolsby, Jean Turner, and Kenneth Davis (Count XI); and Stacy D. Taylor-§ 1981, under § 1983, retaliation claim against Rogers, Jean Taylor, and Stan Goolsby (Count XII).
For reasons to be discussed, the Motion to Dismiss is due to be GRANTED in part and DENIED in part.
The court accepts the plaintiff's factual allegations as true, Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), and construes the complaint in the plaintiff's favor, Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). In analyzing the sufficiency of pleading, the court is guided by a two-prong approach: one, the court is not bound to accept conclusory statements of the elements of a cause of action and, two, where there are well-pleaded factual allegations, a courtshould assume their veracity and then determine whether they plausibly give rise to entitlement to relief. See Ashcroft v. Iqbal, _ U.S. _, 129 S.Ct. 1937, 1949-50 (2009). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Id. (citation omitted). To survive a motion to dismiss, a complaint need not contain "detailed factual allegations," but instead the complaint must contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. The factual allegations "must be enough to raise a right to relief above the speculative level." Id. at 555.
There are two sources of fact relevant to the resolution of the pending Motion to Dismiss. One is the facts as they are alleged in the complaint. The second is the determination of the Alabama State Personnel Board Administrative Law Judge, attached as an exhibit to the motion, which will serve as the basis for the Defendants' preclusion defense.
The allegations of the Plaintiffs' twenty-nine page Second Amended Complaint are summarized as follows:
Kesia Perry ("Perry"), an African-American female, was hired on August 1, 2007 as an ASA II for the ABC Board. While working this position, Perry received excellent performance reviews, but received no raises because of a raise freeze. Early in 2010, Perry asked to be cross-trained as a divisional operation specialist so that she could replace her soon-to-retire supervisor. After she asked about being cross-trained for another position, Chief Rogers ("Rogers")requested another ASA II slot. Summer Childress ("Childress"), a white female who was Rogers' sister-in-law, was hired for the new ASA II spot. Perry learned from publically available online information that Childress was started at the top pay range for an ASA II which meant that she was earning nearly twice as much per pay period than Perry was. Accordingly, Perry voiced a complaint with Sam Goolsby ("Goolsby") in Human Resources and with Rogers about this pay discrepancy.
Instead of investigating the discrepancy, Perry was written up for being disruptive and for misuse of a state-owned computer. After this incident, some of Perry's job duties were given to Childress. Furthermore, Childress was cross-trained for the divisional operation specialist position and ultimately hired into the division operation specialist position which Perry had previously inquired about. After losing the job to Childress, Perry was involuntarily transferred to District 10 by Rogers. Perry was also told not to work with Andy Lard, an agent whom she was dating. Ultimately, Lard was terminated and arrested, and Perry became anxious because of the ABC agents that were constantly watching her. Due to the stress, Perry was encouraged to take family and medical leave by her physician in November of 2010.
When Perry returned from leave, she was assigned to work with Goolsby who had been involved with her complaint about pay discrimination. As Perry had to work more with Goolsby, she told him that he was not trustworthy because he let Rogers and others use racial epithets. Also at this time, Mac Gibson became the new Commissioner of the ABC Board. He scheduled a meeting with Perry in which he advised against suing the state.
Before December 16, 2010, Plaintiff Valencia Aaron ("Aaron"), an African-American female, was one of only two African-American female ABC agents out of about 60-80 agents.The second African-American female was hired on the same day as Aaron's first State Personnel Board hearing concerning workplace racial discrimination.
Aaron was hired on December 29, 2005, as an ABC Enforcement Agent and underwent the normal probationary period. Afterwards her probationary period was extended for her to complete APOSTC training. Despite receiving high performance marks, she had her probationary period extended yet again in order for her supervisors to continue monitoring her. Aaron witnessed no other sort of extended probationary period for any white male agents.
Aaron, prior to starting at ABC and during the time she was employed there, received extensive training: nine years with the Department of Corrections in which she acted as a sergeant performing supervisory and administrative work; member of the Air National Guard since 2000 in which she performed administrative tasks; Bachelor's degree in Criminal Justice from Faulkner University; Associate's degree in Psychology from Troy University; Associate degree in Armament Systems from the Community College of the Air Force; and APOST certification. Accordingly, Aaron was added to the sergeant registry which is used to determine promotions. Since being added to the register, Aaron has not seen any sergeant position openings posted. She has not been contacted or interviewed for any sergeant position. However, in June of 2010, James Roberts, a white male with less seniority, was promoted to sergeant to fill a newly created position. Therefore, Aaron filed a charge with Equal Employment Opportunity Commission on August 9, 2010 and a complaint with the State Personnel Department on August 10, 2010. Shortly after this, she took FMLA leave for knee surgery.
During her leave, her work evaluation was left on her desk and she was not notified of its completion. The work evaluation was markedly downgraded from the previous year and she wasnot given proper warning per State Personnel Rules. Moreover, she could not contest the findings since she was out on FMLA leave.
Once she returned from knee surgery, she was given work assignments which required extensive standing. She had volunteered for this duty previously, but it was difficult because of her knee condition to continue it post-surgery. No white male agents had to perform this same duty.
Furthermore, after her State Personnel Hearing, Kenneth Davis ("Davis") instituted new rules for District 10, Aaron's district, which he used to target Aaron and the minority agents that had testified on Aaron's behalf-Steve McKitt and Manny Orozco. On a particular occasion in January 2011, Davis held a meeting at which Aaron spoke out about the racial discrimination present at her district, and was subsequently punished by Davis and Rogers for this complaint.
Aaron also witnessed the widespread and systematic surveillance of African-American agents by ABC's officers. She also witnessed the favorable treatment that white agents were given by Rogers.
Plaintiff Stacy Taylor ("Taylor"), an African-American male, was an agent for the ABC Board from January 19, 2007 to January 29, 2010, at which time he was constructively discharged. Taylor received only positive comments during his work evaluations, yet in ...
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