Sack v. City of St. Louis

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

MICHAEL SACK, )

)

Plaintiff, )

v. ) Case No. 4:23-cv-00952-SEP

)

CITY OF ST. LOUIS, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Before the Court is Defendants’ Motion to Dismiss, Doc. [10]. For the reasons set forth

below, the motion is granted in part and denied in part.

FACTS AND BACKGROUND1

On December 28, 2017, John Hayden, an African American male, was promoted to

Commissioner/Chief of the St. Louis Metropolitan Police Department. Doc. [1] ¶ 14. Hayden

was selected over Interim Commissioner/Chief Lawrence O’Toole, a white male. Id. O’Toole

filed a lawsuit against the City for race discrimination and retaliation. Id. ¶ 15. The lawsuit was

settled around May 2022, with the City paying O’Toole over $160,000.00. Id. ¶ 16.

Hayden announced his retirement as Commissioner/Chief in September 2021. Id. ¶ 17.

Shortly thereafter, the City began a nationwide search for his replacement. Id. ¶ 18. The City’s

posting of the position stated that “applications were to be accepted until a sufficient number

were received to fill the anticipated vacancy.” Id. ¶ 18. Plaintiff Michael Sack—a white male

who had started with the Department in 1994 and had been promoted through the ranks,

becoming a lieutenant colonel on October 17, 2019—applied for the position, along with

O’Toole and 27 other applicants. Id. ¶¶ 1, 19, 28. Seven candidates—two internal and five

external—were certified as meeting the qualifications for the position. Id. ¶ 20. One of those

seven candidates withdrew, leaving six candidates. Id. The six candidates were then invited to

participate in testing for the position, which was administered by Management & Personnel

Systems, Inc., a nationally accredited and recognized testing company. Id. ¶¶ 20-21. The

external candidates did not appear on the testing date, and the Department of Personnel ruled out

1 For purposes of the motion to dismiss, the Court takes the factual allegations in the Complaint, Doc. [1],

to be true. See Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).

the option of virtual testing based on cheating concerns. Id. ¶ 22. The two internal candidates

were therefore the only candidates to “complete[ ] the process to be considered for

Commissioner/Chief.” Id. “Consistent with Civil Service Rule VII, § 3(c),2 the Director of

Personnel certified the two eligible and qualified candidates for the Public Safety Director to

choose from as the next Commissioner/Chief.” Id. ¶ 27.

On or about January 7, 2022, then-Mayor Tishaura Jones stated that she was not going to

pick either of the candidates certified by the Department of Personnel: “I only had two white

male candidates to choose from and St. Louis is more diverse than white males, our police

department is more diverse . . . .” Id. ¶ 23. While running for Mayor, Jones had pledged to

prioritize diversity in promotions within the Department. Id. ¶ 24. At the time the Complaint

was filed, 10 of the 12 people Mayor Jones had appointed to cabinet-level positions were African

American. Id. ¶ 39.

On or about March 16, 2022, “Sack was informed that his final overall score on the

promotion test was 100 and his rank on the eligibility list was number one.” Id. ¶ 25. He was

told to contact the Director of Public Safety to schedule an interview. Id. Plaintiff did as he was

directed, but he was never scheduled for an interview. Id. ¶ 26. On May 21, 2022, as part of his

settlement with the City, O’Toole retired, leaving Plaintiff as the only candidate for the

Commissioner/Chief position. Id. ¶ 33. But instead of promoting Plaintiff consistent with Civil

Service Rule VII, § 3(c), which provided that “additional eligibles can be requested from the

Department of Personnel when there are less than six (6) candidates for a position only ‘[i]f the

appointing authority is unable to fill the vacancy from the list provided[,]’” Mayor Jones

informed Plaintiff and the public that she was starting a new search for Commissioner/Chief. Id.

¶¶ 27, 34.3 The new search was to be “conducted by the Boulware Group (managing director

African American) with assistance from the Center for Policing Equity (which among other

things, pursues strategies to address racist behaviors, policies, and practices in law enforcement),

with the Regional Business Counsel covering any costs.” Id. ¶ 34. Plaintiff alleges, upon

information and belief, that “no request for proposals was issued by the City before these entities

2 The Civil Service Rules have been updated since the filing of Plaintiff’s Complaint. The references in

the Complaint are to the version in effect at the time of the events giving rise to this lawsuit.

3 Civil Service Rule VIII, § 03(b) now contains the rule that additional eligibles can be requested only if

the “appointing authority is unable to fill the vacancy from the list provided . . . .”

were hired to be part of the new search.” Id. While the original search required ten years of

senior command rank experience at the rank of captain or higher, the new search required only

five years of experience at the rank of police commander or higher. Id. ¶ 35. Plaintiff claims,

upon information and belief, that the qualifications were changed to “allow more African

American officers within the Department to apply.” Id.

As part of the new search, four finalists were selected to participate in a town hall

meeting. Id. ¶ 40. Two of the finalists were white; two were African American. Id. ¶ 41.

Plaintiff was the only internal candidate identified as a finalist. Id. ¶ 42. On December 11, 2022,

one of the African American finalists withdrew his name from consideration. Id. ¶ 43. The other

African American finalist was offered the position but declined it for compensation reasons. Id.

On December 12, 2022, Plaintiff was told that he would not be selected for the position. Id.

¶ 44. Then, on December 14, 2022, Robert Tracy, the other white finalist, was selected as the

Commissioner/Chief, id. ¶ 47, notwithstanding (1) that “the Wilmington City Council had voted

no confidence in him while he was Chief of the Wilmington Police Department due to a lack of

diversity in leadership positions in that department, among other things,” id. ¶ 48; (2) that “the

President of the Wilmington City Council (himself African American) had expressed concern

that Tracy ‘demonstrated resistance and a pattern of failure to provide information when

requested, including any ideas to increase communication, transparency, diversity and police

reform[,]’” id. ¶ 49; (3) that “the President of the Wilmington City Council publicly stated that

he could not sign off on recommending Tracy for the job if he spoke with his colleagues on the

St. Louis Board of Aldermen[,]” id. ¶ 51; and (4) that “during his tenure as Chief in Wilmington,

it was reported that an African American police officer was given a trophy by a Caucasian

supervisor reading, ‘Whitest Black Guy in the Office Award,’ which offended other African

American officers[,]” id. ¶ 51. Plaintiff alleges, upon information and belief, that Plaintiff “was

not selected for the Commissioner/Chief position because his selection after the 2 African

American finalists declined it would have shown that he was always qualified to be the City’s

next Commissioner/Chief but was not selected before the search was reopened because he did

not reflect the diversity (race) the mayor stated she wanted for the position.” Id. ¶ 46.

Plaintiff filed a Charge of Discrimination with the EEOC on January 5, 2023. Id. ¶ 55.

He was issued a right-to-sue letter on June 20, 2023. Id. ¶ 56. Shortly thereafter, he filed this

lawsuit asserting the following claims:

Count I: Title VII Claim for Race Discrimination (against the City of St. Louis)

Count II: Violation of Plaintiff’s Rights Under 42 U.S.C. § 1981 (against the City,

Tishaura Jones, and Daniel Isom)

Count III: Violation of Plaintiff’s Right to Equal Protection Under 42 U.S.C. § 1983

(against the City, Jones, and Isom)

Count IV: Conspiracy to Violate Civil Rights (against Jones and Isom)

Doc. [1]. Defendants move to dismiss all counts.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a claim for

“failure to state a claim upon which relief can be granted.” Federal Rule of Civil Procedure

8(a)(2) requires a plaintiff to give “a short and plain statement of the claim showing that the

pleader is entitled to relief.” To survive a Rule 12(b)(6) motion to dismiss, “a complaint 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) (quoting Bell Atl. Corp. v. Twombly, 550

U.S.544, 570 (2007)).

Determining if well-pleaded factual allegations state a “plausible claim for relief” is “a

context-specific task that requires the reviewing court to draw on its judicial experience and

common sense.” Id. at 679. A plaintiff’s allegations must allow “the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Whitney v. Guys,

Inc., 700 F.3d 1118, 1128 (8th Cir. 2012) (quoting Iqbal, 556 U.S. at 678). The well-pleaded

facts must establish more than a “mere possibility of misconduct.” Iqbal, 556 U.S. at 679.

When ruling on a motion to dismiss, a court “must liberally construe a complaint in favor

of the plaintiff,” Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d 853, 862 (8th Cir.

2010), and “grant all reasonable inferences in favor of the nonmoving party,” Lustgraaf v.

Behrens, 619 F.3d 867, 872-73 (8th Cir. 2010) (citing Braden v. Wal-Mart Stores, Inc., 588 F.3d

585, 591 (8th Cir. 2009)). But if a claim fails to allege one of the elements necessary to recovery

on a legal theory, the Court must dismiss that claim for failure to state a claim upon which relief

can be granted. See Crest Constr. II, Inc. v. Doe, 660 F.3d 346, 355 (8th Cir. 2011).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Although

courts must accept all well-pleaded factual allegations as true, they “are not bound to accept as

true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555 (internal

quotation marks and citation omitted).

DISCUSSION

Plaintiff asserts that Defendants’ decision in May 2022 to not promote Plaintiff and to

reopen the application process because of Plaintiff’s race violated Title VII, 42 U.S.C. 1981, and

the Equal Protection Clause.

I. Plaintiff has plausibly alleged that he suffered an adverse employment action.

Defendants argue that Plaintiff has not alleged an adverse employment action because he

was not denied the opportunity to compete for the Commissioner/Chief position. Plaintiff

responds that Defendants’ manipulation of the application process because of the race of the

prevailing candidates was an adverse employment action.

A plaintiff “may establish a prima facie case of discrimination by showing that ‘(1) [ ]he

is a member of a protected class; (2) [ ]he met [his] employer’s legitimate expectations; (3) [ ]he

suffered an adverse employment action; and (4) the circumstances give rise to an inference of

discrimination.’”4 Ingram v. Ark. Dep’t of Corr., 91 F.4th 924, 927 (8th Cir. 2024) (quoting

Yang v. Robert Half Int’l, Inc., 79 F.4th 949, 964 (8th Cir. 2023)). The prima facie case is an

“evidentiary standard, not a pleading requirement.” Swierkiewicz v. Sorema N.A., 534 U.S. 506,

510 (2002). “[I]t is unnecessary to plead enough facts to establish a prima facie case.” Ingram,

91 F.4th at 927. That said, “the elements of a prima facie case remain relevant in determining

the plausibility standard as the elements ‘may be used as a prism to shed light upon the

plausibility of the claim.’” Id. (citing Blomker v. Jewell, 831 F.3d 1051, 1056 (8th Cir. 2016)).

“An adverse employment action is a disadvantageous change to the compensation, terms,

conditions, or privileges of employment.” Cole v. Grp. Health Plan, Inc., 105 F.4th 1110, 1114

(8th Cir. 2024). Recently, in Muldrow v. St. Louis, 601 U.S. 346 (2024), the Supreme Court

“obviated the requirement—replete in [Eighth Circuit] case law—that the claimed injury be

‘significant,’ ‘material,’ or ‘serious.’” Cole, 105 F.4th at 1114. Now Plaintiff “is only required

to plead ‘some harm respecting an identifiable term or condition of employment.’” Id.

4 Plaintiff’s claims under Title VII, the Equal Protection Clause, and § 1981 are analyzed under the same

framework. See Collins v. Union Pac. R.R. Co., 108 F.4th 1049, 1052 (8th Cir. 2024) ; Humphries v.

Pulaski Cnty. Special Sch. Dist., 580 F.3d 688, 693 n.3 (8th Cir. 2009).

Defendants rely on Duffy v. Wolle, 123 F.3d 1026, 1036 (8th Cir. 1997). There, the

Eighth Circuit held that an employer’s “alleged interest in obtaining a diverse pool of applicants

can[not] support a finding of pretext” under the McDonnell Douglas burden-shifting analysis.

Duffy, 123 F.3d at 1038. The Court reasoned that the “only harm to white males is that they

must compete against a larger pool of qualified applicants.” Id. at 1039. According to the

Eighth Circuit, that “does not state a cognizable harm.” Id.

Plaintiff denies claiming that “an employer cannot and should not consider diversity in

recruiting for an open position.” Doc. [16] at 13 n.12. Rather, he is arguing that “[a]n employer

cannot invalidate a promotion process once it has been established and begun based on race,

except under circumstances not present in this case.” Id. at 6. Plaintiff points the Court to Ricci

v. DeStefano, 557 U.S. 557, 574 (2009), in which white and Hispanic firefighters sued the City

of New Haven and some of its officials for refusing to certify exam results because white

candidates had outperformed minority candidates. Id. at 562-75. The City and the officials

“defended their actions, arguing that if they had certified the results, they could have faced

liability under Title VII for adopting a practice that had a disparate impact on the minority

firefighters.” Ricci, 557 U.S. at 563.

Analyzing the firefighters’ claim, the Supreme Court began from the premise that “[t]he

City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid

defense.” Id. at 579. The Court noted that “all the evidence demonstrate[d] that the City chose

not to certify the examination results because of the statistical disparity based on race—i.e., how

minority candidates had performed when compared to white candidates.” Id. The question

before the Court was “not whether the conduct was discriminatory but whether the City had a

lawful justification for its race-based action.” Id. at 580. The Supreme Court ultimately held

“that, under Title VII, before an employer can engage in intentional discrimination for the

asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must

have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails

to take the race-conscious, discriminatory action.” Id. at 585.

Plaintiff argues that, as in Ricci, Defendants’ “stated reason for not completing the

established promotion process was the ‘racial distribution of the results.’” Doc. [16] (quoting

Ricci, 557 U.S. at 584). And therefore, as in Ricci, absent some valid defense, Defendants’

“express, race-based decisionmaking violates Title VII[ ] . . . .” Ricci, 557 U.S. at 579.

Defendants try to distinguish Ricci on grounds that the plaintiffs there were “irrefutably

foreclosed from the opportunity to compete for promotion,” Doc. [13] at 10, whereas here,

“Plaintiff was not denied the opportunity to compete for the police chief position and did, in fact,

compete for that position until a member of Plaintiff’s same protected group was selected

instead.” Id. But the firefighters in Ricci were not “irrefutably foreclosed” from competing for

future promotions. They could still “be promoted in the future but not through the previously

established process.” Doc. [16] at 7. Taking Plaintiff’s allegations to be true and drawing all

reasonable inferences in his favor, something similar happened here: Plaintiff was denied an

established route to promotion because of his race.

Defendants also attempt to distinguish Ricci by pointing the Court to Maraschiello v. City

of Buffalo Police Department, 709 F.3d 87, 88 (2d Cir. 2013), in which a white police captain

argued that the police department’s “failure to promote him was impermissibly motivated by

race.” The police captain had “received the highest grade on the [civil service] exam and ranked

first on a list of candidates that was certified on December 13, 2006.” Id. at 89. New York law

permitted the City of Buffalo to promote any of the top three scorers on the exam. Id. It was

undisputed that the “exam qualified [the police captain] and the other two top scores for

promotion to inspector at any time while the 2006 list remained in effect.” Id. But for most of

that period, there were no open positions. Id.

At the same time, the City of Buffalo was in the process of adopting a new police

promotion exam. Id. The new test was developed in late 2007 and early 2008. The City of

Buffalo administered the written component of the new exam for the inspector position in

February 2008 and the oral component on March 31, 2008. Id. at 90. The police captain elected

not to take the 2008 test. Id. On March 18, 2008, it was announced that the current inspector

was retiring. Id. After the new test was scored on April 16, 2008, the City of Buffalo “adopted a

new inspector list, and the 2006 eligibility list automatically expired.” Id. As the police captain

had not taken the test, he did not appear on the 2008 eligibility list. Id. at 90-91. A white male

was appointed to fill the vacancy created by the current inspector’s retirement. Id.

The police captain filed suit, alleging that he was not promoted because of his race in

violation of Title VII, § 1983, and the Equal Protection Clause of the Fourteenth Amendment.

Id. at 91. The district court granted summary judgment in favor of the defendants. Id. at 91-92.

The police captain appealed, arguing that “he was denied his shot at [a] promotion in the same

way and for the same reasons as the firefighters in Ricci.” Id. at 95. The Second Circuit

disagreed:

In Ricci, the defendants threw out the results of a test based on the racial disparity

reflected in those particular results, denying the firefighters who had taken it any chance

of a promotion. In this case, Maraschiello’s results were certified, and he was eligible for

a promotion for over a year. More important, however, is the manner in which

Maraschiello’s eligibility expired. Unlike in Ricci, where the results of a specific test

were simply discarded based on the racial statistics reflected in the results, here the City

replaced the 2006 list with the 2008 list after spending more than a year preparing to

revise its assessment methods. Its problem was with the test itself, rather than with a

particular set of results. The City administered the first phase of the 2008 test in

February, which was before the inspector position Maraschiello desired became vacant.

Maraschiello chose not to take this test even before he knew that a position would be

open. In short, the City was already in the process of preparing to replace the eligibility

list—a process in which Maraschiello chose not to participate. This process, even though

it eventually resulted in the automatic invalidation of the 2006 list, was not a rejection of

that list for its own sake.

Id. The Second Circuit noted that “Ricci specifically permits an employer to ‘consider[ ], before

administering a test or practice, how to design that test or practice in order to provide a fair

opportunity for all individuals, regardless of race,’” id. at 96 (quoting Ricci, 557 U.S. at 585),

before concluding that “[c]ompleting the last phase of a long-planned adoption of a new standard

is a far cry from rejecting a set of results out of hand because of their racial makeup.” Id. at 96.

The differences between this case and Maraschiello are patent. The defendants in

Maraschiello did something Ricci explicitly permitted: “consider[ ], before administering a test

or practice, how to design that test or practice in order to provide a fair opportunity for all

individuals, regardless of race.” Ricci, 557 U.S. at 585. Here, taking the facts alleged in the

Complaint as true, Defendants reopened an application process and changed its requirements

because the two resulting candidates were white. Such “race-based decisionmaking,” absent a

valid defense, is impermissible under Title VII. Id. at 579.

Plaintiff has sufficiently alleged that he suffered an adverse employment action.

II. Plaintiff has sufficiently pleaded facts supporting his failure-to-promote claims.

Defendants argue that Plaintiff’s failure-to-promote claims fail because a white male was

ultimately selected for police chief. Doc. [13] at 12. Plaintiff responds that he does not need to

make out a prime facie case of discrimination because he has presented direct evidence that he

was not promoted because of his race.

“At the pleading stage in the discrimination context, it is unnecessary to plead enough

facts to establish a prima facie case.” Ingram, 91 F.4th at 927 (citing Blomker, 831 F.3d at

1056). One reason for that principle is that a plaintiff with direct evidence need not make out a

prima facie case of discrimination, and it would be “incongruous to require a plaintiff, in order to

survive a motion to dismiss, to plead more facts than he may ultimately need to prove to succeed

on the merits if direct evidence of discrimination is discovered.” Swierkiewicz, 534 U.S. at 511-

12. Another is that “the precise requirements of a prima facie case can vary depending on the

context and were ‘never intended to be rigid, mechanized, or ritualistic.’” Id. at 512 (quoting

Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)). “Given that the prima facie case

operates as a flexible evidentiary standard, it should not be transposed into a rigid pleading

standard for discrimination cases.” Id. At this stage, the Court’s role is to decide whether

Plaintiff’s allegations are sufficient for a reasonable factfinder to infer that Plaintiff was not

promoted because of his race.5

Taking Plaintiff’s allegations as true: He, a white male, and O’Toole, another white

male, were both certified on the list of eligibles to fill the Commissioner/Chief vacancy. After

O’Toole retired, Plaintiff was the only candidate remaining. Instead of selecting Plaintiff, who

was “more than qualified,” Defendants chose to reopen the search and lower the minimum

qualifications. Doc. [1] ¶¶ 31, 34-35. That decision was inconsistent with Civil Service Rule

VII, § 3(c), which provides that additional candidates can be requested only if the appointing

authority is unable to fill the vacancy from the list provided. Id. ¶ 24. And it was made just five

months after Mayor Jones publicly stated that she was not going to pick either of the candidates

because both were white: “I only had two white male candidates to choose from and St. Louis is

more diverse than white males, our police department is more diverse . . . .” Id. ¶ 81. Finally,

5 Eighth Circuit precedent requires plaintiffs in reverse race-discrimination cases to also show that

“background circumstances support the suspicion that the defendant is that unusual employer who

discriminates against the majority.” Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 903 (8th Cir.

2015) (quoting Hammer v. Ashcroft, 383 F.3d 722, 724 (8th Cir. 2004)). The Supreme Court recently

held that “this additional ‘background circumstances’ requirement is not consistent with Title VII’s text or

our case law construing the statute.” Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303, 305-06 (2025).

Because Plaintiff’s allegations are sufficient under either standard, the Court need not consider whether

that decision should extend to claims outside the Title VII context for present purposes.

although a white male was ultimately selected for the position, that candidate was selected only

after the two black candidates declined the position.

Plaintiffs’ allegations are sufficient for a reasonable factfinder to infer that Defendants

elected not to promote Plaintiff because of his race.6

III. Plaintiff may amend his § 1981 claim.

Defendants move to dismiss Plaintiff’s standalone claim under 42 U.S.C. § 1981, arguing

that such claims are barred. See Onyiah v. St. Cloud State Univ., 5 F.4th 926, 929 (8th Cir. 2021)

(“[W]e have repeatedly recognized the prohibition on freestanding § 1981 claims against state

actors.”); Artis v. Francis Howell North Band Booster Ass’n, Inc., 161 F.3d 1178, 1181 (8th Cir.

1998) (“A federal action to enforce rights under § 1981 against a state actor may only be brought

pursuant to § 1983.”). Plaintiff concedes that he “must pursue his § 1981 claim pursuant to

§ 1983,” Doc. [16] at 15, and asks for leave to amend his Complaint, which the Court grants.

Failure to remedy the defect in an amended complaint will result in dismissal of Count II.

Defendants also mention in passing that Plaintiff has failed “to demonstrate a contractual

right or property interest in promotion as required by § 1981 . . . .” Doc. [13] at 20 n.10. As

Defendants do not “support [t]his assertion with any argument or legal authority,” the Court

deems the issue waived. Milligan v. City of Red Oak, 230 F.3d 355, 360 (8th Cir. 2000); see

Jacam Chem. Co. 2013, LLC v. Shepard, 101 F.4th 954, 963 (8th Cir. 2024) (“A party may not

make bare-bones assertions ‘hoping that [the Court] will do its work for it by developing the

argument and putting flesh on its bones.’” (quoting Sturgis Motorcycle Rally, Inc. v. Rushmore

Photo & Gifts, Inc., 908 F.3d 313, 324 (8th Cir. 2018))).

IV. Defendants Isom and Jones are not entitled to qualified immunity.

“Qualified immunity shields officials from civil liability in § 1983 actions when their

conduct ‘does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Morgan v. Robinson, 920 F.3d 521, 523 (8th Cir. 2019)

(en banc) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “Qualified immunity

analysis requires a two-step inquiry: (1) whether the facts shown by the plaintiff make out a

violation of a constitutional or statutory right, and (2) whether that right was clearly established

at the time of the defendant’s alleged misconduct.” Id. (quoting Nord v. Walsh Cnty., 757 F.3d

6 Plaintiff’s allegations are sufficient even under the stricter “but-for” causation standard required under

§ 1981. See Benda v. Sadler Rentals, LLC, 2023 WL 3002402, at *3 (E.D. Mo. April 19, 2023).

734, 738 (8th Cir. 2014)). “Unless both of these questions are answered affirmatively, an

appellant is entitled to qualified immunity.” Id. (quoting Nord, 757 F.3d at 738). “A clearly

established right is one that is ‘sufficiently clear that every reasonable official would have

understood that what he is doing violates that right.’” Id. (quoting Reichle v. Howards, 566 U.S.

658, 664 (2012)). To defeat a defendant’s claim of qualified immunity, a plaintiff “bears the

burden of showing that the facts alleged, construed in the light most favorable to [him],

demonstrate the violation of a constitutional right that was clearly established at the time of the

violation.” Church v. Anderson, 898 F.3d 830, 832 (8th Cir. 2018).

Because Plaintiff’s claims based on Title VII, § 1981, and the Equal Protection Clause

“set forth parallel, substantially identical, legal theories of recovery, [the Court] appl[ies] the

same analysis to each claim.” Burton v. Arkansas Sec’y of State, 737 F.3d 1219, 1237 (8th Cir.

2013). Thus, for the reasons stated in Sections I and II, the Court finds that Plaintiff has met his

burden as to the first prong of the qualified immunity analysis. The Court also finds that “[t]here

is no question that [Plaintiff’s] right to be free from racial . . . discrimination was well-

established at the time [he was not promoted].” Wimbley v. Cashion, 588 F.3d 959, 963 (8th Cir.

2009). “[T]he constitutional right to be free from [racial] discrimination is so well established

and so essential to the preservation of our constitutional order that all public officials must be

charged with knowledge of it.” Id. (citation modified) (quoting Wimbley, 588 F.3d at 963). And

Ricci makes more than “sufficiently clear” that the kind of “express, race-based decisionmaking”

alleged in Plaintiff’s Complaint violates Title VII. Ricci, 557 U.S. at 579. Because the Eighth

Circuit has held that § 1981 and equal protection claims are analyzed under the same framework

as Title VII, see supra note 4, the right Defendants allegedly violated was thus clearly

established. See Williams v. Herron, 687 F.3d 971, 978 (8th Cir. 2012) (rejecting argument that

the “clearly established right analysis” is limited to cases involving § 1983 and qualified

immunity). Plaintiff has met his burden to defeat Defendants’ claims to qualified immunity.

V. Plaintiff’s § 1983 claim against the City is not foreclosed by Praprotnik.

Plaintiff seeks to hold the City liable under § 1983 for violations of the Equal Protection

Clause and § 1981, alleging that the discriminatory actions were “taken by those with final

policymaking authority and/or approved by those with final policymaking authority . . . .”7 Doc.

[1] ¶ 75. “[M]unicipal liability under § 1983 attaches where . . . a deliberate choice to follow a

course of action is made from among various alternatives by the official or officials responsible

for establishing final policy with respect to the subject matter in question.” Pembaur v. City of

Cincinnati, 475 U.S. 469, 483 (1986). But “[m]unicipal liability attaches only where the

decisionmaker possesses final authority to establish municipal policy with respect to the action

ordered.” Id. at 481. The parties disagree about whether the alleged decisionmakers possessed

such “final authority” with respect to the actions alleged by Plaintiff.

The City relies on the Supreme Court’s decision in City of St. Louis v. Praprotnik, 485

U.S. 112 (1988). There, the “Supreme Court, in a plurality opinion, held that [the Eighth Circuit]

had applied an improper legal standard for determining municipal liability, and reversed [the

Eight Circuit’s] finding that the City of St. Louis was liable under 42 U.S.C. § 1983 for the

decisions of its subordinate city officials to transfer and later terminate James H. Praprotnik, the

appellee.” Praprotnik v. City of St. Louis, 879 F.2d 1573, 1574 (8th Cir. 1989). The Supreme

Court, “[f]inding no evidence of an unconstitutional municipal policy or evidence that final

policymaking authority actually rested with the supervisors responsible for Praprotnik’s transfer

and termination, . . . reversed and remanded the case for further review of the record and state

law.” Id.

In Praprotnik, the Supreme Court reiterated that “[t]he identification of policymaking

officials is a question of state law . . . and not a question of fact in the usual sense.” 485 U.S. at

124. And it made clear that it is a question for the Court, not a jury. Id. at 126. But the

Praprotnik plurality also acknowledged that it is not a simple question. Local governments

come in innumerable forms. See id. at 126-27. Sometimes “policymaking responsibility is

shared among more than one official or body” within a single locality. Id. at 126. And “special

difficulties can arise when it is contended that a municipal policymaker has delegated his

policymaking authority to another official.” Id. While a “mere exercise of discretion by an

employee” cannot give rise to municipal liability, “[i]f the authorized policymakers approve a

7 Plaintiff is not alleging “a Monell claim against the City based on an official policy (except to the extent

that an official policy can be established by one with final policymaking authority . . .), an unofficial

custom, or a showing of deliberate indifference to race discrimination because not alleged in his

Complaint.” Doc. [16] at 16-17 (referring to Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)).

subordinate’s decision and the basis for it, their ratification would be chargeable to the

municipality because their decision is final.” Id. at 126-27. Recognizing the complexity of the

question, after “examination of the record and state law,” the Supreme Court remanded

Praprotnik to the Eighth Circuit for application of the principles it had set forth to the record in

that case. Id. at 131-32.

On remand, after further briefing and argument, a divided panel of the Eighth Circuit

found that Praprotnik had not made a submissible case for municipal liability because “the

supervisors responsible for Praprotnik’s transfer and layoff . . . were not vested with final

policymaking authority for making municipal policy in the area of personnel administration and

layoffs. At most, these officials were entrusted with the authority for making discretionary

personnel decisions in their departments.” Praprotnik v. City of St. Louis, 879 F.2d 1573, 1575

(8th Cir. 1989). Based on Article XVIII of the St. Louis City Charter, the Eighth Circuit found

that the Civil Service Commission “possesses primary policymaking authority for making

general personnel policy and for making final decisions as to individual employees.” Id. at

1575-76. And it found no evidence that the Commission had delegated its authority to any of the

supervisors responsible for Praprotnik’s transfer and termination. Id. at 1576.

According to the City, Praprotnik precludes a finding that the alleged decisionmakers in

this case exercised final policymaking authority over the actions alleged by Sack. The Court

disagrees. As the Supreme Court acknowledged and the Eighth Circuit illustrated in Praprotnik

itself, determining whether an official exercises final policymaking authority over the relevant

area of a city’s business requires careful application of state and local law to a specific set of

facts. And the facts alleged by Plaintiff are significantly different from the facts of Praprotnik.

Most notably, Plaintiff alleges that the decisions that violated his rights were made at least in part

by the Mayor of the City of St. Louis—not supervisors whose decisions were appealable (and

had, in fact, been appealed by Praprotnik) to the Civil Service Commission. Both the Supreme

Court and the Eighth Circuit acknowledged in Praprotnik that St. Louis City Charter vests some

policymaking authority in the Mayor. See Praprotnik, 485 U.S. at 126 (“Assuming that

applicable law does not make the decisions of the Commission reviewable by the Mayor and

Aldermen, or vice versa, one would have to conclude that policy decisions made either by the

Mayor and Aldermen or by the Commission would be attributable to the city itself.”);

Praprotnik, 879 F.2d at 1576 (“The mayor and aldermen’s policymaking authority . . . appears to

be limited to personnel matters of a more broad, all-encompassing nature (e.g., compensation

rates, retirement plans, department appropriations).”). The City points to no provision of local or

state law providing that decisions like those Plaintiff alleges are appealable to any higher

authority, and the Complaint contains no allegation that appeal was pursued or even possible.

Because the allegations in this case differ in critical ways from the facts of Praprotnik, the

question of who exercised final policymaking authority over the actions alleged here is not

answered by that decision.

At the motion to dismiss stage, the task of the Court is simply to assess whether

Plaintiff’s allegations state a plausible claim for relief. Plaintiff alleges that his constitutional

rights were violated by the deliberate choices of City officials who had final policymaking

authority with respect to those actions, at least one of whom enjoys some policymaking authority

per the City Charter. Such allegations are sufficient to state a § 1983 claim against the City. See

Pembaur, 475 U.S. at 483.

VI. Plaintiff’s official capacity claims are dismissed as duplicative.

Plaintiff brings his § 1981 and equal protection claims against Defendant Jones in her

official and individual capacities.8 “A suit against a government officer in his official capacity is

functionally equivalent to a suit against the employing governmental entity.” Veatch v. Bartels

Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). “It is proper for a court to dismiss a claim

against a government officer in his official capacity as duplicative or redundant if the claims are

also asserted against the officer’s governmental employer.” Caruso v. City of St. Louis, 2016

WL 6563472, at *1 (E.D. Mo. Nov. 4, 2016) (citing Veatch, 627 F.3d at 1257). Plaintiff’s

official capacity claims against Defendant Jones are therefore dismissed.

VII. Plaintiff fails to state a claim for conspiracy.

Plaintiff alleges that Defendants and others who are not elected officials or employees of

the City “reached a mutual understanding that they would not promote Sack but would reopen

the applications for the Commissioner/Chief position because of Sack’s race.” Doc. [1] ¶ 80. In

the alternative, Plaintiff alleges that “Defendants conspired among themselves and with others to

undertake a course of conduct to protect each other from the consequences of their constitutional

and statutory violations . . . .” Id. Defendants argue that Plaintiff has failed “to state a plausible

8 Defendant Isom is sued in only his individual capacity. Doc. [1] ¶ 4.

conspiracy claim upon which relief may be granted and any such claim is barred by the

intercorporate [sic] conspiracy doctrine.” Doc. [13] at 26.

“To prove a § 1983 conspiracy claim, the plaintiff must show: that the defendant

conspired with others to deprive him or her of a constitutional right; that at least one of the

alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and that the

overt act injured the plaintiff.” Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999). A plaintiff

must do more than merely “allude to a meeting of the minds . . . . [He] must support the

assertion[s] with specific allegations of collusion.” Process Controls Int’l, Inc. v. Emerson

Process Mgmt., 2011 WL 6091722, at *3 (E.D. Mo. Dec. 7, 2011) (citing Moses.com Sec., Inc. v.

Comprehensive Software Sys., Inc., 406 F.3d 1052, 1063 (8th Cir. 2005)). The intracorporate

conspiracy doctrine “provides that ‘a local government entity cannot conspire with itself through

its agents acting within the scope of their employment.’” Street v. Leyshock, 41 F.4th 987, 990

(8th Cir. 2022) (quoting L.L. Nelson Enters. v. Cnty. of St. Louis, 673 F.3d 799, 812 (8th Cir.

2012)).

The Court turns first to whether Plaintiff has plausibly alleged that Defendants conspired

with “others” to violate Plaintiff’s rights. Because Plaintiff has not specified the “others” with

whom Defendants allegedly conspired, the Court assumes he refers to the Boulware Group and

Center for Policing Equity, the Regional Business Council, and the Saint Louis Police

Foundation (the “Outside Entities”). With respect to the Outside Entities, Plaintiff’s only

suggestion of a “meeting of the minds” is the following allegation:

Instead of promoting Sack consistent with Civil Service Rule VII, § 3(c), on or about

May 18, 2022, Jones informed Sack and the public that she was starting a new search for

Commissioner/Chief, to be conducted by the Boulware Group (managing director

African American) with assistance from the Center for Policing Equity (which among

other things, pursues strategies to address racist behaviors, policies, and practices in law

enforcement), with the Regional Business Counsel covering any costs. Upon information

an [sic] belief, no request for proposals was issued by the City before these entities were

hired to be part of the new search.

Doc. [1] ¶ 34. That allegation is insufficient to support a conspiracy claim, which “‘requires a

complaint with enough factual matter (taken as true) to suggest that an agreement was made.’”

Faulk v. City of St. Louis, 30 F.4th 739, 748 (8th Cir. 2022) (citing Twombly, 550 U.S. at 564).

“Without some further factual enhancement,” the bare allegation that certain entities were hired

to conduct the second search “stops short of the line between possibility and plausibility . . . .”

Id. (citing Twombly, 550 U.S. at 557). The insufficiency of the allegations is underlined by

Plaintiff’s response to the motion to dismiss, which, Defendants correctly observe, “makes no

meaningful effort to argue that the Boulware Group, Center for Policing Equity, the Saint Louis

Police Foundation, or any other non-state actor conspired to deprive Sack of his civil rights.”

Doc. [22] at 11. Because Plaintiff’s allegations do not support a plausible inference that the

Outside Entities conspired with Defendants to violate Plaintiff’s civil rights, the Court turns to

the intracorporate conspiracy doctrine.

In Faulk v. City of St. Louis, the Eighth Circuit recognized that it had “never definitively

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

claims.” 30 F.4th at 749. There, the Court ultimately granted the officers qualified immunity

because it was not clearly established that “reasonable officers ‘would . . . have known with any

certainty’ that planning, designing, monitoring, or executing ‘the illegal kettling plan’ would

expose them to damage liability for a § 1983 conspiracy claim.” Id. at 750 (quoting Ziglar v.

Abbasi, 582 U.S. 120, 155 (2017)). And in Green v. City of St. Louis, 52 F.4th 734, 741 (8th Cir.

2022), the Eighth Circuit relied on Faulk to find that the defendant officers were entitled to

qualified immunity:

Our court [ ] addressed the issue of the intracorporate conspiracy doctrine’s

applicability to § 1983 claims in Faulk. There, we declined to apply the doctrine

to all § 1983 claims but held that, at least as of 2017, it was not clearly established

that officers within a department could conspire to violate constitutional rights.

Faulk, 30 F.4th at 750. The reasoning applied in Faulk applies in this case. It was

not clearly established at the time of the incident that officers could conspire with

one another to violate a First Amendment right. For this reason, the claim should

be dismissed.

As recently as April 2025, courts in this Circuit have granted qualified immunity to officers

accused of conspiring with each other. See, e.g., Simon v. Jones, 2025 WL 1025012, at *2 (E.D.

Mo. Apr. 7, 2025) (“Given the uncertain applicability of the intracorporate conspiracy doctrine to

§ 1983 conspiracy claims, see Street v. Leyshock, 41 F.4th 987, 900 (8th Cir. 2022) (citing Faulk

v. City of St. Louis, Mo., 30 F.4th 739, 749 (8th Cir. 2022)), I cannot say that Jones and Scoggin

would have known with any certainty that their alleged agreement to retaliate against Simon by

threatening his employer’s funding was clearly forbidden by law such that they would be

exposed to liability for a § 1983 conspiracy claim.”); Keesee v. Johnson, 2024 WL 216783, at *2

(E.D. Ark. Jan. 19, 2024) (“Moreover, even if the underlying conduct were unconstitutional,

[defendants] would be entitled to qualified immunity because they were employees of a single

government entity—the city of Conway.” (citing Torres v. City of St. Louis, 39 F.4th 494, 507

(8th Cir. 2022))); Morgan-Tyra v. City of St. Louis, 2022 WL 4378858, at *11 (E.D. Mo. Sept.

22, 2022) (defendant entitled to qualified immunity on the claim that he conspired with his

fellow officers). Applying the Eighth Circuit’s reasoning in Fau/k and Green to this case, the

Court finds that Defendants are entitled to qualified immunity as to Plaintiff’s conspiracy claim.

Accordingly,

IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss, Doc. [10], is

GRANTED in part and DENIED in part. An Order of Partial Dismissal will accompany this

Memorandum and Order.

IT IS FURTHER ORDERED that, no later than 30 days from the date of this Order,

Plaintiff shall amend the Complaint as instructed herein. Failure to remedy the identified

defect in Count I will result in that claim’s dismissal.

IT IS FINALLY ORDERED that, no later than 45 days from the date of this Order,

the parties shall submit a joint proposed scheduling plan.

Dated this 30" day of September, 2025.

. £ £4 2. “

□□ hnok & | Fulg&

UNITED STATES DISTRICT JUDGE

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