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Joyner v. City of Atlanta

United States District Court, N.D. Georgia, Atlanta Division

February 23, 2018

TERRY JOYNER, Plaintiff,
v.
CITY OF ATLANTA, CHIEF GEORGE TURNER, EARNEST FINLEY, and VAN HOBBS, In their individual capacity, Defendants.

          MAGISTRATE JUDGE'S NON-FINAL REPORT AND RECOMMENDATION

          LINDA T. WALKER UNITED STATES MAGISTRATE JUDGE

         Pending before this Court are Defendants City of Atlanta, Chief George Turner, Ernest Finley, and Van Hobbs' (“De fendants”) Motion to Dismiss Amended Complaint (Doc. 33). For the reasons outlined below, the Defendants' Motion to Dismiss should be GRANTED IN PART AND DENIED IN PART.

         DEFENDANT'S MOTION TO DISMISS

         I. Procedural Background

         On June 1, 2016, Plaintiff filed his initial Complaint in this case. (Compl., Doc. 1). Therein, Plaintiff brought claims for (1) discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”), against Defendants the City of Atlanta (the “City”), Chief George Turner (“Turner”), and Ernest Finley (“Finley”); (2) retaliation in violation of Title VII against the City, Turner, and Finley; (3) violations of the Georgia Whistleblower Act, O.C.G.A. § 45-1-4, against the City; and (4) violations of Plaintiff's First Amendment rights pursuant to 42 U.S.C. § 1983 (“Section 1983”) against Defendants Turner and Van Hobbs (“Hobbs”). (Id.).

         On July 20, 2016, Defendants filed their initial Motion to Dismiss arguing certain claims should be dismissed and/or failed to state a claim for relief for a number of reasons. (Doc. 7). Plaintiff filed a response in opposition to Defendants' initial Motion to Dismiss (Doc. 18), and a Consolidated Motion to Amend Complaint seeking leave of the Court to amend his original Complaint to add more facts to his claims. (Doc. 20). In Plaintiff's proposed Amended Complaint, Plaintiff asserted the same causes of action and added additional factual allegations in support of his causes of action. In the proposed Amended Complaint, Plaintiff claims that: (1) the City, Turner, and Finley discriminated against him on the basis of his race when they repeatedly denied him promotions between 2008 and 2015 in violation of Title VII; (2) the City, Turner, and Finley retaliated against him for his complaint of racial discrimination when they repeatedly denied him promotions between 2008 and 2015; (3) the City violated the Georgia Whistleblowers Act when the City reduced his compensation, took away his flextime, and launched an internal investigation against him after he accused Hobbs of fixing a ticket for a local politician's grandson and Turner of misusing City equipment across state lines for a personal purpose; and (4) Turner and Hobbs retaliated against him for exercising his First Amendment rights after he reported Turner's misuse of City equipment and reported Hobbs and Turner for fixing a ticket for a local politician's grandson, Hobbs and Turner reduced Plaintiff's compensation and took away his flextime, and Turner launched an unjustified internal affairs investigation against him. Plaintiff also included additional factual allegations in his proposed Amended Complaint to support (1) the causal connection between Plaintiff's alleged protected activities under Title VII and the Georgia Whistleblower Act and Defendants' alleged retaliation, and (2) the fact that his alleged speech was public and/or otherwise protected by the First Amendment. (Doc. 20-2).

         Because Plaintiff filed an Amended Complaint, this Court recommended that Defendants' original Motion to Dismiss be deemed moot and then reviewed Plaintiff's proposed Amended Complaint to determine whether the amendment should be permitted. (Doc. 29). The Court granted Plaintiff's Consolidated Motion to Amend in part, but determined that the proposed Title VII claims against Defendants Turner and Finley in their individual capacities should not be permitted because Title VII only grants relief against employers and not individual employees. Thus, Plaintiff's sole remaining Title VII claims for discrimination and retaliation were those against the City. Because the Court did not permit the Amendment with respect to the Title VII Claims against Defendant Finley, no claims remain against Defendant Finley and he should be TERMINATED AS A PARTY. This Court also denied Plaintiff's Consolidated Motion to Amend Complaint with regard to discrete employment actions that took place more than 180-days prior to the filing of Plainitff's June 18, 2015 charge of discrimination. (Id.).

         After Plaintiff's Amended Complaint was docketed, Defendants filed a Motion to Dismiss Plaintiff's Amended Complaint arguing Plaintiff's claims should be dismissed for failure to state a claim. (Doc. 33). In particular, Defendants contend that (1) Plaintiff's Title VII pattern and practice discrimination claim should be dismissed because such claims may only be asserted by the Government or brought as class claims;(2) Plaintiff's Title VII retaliation claim fails because Plaintiff cannot show a causal connection between his alleged 2008 racial discrimination complaint and his failure to be promoted in 2015; (3) Plaintiff's First Amendment retaliation claims against Turner and Hobbs should be dismissed because Defendants are entitled to qualified immunity; (4) Plaintiff's First Amendment retaliatory investigation claim against Turner fails as a matter of law because such a claim is not recognized in this jurisdiction, and in the alternative, Defendants are entitled to qualified immunity; (5) Plaintiff's Whistleblower Act claim should be dismissed because it is untimely and because Plaintiff fails to show a causal connection between his alleged protected activity and any adverse employment action; and (6) punitive damages are not available against the City under Section 1983 or Title VII. (Id.).

         II. FACTUAL BACKGROUND

         Plaintiff Terry Joyner (“Plaintiff”), a Caucasian man, presents the following factual allegations in support of his remaining claims. Plaintiff avers that he has had a distinguished, twenty-year law enforcement career with the Atlanta Police Department (APD), marked by awards, recognitions, and a blemish-free record. (Am. Compl. ¶¶ 8-17). Plaintiff also avers that he received the Peace Officer of the Year, the Police Medal of Valor, and the Medal of Honor awards during the course of his career. (Am. Compl. ¶¶ 10-12). Plaintiff asserts that he was on a “steady promotional track” within the APD prior to complaining about discrimination. (Am. Compl.¶¶ 18-20). In 2000, Plaintiff was promoted to investigator, and promoted again in 2002 to Sergeant. (Am. Compl. ¶¶ 18-19). On Plaintiff's Sergeant's exam, he ranked eleven out of ninety-one qualifying candidates for the sergeant position. (Am. Compl. ¶ 19). In 2007, Plaintiff was promoted to Lieutenant, and was ranked as eight out of seventy-one qualifying candidates for the lieutenant position. (Am. Compl. ¶ 20). Plaintiff contends that he remained on this “promotional fast track trajectory” until 2008, when he first complained of racial discrimination within the APD. (Am. Compl. ¶ 21).

         Plaintiff alleges he reported the racial discrimination[1] to his superior officer, Major Earnest Finley. (Am. Compl. ¶ 22). After Plaintiff told Finley about the discrimination, Finley went “bezerk” and began to scream at Plaintiff. (Am. Compl. ¶ 22). Plaintiff was later told by a fellow Lieutenant that Finley would “come after [Plaintiff] forever” since he complained about racial discrimination. (Am. Compl. ¶ 23). The day after Plaintiff reported his complaint, Finley told Plaintiff to begin an internal investigation about the alleged discrimination. (Am. Compl. ¶ 24). Instead, Plaintiff prompted an external investigation by reporting the discrimination to internal affairs, as required by APD policy. (Am. Compl. ¶ 24). Finley was outraged and “verbally scolded” Plaintiff for failing to keep the investigation internal. (Am. Compl. ¶ 24). By the time Plaintiff left Finley's office, he was transferred from his day watch commander position which afforded him weekends off, to a night watch patrol division which required him to work weekends. (Am. Compl. ¶ 24). After receiving this schedule change, Plaintiff reported Finley for violating his constitutional rights, which led to a meeting with the City Attorney. (Am. Compl.¶ 25). Shortly thereafter, Plaintiff was allowed to pick his work assignment. (Am. Compl. ¶ 25). Finley was subsequently promoted to Deputy Chief of Field Operations, a position in which he remained until 2014. (Am. Compl. ¶¶ 26-27).

         Plaintiff asserts that between the years of 2008 to the present (and while Finley was his superior), Defendants failed to promote him even though more than thirteen positions arose during that time period. (Am. Compl. ¶ 28). According to Plaintiff, thirteen of the sixty-three people who were ranked lower than him on the list of qualifying candidates for the Lieutenant position were promoted to the higher rank of Captain or Major although they were less qualified than him. (Am. Compl. ¶ 30). Plaintiff alleges many of the people promoted ahead of him had criminal arrests and extensive histories of APD complaints. (Am. Compl. ¶¶ 31-32). Plaintiff claims his failure to be promoted within the last eight years is a consequence of him reporting racial discrimination. (Am. Compl. ¶¶ 33-34). Plaintiff asserts that after making the complaint to Finley, Defendant[2] prohibited him from attending an external command training, completion of which is an essential qualification for those seeking promotion beyond the rank of Lieutenant. (Am. Compl. ¶ 33).

         Plaintiff also contends that Defendants have a pattern and practice of making strictly race based decisions by replacing positions of Captain and above with the same race of the superior officer who vacated his/her position. (Am. Compl. ¶ 35). For instance, Plaintiff claims that he was denied a promotion on January 1, 2015, because he is white. (Am. Compl. ¶¶ 35-37). According to Plaintiff, he was more qualified than Sharonne Steed, the black Lieutenant officer selected for the promotion. (Am. Comp. ¶ 36). Plaintiff asserts that he had six years of service as a Lieutenant in the zone the available position covered, including acting as Watch Commander, Criminal Investigations Commander, and Special Teams Commander. (Am. Compl. ¶ 36). Plaintiff also asserts that he had more commendations and experience as a law enforcement officer than Steed. (Am. Compl. ¶ 36).

         After Defendants refused to promote Plaintiff for the position which became available in January 2015, he sent a letter to the City Attorney alleging Turner and Hobbs engaged in illegal conduct and violated APD rules, APD regulations, and other laws. (Am. Compl. ¶ 37). Specifically, Plaintiff alleged that Turner abused his authority by misusing government resources, including using “government cars, paid APD officers, and high tech location-device equipment e.g., the ‘phone truck'- to cross state lines for the sole personal reason of locating Chief's Turner's son in Alabama.” (Am. Compl. ¶ 37). Plaintiff also requested an investigation into Defendants Turner and Hobbs' conduct of “fixing” lawfully issued tickets for a politician's grandson. (Am. Compl. ¶ 39). Plaintiff asserts that the politician's grandson never appeared in court and his tickets had not been entered into the system. (Am. Compl. ¶ 39). Plaintiff reported these allegations to Channel 2 News, the FBI, the City Attorney, and the Office of Professional Standards (“OPS”) for the Atlanta Police Department. (Am. Compl.¶ 39). The FBI contacted Defendants after Plaintiff reported Defendants' conduct. (Am. Compl. ¶ 47). When Turner and Hobbs learned about the letter, they allegedly - in retaliation - immediately reduced Plaintiff's pay and took away his flextime. (Am. Compl. ¶¶ 38-45). Additionally, Plaintiff avers Defendant Turner “instigated and continued” an internal affairs investigation of Plaintiff, although he knew Plaintiff was not guilty of an offense. (Am. Compl. ¶ 45). Plaintiff contends the investigation continued until Deputy Chief Spillane issued a “not sustained” internal affairs determination, meaning there was no evidence Plaintiff committed any wrongdoing. (Am. Compl. ¶ 46).

         III. LEGAL ANALYSIS

         Dismissal is warranted under Rule 12(b)(6) if, assuming the truth of the factual allegations in Plaintiff's Complaint, there is a dispositive legal issue that precludes relief. Neitzke v. Williams, 490 U.S. 319, 326-27 (1989); Brown v. Crawford Cty., 960 F.2d 1002, 1010 (11th Cir. 1992). In ruling on a 12(b)(6) motion, the court accepts the factual allegations in the complaint as true and construes them in the light most favorable to Plaintiff. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) (per curiam). Although it must accept well-pled facts as true, the court is not required to accept a plaintiff's legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Similarly, “unwarranted deductions of fact” in a complaint are not admitted as true for the purpose of testing the sufficiency of the plaintiff's allegations. Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005); see also Iqbal, 556 U.S. at 681 (stating conclusory allegations are “not entitled to be assumed true”).

         A complaint must be dismissed if the facts as pled do not state a claim for relief that is plausible on its face. See Iqbal, 556 U.S. at 678. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Factual allegations in a complaint need not be detailed but “must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and emphasis omitted).

         A. Plaintiff's ...


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