Brimager v. City of Moscow Mills

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

NICHOLAS BRIMAGER, et al. )

)

Plaintiffs, )

)

v. ) Case No. 4:22-CV-01076-AGF

)

CITY OF MOSCOW MILLS, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on Defendants City of Moscow Mills and Terry

Foster’s motion to dismiss. Doc. No. 29. In the first amended complaint, Plaintiffs

Nicholas Brimager and Jason Graham assert claims of gender discrimination (Counts I

and IV), retaliation (Counts II and V), hostile work environment (Counts III and VI),

conspiracy to violate civil rights (Count VII), and failure to train under 42 U.S.C. § 1983

(Count VIII).

Defendants seek dismissal of all claims for failure to state a claim under Fed. R.

Civ. P. 12(b)(6). As discussed in further detail below, Plaintiffs’ claims of hostile work

environment and conspiracy to violate civil rights will be dismissed without prejudice for

failure to state a claim. Plaintiffs’ claims of discrimination, retaliation, and § 1983 failure

to train have sufficiently alleged a cause of action upon which relief can be granted.

BACKGROUND

The following facts are taken from the first amended complaint and, for the

purposes of this motion to dismiss, accepted as true. Doc. No. 28. Plaintiffs Nicholas

Brimager and Jason Graham (“Plaintiffs”) were both employed as police officers by the

City of Moscow Mills (“City”) under the chain of command of Chief of Police Terry

Foster (“Chief Foster”). Plaintiff Brimager was recruited to the City’s Police Department

as a Lieutenant/Assistant Chief of Police in late 2019. He often assumed the role of

acting Chief of Police in Chief Foster’s absence. Plaintiff Graham had been employed as

police officer with the City since September 2013 and was ultimately promoted to

Sergeant. Graham also handled IT issues and other technology-related responsibilities

for the Police Department. Both Plaintiffs performed their duties “in a satisfactory or

above-level manner.”

Plaintiffs allege Chief Foster has a history, particularly with male employees, of

using his physicality to ensure demands are carried out through physical intimidation and

verbal reminders of his boxing skills. He is also known to accuse male subordinates of

homosexuality and make homophobic remarks, and to use demeaning and gendered

rhetoric, such as “fag,” “homo,” and “bitch,” when publicly berating male subordinates

that he perceives as less than masculine. He does not engage in the same behavior with

female employees.

Plaintiffs allege that Chief Foster’s discrimination was based in part on his

perception that Plaintiffs were homosexual and “not real men.” Specifically, Plaintiff

Brimager claims that Chief Foster called him a “pussy” for not getting involved in

CrossFit like a “real man,” and told Brimager that he had a “mangina” and/or that

Plaintiff Brimager was “afraid to get sand in his vagina” for not engaging in Chief

Foster’s chosen plan of action at the time. Plaintiff Graham claims that Chief Foster

called him a “pussy,” “fag,” “cocksucker,” and “motherfucker” for the same or similar

reasons. Plaintiffs also claim that Chief Foster would often invade his subordinates’

personal space and use his physicality to dissuade any questioning of his authority.

Plaintiffs allege that Chief Foster’s behavior continued from at least 2019 through 2021

and 2022.

Plaintiffs further claim that in or around 2021, Chief Foster instituted an illicit

ticket generating scheme which would require subordinates to issue a certain number of

traffic citations every month and to target drivers who appeared financially capable of

paying the ticket fines. Plaintiffs expressed disapproval of this scheme and informed

Chief Foster that they would not participate.

In response to Plaintiffs’ refusal to participate in the ticket generating scheme,

Chief Foster informed Plaintiffs that he would ensure that they lost their jobs as a result.

Chief Foster ratcheted up his rhetoric and name-calling, creating an environment so

hostile that Plaintiffs were constructively forced out of their positions with the City.

Plaintiffs ultimately provided detailed information to the Missouri Attorney General’s

office about the illegal ticket generation scheme after their complaints were summarily

rejected by the City.

Plaintiffs’ complaint also discusses a number of other actions taken by Chief

Foster to constructively force Plaintiffs out of their jobs after he found out about

Plaintiffs’ participation in the Attorney General’s investigation. It is unclear from the

complaint whether these actions were motivated by Plaintiffs’ participation in the ticket-

scheme investigation, their gender/perceived sexual orientation, or a combination of both.

Plaintiffs claim that beginning in December 2021, Chief Foster called Plaintiffs “rats,”

“informants,” “faggots,” and other “colorful labels.” Other actions taken to

constructively discharge Plaintiffs included: “(a) not including Plaintiffs in certain

meetings; (b) denying leave and/or training; (c) denying awards for service; (c)

precluding overtime or causing the loss of overtime through abrupt schedule changes; (d)

publicly disparaging Plaintiffs; (e) using obscene language towards Plaintiffs when

questioned; (f) changing schedules to preclude consistency; and (g) physically

intimidating Plaintiffs.” Chief Foster also spread falsehoods that Plaintiffs were stealing

from the City and were being fired.

This behavior eventually resulted in Plaintiffs’ exhaustion of leave time and

eventual resignation from their respective positions in early 2022.

Plaintiffs allege that City officials were all aware of Chief Foster’s behavior and

took no action to train, instruct, or discipline Chief Foster, and were otherwise complicit

in his known practice of subordinate abuse.

Plaintiffs each filed a Charge of Discrimination for discrimination based on sex

with the United States Equal Employment Opportunity Commission (EEOC) and were

each issued a Notice of the Right to Sue. Plaintiff Brimager filed his Charge of

Discrimination on December 28, 2021, and Plaintiff Graham filed his on January 4, 2022.

Plaintiffs filed this action within 90 days of their receipt of their respective Notices of the

Right to Sue. The matter is now before the Court on Defendants’ motion to dismiss

Plaintiffs’ first amended complaint.

ARGUMENT OF PARTIES

Defendants argue that all claims fail as a matter of law and should be dismissed

pursuant to Fed. R. Civ. P. 12(b)(6). For the gender discrimination and hostile work

environment claims, Defendants assert that Plaintiffs have not established a sufficient

causal link between Plaintiffs’ protected class membership on the basis of gender and the

adverse employment action created by Chief Foster. For the retaliation claims,

Defendants argue that Plaintiffs did not adequately plead that the adverse employment

action was in response to a report of gender discrimination as required by Title VII. For

the conspiracy claim, Defendants claim that the intracorporate conspiracy doctrine

prevents the City and Chief Foster from engaging in a conspiracy with one another

because Chief Foster is an agent of the City. For the § 1983 failure to train claim,

Defendants assert that Plaintiffs failed to identify a constitutional right that was violated

through Defendants’ failure to train, instruct, supervise, or discipline. Finally,

Defendants argue that punitive damages cannot be assessed against a municipality, and

therefore any claims for punitive damages against the City should be dismissed.

Plaintiffs respond that by their motion, Defendants are attempting to improperly

litigate the merits of the claims, not the sufficiency of the complaint. Plaintiffs note that

the pleading standard under Rule 12(b)(6) is a lower bar than summary judgment and

only requires that Plaintiffs provide a plausible claim for relief. For claims of gender

discrimination, hostile work environment, and retaliation (Counts I-VI), Plaintiffs argue

that their factual allegations are more than sufficient to satisfy the pleading standard and

properly allege that Defendants have engaged in illegal discrimination, retaliation, and

other acts of employment illegality against Plaintiffs because of their gender and

perceived sexual orientation. With respect to the conspiracy claim (Count VII), Plaintiffs

do not directly respond to Defendants’ arguments regarding the intracorporate conspiracy

doctrine, rather, Plaintiffs argue that Defendants are using misdirection and as a means to

argue Plaintiffs’ claims relate entirely to the issue of the ticket generating scheme rather

than the claimed gender discrimination. Plaintiffs contend that Defendants’ argument

would require the Court to ignore the complaint as a whole. Lastly, Plaintiffs argue that

that they have properly alleged a violation of federally protected civil rights under Title

VII sufficient to satisfy the pleading requirement of a § 1983 failure to train claim (Count

VIII).

Additional facts and arguments will be discussed below as relevant to the parties’

claims.

LEGAL STANDARD

To survive a motion to dismiss for failure to state a claim, a plaintiff’s allegations

must contain “sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations

omitted). On a motion to dismiss, the court accepts the plaintiff’s factual allegations as

true and draws all reasonable inferences in favor of the nonmoving party. Torti v. Hoag,

868 F.3d 666, 671 (8th Cir. 2017). But “[c]ourts are not bound to accept as true a legal

conclusion couched as a factual allegations, and factual allegations must be enough to

raise a right to relief above the speculative level.” Id.

DISCUSSION

Gender Discrimination (Counts I and IV)

Plaintiffs’ claims of gender discrimination sufficiently state a claim upon which

relief can be granted. A prima facie showing of gender discrimination claim under Title

VII requires Plaintiffs to show that (1) they belong to a protected group, (2) they were

meeting their employer’s legitimate job expectations, (3) they suffered an adverse

employment action, and (4) the circumstances give rise to an inference of discrimination.

Warmington v. Bd. of Regents Univ. of Minn., 998 F.3d 789 (8th Cir. 2021) (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Plaintiffs need not

satisfy the McDonnell Douglas requirements for prima facie showing at this stage, and

need only show that the complained-of gender discrimination is plausible on its face.

Wilson v. Ark. Dep’t of Hum. Servs., 850 F.3d 368, 372 (8th Cir. 2017) (citing

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002)). However, the “elements of the

prima facie cases are [not] irrelevant to a plausibility determination in a discrimination

suit.” Blomker v. Jewell, 831 F.3d 1051, 1056 (8th Cir. 2016). The elements are “part of

the background against which a plausibility determination should be made” and the

elements “may be used as a prism to shed light upon the plausibility of the claim.” Id.

(citation omitted). Through this prism, the complaint “must include sufficient factual

allegations to provide the grounds on which the claim rests.” Id. (quoting Gregory v,

Dillard’s, Inc., 565 F.3d 464, 473 (8th Cir. 2009)). Under the “simplified notice pleading

standard” that governs discrimination claims, “summary judgment motions—not motions

to dismiss—should dispose of most unmeritorious claims.” Wilson, 850 F.3d at 372

(citation and internal quotations omitted).

Plaintiffs adequately plead, and Defendants do not contest, that they are members

of a protected class, that they were meeting their job expectations, and that they suffered

an adverse employment action.1 More specifically, Plaintiffs allege that Chief Foster

treated males differently than females, and that “the disparate treatment of the Plaintiff[s],

as practiced by Defendants and their employees . . . was of a sexually discriminatory

nature, and/or discrimination based on Plaintiff[s’] gender and/or perceived sexual

orientation.”

Defendants argue that Plaintiffs have failed to adequately allege the fourth

element: that the adverse employment action, here Plaintiffs’ constructive discharge,

occurred under circumstances giving rise to an inference of discrimination. At the

motion to dismiss stage, Plaintiffs need only plausibly allege but-for causation. See

McDonough v. Anoka City, 799 F.3d 931, 946 (8th Cir. 2015). Here, Plaintiffs allege that

they were discriminated against because of their gender and/or perceived sexual

orientation and the discrimination caused such intolerable working conditions that they

were forced to resign. In support of these claims, Plaintiffs have alleged numerous

instances of Chief Foster’s discrimination, including gendered and sexually explicit name

1 Plaintiffs allege that the adverse employment action was constructive discharge—

Chief Foster and the City deliberately created working conditions so intolerable and

hostile that Plaintiffs were forced to resign. “Just like any other discharge, a constructive

discharge is an adverse employment action.” Thompson v. Bi-State Dev. Agency, 463

F.3d 821 (8th Cir. 2006). Defendants do not dispute that an adverse employment action

occurred.

calling. Plaintiffs have also specifically alleged that Chief Foster did not treat female

employees in the same manner. See Wells v. SCI Mgmt, L.P., 469 F.3d 697 (8th Cir.

2006) (explaining that a typical means of proof for the fourth element in a gender

discrimination case is showing that plaintiff was treated differently from similarly

situated employees of the opposite sex).

Defendants further argue that context must be considered, and that vulgar,

gendered name-calling and teasing is to be expected in an environment like a police

department. In assessing whether the causation factor is satisfied, the court will consider

“whether there are lawful, obvious alternative explanation[s] for the alleged conduct” that

would render the complaint implausible. McDonough, 799 F.3d at 946 (internal citations

and quotations omitted). “If the alternative explanations are not sufficiently convincing,

however, the complaint states a plausible claim for relief, because ‘[f]erreting out the

most likely reason for the defendants' actions is not appropriate at the pleadings stage.’”

Id. (citing Watson Carpet & Floor Covering, Inc. v. Mohawk Indus., Inc., 648 F.3d 452,

458 (6th Cir. 2011)). The fact that this pervasive gendered and sexual name-calling

occurred at a police department does not render such actions permissible or so obviously

lawful that it renders Plaintiffs’ complaint implausible at the pleading stage.

Defendants further argue that the complaint indicates that the alleged disparate

treatment by Chief Foster was caused by Plaintiffs’ roles in reporting the ticketing

scheme, not their gender. A plain reading of the complaint dispels this notion because

Plaintiffs explicitly allege that the discriminatory conduct was because of their gender

and/or perceived sexual orientation. Further, under Title VII, discrimination occurs when

sex “was a motivating factor for any employment practice, even though other factors also

motivated the practice.” 42 U.S.C. § 2000e-2(m). Plaintiffs have sufficiently alleged that

Chief Foster’s treatment was motivated, at least in part, by their gender. The fact that

Chief Foster’s treatment may have also been motivated by Plaintiffs’ involvement in

reporting the ticketing scheme does not preclude a claim of gender discrimination.

As discussed above, Plaintiffs have stated a plausible claim for gender

discrimination under Title VII. Whether or not Plaintiffs can prove their claims is a

matter to be resolved on summary judgment or at trial. Accordingly, Defendants’ motion

to dismiss Counts I and IV is denied.

Retaliation (Counts II and V)

A Title VII retaliation claim arises when an employer has taken an adverse

employment action against an employee who “has opposed any practice made an

unlawful employment practice by [Title VII], or because he has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing under

this subchapter.” 42 U.S.C. § 2000e-3(a). Key in this definition is that the retaliation

must occur in response to opposition or reporting of a Title VII unlawful employment

practice—a complaint of discrimination. See, e.g., Warren v. Kemp, 79 F.4th 967, 973

(8th Cir. 2023) (explaining that to establish retaliation under Title VII, “a plaintiff must

prove (1) he engaged in statutorily protected activity,2 (2) suffered an adverse

2 The Warren Court explained that under Title VII, a “statutorily protected activity”

includes opposition to discriminatory practices prohibited by Title VII. Warren, 79 F.4th

at 974.

employment action, and (3) that engagement in a protected activity is the but-for cause of

the adverse employment action”); see also Harris v. Secretary, U.S. Dep’t of the Army,

119 F.3d 1313, 1318 (8th Cir. 1997) (“To establish a prima facie case of retaliation, [the

employee] needed to show: 1) she complained of discrimination; 2) the [employer] took

adverse employment action against her; and 3) the adverse action was causally related to

her complaint.”).

Defendants argue that Plaintiffs have not sufficiently alleged that they complained

of, or reported any sexual or gender discrimination practices because Plaintiffs have only

included factual allegations regarding retaliation from reporting the ticketing scheme,

which is not protected conduct under Title VII. However, Plaintiffs specifically allege

that they experienced “retaliation [by Defendants] for having complained about

sex/gender discrimination.” Compl. ¶¶ 60, 85. While the allegations in the amended

complaint are often general, Plaintiffs incorporated their EEOC charges of discrimination

into their amended complaint by reference,3 which contain more detailed factual

allegations regarding their discrimination complaints.4 Plaintiff Graham’s EEOC charge

3 In reviewing a motion to dismiss, the Court may consider materials that are

necessarily embraced by the complaint, as well as any exhibits attached to the complaint.

Mattes v. ABC Plastics, Inc., 323 F.3d 695,697 n.4 (8th Cir. 2003). In addition, the Court

may properly consider public records, including court records, on a motion to dismiss.

Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007).

4 Plaintiffs’ original complaint includes the EEOC charges of discrimination and

related documents as exhibits. Plaintiffs’ first amended complaint identifies and

references these exhibits, but Plaintiffs have failed to re-attach the exhibits to their

amended complaint. Plaintiffs shall provide copies of exhibits A- E to the Clerk of Court

for attachment to the amended complaint.

of discrimination specifically alleges that he took his concerns about Chief Foster’s

harassment to the Mayor in June 2021 and to the City board on November 22, 2022.

Doc. No. 1-5. He further alleges that after reporting the sexual harassment he was

improperly prevented from using his sick leave, locked out of his place of work, and

Defendants were trying to replace him and hire someone else for his position at a much

higher rate of pay. Id. Likewise, Plaintiff Brimager’s EEOC charge of discrimination

specifically alleges that he was improperly prevented from using his sick leave in

retaliation for reporting sexual harassment. Doc. No. 1-3. Further, Plaintiffs allege that

their working environment because so intolerable that they were forced to exhaust their

leave and eventually resign from their respective positions. These allegations sufficiently

state a claim for retaliation under Title VII.

It is true that Plaintiffs’ amended complaint contains numerous factual allegations

regarding retaliation due to Plaintiffs’ role in reporting the ticket generating scheme,5 but

Plaintiffs’ amended complaint also contains sufficient factual allegations regarding their

5 In their initial complaint, Plaintiffs directly asserted claims under the whistle-

blowing statute, and alleged that Defendants’ retaliation was a result of their conduct as

whistle-blowers. While Plaintiffs removed references to the term whistle-blowing in

their first amended complaint, they retained the allegations related to Chief Foster’s

alleged ticket-generating scheme, Plaintiffs’ report of that scheme to others, and

Defendants’ retaliation thereafter. Opposing the ticket-generating scheme is not a

protected activity under Title VII. The Eighth Circuit has rejected Title VII retaliation

claims where the plaintiff opposed conduct other than a discriminatory employment

practice. Warren, 79 F.4th at 974; see e.g., Bonn v. City of Omaha, 623 F.3d 587, 591-92

(8th Cir. 2010) (holding that plaintiff did not engage in a protected activity under Title

VII by publishing a report exposing a police department’s policing tactics that were

potentially discriminatory because the report did not implicate employment practices).

reports of gender discrimination and subsequent retaliation. Accordingly, Defendants’

motion to dismiss Counts II and V is denied.

Hostile Work Environment (Counts III and VI)

With respect to their hostile work environment claims, Plaintiffs have failed to

adequately allege that they belong to a protected group. To establish a hostile work

environment claim, a plaintiff must establish the following elements: “(1) the plaintiff

belongs to a protected group; (2) the plaintiff was subject to unwelcome harassment; (3) a

causal nexus exists between the harassment and the plaintiff’s protected group status; and

(4) the harassment affected a term, condition, or privilege of employment.” EEOC v.

CRST Van Expedited, Inc., 679 F.3d 657, 683 (8th Cir. 2012). Unlike Plaintiffs’

discrimination claims in which they specifically allege that they were discriminated

against because of their sex and incorporate allegations of harassing conduct, here

Plaintiffs specifically allege that they are members of a protected group “because of

[their] previous protected activity, to include reporting instances of employment

illegality, and otherwise being witness to the same” and Plaintiffs’ “protected activities

were all contributing factors in the harassment/hostile work environment [they] endured

as a result of the Defendant’s actions . . . .” Protected groups under Title VII are those

based on an individual’s “race, color, religion, sex, or national origin.” 42 U.S.C. §

2000e-2.

Individuals who report instances of employment illegality are not a protected

group under Title VII. As discussed above, individuals who report employment illegality

under Title VII may assert a claim for retaliation, even if they themselves are not a

member of a Title VII protected group. But to properly assert a hostile work environment

claim under Title VII, Plaintiffs must allege that they themselves are members of a

protected group recognized by Title VII and suffered a hostile work environment because

they were members of that group, not just because they reported employment illegality.

Accordingly, Counts III and VI are dismissed without prejudice.6

Conspiracy (Count VII)

Plaintiffs fail to state a claim for conspiracy to violate civil rights as a matter of

law because the complaint fails to sufficiently allege a meeting of the minds. To survive

a motion to dismiss, a §1983 conspiracy claim “requires allegations of specific facts

tending to show a ‘meeting of the minds’ among the alleged conspirators.” Murray v.

Lene, 595 F.3d 868, 870 (8th Cir. 2010). “The plaintiff must allege with particularity and

specifically demonstrate with material facts that the defendants reached an agreement.”

Bonenberger v. St. Louis Metro. Police Dept., 810 F.3d 1103, 1109 (8th Cir. 2016)

(internal citation omitted). These facts must at least “give rise to the inference that there

was such a meeting of the minds.” White v. Walsh, 649 F.2d 560, 562 (8th Cir. 1981)

(finding that specific facts of a meeting between alleged co-conspirators that the

defendant was excluded from attending sufficiently stated a claim for conspiracy);

6 In Plaintiffs’ opposition to the motion to dismiss, they appear to argue that their

hostile work environment was based on Plaintiffs’ gender and Defendant Foster’s

assumption of Plaintiffs’ homosexuality and/or being less than masculine, and as such

they are members of a protected group because of their gender/perceived sexual

orientation. However, this is not alleged in the hostile work environment claim of

Plaintiffs’ first amended complaint; instead they specifically claim that they are members

of a protected group because they reported employment illegality.

Murray, 595 F.3d at 870 (finding that “[t]he factual allegations in [Plaintiff’s] complaint

do not directly or indirectly suggest such a “meeting of the minds” between [Defendants]

and any other alleged conspirator, and so the district court correctly decided that

[Plaintiff] failed to state a claim under § 1983”); see also Tihen v. City of Bellefontaine

Neighbors, No. 4:17-cv-1979 JMB, 2018 WL 4254097, at *12 (E.D. Mo. Sept. 6, 2018)

(rejecting § 1983 conspiracy claim in Title VII case where the plaintiff failed to

adequately allege a meeting of the minds).

Where the allegations are merely conclusory statements rather than specific facts,

the complaint fails to state a claim. Smithson v. Aldrich, 235 F.3d 1058, 1063 (8th Cir.

2000). Plaintiffs’ only suggestion of a “meeting of the minds” in their complaint is one

conclusory sentence that Defendants “conspired together and amongst themselves and

reached a mutual understanding to deny Plaintiffs their rights to a discrimination-free

work environment based on gender,” Compl. ¶ 101. They do not include any facts that

“directly or indirectly suggest” that Chief Foster and the City reached an agreement to

violate Plaintiffs’ rights to equal protection. See Murray, 595 F.3d at 870. Accordingly,

Plaintiffs have not sufficiently alleged a conspiracy claim.

There is, additionally, the issue of whether there are even the requisite number of

parties for a conspiracy to occur. The intracorporate conspiracy doctrine recognizes that

a corporation and its agents are a single person and therefore cannot conspire with itself.

L.L. Nelson Enters. v. Cnty. of St. Louis, 673 F.3d 799, 812 (8th Cir. 2012). This gives

rise to the question of whether a police officer can conspire with its employing entity, in

this case, the City. The Eighth Circuit has not definitively addressed whether the

intracorporate doctrine applies to § 1983 conspiracy claims. See Faulk v. City of St.

Louis, 30 F.4th 739, 749 (8th Cir. 2022) (“[W]e have never definitively addressed the

issue whether the [intracorporate conspiracy] doctrine applies to § 1983 conspiracy

claims”); Torres v. City of St. Louis, 39 F.4th 494, 507 (8th Cir. 2022) (same).7 However,

in each of those cases, the complaint alleged that multiple police officers conspired with

one another to violate plaintiffs’ civil rights. Here, Plaintiffs allege that a single police

officer—Chief Foster— conspired with the City. The complaint does not allege or name

any other individuals involved in the conspiracy.8

In any event, Plaintiffs have failed to allege a “meeting of the minds” with

sufficient specificity. Accordingly, Count VII is dismissed without prejudice.

§ 1983 Failure to Train (Count VIII)

The § 1983 failure to train claim requires a pleading that some constitutionally

protected right belonging to the Plaintiffs was violated as a result of a failure to train,

instruct, supervise, control, and/or discipline. City of Canton v. Harris, 489 U.S. 378,

387 (1989). Defendants argue that Plaintiffs fail to identify the specific constitutional

right violated, and that therefore Count VIII is deficient. Doc. No. 30 at 9. While it is

true that Plaintiffs do not assert the specific constitutional right in Count VIII, they

7 However, the Eighth Circuit has explicitly held that the intracorporate conspiracy

doctrine applies to § 1985 claims, and a local government cannot conspire with its own

agents. See L.L. Nelson Enters. v. Cnty. of St. Louis, 673 F.3d 799, 812 (8th Cir. 2012);

Kelly v. City of Omaha, 813 F.3d 1070, 1078 (8th Cir. 2016).

8 At best Plaintiffs claim that the City failed to intervene or prevent Chief Foster’s

actions.

reallege and incorporate the previous paragraphs, which do contain an assertion of a

specific constitutional right. Compl. ¶¶ 107, 101 (identifying Plaintiffs’ “right to equal

protection under the laws and federal statutory rights to be free from discrimination,

retaliation and a hostile work environment”). The right to equal protection is a specific

right cognizable under § 1983. See Tipler v. Douglas County, Neb., 482 F.3d 1023, 1027

(8th Cir. 2007) (stating that Plaintiffs’ “right to be free from gender discrimination is

secured by the equal protection clause of the Fourteenth Amendment”); Ottman v. City of

Independence, Mo., 341 F.3d 751, 756 (8th Cir. 2003) (“We have held intentional gender

discrimination in public employment by persons acting under color of state law violates

the Equal Protection Clause of the Fourteenth Amendment and is actionable under

section 1983.”).

Given that Plaintiffs have identified the underlying federal right that was violated

by the City’s failure to train, instruct, supervise, control, and/or discipline, Defendants’

argument is without merit.9 As such, Count VIII will not be dismissed.

Punitive Damages

Defendants argue, and Plaintiffs concede in their response, that municipalities may

not be found liable for punitive damages under 42 U.S.C. § 1983. See City of Newport v.

Fact Concerts, Inc., 453 U.S. 247, 271 (1981). Accordingly, Plaintiffs’ claims for

9 Plaintiffs’ failure to train claim is asserted against both Defendants, but it is not

entirely clear to the Court how Plaintiffs are asserting a failure to train claim against

Chief Foster given that their underlying constitutional violations are asserted directly

against Chief Foster. However, because Defendants have not raised this argument, the

Court will not address the issue at this juncture.

punitive damages against the City will be dismissed with prejudice.

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that Defendants’ motion to dismiss is GRANTED

in part and DENIED in part. Doc. No. 29. Counts III, VI, and VII are dismissed

without prejudice, and Plaintiffs’ claims for punitive damages against the City are

dismissed with prejudice.

IT IS FURTHER ORDERED that Plaintiffs shall have until December 27,

2023, to seek leave to amend their complaint. Any motion for leave to amend must be in

compliance with Local Rule 4.07.

IT IS FURTHER ORDERED that Plaintiffs are instructed to provide copies of

the exhibits of the complaint to the Clerk of Court for attachment to the first amended

complaint.

Dated this 13th day of December, 2023.

UNITED STATES DISTRICT JUDGE

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