Strang v. THE CITY OF ALBANY, GEORGIA et al, No. 1:2012cv00072 - Document 66 (M.D. Ga. 2013)
Court Description: ORDER granting 37 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 39 Motion to Dismiss for Failure to State a Claim. The case shall proceed on the following claims: First Amendment retaliation against Lott and the City of Albany arising from Strangs termination; First Amendment retaliation against Davis from retaliatory acts other than termination; Race discrimination from disparate treatment under 42 U.S.C § 1983 against Lott and the City of Albany; Race discrimination from a hostile work environment under § 1983 against Davis. The rest of the claims and related defendants are Dismissed. Ordered by Judge W. Louis Sands on 9/12/2013. (bcl)
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Strang v. THE CITY OF ALBANY, GEORGIA et al Doc. 66 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E MID D LE D ISTRICT OF GEORGIA ALBAN Y D IVISION KATHLEEN STRANG, : : : : : : : : : : Plaintiff, v. CITY OF ALBANY, GEORGIA et al., Defendants. CASE NO.: 1:12-CV-72 (WLS) ORD ER Before the Court are Defendant Melanie Slanton’s Motion to Dism iss (Doc. 37) and Defendants the City of Albany, Willie Adam s, Dorothy Hubbard, Christopher Pike, Roger Marietta, Bob Langstaff, Tom m ie Postell, Alfred Lott and C. Nathan Davis’ Motion to Dism iss (Doc. 39). For the reasons that follow, Slaton’s m otion to dism iss is GRAN TED and the City Defendants’ Motion to Dism iss is GRAN TED in p art and D EN IED in p art. I. Pro ce d u ral Po s tu re This is a 42 U.S.C. § 1983 action against the City of Albany, Georgia, an d its m ayor, city com m issioners, city attorney, and a private attorney hired to handle the plaintiff’s term ination. Plaintiff Kathleen Strang, a form er assistant city attorney, claim s Defendants retaliated against her for exercising her First Am endm ent rights and discrim in ated against her on the basis of race. Strang filed a thirty-five-page, 274paragraph com plaint containing these allegations on J une 15, 20 12. The Court ordered her to file a m ore definite statem ent. Strang’s m ore definite statem ent, a Second Am ended Com plaint, is now the object of two m otions to dism iss for failure to state a claim an d qualified im m unity. 1 Dockets.Justia.com The am ended com plaint alleges the following. From March 20 0 6 to J une 20 10 , Strang worked in the City Attorney’s Office under Defendant City Attorney C. Nathan Davis. Strang claim s that, because of a “policy of institutional discrim ination in favor of black em ployees,” Davis, a white m an, treated Strang, a white wom an, less favorably than black em ployees. Davis allegedly also sought to deflect allegations of racism against him self by painting Strang as racist against black em ployees. The com plaint alleges that “Davis routinely treated [Strang] with disrespect” and “on one occasion” belittled her in front of other em ployees. Davis would also disrupt Strang’s conversations by propping open doors and following Strang into the break room and sitting with her while she talked to friends. Unnam ed defendants put Strang in a counseling program after one of the office secretaries accused Strang of being racist. In 20 0 8, J enise Sm ith, a black wom an, began working at the City Attorney’s Office a few hours daily as an unlicensed intern. When Sm ith arrived, a paralegal and Strang told each other Davis would offer Sm ith a job because she was black. Strang alleges Davis treated Sm ith with respect and gave her training and professional opportunities he did not give her. For exam ple, Davis subm itted a joint legal opinion to the city with Sm ith, describing her as an “assistant city attorney,” when she was not licensed to practice law. Davis also allowed Sm ith to give a presentation to the City Com m ission and told Strang he would never allow her to do the sam e. Even though Davis told Strang he would not authorize any out-of-state training, he authorized Sm ith to travel to Washington, D.C., for training. Meanwhile, Davis required Strang to do clerical duties when the office paralegal was on m aternity leave, though the office had two secretaries. He told Strang, however, not to criticize Sm ith for never answering the phone. At the sam e tim e, Davis allegedly 2 tried to underm ine Strang’s work by denying her access to evidence, destroying evidence, an d cutting her out of office com m unications. In March 20 10 , Strang found a handgun in Davis’ office. Strang reported her finding to the City Equal Em ploym ent Opportunity (EEO) m anager “in confidence, because she was concerned she would be fired” for reporting it. “The EEO m anager judged Davis’ action to be an act of workplace violence, an d without [Strang’s] knowledge im m ediately reported this discovery to the assistant city m anager.” City m anager Alfred Lott and Mayor Willie Adam s m et with Davis to discuss the handgun. Lott and Adam s then suspended Davis for three days. Following his suspension, Davis allowed office staff to require Strang to attend a m andatory m eeting that he did not attend. He also “authorized and/ or condoned” office staff to “belittle, berate, abuse, and attack” Strang and “to repeatedly dem and that she apologize to them for having ‘em barrassed’ the office by reporting” Davis. About one week later, Davis dem anded that Strang resign for being “too disruptive” to the office. Strang refused. A few days later, Mayor Adam s, Davis, an d City Com m issioners Dorothy Hubbard, Christopher Pike, Bob Langstaff, Roger Marietta, and Tom m ie Postell m et in a closed, executive session to discuss Strang’s em ploym ent. During the executive session, the com m ission decided to fire Strang, even though “they had no authority to do so” and “no discretion to consider her em ploym ent.” The defendants then “instigated and/ or encouraged local m edia coverage” of the incident. A local reporter told Strang that “[e]veryone knows it’s about the gun.” Adam s, Marietta, Postell, Pike, Hubbard, an d Langstaff held a second executive session to hear eviden ce and argum ent regarding Strang’s em ploym ent. In connection with their review of Strang’s em ploym ent, som e of the defendants hired Melanie Slaton, 3 a private attorney, to handle the term ination. Slaton m et with Strang, ostensibly to discuss her grievance against Davis. During the m eeting, however, Slaton did not ask Strang questions about her grievance but inform ed Strang that the defendants “would not tolerate” her continued em ploym ent with the city. During her representation, “Slaton acted as an interested party . . . because she wanted to handle em ploym ent issues on a contract basis for the City, instead of [Strang] handling such m atters.” Because the city com m issioners could not fire Strang, they directed city m anager Lott to do so. Slaton, Lott, and Davis “accused her of legal ‘negligence’ for failing to observe a deposition that [Strang] in good faith thought had been cancelled, in a case which [Strang] alone analyzed properly and for which [she] secured sum m ary judgm ent for the city.” During the term ination appeal, Slaton presented “racially inflam m atory testim ony” by “falsely calling [Strang] legally negligent and racist.” Strang alleges that Lott called her racist an d fabricated allegations against her. He allegedly told another person that he “thought a black em ployee would have been justified if she physically hit [Strang].” Slaton also allegedly portrayed Strang as being racist against black em ployees, by, for exam ple, eliciting testim ony Strang called another em ployee a “black bitch.” Strang also alleges that city com m issioner Pike “called the City EEO m anager a ‘liar’ for disputing allegations of ‘racism ’ against [Strang], despite the fact he did not know [Strang] but did know that [Strang] had black friends.” Strang claim s defendants replaced her with a black attorney. After Strang’s term ination, the City, Slaton, and Davis appealed her award of unem ploym ent benefits. Strang claim s the City is liable for these actions because the actors were its agents and “were com pletely under its control at all tim es relevant to this action.” Addition ally, she asserts that the “City defendants allowed, condoned, and ratified the abusive, hostile work Environm ent [sic] created and fostered by defendant Davis.” 4 Strang has sued all of the defendants, except the city of Albany, in their in dividual capacities. II. Mo tio n to D is m is s Stan d ard s Federal Rule of Civil Procedure 12(b)(6) perm its a party to assert by m otion the defense of failure to state a claim upon which relief can be granted. A Motion to Dism iss a Plaintiff’s com plaint under Rule 12(b)(6) should not be granted unless the Plaintiff fails to plead enough facts to state a claim to relief that is plausible, and not m erely just conceivable, on its face. Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7). “Dism issal for failure to state a claim is proper if the factual allegations are not ‘enough to raise a right to relief above the speculative level.’” Edw ards v. Prim e, Inc., 60 2 F.3d 1276, 1291 (11th Cir. 20 10 ) (quoting Rivell v. Private Health Care Sy s., Inc., 520 F.3d 130 8, 130 9 (11th Cir. 20 0 8)). “Stated differently, the factual allegations in the com plaint m ust ‘possess enough heft’ to set forth ‘a plausible entitlem ent to relief.’” Edw ards, 60 2 F.3d at 1291 (quoting Fin. Sec. Assurance, Inc. v. Stephens, Inc., 50 0 F.3d 1276, 1282 (11th Cir. 20 0 7)). While the Court m ust conduct its analysis “accepting the allegations in the com plaint as true and construing them in the light m ost favorable to the Plaintiff,” Hill v. W hite, 321 F.3d 1334, 1335 (11th Cir. 20 0 3), in evaluating the sufficiency of a Plaintiff’s pleadings the Court must “m ake reasonable inferences in [p]laintiff’s favor, ‘but [is] not required to draw Plaintiff’s inference.’” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 20 0 9) (quoting Aldana v. Del Monte Fresh Produce, N .A., Inc., 416 F.3d 1242, 1248 (11th Cir. 20 0 5)), abrogated on other grounds by Moham ad v. Palestinian Auth., 132 S. Ct. 170 2 (20 12). The Suprem e Court instructs that while on a Motion to Dism iss “a court m ust accept as true all of the allegations contained in a com plaint,” this principle “is inapplicable to legal conclusions,” which “m ust be supported by factual al5 legations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (20 0 9) (citing Tw om bly , 550 U.S. at 555, for the proposition that courts “are not bound to accept as true a legal conclusion couched as a factual allegation” in a com plaint). III. D is cu s s io n Despite the Court’s num erous attem pts to focus her filings, Strang’s Second Am ended Com plaint and various responses are not m odels of clarity. The Court nevertheless gleans the following causes of action from her com plaint: (1) First Am endm ent retaliation arising from her term ination; (2) First Am endm ent retaliation arising from other alleged retaliatory acts; (3) race-based hostile work environm ent; and (4) racebased disparate treatm ent. A. In d ivid u al Liability Before turning to Strang’s specific causes of action, the Court dism isses a num ber of im proper parties from Strang’s first and fourth claim s. Strang sues Defendants Adam s, Hubbard, Pike, Marietta, Langstaff, Postell, Lott, Davis and Slaton in their individual capacities alone. To hold a governm en t official individually liable under Section 198 3, the official m ust be the official “decisionm aker” for the aggrieved action. Kam ensky v. Hillsborough County , 148 F. App’x 878, 879 (11th Cir. 20 0 5); Redding v. Tuggle, No. CIVA10 5CV-2899WSDLTW, 20 0 7 WL 2462641, at *28 (N.D. Ga. J ul. 11, 20 0 7). An official decisionm aker is one who has power to m ake the com plained-of decisions. See Quinn v. Monroe County , 330 F.3d 1320 , 1326– 27 (11th Cir. 20 0 3). An official who has no power to term inate an individual, only to recom m end that action, cannot be held in dividually liable under Section 1983 for claim s arising out of the term ination. Kam ensky , 148 F. App’x at 8 80 ; Sanders v. City of Selm a, No. Civ.A.0 4-754 B, 20 0 5 WL 3411342, at *4 (S.D. Ala. Dec. 13, 20 0 5). 6 In several paragraphs in her com plaint, Strang alleges that Davis, the city com m issioner defendants, and the m ayor had no authority to fire her. Rather, “because they lacked legal authority [to fire her], they directed their agent defen dant Lott to fire Plaintiff.” Strang also claim s that “[s]hortly [after her term ination] defendants m ayor and/ or com m issioners enacted an ordin ance to give them selves such legal authority, because they were not able to fire Plaintiff directly and had to direct defendant Lott to do it for them .” Two of Strang’s legal theories—First Am endm ent retaliation and disparate treatm ent—are prem ised on her term ination. But because the com plaint alleges that only Lott had authority to fire her and actually carried out that action, he alone can be individually liable for these claim s. Therefore, the Court dism isses Adam s, Hubbard, Pike, Marietta, Langstaff, Postell, Davis and Slaton from the First Am endm ent retaliation claim arising from her term ination and the disparate treatm ent claim . As the com plaint alleges, they had n o authority to fire Strang, so they cannot be individually liable for constitutional violations allegedly arising from her term ination. B. Claim s again s t th e City o f Alban y City Defendants urge the Court to dism iss the City of Alban y because Strang has failed to allege a viable theory of municipal liability. “Municipal liability m ay arise with regards to an em ploym ent decision, such as a term in ation, provided that the decisionm aker ‘possesses final authority to establish m unicipal policy with respect to the action ordered.’” Quinn, 330 F.3d at 1325 (quoting Pem baur v. City of Cincinnati, 475 U.S. 469 (1986)). Here, Strang states a plausible claim for relief against the city for disparate treatm ent and First Am endm ent retaliation because the com plaint contains sufficient facts to suggest Lott was the final policym aker for adverse em ploym ent decisions. 7 C. Firs t Am e n d m e n t Re taliatio n Defendants Lott and the City of Albany, the only rem aining defendants on Strang’s retaliatory term ination claim , argue Strang fails to state a First Am endm ent retaliation claim because (1) she spoke as an em ployee on a m atter of personal concern and (2) their interests as em ployers outweigh Strang’s interest in free speech. The Court finds both argum ents unpersuasive. The First Am endm ent to the United States Constitution, as incorporated through the Fourteenth Am endm ent, prohibits governm ent actors from unduly abridging freedom of speech. U.S. Const. am end. I. The Suprem e Court has long held that citizens do not relinquish First Am endm ent protection when they accept public em ploym ent. Pickering v. Bd. of Educ. of Tw p. High Sch. Dist. 20 5, W ill County , Illinois, 391 U.S. 563, 568 (1968 ). And it follows that a public em ployer m ay not fire its em ployees for exercising First Am endm ent rights. Vila v. Padron, 484 F.3d 1334, 1339 (11th Cir. 20 0 7) (citing Rankin v. McPherson, 483 U.S. 378 , 38 3 (1987)). At the sam e tim e, a public em ployee’s interest in discussing m atters of public concern m ust be balanced against the em ployer’s interest “in prom oting the efficiency of the public services it perform s through its em ployees.” Pickering, 391 U.S. at 568 . Federal courts therefore apply a three-step test to determ ine whether an em ployee’s speech is protected under the First Am endm ent: a plaintiff m ust show (1) that the speech can be fairly characterized as relating to m atter of public concern, (2) that her interests as a citizen outweigh the interests of the city as an em ployer, and (3) that the speech played a substantial or m otivating role in the governm ent’s decision to take an adverse em ploym ent action. E.g., Akins v. Fulton County , 420 F.3d 1293, 130 3 (11th Cir. 20 0 5). 8 i. W h e th e r Stran g s po ke as a citize n o n a m atte r o f p u blic co n ce rn To receive First Am en dm ent protection, Strang m ust show, as a threshold m atter, that she spoke as a citizen on a m atter of public concern. Rankin v. McPherson, 48 3 U.S. 378 , 384 (1987). Speech of a public concern “m ust relate to a m atter of political, social, or other con cern to the com m unity.” W atkins v. Bow den, 10 5 F.3d 1344, 1353 (11th Cir. 1997). The First Am endm ent is gen erally not im plicated when the em ployee speaks only on m atters of personal concern. Connick v. My ers, 461 U.S. 138, 146 (1983). But “[e]ven if [a plaintiff] discussed private concerns regarding [her] work environm ent . . . that does not disqualify [her] from protection. It is well understood that ‘[a]n em ployee’s speech will rarely be entirely private or entirely public.’” Akins, 420 F.3d at 130 4 (quoting Morgan v. Ford, 6 F.3d 750 , 754 (11th Cir. 1993)). Therefore, courts look to determ ine whether the “m ain thrust” of the em ployee’s speech is a m atter of public concern. Id. (quoting Morgan, 6 F.3d at 654– 55). The answer to that question “m ust be determ ined by the content, form , and context of a given statem ent, as revealed by the whole record.” Connick, 461 U.S. at 147– 48. Additionally, the public em ployee m ust speak on a m atter of public concern as a citizen, not an em ployee, to receive First Am endm ent protection. Garcetti v. Ceballos, 547 U.S. 410 , 421 (20 0 6). “[W]hen public em ployees m ake statem ents pursuant to their official duties, the em ployees are not speaking as citizens for First Am endm ent purposes, an d the Constitution does not insulate their com m unications from em ployer discipline.” Id. The Court finds Strang’s com plaint contains sufficient detail to find she spoke as a citizen on a m atter of public concern. Generally speaking, the public has a keen interest in discovering wrongdoing or breaches of the public trust on the part of its public officials. See id. 148– 49 (“Nor did Myers seek to bring to light actual or potential wrong9 doing or breach of public trust on the part of Connick and others.”); Garcetti, 547 U.S. at 425 (“Exposing governm ent inefficiency and m isconduct is a m atter of considerable significan ce.”). “A ‘core concern’ of the First Am endm ent is the protection of whistleblowers who report governm ent wrongdoing.” Akins, 420 F.3d at 130 0 (quoting Bry son v. City of W ay cross, 888 F.2d 1562, 1566 (11th Cir. 1989)). Because Davis was tasked with advising the city and its em ployees on legal m atters, the public had interest in whether he, too, followed the law. The question of whether Davis in fact broke the law is, at this poin t, largely academ ic. But Defendants act as though Strang had to allege with specificity why the gun possession violated Georgia law. Under O.C.G.A. § 16-11-127 (20 0 8 ), however, it was at the very least a valid question whether Davis lawfully kept a gun on his desk. That the issue was one of public concern is buttressed by the fact that, in the very m onth of Strang’s alleged discovery, the Georgia Assem bly debated and passed the Lawful Carry Act to allow or clarify that licensed carriers could, under certain conditions, bring guns in governm ent buildings. Ga. S. Daily Rep., 20 10 Reg. Sess. No. 29 (March 24, 20 10 ) (discussing passage of The Lawful Carry Act). Besides, the instant question is only whether the prim ary purpose or “m ain thrust” of Strang’s speech was a m atter of public concern. Maggio v. Sipple, 211 F.3d 1346, 1352 (11th Cir. 20 0 0 ). At this early stage in the litigation—where the precise content and circum stances of the speech are am biguous—the Court cannot say it was not. Defendants n evertheless urge the Court to dism iss the claim because Strang m ade her speech in confiden ce. Although that fact is relevant to the inquiry, Morgan v. Ford, 6 F.3d 750 , 754 n.5 (11th Cir. 1993), it is not the sm oking gun defendants ascribe to it. Private expression also is entitled to First Am en dm ent protection. Givhan v. W . Line Consol. Sch. Dist., 439 U.S. 410 , 415– 416 (1970 ) (“Neither the [First] Am endm ent nor our 10 decisions indicate that [freedom of speech] is lost to the public em ployee who arranges to com m unicate privately with his em ployer rather than to spread his views before the public.”). “[A] court cannot determ ine that an utterance is not a m atter of public concern solely because the em ployee does not air the concerns to the public.” Morgan, 6 F.3d at 754 n.5. Strang’s chosen forum is certainly consistent with speech of a purely private concern. See id. at 755 (finding, in case where plaintiff voiced concerns to internal affairs and the Office of Fair Em ploym ent Practices, that speech did not involve m atter of public concern); Maggio v. Sipple, 211 F.3d 1346, 1352– 53 (11th Cir. 20 0 0 ) (finding no First Am endm ent protection for em ployee who testified at hearing on insubordination). But here the inquiry is only whether she m ade a plausible claim for relief, and the Court finds she has m et that threshold. A reasonable inferen ce from Strang’s com plaint is that she approached the EEO m anager because she was concerned about Davis’ judgm ent and ability to exercise his responsibilities to the citizens of Albany. ii. Picke rin g Balan cin g Even if Strang spoke as a citizen on m atters of public concern, she m ust also show her interests as a citizen outweighed the city’s interests as an em ployer. Villa v. Padron, 48 4 F.3d 1334, 1339 (11th Cir. 20 0 7). To determ ine whether an em ployee’s interests outweighed the em ployer’s, federal courts apply the balancing test set forth in Pickering v. Board of Education of Tow nship High School District 20 5, W ill County , Illinois, 391 U.S. 563 (1968). In Pickering, the Suprem e weighed “the interests of the [public em ployee], as a citizen, in com m enting upon m atters of public concern and the interest of the State, as an em ployer, in prom oting the efficiency of public services it perform s through its em ployees.” 391 U.S. at 568. Courts in the Eleventh Circuit consider a num ber of factors in course this balancing test, including “(1) whether the speech at issue im pedes the governm ent's ability to 11 perform its duties efficiently, (2) the m anner, tim e and place of the speech, and (3) the context within which the speech was m ade.” Stanley v. City of Dalton, 219 F.3d 1280 , 128 9 (11th Cir. 20 0 0 ) (citations om itted). Additionally, the Suprem e Court has “previously recognized as pertinent considerations whether the statem en t im pairs disciplin e by superiors or harm ony am ong co-workers, has a detrim ental im pact on close working relationships for which personal loyalty and confiden ce are necessary, or im pedes the perform ance of the speaker's duties or interferes with the regular operation of the enterprise.” Rankin, 483 U.S. at 388 (citing Pickering, 391 U.S. at 570 – 73). Considering these factors, and drawing the allegations in the light m ost favorable to Strang, the Court finds the com plaint alleges sufficient facts to establish that Strang’s free speech interests outweighed the city’s interests. The City Defendants essentially claim Strang’s speech disrupted the functions of the City Attorney’s Office because Davis was suspended and em barrassed and her actions required a m andatory office m eeting. They also argue Davis lost confidence in Strang and that, when governm ent attorneys are involved, courts should hesitate before interfering with em ploym ent decisions. The Court finds Defendants’ argum ents unpersuasive. The Court is cognizant of the unique relationship and confiden ces governm ent attorneys share with their supervisors. See Sharar v. Bow ers, 114 F.3d 10 97, 110 3– 0 4 (11th Cir. 1997). But Strang’s speech was unrelated to her job duties or the goals of the City Attorney’s Office. This is therefore not a situation where the governm ent attorney’s actions underm ined the office’s goals, policies, or attem pts to stay out of controversy. Strang’s speech was also not unduly disruptive. She expressed her concerns in private to the city EEO m anager. There was no danger of Strang’s actions bringing public discredit to the office. See Rankin, 483 U.S. at 389 (noting that em ployer’s interests did not outweigh em ployees’, in part because the plaintiff’s “speech took place in an area 12 to which there was ordinarily no public access”). And, frankly, it is strange to argue, as Defendants do, that they should be able to punish em ployees for speech m ade in private to the city -established EEO office because such speech reduces workplace efficiency an d harm ony. Finally, the Court rejects Defendants’ attem pts to bootstrap Davis’ alleged retaliatory actions into justifications for suppressing Strang’s speech. “[D]efendants cannot rely on disruption which they instigated or exacerbated to outweigh [plaintiff’s] First Am endm ent rights.” Hufford v. McEnam ey , 249 F.3d 1142, 1149 (9th Cir. 20 0 1) (quoting Roth v. Veteran’s Adm in., 856 F.2d 140 1, 140 8 (9th Cir. 1988)). In her com plaint, Strang alleges Davis forced her into a m andatory m eeting and dem anded her resignation, under the pretext she was being disruptive, in retaliation for her speech. Defendants cannot now use that pretext to have the case thrown out on a m otion to dism iss. Given the discrete, confidential nature of Strang’s speech, and that it was unrelated to her office duties, the Court finds that the city’s interests, at this stage, do not outweigh hers. The Court therefore denies the m otion on this ground. iii. Re taliato ry Co n d u ct like ly to D e te r a Pe rs o n o f Ord in a ry Firm ness In addition to her retaliation claim arising out of the term ination, Strang arguably alleges a retaliation claim for the harm arising from alleged ridicule, hum iliation, and dam age to her future em ploym ent prospects. The Court dism issed all defendants except Lott and the City of Albany from her retaliatory term in ation claim . Regardin g this secon d theory of retaliation, Strang fails to establish a claim against all of the defendants except Davis. For Strang to establish she suffered from retaliatory acts other than term ination, she m ust allege that (1) her speech was constitutionally protected, (2) she “suffered ad- 13 verse action such that the [official’s] allegedly retaliatory conduct would likely deter a person of ordinary firm ness from engaging in such speech,” and (3) there is a causal relationship between the retaliatory action and the protected speech. Sm ith v. Mosley , 532 F.3d 1270 , 1276 (11th Cir. 20 0 8) (citations om itted). Strang m ust allege her protected speech was “a m otivating factor behind” the alleged retaliatory acts. Id. at 1278. The Court finds Strang has stated a claim against Davis for retaliatory acts other than term ination. She alleges that, soon after he returned from suspension, Davis dem anded her resignation and instigated an in vestigation against her. Further, she claim s that Davis appealed her unem ploym ent benefits. The Court finds these facts are sufficient to allege that Strang’s speech was Davis’ prim ary m otivating factor behind retaliatory acts that would deter a person of ordinary firm ness from engaging in the speech. As to Defendants Adam s, Hubbard, Pike, Marietta, Langstaff, and Postell, however, Strang has not alleged any facts to show they took actions likely to deter a person of ordinary firm ness from engaging in such speech. Rather, Strang alleges, in con clusory term s, that they held an illegal executive session, “instigated m edia and/ or encouraged local m edia coverage,” and “im pliedly accepted and/ or condoned” perjury. But these conclusory statem ents are unsupported by any factual allegations, and they are not entitled to any weight. See Iqbal, 556 U.S. at 679. And other than bald statem ents that defendants acted “in further retaliation against Plaintiff,” Strang does not provide any facts to show a causal link between these defendants’ actions and her speech. Additionally, other than his decision to term inate her, Strang does not allege any factual allegations showing Lott took other retaliatory action against her. Strang failed to also establish a causal connection between Slaton’s alleged conduct and the protected speech. She does not even allege Slaton knew about her report. Strang instead claim s that “Slaton acted as an interested party in Plaintiff’s term ination 14 because she wanted to handle em ploym ent issues on a contract basis for the City, instead of Plaintiff handling such m atters.” This allegation directly contradicts any claim she retaliated against Slaton because of her speech. Moreover, Strang’s various claim s that Slaton “suborned . . . perjury” and fabricated evidence are again unsupported by factual allegations. The Court dism isses all defendants except Davis from this claim . D . Race D is crim in a tio n The City Defendants claim Strang failed to state a claim of race discrim ination under 42 U.S.C. §§ 1981, 1983. They argue the alleged harassm ent was not severe and pervasive enough to create a hostile work environm ent and Strang cannot allege disparate treatm ent because she did not suffer an adverse em ploym ent action. The Court concludes that Strang has stated a hostile work environm ent claim against Davis and disparate treatm ent claim against Lott and the City of Albany. i. H o s tile W o rk En viro n m e n t Turning first to the hostile work environm en t claim , Strang alleges in her com plaint that “Defendant City an d defendants Davis and Lott m aintained a racially hostile work environm ent, including, specifically, a hostile workplace in the City Attorney’s Office.” (Doc. 35 ¶ 43.) A hostile work environm ent is one “perm eated with [racially] discrim in atory intim idation, ridicule, and insult . . . sufficiently severe or pervasive to alter the conditions of the victim 's em ploym ent and create an abusive working environm ent.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 20 12) (quoting N at’l R.R. Passenger Corp. v. Morgan, 536 U.S. 10 1, 116 (20 0 2)). To establish a hostile work environm ent, the plaintiff ordinarily m ust show (1) that she belongs to a protected group; (2) that she has been subject to unwelcom e harassm ent; (3) that the harassm ent m ust have been based on a protected characteristic of the em ployee, such as race; and (4) that 15 the harassm ent was sufficiently severe or pervasive to alter the term s and conditions of em ploym ent and create a discrim inatorily abusive working environm ent. Miller v. Kenw orth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 20 0 2). Although a racediscrim ination com plaint “need not allege facts sufficient to m ake out a classic McDonnell Douglas prim a facie case . . . it m ust provide enough factual m atter (taken as true) to suggest intentional . . . discrim ination.” Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir. 20 0 8) (citations omitted); see also Jackson v. Bellsouth Telecom m ., 372 F.3d 1250 , 1274 (11th Cir. 20 0 4). Applying these factors, the Court concludes Strang states a claim against Davis for a hostile work environm ent. Although it is arguable whether Strang alleges every elem ent of her prim a facie case, the facts are sufficient to notice Davis and plausibly suggest race discrim ination through a hostile work environm ent. In particular, the com plaint alleges Davis attem pted to sabotage Strang’s work product and reputation by destroying her evidence and assigning her cases without telling her. Meanwhile, Davis did not take these actions against Strang’s black coworkers. Thus, Strang could plausibly show she was subjected to discrim inatory intim idation and sabotage because of her race. Strang’s hostile work environm ent claim against the rem aining defendants fails. To establish liability under Section 1983, a plaintiff m ust show the defendant com m itted a constitutional violation or that there is a causal connection between the violation an d the defen dant’s conduct. Brow n v. City of Huntsville, 60 8 F.3d 724, 737 (11th Cir. 20 10 ). And “[i]t is well established in this [c]ircuit that supervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability.” Goodm an v. Kim brough, 718 F.3d 1325, 1335 (11th Cir. 20 13) (quoting Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 20 0 3)). Strang has not provided any facts that defendants other than Davis harassed her during her 16 em ploym ent. Rather, a fair reading of the com plaint shows the other defendants becam e involved after Davis allegedly in stigated her term ination. ii. D is p arate Tre atm e n t The Court finds Strang has stated a disparate treatm ent claim against Lott and, because Lott is plausibly the final policym aker, the City of Albany. The requirem ents for stating a disparate treatm ent claim are well established. The plaintiff m ust show he suffered an adverse em ploym ent action as a result of intentional discrim ination. See How ard v. BP Oil Co., 32 F.3d 520 , 524 (11th Cir. 1994). A plaintiff m ay establish intentional discrim ination through direct evidence or, in the absence of direct evidence, through circum stantial eviden ce under the McDonnell Douglas burden-shifting fram ework. Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989), superseded by statute on other grounds as stated in W alker v. Mortham , 158 F.3d 1177, 1191 n.30 (11th Cir. 1998 ). To establish a prim a facie case of discrim ination using circum stantial evidence, a plaintiff m ust show she (1) was a m em ber of a protected class, (2) was qualified for the job, (3) suffered an adverse em ploym ent action, and (4) was replaced by som eone outside the protected class. Hooper v. Total Sy s. Servs., Inc., 799 F. Supp. 2d 1350 , 1378 (M.D. Ga. 20 11); see Jackson v. Bellsouth Telecom m ., 372 F.3d 1250 , 1270 (11th Cir. 20 0 4). The Com plaint sufficiently alleges facts showing that Strang belonged to a protected class, was qualified for the job, was fired, and was replaced by som eone outside of her protected class. In their reply brief, City Defendants essentially adm it that Strang stated a prim a facie disparate treatm ent claim . The Court agrees, and the m otion to dism iss on this ground is denied as to Defendant Lott and the city. 17 E. Qu alifie d Im m u n ity Finally, the Court m ust address Davis’ and Lott’s assertions of qualified im m unity. The doctrine of qualified im m unity provides that “governm ent officials perform ing discretionary functions generally are shielded from liability for civil dam ages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 80 0 , 818 (198 2). The doctrine is designed to balance the need to hold public officials accountable for abuses of power with the need to shield them from harassm ent, distraction, an d liability when they perform their duties reasonably. Pearson v. Callahan, 555 U.S. 223, 231 (20 0 9). Qualified im m unity is an “im m unity from suit,” not a defense to liability. Therefore, the Suprem e Court “repeatedly [has] stressed the im portance of resolving im m unity questions at the earliest possible stage in litigation.” Hunter v. Bry ant, 50 2 U.S. 224, 227 (1991) (per curiam ). But the party invoking qualified im m unity m ust first show he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred. Hutton v. Strickland, 919 F.2d 1531, 1537 (11th Cir. 1990 ). A defendant m ay satisfy his burden by showing “objective circum stances which would com pel the conclusion that that his actions were undertaken pursuant to the perform ance of his duties and within the scope of his authority.” Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988) (quoting Baker v. N orm an, 651 F.2d 110 7, 1121 (5th Cir. 1981)). “A bald assertion that the acts were taken pursuant to the perform ance of duties and within the scope of duties will not suffice.” Harbert Intern, Inc. v. Jam es, 157 F.3d 1271, 1282 (11th Cir. 1998) (quoting Espanola W ay Corp. v. Mey erson, 690 F.2d 8 27, 8 30 (11th Cir. 1982)). Defendants acknowledged the law and their burden, but they failed to take the second, critical step of showing circum stances or facts that they acted within the scope 18 of their discretionary authority. Defendants m ay feel it is obvious. And it m ay very well seem inconsistent to say that Lott was the official decisionm aker who lacked discretionary authority. But even so, qualified im m unity is an affirm ative defense. Ev ans v. Stephens, 40 7 F.3d 1272, 1282 (11th Cir. 20 0 5). It would be inappropriate for the Court to excuse or ease Defendants’ burdens sim ply because the question m ight be an easy one. See Cassady v. Ow ens, No. CV40 8 -250 , 20 11 WL 110 2787, at *6 (S.D. Ga. Mar. 22, 20 11) (denying qualified im m unity because defendants failed to show, from the record, that their actions were discretionary); Pears v. Mobile County , 645 F. Supp. 2d 10 62, 10 79 (S.D. Ala. 20 0 9) (“Chief Collier has offered neither eviden ce nor argum ent on [whether he acted within his discretionary authority], and the Court will not ‘fill in the blanks’ by form ulating his argum ents or presenting his proof for him as to this affirm ative defense.”). J ust as the Court held Strang to her burden of stating a claim for relief, so m ust the Court hold Defendants to theirs. IV. Co n clu s io n For those reason s, City Defendants’ Motion to Dism iss (Doc. 39) is GRAN TED in p a rt and D EN IED in p art. Defendant Slaton’s Motion to Dism iss (Doc. 37) is GRAN TED . The case shall proceed on the following claim s • First Am endm ent retaliation against Lott and the City of Albany arising from Strang’s term ination; • First Am endm ent retaliation against Davis from retaliatory acts other than term ination; • Race discrim ination from disparate treatm ent under 42 U.S.C § 198 3 against Lott and the City of Albany; • Race discrim ination from a hostile work environm ent under § 1983 against Davis. 19 The rest of the claim s and related defendants are D ISMISSED . SO ORD ERED , this _ 12th day of Septem ber 20 13. _ / s/ W. Louis Sands ____ TH E H ON ORABLE W . LOU IS SAN D S, U N ITED S TATES D ISTRICT COU RT 20
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