# Johnson v. Montgomery County Community Punishment and Corrections Authority (CONSENT)

> District Court, M.D. Alabama · July 31, 2019

URL: https://www.frixlaw.com/law-library/cases/9977582

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** July 31, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9977582

## How later opinions describe it (automated extraction)

- characterizing a period of approximately one month between protected activity and an adverse employment action as a “short time” affirmatively supporting the conclusion that the adverse action was motivated by the protected activity
- establishing that Section 1981 prohibits retaliation for filing EEOC charges of race discrimination in the workplace

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

REBECCA JOHNSON, )
)
Plaintiff, )
)
v. ) Case No. 2:18-cv-568-WC
) [wo]
MONTGOMERY COUNTY )
COMMUNITY PUNISHMENT AND )
CORRECTIONS AUTHORITY, et al., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER
Plaintiff Rebecca Johnson filed this action against Defendant Montgomery County
Community Punishment and Corrections Authority (“MCCPCA”), Defendant Paul
Brown (“Brown”), and former Defendant Montgomery County Commission (“MCC”) on
June 8, 2018, alleging liability under 42 U.S.C. § 1983 for race discrimination and for
unlawful retaliation, each in violation of 42 U.S.C. § 1981. Defendants moved to
dismiss Plaintiff’s claims on July 18, 2018, and in response Plaintiff amended her
complaint effective September 13, 2018, abandoning her claims to the extent alleged
against the MCC and abandoning her claim of race discrimination in its entirety.
By and through her amended complaint, Plaintiff alleges that the MCCPCA is her
employer and that Defendant Brown is her immediate supervisor. Plaintiff further
alleges that in the course of her employment by the MCCPCA she has been subjected to
unlawful race discrimination, and that she has opposed such unlawful discrimination by
engaging in protected conduct. Plaintiff additionally alleges that in retaliation for her
protected opposition to race discrimination in the workplace, the MCCPCA and
Defendant Brown subjected her to discipline and to other adverse employment actions.
Arising out of the foregoing, through two separate claims Plaintiff alleges the liability of

the MCCPCA and of Defendant Brown in his individual capacity under 42 U.S.C. § 1983
for unlawful retaliation in violation of 42 U.S.C. § 1981. Plaintiff seeks award of
noneconomic money damages for emotional distress in unspecified amounts, of
economic damages for lost wages plus prejudgment interest in unspecified amounts, and
of her attorney fees and costs, as well as award of punitive damages against Defendant

Brown only. This court has federal-question jurisdiction over Plaintiff’s claims pursuant
to 28 U.S.C. § 1331(a).
Now before the court is Defendants’ Motion to Dismiss (Doc. 36) Plaintiff’s
Amended Complaint (Doc. 35) for failure to state a claim. The undersigned has
considered the Defendants’ motion and all of the pleadings on file. For the reasons that

follow, the undersigned finds that the Defendants’ motion is due to be granted in part as
to a portion of Plaintiff’s Section 1981 claim against the MCCPCA as set forth below,
and otherwise denied.
I. LEGAL STANDARD
To survive dismissal for failure to state a claim pursuant to Federal Civil

Procedure Rule 12(b)(6), a complaint must contain more than a “formulaic recitation of
the elements of a cause of action;” specifically, it must contain factual allegations
sufficient to “raise a right to relief above the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). To raise a right to relief above the speculative
level, “[t]he pleading must contain something more . . . than . . . a statement of facts that
merely creates a suspicion [of] a legally cognizable right of action.” Id., quoting 5 C.
Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235–36 (3d ed. 2004);

see also Fed. R. Civ. P. 8(a). Instead, the plaintiff must plead affirmative factual content,
as opposed to any merely conclusory recitation that the elements of a claim have been
satisfied, that “allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662 (2009). In
consequence, for a complaint to survive a motion to dismiss, the non-conclusory factual

allegations and reasonable inferences therefrom must be at least plausibly suggestive of a
claim entitling the plaintiff to relief. See Simpson v. Sanderson Farms, Inc., 744 F.3d 702,
708 (11th Cir. 2014); Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1310 (11th
Cir. 2008).
In ruling on a Rule 12(b)(6) motion, a court may generally consider only

allegations contained in the pleadings, exhibits attached to or incorporated by reference
into the complaint, and matters properly subject to judicial notice. See Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Horsley v. Feldt, 304 F.3d 1125,
1134 (11th Cir. 2002). In considering a motion to dismiss, this court accepts all of the
allegations in the complaint as true and construes them in the light most favorable to the

plaintiff. See Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). Moreover, the court
“presume[s] that general allegations embrace those specific facts that are necessary to
support the claim.” Nat’l Org. for Women v. Scheidler, 510 U.S. 249, 256 (1994) (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). The court need not, however,
presume the truth of legal conclusions cast in the form of factual allegations. See Tellabs,
551 U.S. at 323.
II. FACTUAL BACKGROUND

A. The Parties
Plaintiff Johnson is an African American woman and a resident of Montgomery
County, Alabama. Defendant MCCPCA is a public corporation of the State of Alabama
and has at all material times been Plaintiff Johnson’s employer. Defendant Brown has at
all material times served as the MCCPCA’s Executive Director and Appointing Authority,

and as Plaintiff Johnson’s immediate supervisor in that capacity.
B. Material Allegations of Plaintiff’s Amended Complaint1
Plaintiff has been employed by the MCCPCA in an unspecified capacity since
May 6, 2003. See Doc. 35, ¶¶ 7, 31. At all material times, Defendant Brown was
Plaintiff’s immediate supervisor. See id., ¶¶ 9, 33. During the course of Plaintiff’s

employment by the MCCPCA, Defendant Brown subjected Plaintiff to racially
discriminatory conduct, including, among other unspecified acts, placing a banana and a
toy monkey in her office in 2011 and refusing to allow her to be certified with or to use
her duty weapon in June 2016. See id., ¶¶ 10, 34. In response and opposition to such
conduct, Plaintiff filed charges of race discrimination with the Equal Employment

Opportunity Commission (“EEOC”) in 2011 and again in June 2017. See id., ¶¶ 11, 35.
Defendant Brown was aware of both EEOC filings. See id., ¶¶ 12, 36. The EEOC issued

1 Except where otherwise indicated, the following recitation constitutes the undersigned’s construal of the
allegations of Plaintiff Johnson’s Amended Complaint (Doc. 35), of any matters incorporated by reference
a Notice of Right to Sue in connection with Plaintiff’s June 2017 filing on August 6,
2017. See id., ¶¶ 13, 37.
On September 22, 2017, Defendant Brown issued Plaintiff a written reprimand

regarding an incident, unidentified in Plaintiff’s Amended Complaint, that had occurred
more than a year previously. See id., ¶¶ 14, 38. Plaintiff responded by advising
Defendant Brown that she believed the reprimand both to be pretextual and to constitute
unlawful retaliation in response to her EEOC filings, and that she would continue filing
further such charges until the discriminatory and retaliatory conduct ended. See id., ¶¶ 15,

39. On November 7, 2017, Defendant Brown placed Plaintiff on administrative leave
and recommended the termination of her employment, specifically citing as grounds for
such disciplinary action Plaintiff’s conduct in filing EEOC charges and in indicating her
intention to file further such charges in the future. See id., ¶¶ 16–17, 40–41.
Although Plaintiff’s Amended Complaint is silent as to this point, it appears that

Plaintiff administratively challenged the imposed and recommended discipline of
November 2017. On January 4, 2018, an Administrative Law Judge determined that the
discipline should be rescinded. See id. ¶¶ 18, 42. Notwithstanding the foregoing, on
January 10, 2018, Defendant Brown suspended Plaintiff’s employment without pay for a
28-day period, again expressly citing as grounds for such disciplinary action Plaintiff’s

conduct in filing EEOC charges and in indicating her intention to file further such
charges. See id., ¶¶ 19, 22, 43, 46. Defendant Brown’s decision to suspend Plaintiff’s
employment was not subject to administrative review, see id., ¶¶ 21, 45, and it is

therein, and of any matters properly subject to judicial notice in the light most favorable to Plaintiff.
Plaintiff’s position that, as MCCPCA’s Executive Director and Appointing Authority,
Defendant Brown was a final policymaker for the MCCPCA, see id., ¶¶ 25, 49.
As noted, arising out of the foregoing, Plaintiff alleges the liability of the

MCCPCA and of Defendant Brown in his individual capacity under Section 1983 for
unlawful retaliation in violation of Section 1981, in two separate claims.
III. ANALYSIS
Each of Plaintiff’s two claims for relief are brought pursuant to 42 U.S.C. § 1983.
Section 1983 provides a mechanism whereby civil rights plaintiffs may bring actions to

redress violations of federally protected rights. See, e.g., Monroe v. Pape, 365 U.S. 167,
172 (1961). Each of Plaintiff’s two claims for relief is premised on the theory that the
Defendants’ conduct violated her right under 42 U.S.C. § 1981 to freedom from adverse
employment actions in retaliation for engaging in statutorily protected conduct.
It is well established that Section 1981 prohibits employers from taking adverse

actions against employees in retaliation for their opposition to statutorily prohibited racial
discrimination. See CBOCS West, Inc. v. Humphries, 553 U.S. 442, 446 (2008). To state
a Section 1981 retaliation claim, a plaintiff must allege: (1) that she engaged in statutorily
protected activity, (2) that she suffered a materially adverse action, and (3) that there was
a causal connection between the protected activity and the adverse action. See Chapter 7

Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1258 (11th Cir. 2012).
Defendants argue that Plaintiff’s Section 1981 retaliation claims against both
Defendants fail because Plaintiff has failed adequately to allege that she engaged in
statutorily protected conduct, because some of Defendants’ complained-of conduct was
not adverse for Section 1981 purposes, and because Plaintiff has failed adequately to
allege a causal connection between her purportedly protected conduct and the adverse
employment actions that were imposed against her. Defendants further argue, in the

alternative to the foregoing, that Defendant Brown enjoys qualified immunity from suit in
connection with Plaintiff’s Section 1981 claim against him. Defendants also argue, in
addition to the foregoing, that Plaintiff’s Section 1981 claim against the MCCPCA fails
because Plaintiff has failed adequately to allege that Defendants’ complained-of conduct
was caused by a policy or custom of the MCCPCA. The undersigned addresses each of

these arguments in turn, below.
A. The Adequacy of Plaintiff’s Allegations to State the Elements of a
Claim for Violation of Section 1981

i. Plaintiff’s Allegations of Engagement in Statutorily Protected
Conduct

For opposition to unlawful conduct to be statutorily protected for purposes of
Section 1981, the plaintiff must have had a reasonable, good faith belief that the opposed
conduct was unlawful. See Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th
Cir. 1999). In consequence, to satisfy the “statutorily protected conduct” element of a
Section 1981 retaliation claim at the pleading stage of a lawsuit, a plaintiff must allege
facts sufficient to support the conclusion that the plaintiff subjectively (that is, in good
faith) believed that her employer was engaged in unlawful employment practices, and
must additionally allege facts sufficient to support the conclusion that the employee’s
belief was objectively reasonable. See Little v. United Techs., Carrier Transicold Div.,
103 F.3d 956, 960 (11th Cir. 1997).2 The objective reasonableness of an employee’s
belief is determined by the metric of existing substantive law at the time the opposition

occurred. See Clover, 176 F.3d at 1351. Here, the defendants do not challenge the
adequacy of Plaintiff’s allegations of subjective belief that she was opposing unlawful
employment practices, but rather challenge only the adequacy of her allegations to
support the conclusion that her belief was objectively reasonable under the
circumstances.
As noted, Plaintiff alleges that she engaged in protected conduct by filing charges

of race discrimination with the EEOC in 2011 and again in June 2017, see Doc. 35, ¶¶ 11,
35, and by advising Defendant Brown that she believed the written reprimand of
September 22, 2017, to be pretextual and to constitute unlawful retaliation in response to
her EEOC filings, and that she would continue filing further such charges until the
discriminatory and retaliatory conduct ended, see id., ¶¶ 15, 39. As to the EEOC filings,

Defendants concede that, as a general rule, it is statutorily protected conduct to file a
charge with the EEOC. See 42 U.S.C. § 2000e-3(a). Defendants argue that here,
however, Plaintiff’s EEOC charges were nevertheless unprotected for Section 1981
purposes because Plaintiff has failed to identify the allegedly discriminatory practices that
she challenged through her EEOC filings, with the result that it cannot be determined

from the allegations whether Plaintiff had an objectively reasonable basis for believing

2 The cited portion of Little addressed claims arising under Title VII rather than Section 1981. However,
the Eleventh Circuit has consistently held that the elements of Section 1981 and Title VII retaliation
claims are identical and that the same analytical frameworks govern both. See, e.g., Miller v. Kenworth of
Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).
that those practices were unlawful. The undersigned disagrees. As noted, Plaintiff
alleges that (among other unspecified acts) Defendant Brown placed a banana and a toy
monkey in her office in 2011, that he refused to allow her to be certified with or to use

her duty weapon in June 2016, see Doc. 35, ¶¶ 10, 34, and that in opposition to those
practices she filed EEOC charges in 2011 and in June 2017, see id., ¶¶ 11, 35. It is a fair
inference from Plaintiff’s allegations (and their juxtaposition in the Amended Complaint)
that the 2011 EEOC charge arose out of the placement of the banana and the toy monkey
in Plaintiff’s office and that the 2017 EEOC charge arose out of the refusal to allow

Plaintiff to be certified with or to use her duty weapon.
As to the placement of the banana and the toy monkey in Plaintiff’s office, the
Eleventh Circuit has acknowledged that, in light of the observable prevalence of racially
motivated slurs comparing African-Americans to monkeys, it can be a reasonable
conclusion that references to monkeys and bananas in connection with African-American

employees are intended as racially motivated insults and that such references can be
actionable as racial harassment. See Jones v. UPS Ground Freight, 683 F.3d 1283,
1297–98 (11th Cir. 2012). As such, there is at least a question of fact as to whether
Plaintiff had an objectively reasonable basis for believing that her 2011 EEOC charge
was in opposition to unlawful conduct. As to the 2017 EEOC charge, Plaintiff expressly

alleges that the EEOC issued a Notice of Right to Sue in connection with that charge. See
Doc. 35, ¶¶ 13, 37. It is a fair inference from that allegation that Plaintiff’s belief that
the conduct challenged by and through that filing was likewise objectively reasonable.
As to the reprimand of September 22, 2017, which issued approximately five
weeks after Plaintiff received a Notice of Right to Sue from the EEOC, see id., ¶¶ 13–14,
37–38, Plaintiff alleges that it issued in connection with an incident that had occurred

more than a year previously, see id., ¶¶ 14, 38. It is a fair inference from the short time
elapsing between issuance of the Notice of Right to Sue and issuance of the reprimand --
particularly when juxtaposed against the long period of time elapsing between the
incident ostensibly motivating the reprimand and the reprimand’s issuance -- that the
reprimand was pretextual and motivated by retaliatory animus in response to Plaintiff’s

success in obtaining an EEOC Notice of Right to Sue. See, e.g., Donnellon v. Fruehauf
Corp., 794 F.2d 598, 601 (11th Cir. 1986) (characterizing a period of approximately one
month between protected activity and an adverse employment action as a “short time”
affirmatively supporting the conclusion that the adverse action was motivated by the
protected activity). At this pleading stage of these proceedings, this is sufficient to

support the conclusion that Plaintiff was objectively reasonable in her belief that she was
acting to oppose unlawful conduct when she stated that she would continue to file EEOC
charges until the unlawful conduct ceased.
In the alternative to the foregoing, Defendants argue that the manner of Plaintiff’s
response to Defendant Brown’s September 22, 2017, reprimand was so unreasonable as

to strip it of all statutory protection. The Eleventh Circuit has held that, to qualify for
statutory protection, “the manner in which an employee expresses her opposition to an
allegedly discriminatory employment practice must be reasonable.” Rollins v. State of
Fla. Dep’t of Law Enf’t, 868 F.2d 397, 401 (11th Cir. 1989). The determination of
reasonableness in this context is made on a case by case basis and requires a balancing of
the rights of employees against an employer’s need for a productive work environment.
See id. Here, however, the allegations of Plaintiff’s Amended Complaint do not compel

the conclusion that Plaintiff’s response to the reprimand was so disruptive as to be
unreasonable in light of the MCCPCA’s legitimate need to maintain a productive work
environment. To the contrary, the fair inference from Plaintiff’s allegations is that she
advised her supervisor that further unlawful retaliation would be met with appropriate,
statutorily protected conduct in response, namely further EEOC charges.

In reply, Defendants invite the court to consider documentary evidence bearing on
the manner of Plaintiff’s response to the reprimand, namely the Notice of Suspension of
January 10, 2018. See Doc. 40, Exh. 10 (“Notice of Suspension”). The Notice of
Suspension is referenced and quoted in the Amended Complaint, see Doc. 35, ¶¶ 22, 46,
and Plaintiff’s claims arise at least in part out of the Notice of Suspension, in that it

effected the complained-of retaliatory suspension of Plaintiff’s employment without pay.
As such, this court can properly consider the Notice of Suspension without converting the
Motion to Dismiss to a motion for summary judgment. See Day v. Taylor, 400 F.3d 1272,
1276 (11th Cir. 2005). The Notice of Suspension, which is signed by Defendant Brown,
indicates that, in response to receiving the reprimand, Plaintiff “proceeded to issue a

number of threats, accusations, and intimidating remarks [. . .],” specifically accusations
of harassment in the workplace, accusations that the reprimand was pretextual and
retaliatory, threats to sue if the unlawful conduct did not cease, “intimidating” statements
that Plaintiff was aware of witnesses who could testify to Defendant Brown’s unlawful
conduct, statements that members of the MCCPCA board would “incur repercussions” if
they ratified the reprimand, and “an intimidating threat” that, as a result of the reprimand,
either Plaintiff or Defendant Brown would end up leaving the MCCPCA. Doc. 40, Exh.

10 at 2. The Notice of Suspension is thus consistent with the allegations of the Amended
Complaint, except that Plaintiff’s statements are variously characterized therein as
“threats” or as “intimidating.” Id. However, a finder of fact could reasonably conclude,
upon consideration of the allegations of the Amended Complaint and of the contents of
the Notice of Suspension, that the characterization of Plaintiff’s statements as “threats” or

as “intimidating” was self-serving and, on that basis, could elect to credit Plaintiff’s
allegations over Defendant Brown’s characterization.
There is nothing unreasonable about expressing opposition to unlawful
discrimination or retaliation, and a finder of fact could reasonably conclude based on the
record that Plaintiff neither responded disproportionately to the alleged retaliation nor

indicated that any disproportionate or unwarranted response would be forthcoming. The
manner of Plaintiff’s response to the reprimand therefore does nothing to disturb the
conclusion that her response was statutorily protected.
For the foregoing reasons, the undersigned finds that the allegations of the
Amended Complaint are adequate to satisfy the “statutorily protected conduct” element

of Plaintiff’s Section 1981 retaliation claims.
ii. Plaintiff’s Allegations of Materially Adverse Employment Action
An employment action is adverse for purposes of a Section 1981 retaliation action
if it could potentially dissuade a reasonable employee from making a charge of
discrimination. See Crawford v. Carroll, 529 F.3d 961, 974 (11th Cir. 2008) (quoting
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). Except in the case
of the most trivial or petty actions against an employee, it is generally for a jury to decide

whether an adverse action has the potential to dissuade a reasonable employee. See id. at
973, n.13. Here, the Defendants argue that, as a matter of law, Plaintiff’s allegations
regarding Defendant Brown’s reprimand of September 22, 2017, are inadequate to
support the conclusion that the reprimand was a materially adverse employment action.
Nothing in the Amended Complaint suggests that the question whether receipt of a

formal, written reprimand might dissuade a reasonable employee from filing a
discrimination charge should be taken from the jury. Because there is an unresolved
question of fact as to whether the reprimand could constitute a materially adverse
employment action for purposes of Plaintiff’s Section 1981 reprimand claims, the
undersigned finds that the allegations of the Amended Complaint are adequate to satisfy

the “materially adverse employment action” element of Plaintiff’s Section 1981
retaliation claims.
iii. Plaintiff’s Allegations of Causation
The courts within the Eleventh Circuit interpret the causation element of a Section
1981 retaliation claim broadly: to plead causation, a plaintiff need only allege facts

sufficient to support the conclusion that the protected activity and the adverse
employment action “are not completely unrelated.” Meeks v. Computer Assocs. Int’l, 15
F.3d 1013, 1021 (11th Cir. 1994). Moreover, a plaintiff can satisfy the causation
requirement merely by adequately alleging that the person responsible for deciding to
impose the adverse action was aware of the protected conduct at the time the decision
was made. See Clover, 176 F.3d at 1354; Bass v. Bd. of Cty. Comm’rs, Orange Cty., Fla.,
256 F.3d 1095, 1119 (11th Cir. 2001). Such awareness can be established either directly

or circumstantially, including through allegation of temporal proximity. See Bechtel
Constr. Co. v. Sec’y of Labor, 50 F.3d 926, 934 (11th Cir. 1995).
Here, Defendants argue that Plaintiff has failed to adequately allege a causal
connection between either of her two EEOC filings and any materially adverse
employment action, but they do not challenge the adequacy of her allegations to support a

finding of causation in connection with the September 22, 2017, reprimand. While the
undersigned notes that no alleged adverse employment action was imposed on Plaintiff
for a period of years following the 2011 EEOC filing, Plaintiff affirmatively alleges that
Defendant Brown expressly identified both the 2011 and the 2017 EEOC filings as
grounds for his decisions to place Plaintiff on administrative leave and to recommend the

termination of her employment in November of 2017 and for his decision to suspend her
employment without pay in January 2018. See Doc. 35, ¶¶ 17, 19, 22, 41, 43, 46.
Despite the long lapse of time between the 2011 EEOC filing and the alleged adverse
employment actions, a finder of fact could reasonably conclude on the basis of Plaintiff’s
allegations that the adverse employment actions of November 2017 and January 2018

were taken in retaliation for both EEOC filings, including the 2011 filing. In
consequence, the undersigned finds that the allegations of the Amended Complaint are
adequate to satisfy the “causation” element of Plaintiff’s Section 1981 retaliation claims.
B. Qualified Immunity
Qualified immunity offers complete protection from suits seeking civil damages
for government officials sued in their individual capacities if their conduct does not

violate “clearly established statutory or constitutional rights of which a reasonable person
would have known.” Hope v. Pelzer, 536 U.S. 730, 739 (2002), quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity gives government officials
breathing room to make reasonable but mistaken judgments, and protects all but the
plainly incompetent or those who knowingly violate the law.” Messerschmidt v.

Millender, 565 U.S. 535, 546 (2012) (internal quotation marks and citations omitted).
Because the doctrine affords immunity from suit and not merely from liability for
damages, the Supreme Court has repeatedly stressed “the importance of resolving
immunity questions at the earliest possible stage in litigation.” Pearson v. Callahan, 555
U.S. 223, 231–32 (2009) (internal quotation marks and citations omitted).

To receive qualified immunity, the public official must first prove that he was
acting within the scope of his discretionary authority when the allegedly wrongful acts
occurred. See Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). If the defendant
meets that burden, the burden shifts to the plaintiff to show that qualified immunity is not
appropriate. See Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991). To satisfy

that burden, a plaintiff must show two things: (1) that a defendant violated the plaintiff’s
protected right and (2) that the violated right was “clearly established” at the time the
violation occurred. Crosby v. Monroe Cty., 394 F.3d 1328, 1332 (11th Cir. 2004). Here,
for reasons discussed above, Plaintiff has adequately alleged that Defendant Brown
violated her protected right under Section 1981 to freedom from retaliation for opposing
race discrimination in the workplace.
It is a fair inference from Plaintiff’s allegations that Defendant Brown was acting

within the course and scope of his discretionary authority when he imposed disciplinary
measures against Plaintiff. It is therefore Plaintiff’s burden to have alleged facts which,
when read in the light most favorable to her, support the conclusion that Defendant
Brown is not entitled to qualified immunity. See Cottone v. Jenne, 326 F.3d 1352, 1358
(11th Cir. 2003). In meeting this burden, Plaintiff is subject to a “heightened pleading

standard” requiring her to state the facts supporting that conclusion with specificity.
GJR Invs., Inc. v. Cty. of Escambia, 132 F.3d 1359, 1367 (11th Cir. 1998).
It is Plaintiff’s theory that her Section 1981 rights were violated when Defendant
Brown imposed adverse employment actions — specifically, the written reprimand of
September 22, 2017, her placement on administrative leave in November of 2017, the

recommendation in November of 2017 that her employment be terminated, and her
suspension without pay for a period of 28 days in January of 2018 — in retaliation for her
conduct in filing EEOC charges and in stating that she would continue to do so until the
discriminatory and retaliatory actions ceased. The courts of the Eleventh Circuit have
routinely recognized that it has been well established, since at least 1998, that employees

have the right to be free from adverse employment actions imposed in retaliation for
filing EEOC charges of race discrimination in the workplace. See Andrews v. Lakeshore
Rehab. Hosp., 140 F.3d 1405, 1413 (11th Cir. 1998) (establishing that Section 1981
prohibits retaliation for filing EEOC charges of race discrimination in the workplace); see
also, e.g., Tucker v. Talladega City Schs., 171 Fed. App’x 289, 295 (11th Cir. 2006)
(“Andrews does establish that § 1981 encompasses a cause of action for retaliation”)
(unpublished disposition); Marshall v. Daleville City Bd. of Educ., 2006 WL 2056581, *

11 (M.D. Ala. July 24, 2006) (an objectively reasonable public official would have
known on the basis of Andrews by not later than 1998 that it was unlawful to retaliate
against an employee for exercising her right to file an EEOC charge of discrimination).
Here, Plaintiff has alleged with specificity that Defendant Brown expressly identified the
grounds underlying the disciplinary actions of November 2017 and January 2018 as

Plaintiff’s EEOC filings and her threat to continue filing EEOC charges until the
unlawful workplace behavior ceased. See Doc. 35, ¶¶ 16–17, 19, 22, 40–41, 43, 46. It is
a fair inference from the allegations of the Amended Complaint, interpreted in the light
most favorable to Plaintiff, that the reprimand of September 22, 2017, if pretextual as
alleged, was motivated by the same retaliatory animus as the other disciplinary actions

Defendant Brown imposed. At this pleading stage of these proceedings, these
allegations are sufficient to meet Plaintiff’s burden to establish that the rights violated by
Defendant Brown’s conduct were clearly established at the time they occurred. It
follows that Defendants’ Motion to Dismiss (Doc. 36) is due to be denied to the extent
premised on a theory of qualified immunity.

C. Policy or Custom
As noted, Section 1983 prohibits a person acting under color of law from violating
another’s rights guaranteed under the United States Constitution. The definition of
“person” under Section 1983 includes local government entities, including entities such
as the MCCPCA. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).
However, local government entities may be liable under Section 1983 “only for their own
illegal acts.” Connick v. Thompson, 563 U.S. 51, 60 (2011). Because there can be no

vicarious liability under Section 1983, a local government entity may be liable only if a
deprivation of federally protected rights results from “an official government policy, the
actions of an official fairly deemed to represent government policy, or a custom or
practice so pervasive and well-settled that it assumes the force of law.” Denno v. Sch. Bd.
of Volusia Cty., Fla., 218 F.3d 1267, 1276 (11th Cir. 2000) (citing Sewell v. Town of Lake

Hamilton, 117 F.3d 488, 489 (11th Cir. 1997); Church v. City of Huntsville, 30 F.3d 1332,
1343 (11th Cir. 1994)). Here, it is Plaintiff’s position that the MCCPCA’s complained-of
conduct was effected through the actions of Defendant Brown, the MCCPCA’s Executive
Director and Appointing Authority, whom Plaintiff alleges to have enjoyed final
policymaking authority for the MCCPCA.

In order for the actions of a government official to be deemed representative of the
local government entity, the acting official must be imbued with final policymaking
authority. See Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). The courts
within the Eleventh Circuit have consistently held that an official does not have final
policymaking authority over a particular subject matter when that official’s decisions are

subject to meaningful administrative review. See Scala v. City of Winter Park, 116 F.3d
1396, 1401 (11th Cir. 1997), citing Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 638
(11th Cir. 1991). Here, Defendants argue on the basis of proffered evidence that
Defendant Brown could not have had final policymaking authority on behalf of the
MCCPCA because his decisions regarding imposition of employee discipline were
subject to administrative review.
At this pleading stage of these proceedings, this court declines to consider

Defendants’ evidentiary proffer, the subject of which is not referenced in the Amended
Complaint and does not give rise to Plaintiff’s claims in whole or in part. See Day, 400
F.3d at 1276. Turning then to analysis of the allegations of the Amended Complaint, the
undersigned preliminarily notes Plaintiff’s conclusory allegation that Defendant Brown
was “responsible for making final policy for MCCPCA in connection with the area of

conduct in question -- issuing the subject reprimand, placing the Plaintiff on
administrative leave, recommending her termination and imposing the subject 28 day
unpaid suspension.” Doc 35, ¶¶ 25, 49. Because that allegation is conclusory, the court
is not constrained to presume its truth for purposes of resolving Defendants’ motion.
In addition, it is a fair inference from the allegation that an Administrative Law

Judge determined that the disciplinary measures of November 2017 (Plaintiff’s placement
on administrative leave and the recommendation that her employment be terminated)
should be rescinded, see id., ¶¶ 18, 42, that Defendant Brown’s decision to implement
those measures was in fact subject to meaningful administrative review. By contrast,
however, Plaintiff expressly alleges that Defendant Brown’s January 10, 2018, decision to

impose a 28-day suspension without pay was not subject to any form of administrative
review, see id., ¶¶ 21, 45, and that allegation is entitled to the presumption of truth. The
Amended Complaint contains no allegations permitting any inference as to whether
Defendant Brown’s September 22, 2017, issuance of a written reprimand was subject to
administrative review.
On the basis of the foregoing, at this pleading stage of these proceedings and for

the sole purpose of resolving the motion to dismiss now before the court, the undersigned
finds that Defendant Brown was a final policymaker for the MCCPCA for purposes of the
September 22, 2017, reprimand and the January 10, 2018, suspension. However, due to
the Administrative Law Judge’s review of the November 2017 disciplinary measures, the
court finds that Defendants’ Motion to Dismiss as to Plaintiff’s Section 1981 retaliation

claim against the MCCPCA – to the extent that claim is premised on the disciplinary
measures of November of 2017 only – is granted because the disciplinary measure was
subject to meaningful administrative review. Otherwise, the motion is denied to the
extent premised on the purported inadequacy of Plaintiff’s allegations to support a theory
of the MCCPCA’s Monell liability and all other disciplinary measures as alleged.

IV. CONCLUSION
For the reasons set forth above, and for good cause, it is
ORDERED that Defendants’ Motion to Dismiss (Doc. 36) is GRANTED in part
and DENIED in part. To the extent that Plaintiff’s Section 1981 retaliation claim against
the MCCPCA is premised on the alleged disciplinary measures of November of 2017

only, the motion is GRANTED. Otherwise, the motion is DENIED in all other respects.
DONE this the 31st day of July, 2019.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
CHIEF UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9977582. Public record. Not legal advice.