Sharp v. City of Montgomery

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

GARY C. SHARP, )

)

Plaintiff, )

)

v. ) CASE NO. 2:19-CV-857-WKW

) [WO]

CITY OF MONTGOMERY, and )

MONTGOMERY CITY-COUNTY )

PERSONNEL BOARD )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Gary C. Sharp brings this action alleging race discrimination and

retaliation in the denial of promotions. He invokes Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. §§ 2000e through 2000e-17 (“Title VII”); 42 U.S.C.

§ 1981 (“§ 1981”) and a corresponding damages provision, 42 U.S.C. § 1981a; and

42 U.S.C. § 1983 (“§ 1983”). He sues the City of Montgomery (“City”) and the

Montgomery City-County Personnel Board (“Personnel Board”).

Before the court are Defendants’ motions to dismiss all claims under Rule

12(b)(6) of the Federal Rules of Civil Procedure. (Docs. # 36, 37.) Mr. Sharp

responded in opposition (Docs. # 39, 40), and Defendant filed replies (Docs. # 41,

42). For the reasons that follow, the motions are due to be granted in part and denied

in part.

I. JURISDICTION AND VENUE

Subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1331. Personal

jurisdiction and venue are uncontested.

II. STANDARD OF REVIEW

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint

against the legal standard set forth in Rule 8: “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). When

evaluating a motion to dismiss pursuant to Rule 12(b)(6), the court must “take the

factual allegations in the complaint as true and construe them in the light most

favorable to the plaintiff.” Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.

2008). However, “the tenet that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (citation omitted). “To survive a 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.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550

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

III. BACKGROUND

During his eleven-year tenure with the City of Montgomery, Alabama, Mr.

Sharp has been denied five promotions. (Am. Compl., at 3–10, 14 (alleging denials

of promotions in 2009 (grants coordinator), 2012 (senior planner), 2015 (director of

city development), 2017 (general services director), and 2018–19 (director of

economic and community development).) This action is no longer about five lost

promotions. Mr. Sharp’s concessions in response to the motions to dismiss have

narrowed the litigable promotions to one (see, e.g., Doc. # 39, at 1); the other four

promotions are not timely brought.1 Here are the pertinent facts.

In 2018, Mr. Sharp applied for a promotion to the position of director of

economic and community development for the City (the “director position”). On

April 17, 2018, Mr. Sharp learned that he was “tied at number one on the register”

to fill the position. (Am. Compl., at 9.) After nearly eight months had passed

without the position being filled, Mr. Sharp received an email on December 10,

2018, from the Personnel Board’s director that the position was being “reopened and

reposted without being filled using the existing register” and that he would need to

reapply. (Am. Compl., at 9–10.) Upon receipt of this email, Mr. Sharp requested a

meeting with the City’s mayor, his legal counsel, and the director of the Personnel

Board. However, he “was only able to meet with” the mayor’s legal counsel and the

director of the Personnel Board. (Pl. EEOC Charge, at 1 (Doc. # 36-1).) During this

1 The allegations pertaining to the denials of promotions in 2009 and 2012 are in the section

of the amended complaint titled, “Background and Defendants’ Relevant Conduct.” (Am. Compl.,

at 3.) Because the amended complaint is not clear, to the extent that Mr. Sharp intended to assert

stand-alone claims based on these two denials, these claims will be dismissed. It may be, however,

that Mr. Sharp has alleged past denials of promotions to support his § 1983 municipal liability

claims, which are addressed in Part IV.A.

meeting, Mr. Sharp conveyed his opinion that the City, in conjunction with the

Personnel Board, reopened the position, rather than promote him, because of Mr.

Sharp’s race (African American). (Am. Compl., at 10; Pl. EEOC Charge, at 1.) At

some point, Mr. Sharp learned that the City’s chief of staff had ordered the

destruction of the register and the creation of a new register to fill the director

position. (Am. Compl., at 9–10.)

Again, on January 1, 2019, Mr. Sharp informed “Defendants and their

representatives”2 that he believed that the City was “using race as a determining

factor” and was using “racially discriminatory hiring practices to fill the [director

position]” in violation of his constitutional and civil rights. (Am. Compl., at 11.)

Eight days later on January 9, 2019, Mr. Sharp received an email from Defendants

that his rank on the newly created register for the director position had dropped to

number two, behind a white female. (Am. Compl., at 11.) As a result of his drop in

ranking, Mr. Sharp’s attorney mailed a letter, dated January 22, 2019, to the mayor,

the mayor’s legal counsel, the mayor’s chief of staff, and the director of the

Personnel Board, “complaining that race had been used as a factor to prevent” Mr.

Sharp “from being promoted to” the director position. (Am. Compl., at 12; see also

Letter (Doc. # 29-1).) Those preventive measures included the reopening and

2 His EEOC charge identifies the representatives as two employees of the Personnel Board.

(Pl. EEOC Charge, at 1–2.)

reposting of the director position without filling the position from the existing

register on which Mr. Sharp ranked first. (Am. Compl., at 9–10.)

Eight weeks after the January 22 letter, Mr. Sharp learned that he was not

picked for the promotion. (Am. Compl. ¶ 13.) Instead, another African-American

male got the job. Although the individual selected is the same race as Mr. Sharp,

Mr. Sharp alleges that, after he complained about race discrimination, “Defendants

abandoned their plan to hire the white female and contrived a retaliatory scheme to

hire” an “unqualified black male” as the director of economic and community

development. (Am. Compl., at 12–13.)

In short, Mr. Sharp alleges that he ranked first on the register for the initial

posting for the director position; however, after the reposting of the position, Mr.

Sharp’s rank dropped to number two behind a white female. After Mr. Sharp

complained that racial discrimination permeated the selection process, an allegedly

unqualified but African-American candidate received the promotion over Mr. Sharp.

IV. DISCUSSION

A. The City’s Motion to Dismiss

The City raises the following grounds for Rule 12(b)(6) dismissal of Mr.

Sharp’s claims alleging race discrimination and retaliation in the denial of a

promotion to the director position3: (1) failure to plead a plausible claim of

municipal liability under § 1981, § 1983, and the United States Constitution;

(2) failure to plead discriminatory intent under Title VII and § 1983/§ 1981;

(3) failure to plead a plausible Title VII pattern-and-practice claim; and (4) failure

to plead plausible allegations of causation to state a retaliation claim under Title VII

and § 1983/§ 1981.

1. § 1983/§1981 Municipal Liability

Since the City is considered a state actor, Mr. Sharp cannot sue it directly

under § 1981 but must do so through the enforcement mechanism of § 1983. See

Baker v. Birmingham Bd. of Educ., 531 F.3d 1336, 1337 (11th Cir. 2008) (“Section

1981 does not provide a cause of action against state actors; instead, claims against

state actors or allegations of § 1981 violations must be brought pursuant to § 1983.”).

Mr. Sharp also must bring his Fourteenth Amendment claim through § 1983. See

§ 1983 (creating a civil right of action to remedy “the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws”).

To succeed on a § 1983 claim against a municipality, a plaintiff must show

that he or she suffered injury by some action taken pursuant to either a custom or an

official policy of the defendant. See Monell v. Dep’t of Soc. Servs. of City of New

3 Based on Defendants’ arguments and Mr. Sharp’s concessions, Mr. Sharp’s untimely

claims alleging discriminatory denials of four other promotions will be dismissed without

discussion.

York, 436 U.S. 658 (1978); Anderson v. City of Atlanta, 778 F.2d 678, 685 (11th Cir.

1985). To allege a custom or policy, a plaintiff must plead either (1) an “officially

promulgated” policy or (2) “an unofficial custom or practice . . . shown through the

repeated acts of a final policymaker for the [governmental entity].” Grech v. Clayton

Cnty., 335 F.3d 1326, 1329 (11th Cir. 2003) (en banc). In order to establish § 1983

liability against the City based on an unofficial custom or practice, “a plaintiff must

establish a widespread practice that, although not authorized by written law or

express municipal policy, is so permanent and well settled as to constitute a custom

or usage with the force of law.” Brown v. City of Fort Lauderdale, 923 F.2d 1474,

1481 (11th Cir. 1991) (citation and quotation marks omitted). “Normally random

acts or isolated incidents are insufficient to establish a custom or policy.” Depew v.

City of St. Marys, 787 F.2d 1496, 1499 (11th Cir. 1986) (citation omitted).

The City argues that the amended complaint contains insufficient “factual

content to plausibly show a municipal liability claim.” (City Mot. to Dismiss, at 6),

While it cites authority generally addressing the custom or policy requirement, the

City fails to develop an argument as to why it contends that the amended complaint

does not allege a custom or policy. It is clear though that Mr. Sharp has not alleged

an officially promulgated policy, such as an ordinance or administrative order. See

Grech, 335 F.3d at 1330 (“[A] county rarely will have an officially-adopted policy

of permitting a particular constitutional violation . . . .”). But on the undeveloped

arguments, the same cannot be said for the allegations with respect to an unofficial

custom or practice.

Because an unofficial custom or practice requires plausible allegations of a

widespread practice of racial discrimination, scrutiny of the allegations surrounding

Mr. Sharp’s past promotion denials is warranted. Mr. Sharp alleges that, in addition

to the lost promotion that is the basis of his causes of action, he was denied four

additional promotions—in 2009, 2012, 2015, and 2017—and that those positions

were filled with “unqualified” individuals, all of whom were white. (Doc. # 35, at 3,

9, 13.)

Beginning with the 2017 promotion denial, the amended complaint’s

allegations do not establish that Mr. Sharp was qualified for the position of general

services director. According to the amended complaint’s allegations, Mr. Sharp

ranked ninth on the register, but only the top five ranked applicants were certified to

the City’s mayor to fill the vacancy. (Doc. # 35, at 8.) There are no non-conclusory

allegations that the City played a part in the ranking of the applicants on the register;

hence, there are no plausible allegations that the City discriminated against Mr.

Sharp in the non-promotion because his name was not on the certified list from

which the City could choose. Mr. Sharp alleges, though, that the City “contrived”

three additional application requirements—two video presentations and a written

examination—in order to use race as the “determinative factor” to deny him the

promotion. (Am. Compl., at 9.) But this allegation as to the City’s motive is

conclusory and finds no factual support, particularly since the allegations indicate

that each applicant, not just Mr. Sharp, had to fulfill these additional requirements.

(Am. Compl., at 4, 5, 8.) The allegations do not tangibly link these additional

requirements to a discriminatory motive.

This leaves the promotion denials occurring in 2009, 2012, and 2015 for

which Mr. Sharp alleges he was passed over in favor of less qualified white

applicants. He pits his twenty years of relevant experience and his educational

background—which include a master’s degree in public administration and a

master’s degree in community planning with a concentration in public policy—

against the qualifications of those selected. (Am. Compl., at 13.) Of the white

individuals promoted, one had not earned a degree beyond a high school diploma

and another had a single bachelor’s degree. (Am. Compl., at 3.) As to the third

“unqualified” white selectee, Mr. Sharp alleges that the City “circumvented the

principles of merit system” by “convert[ing] the contract of employment of . . . an

unqualified white female” to fill a merit position. (Am. Compl., at 3–4.)

Although just barely, Mr. Sharp’s municipal liability claim sufficiently pleads

an unofficial policy. The City’s allegedly discriminatory motive in denying Mr.

Sharp multiple promotions during his career for which he alleges he was more

qualified than the white individuals selected, in combination with the allegations

pertaining to the destruction of the register in 2018 on which he ranked first, are

enough to cross the threshold from speculative to plausible. That these incidents

pertain only to Mr. Sharp is not fatal to his claim. The Eleventh Circuit has held that

a single plaintiff’s allegations of “a persistent practice of racial discrimination in

evaluating his work performance” were sufficient to support § 1983 municipality

claims premised on a custom or practice and to withstand a Rule 12(b)(6) motion to

dismiss.4 Brown, 923 F.2d at 1482; cf. Depew v. City of St. Marys, Ga., 787 F.2d

1496, 1497 (11th Cir. 1986) (affirming a jury verdict against a municipality in a

police brutality case on the basis that approximately five prior incidents of excessive

force established an unofficial custom for purposes of § 1983 liability).

The City’s motion to dismiss the § 1983 municipal liability claims will be

denied.

4 To be clear, the amended complaint’s conclusory allegations have not been considered.

For example, Plaintiff alleges that “race determinative” decisions are “routine operations at the

City of Montgomery.” (Am. Compl., at 14.) The allegations in this paragraph continue in the

same conclusory vein: “The prevalence of racial discrimination and retaliation is ubiquitous

throughout the human resources management functions of the City of Montgomery and has created

a culture of ongoing work place injustice . . . .” (Am. Compl. at 14.) This vague verbiage is

insufficient to convert an averment of a widespread discriminatory practice from speculative to

plausible. See Sanchez v. Miami-Dade Cnty., No. 06-21717-CIV, 2007 WL 1746190, at *3 (S.D.

Fla. Mar. 28, 2007) (finding that an unsupported “vague allegation” that “the abuse to which the

Plaintiff was subjected to was not an isolated incident, and was consistent with policy, custom,

and practice of Miami-Dade County” was insufficient to plead a § 1983 municipality liability

claim).

2. Pleading discriminatory intent under Title VII and § 1983/§ 1981

Title VII, § 1981, and § 1983 all prohibit “intentional discrimination based on

race in the employment context.” Blash v. City of Hawkinsville, 856 F. App’x 259,

263 (11th Cir. 2021). The City argues that Mr. Sharp has failed to plead facts

plausibly establishing discriminatory intent in the denial of the promotion to the

director position. The gist of this argument is that allegations of discriminatory

intent are lacking because “another black male” was selected for the position. (City

Mot. to Dismiss, at 7.) This argument is not persuasive at this stage of the litigation.

Circumstantial evidence of intentional discrimination can be shown where

after the rejection of the application, the employer “either filled the position with a

person not of the same racial minority or left the position open.” Sledge v. Goodyear

Dunlop Tires N. Am., Ltd., 275 F.3d 1014, 1015 n.1 (11th Cir. 2001) (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). The City’s

argument does not address the scenario where the employer rejects the application

and leaves the position open. The facts of the amended complaint, construed in the

light most favorable to Mr. Sharp, plausibly fit within this scenario.

According to the amended complaint’s allegations, Mr. Sharp learned in April

2018 that, based on his qualifications, he was tied for number one on the register for

the director position. (Am. Compl., at 9.) He then heard nothing about his

application until nearly eight months later. In December 2018, the Personnel

Board’s director notified him that the director position would not be filled based on

the existing register and that he would have to reapply for the position. He

subsequently learned that the City’s chief of staff had ordered the destruction of the

register and the creation of a new register to fill the position. (Am. Compl., at 9–

10.)

These facts are enough from which to infer that the City took affirmative steps

to pass over Mr. Sharp, a qualified5 African American ranked in the top spot on the

register, and re-announced the position in order to look for someone else to fill the

position. Mr. Sharp has alleged enough to show plausibly that the City rejected his

application and left the position open to seek applications from individuals with Mr.

Sharp’s qualifications. How the facts play out is a matter for discovery. Dismissal

of Mr. Sharp’s Title VII and § 1983/§ 1981 claims alleging racial discrimination in

the denial of the promotion to the director position is not warranted.

3. Title VII pattern-and-practice claims

The City moves for dismissal of Mr. Sharp’s Title VII pattern-and-practice

discrimination claims. (City Mot. to Dismiss, at 7 (citing E.E.O.C. v. Joe’s Stone

Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000).) The Eleventh Circuit has held

that a pattern-or-practice claim under Title VII is available only to the federal

5 The amended complaint sets forth Mr. Sharp’s experience and education (see, e.g., Am.

Compl., at 13; see also Ex. 2 to Compl), and the City does not dispute that Mr. Sharp “was qualified

for position of Director of Economic and Community Development.” (Reply Br., at 2–3 (Doc.

# 41).)

government or to a class of private plaintiffs under Federal Rule of Civil Procedure

23(b)(2). See E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir.

2000) (“[A] pattern and practice claim either may be brought by the EEOC . . . or

by a class of private plaintiffs” under Title VII); accord Davis v. Coca-Cola Bottling

Co. Consol., 516 F.3d 955, 964–65 (11th Cir. 2008), abrogated on other grounds by

Twombly, 550 U.S. at 544. Mr. Sharp, obviously, is not the federal government, and

he did not bring his single-plaintiff lawsuit as a class action.

In his brief, Mr. Sharp has not argued that he is trying to bring a free-standing

Title VII pattern-or-practice claim. He fails to address at all the City’s contention

that his amended complaint includes a pattern-or-practice claim. While it does not

appear that the amended complaint encompasses such a claim, the relief Mr. Sharp

seeks is wide sweeping. (See Am. Compl., at 15–16.) Hence, to the extent that Mr.

Sharp brings a pattern-or-practice claim as a predicate for the expansive relief he

requests, the claim will be dismissed.6

4. Title VII and § 1983/§ 1981 retaliation claims

“Where . . . a plaintiff’s claims under Title VII are based on the same set of

facts as his claims under § 1983, the analysis under Title VII is identical to the

analysis under § 1983.” King v. Butts Cnty. Ga., 576 F. App’x 923, 931 (11th Cir.

2014). That is the scenario here. To state a claim for retaliation, “an employee must

6 Whether evidence of a pattern and practice is admissible to support Mr. Sharp’s other

claims is not at issue here. That issue, if it becomes an issue, is for another day.

plausibly allege he engaged in statutorily protected expression, he suffered a

materially adverse employment action, and there was a causal link between the

protected expression and adverse action.” Henderson v. City of Birmingham, Ala.,

826 F. App’x 736, 741 (11th Cir. 2020).

The City argues that Mr. Sharp fails to allege facts plausibly showing a causal

link between his meeting with the mayor’s legal counsel on December 10, 2018 (the

protected expression) and the denial on March 22, 2019, of a promotion to the

director position (the materially adverse employment action). (City Mot. to Dismiss,

at 12.) The City cites Thomas v. Cooper Lighting, Inc., 506 F.3d 1361 (11th Cir.

2007) (per curiam), as support for its argument that a three-month interval between

the protected activity and termination is too attenuated from which to infer causation.

However, Thomas qualified its holding, providing that, “without more,” three

months will not permit an inference of causation. 506 F.3d at 1364 (emphasis

added). Something “more” can be “that the adverse action was the ‘first opportunity’

for the employer to retaliate.” Jones v. Suburban Propane, Inc., 577 F. App’x 951,

955 (11th Cir. 2014) (per curiam) (citation omitted).

Based on the foregoing principles, there are allegations plausibly

demonstrating a causal link. First, as Mr. Sharp points out, the amended complaint

sets forth that his attorney mailed a letter, dated January 22, 2019, to the mayor and

the mayor’s legal counsel, “complaining that race had been used as a factor to

prevent” Mr. Sharp “from being promoted to” the director position. (Am. Compl.,

at 12.) Those preventive measures included the reopening and reposting of the

director position without filling the position from the existing register on which Mr.

Sharp ranked first. (Am. Compl., at 9–10.) Eight weeks after the January 22 letter,

Mr. Sharp learned that he was not picked for the promotion. (Am. Compl. ¶ 13.) It

need not be decided whether, on these allegations, a two-month gap between the

protected expression and the adverse employment action is adequate by itself for

inferring the causal link. But see Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322,

1337 (11th Cir. 1999) (seven weeks sufficient to infer a causal connection);

McCarley v. City of Northport, 240 F. Supp. 3d 1242 (N.D. Ala. 2017) (Proctor, J.)

(eight weeks and two days sufficient to infer a causal connection). There is “more”

within the context of the allegations.

Mr. Sharp’s application for the director position was pending when his

attorney sent the January 22, 2019 letter to the mayor and to the mayor’s legal

counsel challenging the reposting of the director position as racially discriminatory.

(Am. Compl., at 11–12.) It is plausible from the allegations that the City’s denial of

the promotion to Mr. Sharp in March 2019 was its “first opportunity” to retaliate

against Mr. Sharp for opposing perceived racially discriminatory hiring practices.

Jones, 577 F. App’x at 955. The City’s motion to dismiss is due to be denied as to

Mr. Sharp’s Title VII and § 1983/§ 1981 claims alleging a retaliatory denial of

promotion to the director position.

B. The Personnel Board’s Motion to Dismiss

The Personnel Board’s arguments for dismissal fall into four categories:

(1) failure to exhaust administrative remedies under Title VII because the Personnel

Board is not named as a respondent in the EEOC charge; (2) failure to plead

discriminatory intent under Title VII and § 1983/§ 1981; (3) failure to plead the

absence of a non-discriminatory, statutory-based reason for the reopening of the

director position; and (4) failure to plead non-conclusory allegations of retaliation.

1. Failure to exhaust administrative remedies under Title VII

The Personnel Board argues that Mr. Sharp failed to exhaust his

administrative remedies prior to filing suit because he did not name the Personnel

Board as a respondent in his charge filed with the Equal Employment Opportunity

Commission (“EEOC”). Mr. Sharp admits that his EEOC charge did not identify

the Personnel Board as the entity that discriminated against him; it identified only

the City. (Pl. Resp. to Bd. Mot. to Dismiss, at 2–5 (Doc. # 40).) However, he argues

that he should be allowed to proceed under Title VII against the Personnel Board

based on the Board’s agency relationship with the City and because his charge

reveals that the Board “would be reasonably within the scope of an EEOC

investigation.” (Pl. Resp. to Bd. Mot. to Dismiss, at 3.)

A Title VII “action may be brought against the respondent named in the

charge.” 42 U.S.C. § 2000e-5(f)(1). Based on this statutory requirement, the general

rule is that “a party not named in the EEOC charge cannot be sued in a subsequent

civil action” under Title VII. Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350,

1358 (11th Cir. 1994). However, because the EEOC charge typically is prepared by

a layperson, as here,7 courts “liberally construe” the naming requirement to avoid

technical roadblocks to suit. Id.; see also Glus v. G. C. Murphy Co., 562 F.2d 880,

888 (3d Cir. 1977) (“We cannot believe Congress intended that a person filing

charges should accurately ascertain, at the risk of later facing dismissal of their suit,

at the time the charges were made, every separate entity which in some way may

have violated Title VII.”). Hence, “[w]here the purposes of the Act are fulfilled, a

party unnamed in the EEOC charge may be subjected to the jurisdiction of federal

courts.” Virgo, 30 F.3d at 1358–59. Relevant factors for gauging whether the

purposes of Title VII are met include:

1) the similarity of interest between the named party and the unnamed

party; (2) whether the plaintiff could have ascertained the identity of

the unnamed party at the time the EEOC charge was filed; (3) whether

the unnamed parties received adequate notice of the charges;

(4) whether the unnamed parties had an adequate opportunity to

participate in the reconciliation process; and (5) whether the unnamed

party actually was prejudiced by its exclusion from the EEOC

proceedings.

7 The EEOC charge, on its face, does not indicate that Mr. Sharp had the assistance of

counsel. (Doc. # 36-1.)

Id. at 1359. A sixth factor looks to whether an EEOC investigation reasonably would

have encompassed the unnamed party. See Hamm v. Members of the Bd. of Regents

of Fla., 708 F.2d 647, 650 (11th Cir. 1983). This “factor weighs in favor of inclusion

of an unnamed party if the party’s identity or participation in the alleged

discrimination is or is likely to be uncovered during the EEOC’s reasonable

investigation growing out of the charge.” Lewis v. Asplundh Tree Expert Co., 402

F. App’x 454, 457 (11th Cir. 2010) (citation omitted).

On the allegations and arguments, the first, third, fifth, and sixth factors are

the most significant, and their demonstration is enough at this juncture to

demonstrate that the purposes of the Act are fulfilled. As to the first factor, there is

a sufficient “similarity of interest” between the Personnel Board and the City of

Montgomery. Virgo, 30 F.3d at 1359. The Eleventh Circuit has spoken on this

interest, having held that the Montgomery City-County Personnel Board is an “agent

of the City [of Montgomery] for purposes of Title VII.” Williams v. City of

Montgomery, 742 F.2d 586, 589 (11th Cir. 1984) (per curiam).

Concerning the third factor, the notice-of-right-to-sue letter indicates that it

was sent to the City, “c/o Carmen Douglas, Personnel Director” (Doc. # 1-1). The

fact that the EEOC communicated with the City through the Personnel Board at the

closure of its investigation is sufficient from which to infer that the last

communication likely was not the first. See generally Eggleston v. Chi. Journeymen

Plumbers’ Local Union No. 130, U. A., 657 F.2d 890, 907 (7th Cir. 1981) (“[I]f a

party has a close relationship with a named respondent . . . and has actual notice of

the EEOC charge, . . . [it] should not be heard to cry ‘foul’ when later made a

defendant in a suit . . . .” (citation and quotation marks omitted)).

Turning to the fifth factor, to the extent prejudice to the unnamed party can be

assessed on the pleadings, the Personnel Board has not argued prejudice. The

amended complaint also sets out no allegations from which to infer that the

Personnel Board incurred prejudice.

Finally, under the sixth factor, although the Personnel Board’s name is not

typed in “Name” box of the EEOC charge, the name of the director of the Personnel

Board appears several times in the “particulars” section of the charge. (Doc. # 36-

1.) The Personnel Board’s potential involvement in the alleged discrimination is

inferable from Mr. Sharp’s allegations “that the original register had not been filled

because of [his] race.” (Doc. # 36-1.) And the Personnel Board has not argued that

it was surprised by being named in this suit.

Based on the foregoing, the court finds that, at the pleading juncture, dismissal

of the Title VII claim for failure to exhaust administrative remedies is not warranted.

2. Pleading discriminatory intent under Title VII and § 1983/§ 1981

The Personnel Board argues that Mr. Sharp has not alleged any facts plausibly

showing that it discriminated against him based on his race. (Bd. Mot. to Dismiss,

at 3.) For instance, the Personnel Board contends that Mr. Sharp has failed to plead

the Personnel Board’s involvement as to whom the City “ultimately selected for the

position” of director of economic and community development. (Bd. Mot. to

Dismiss, at 5.) However, accepted as true, the allegations say enough to bypass Rule

12(b)(6) dismissal based on the events surrounding the reposting and reopening of

the job announcement for the director position and, in particular, based on Mr.

Sharp’s drop on the register from the first spot to the second spot. See supra Part

IV.A.2. Whether his hierarchal placement on the register played a part in the City’s

failure to select Mr. Sharp from the certified applicant list is better left for discovery,

“even if it strikes a . . . judge that actual proof of those facts is improbable, and that

recovery is very remote and unlikely.” Twombly, 550 U.S. at 556. Dismissal is not

warranted on this ground.

3. The Personnel Board’s assertion that the amended complaint fails to

plead the absence of a non-discriminatory, statutory-based reason for the

reopening of the director position

The Personnel Board’s argument that the amended complaint fails to plead

the absence of a legitimate, statutory-based reason for why the director position was

reopened (i.e., that potentially there were less than five applicants on the register)

sounds like the McDonnell Douglas burden-shifting analysis. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). The requirement that a plaintiff show

pretext—that a non-discriminatory reason is both false and that discrimination is the

real reason—“is an evidentiary standard, not a pleading requirement.” Swierkiewicz

v. Sorema N. A., 534 U.S. 506, 510 (2002); see generally Gogel v. Kia Motors Mfg.

of Ga., Inc., 967 F.3d 1121, 1136 (11th Cir. 2020) (en banc) (discussing the

requirements for a plaintiff to show pretext under the McDonnell Douglas

framework). The Personnel Board’s argument does not present grounds for

dismissal.

4. Retaliation claim

The Personnel Board argues that Mr. Sharp has failed to plead any non-

conclusory allegations of retaliation by the Board. (Bd. Mot. to Dismiss, at 6.) The

Personnel Board’s sole non-conclusory argument is that any retaliatory motive

would have been the City’s because the City, not the Personnel Board, selected the

director of economic and community development. The Personnel Board merely

provided five names, including Mr. Sharp’s, to the hiring authority (i.e., the City).

This argument was addressed and rejected in Part IV.B.2. It is rejected here as well.8

V. CONCLUSION

Based on the forgoing, it is ORDERED that Defendants’ motions to dismiss

(Docs. # 36, 37) are GRANTED in part and DENIED in part as follows:

8 New arguments raised in the Personnel Board’s reply brief (Doc. # 42) have not been

considered. See generally Herring v. Sec'y, Dep’t of Corrs., 397 F.3d 1338, 1342 (11th Cir. 2005)

(“Arguments raised for the first time in a reply brief are not properly before a reviewing court.”).

(1) The City’s and the Personnel Board’s motions to dismiss Plaintiff’s

Title VII and § 1983/1981 claims alleging racially discriminatory denials of

promotions in 2009 (grants coordinator), 2012 (senior planner), 2015 (director of

city development), and 2017 (general services director) are GRANTED;

(2) The Personnel Board’s motion to dismiss is otherwise DENIED;

(3) The City’s motion to dismiss the § 1983 municipal liability claims

(through which Plaintiff must prosecute his alleged § 1981 and Fourteenth

Amendment violations) is DENIED;

(4) The City’s motion to dismiss is DENIED as to Plaintiff’s Title VII and

§ 1983/§ 1981 claims alleging a racially discriminatory denial of promotion to the

position of director of economic and community development;

(5) The City’s motion to dismiss is GRANTED to the extent that Plaintiff

brings a free-standing Title VII pattern-or-practice claim; and

(6) The City’s motion to dismiss is DENIED as to Plaintiff’s Title VII and

§ 1983/§ 1981 claims alleging a retaliatory denial of a promotion to the position of

director of economic and community development.

DONE this 17th day of December, 2021.

/s/ W. Keith Watkins

UNITED STATES DISTRICT JUDGE