Brawner v. City of Atlanta

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In Support

N.D. Ga.November 30, 2016

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION KATHY BRAWNER, Plaintiff, v. CITY OF ATLANTA, CHIEF PATRICK LABAT, in his official capacity as the Chief of Department of Corrections, and ASSISTANT CHIEF DIANE JONES, in her official capacity as Assistant Chief of the Department of Corrections, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:16-cv-03792-ELR-AJB DEFENDANTS’ MOTION TO DISMISS AMENDED COMPLAINT AND INCORPORATED MEMORANDUM OF LAW IN SUPPORT THEREOF Defendants CITY OF ATLANTA (the -City‖), CHIEF PATRICK LABAT, and ASSISTANT CHIEF DIANE JONES1, by their attorneys and pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, hereby file their Motion to Dismiss Amended Complaint and Incorporated Memorandum of Law in Support Thereof in the above-captioned action. As discussed more fully below, the City 1 Chief Labat and Assistant Chief Jones are making special appearances for purposes of this motion, as they have not been served with the Summons and Complaint. Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 1 of 23 2 respectfully requests that the Court dismiss Plaintiff‘s race discrimination and retaliation claims brought under Title VII of the Civil Rights Act of 1964 (-Title VII‖) and 42 U.S.C. § 1983 (-Section 1983‖). First, Plaintiff‘s Title VII claims based on alleged discriminatory and retaliatory conduct that occurred more than 180 days before she filed her charge of discrimination are time-barred. To the extent Plaintiff‘s Title VII claims are not time-barred, her claims should be dismissed for Plaintiff‘s failure to exhaust her administrative remedies. Additionally, assuming arguendo that Plaintiff‘s race discrimination claims are not barred, they are still subject to dismissal because Plaintiff alleges various slights that do not constitute adverse employment actions under Title VII. Plaintiff‘s Title VII race discrimination claim based on her termination should also be dismissed because Plaintiff has not alleged she was treated less favorably than similarly situated employees. Further, Plaintiff‘s retaliation claims under Title VII and Section 1983 should be dismissed for the following reasons: (1) Plaintiff cannot establish a prima facie case of retaliation under Title VII because there is no causal connection between the alleged protected activity and the termination of her employment; and (2) Section 1983 retaliation claims are not cognizable, as the Eleventh Circuit has held that there is no clearly established right under the Equal Protection Clause to be free from retaliation. Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 2 of 23 3 Moreover, Plaintiff‘s Section 1983 claims are subject to dismissal because the Complaint does not contain any factual allegations to support municipal liability. Finally, because Plaintiff‘s claims against Chief Labat and Assistant Chief Jones in their official capacity are simply claims against the City, all claims against them should be dismissed. INTRODUCTION Plaintiff Kathy Brawner, a white female, is a former City employee who claims she was discriminated against because of her race. (Compl. ¶¶ 6, 14, 45). Plaintiff began her employment with the City‘s Department of Corrections (the -Department‖) on February 4, 2013, as the Director of Nursing. (Compl. ¶ 18). Plaintiff‘s direct supervisor was Assistant Chief Diane Jones, a black employee, who supervised the Department‘s medical staff before Plaintiff joined the City. (Compl. ¶ 20). Plaintiff alleges that for the first couple of years of her employment, her -main issue‖ with the City was Jones‘ -interference with her ability to supervise her subordinates.‖ (Compl. ¶ 22). Plaintiff does not allege that Jones or any other Department employees engaged in other conduct that she perceived to be discriminatory during the first two years of her employment. Plaintiff alleges that in March 2015, Chief Patrick Labat, head of the Department, informed her that the Department would not cover her expenses to Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 3 of 23 4 attend a conference of the American Correctional Committee. (Compl. ¶¶ 23-24). Plaintiff alleges that, while her request was denied, the Department had covered the travel expenses for black employees to attend the conference in the past. (Id.) Additionally, Plaintiff alleges that Assistant Chief Jones and Chief Labat engaged in discriminatory conduct toward her for the next several months. (Compl. ¶ 26). Specifically, Plaintiff contends that the following conduct was discriminatory: (1) Jones and other staff members undermined Plaintiff‘s authority (Compl. ¶ 21); (2) Labat declined to cover travel expenses for Plaintiff to attend a conference (Compl. ¶¶ 23-24); (3) Plaintiff was required to track and budget medical staff hours using Kronos software although she was not provided access to the software (Compl. ¶¶ 27, 54); (4) Plaintiff‘s decision to discipline an employee, Vera Kelly, was undermined by Jones and Labat, and Plaintiff was restricted from communicating directly with Kelly pursuant to a -no talking policy‖ (Compl. ¶¶ 28, 30-31); (5) Jones hired, promoted, and transferred staff members under Plaintiff‘s supervision without involving Plaintiff in the process (Compl. ¶ 32); (6) Jones reprimanded Plaintiff for failing to attend meetings for which Plaintiff claims she did not receive sufficient advance notice (Compl. ¶ 41); and (7) Jones required Plaintiff to request permission before leaving the building and to clock in and out for her lunch hour. (Compl. ¶ 42). Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 4 of 23 5 On October 5, 2015, a fellow employee named Pamela Banks filed an internal EEO complaint of racial discrimination on Plaintiff‘s behalf. (Compl. ¶ 33). Plaintiff alleges that on December 3, 2015, a meeting was held in connection with the City‘s investigation of the internal EEO complaint and that Plaintiff, Assistant Chief Jones, and Chief Labat were among the attendees. (Compl. ¶ 37). On June 10, 2016, six (6) months after that meeting, Plaintiff was notified by Chief Labat that her employment was being terminated because the Department was -going in a different direction.‖ (Compl. ¶ 45). On or around July 19, 2016, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (-EEOC‖). (Compl. ¶ 15; see Exhibit A2). Within ten (10) days of a charge filing, the EEOC notifies an employer that a charge of discrimination has been filed against it.3 In 2015, it took the EEOC, on average, nearly ten (10) months to investigate a charge of discrimination. (Exhibit B). Remarkably, despite its lengthy charge investigation 2 Pursuant to Federal Rule of Evidence 201(c)(2), the City respectfully requests that the Court take judicial notice of Plaintiff‘s charge of discrimination. (See Docket Entry No. 7-1 attached as Exhibit A). 3 Pursuant to Federal Rule of Evidence 201(c)(2), the City respectfully requests that the Court take judicial notice of the webpage -What You Can Expect After You File a Charge‖ available on the EEOC‘s website at https://www.eeoc.gov/employees/process.cfm. (See Exhibit B). Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 5 of 23 6 process, the EEOC issued a -Notice of Right to Sue‖ to Plaintiff on July 28, 2016 - only nine (9) days after she filed her charge of discrimination. (Compl. ¶ 16). LEGAL STANDARD Federal Rule of Civil Procedure 8(a)(2) requires that a pleading set forth a -short and plain statement of the claim showing that the pleader is entitled to relief.‖ Fed. R. Civ. P. 8(a)(2). To withstand 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.‘‖ Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff‘s Amended Complaint is plausible on its face if it pleads facts necessary for the Court to draw the reasonable inference that the City is liable for the conduct alleged. Id. (citing Twombly, 550 U.S. at 556). At the motion to dismiss stage, -all well-pleaded facts are accepted as true, and the reasonable inferences therefrom are construed in the light most favorable to the plaintiff.‖ FindWhat Inv‘r Grp. v. FindWhat.com, 658 F.3d 1282, 1296 (11th Cir. 2011) (quoting Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006)). However, this principle does not apply to legal conclusions set forth in Plaintiff‘s Amended Complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 6 of 23 7 ARGUMENT I. Plaintiff’s Title VII Claims Are Either Time-Barred Or Subject To Dismissal For Plaintiff’s Failure To Exhaust Her Administrative Remedies. Plaintiff‘s claims based on alleged discriminatory and retaliatory conduct that occurred more than 180 days before she filed her charge of discrimination are time-barred. To file suit under Title VII, a plaintiff must first exhaust her administrative remedies, including filing a timely charge of discrimination. Bailey v. Ga. Dep‘t of Labor, No. 1:15-cv-106-TWT, 2015 WL 3407841, at *2 (N.D. Ga. May 27, 2015). In Georgia, a plaintiff‘s claims are barred if not filed with the EEOC within 180 days of the discriminatory act. Butler v. Matsushita Commc‘n Indus. Corp. of U.S.A., 203 F.R.D. 575, 582 (N.D. Ga. 2001). Here, Plaintiff filed her EEOC charge on or around July 19, 2016. (Compl. ¶ 15; see Exhibit A). Any and all claims that fall outside the 180-day limitations period (i.e., any alleged conduct that occurred before January 21, 2016) should be dismissed as time-barred including, but not limited to: (1) Plaintiff‘s claim that beginning in February 2013, she was required to track and budget medical staff hours using Kronos software although she was not provided access to the software (Compl. ¶¶ 27, 54; see Exhibit A); (2) Plaintiff‘s claim that in March 2015, Chief Labat declined to cover travel expenses for Plaintiff to attend a conference (Compl. Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 7 of 23 8 ¶¶ 23-24); (3) Plaintiff‘s claim that she was retaliated against during a December 3, 2015, meeting when Chief Labat -advis[ed] her that she could not be trusted.‖ (Compl. ¶ 37-38, 76; see Exhibit A); and (4) Plaintiff‘s claim that she was retaliated against when the investigation of her internal EEO complaint was terminated on December 3, 2015. (Compl. ¶ 37, 78; see Exhibit A). Because all claims based on this alleged conduct are time-barred, Plaintiff‘s discrimination and retaliation claims should be dismissed. See Bailey, 2015 WL 3407841, at *1-2 (dismissing plaintiff‘s Title VII claims as barred by the statute of limitations); Roberson v. Allied Auto. Group, No. 1:06-CV-0896-RWS, 2009 WL 1795824, at *11 (N.D. Ga. June 24, 2009) (finding that the EEOC charge only encompassed retaliation claims arising from events that occurred within 180 days before the charge filing); Copeland v. CVS Pharmacy, Inc., No. 1:03-CV-3854-JOF, 2006 WL 2699045, at *35 (N.D. Ga. Sept. 15, 2006) (holding that plaintiff cannot recover for promotion decisions made more than 180 days before he filed his EEOC charge). Moreover, Plaintiff‘s remaining claims are subject to dismissal because she has not exhausted her administrative remedies. -In order to sue in court for violations of Title VII, a plaintiff must exhaust administrative remedies, which means she must receive a right-to-sue letter from the EEOC.‖ Wilkerson v. H & S, Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 8 of 23 9 Inc., 366 Fed. App‘x 49, 50 (11th Cir. 2010) (citation omitted). In the Eleventh Circuit, the plaintiff‘s -receipt of a right-to-sue letter is not a jurisdictional prerequisite to suit in district court, but rather, is a condition precedent subject to equitable modification.‖ Morales v. Ga. Dep‘t of Human Res., No. 7:08-CV- 156(HL), 2010 WL 4639279, at *2 (M.D. Ga. Nov. 8, 2010). Because it appears that Plaintiff filed this action before receiving a right-to-sue letter, she must depend upon equitable modification of the exhaustion requirement. Id. The burden of proof is on Plaintiff to show that equitable modification applies. Id. at *3. Unless Plaintiff can show that she indeed received a right-to-sue letter only nine (9) days after filing her EEOC charge or that she is entitled to equitable modification, her Title VII race discrimination and retaliation claims should be dismissed. See Collins v. Fulton Cnty. Sch. Dist., No. 1:12-CV-1299-ODE-JSA, 2012 WL 7802745, at *32-33 (N.D. Ga. Dec. 26, 2012) (finding that plaintiff had not exhausted his administrative remedies where he had not received a right- to-sue notice over eight (8) months after filing his complaint). II. Plaintiff’s Discrimination Claims Based On Alleged Conduct That Does Not Constitute An Adverse Employment Action Are Subject To Dismissal. Even assuming arguendo that Plaintiff‘s race discrimination claims are not barred, they are still subject to dismissal because Plaintiff alleges various slights Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 9 of 23 10 that do not constitute adverse employment actions under Title VII. Specifically, Plaintiff finds the following conduct to be discriminatory: (1) Assistant Chief Jones and other staff members undermined Plaintiff‘s authority (Compl. ¶ 21); (2) Chief Labat declined to cover travel expenses for Plaintiff to attend a conference (Compl. ¶¶ 23-24); (3) Plaintiff was required to track and budget medical staff hours using Kronos software although she was not provided access to the software (Compl. ¶¶ 27, 54); (4) Plaintiff‘s decision to discipline an employee, Vera Kelly, was undermined by Assistant Chief Jones and Chief Labat, and Plaintiff was restricted from communicating directly with Kelly pursuant to a -no talking policy‖ (Compl. ¶¶ 28, 30-31); (5) Assistant Chief Jones hired, promoted, and transferred staff members under Plaintiff‘s supervision without involving Plaintiff in the process (Compl. ¶ 32); (6) Assistant Chief Jones reprimanded Plaintiff for failing to attend meetings for which Plaintiff claims she did not receive sufficient advance notice (Compl. ¶ 41); and (7) Assistant Chief Jones required Plaintiff to request permission before leaving the building and to clock in and out for her lunch hour. (Compl. ¶ 42). None of the alleged conduct rises to the level of an adverse employment action, and as such, Plaintiff‘s race discrimination claims based on this conduct should be dismissed. Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 10 of 23 11 To establish a prima facie case of discrimination, Plaintiff must show that: (1) she is a member of a protected class; (2) she was qualified for the job; (3) she suffered an adverse employment action; and (4) she was replaced by someone outside the protected class or was treated less favorably than a similarly situated employee outside the protected class. Nettles v. LSG Sky Chefs, 211 Fed. App‘x 837, 838 (11th Cir. 2006) (citation omitted). -[T]o prove an adverse employment action in a case under Title VII‘s anti-discrimination clause, an employee must show a serious and material change in the terms, conditions, or privileges of employment.‖ Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001). Indeed, the Eleventh Circuit has made clear that -the employee‘s subjective view of the significance and adversity of the employer‘s action is not controlling; the employment action must be materially adverse as viewed by a reasonable person in the circumstances.‖ Id. The alleged discriminatory acts about which Plaintiff complains here are -merely petty slights or trivial annoyances‖ that do not rise to the level of adverse employment actions. See Rossi v. Fulton County, Ga., No. 1:10-CV-4254-RWS- AJB, 2013 WL 1213205, at *17 (N.D. Ga. Feb. 8, 2013). For instance, in Rossi, this Court found that the following conduct alleged by the plaintiff did not constitute adverse employment actions for purposes of her discrimination claims: Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 11 of 23 12 (1) denial of access to a camera, Blackberry communication device, and laptop; (2) denial of out-of-state training and attendance at board meetings; (3) lack of input on staff changes, hiring, and promotion; (4) a written reprimand for violating an attendance requirement; (5) undermining the plaintiff‘s authority with her subordinates; and (6) general allegations of poor treatment by her boss. Id. at *10- 17. While noting that -the Court can certainly see that a reasonable person could find that much of the conduct about which Plaintiff complains was petty and annoying,‖ this Court concluded that -none of the conduct Plaintiff alleges was sufficiently objectively serious or tangible to constitute an adverse employment action.‖ Id. at *17. Other courts have reached the same conclusion when presented with the type of trivial workplace annoyances alleged by Plaintiff here. See Nettles, 211 Fed. App‘x at 839 (undermining plaintiff‘s authority, excluding him from meetings, and denying him administrative support for a staff trip did not constitute adverse employment actions); Yates v. Ala. Agricultural & Mech. Univ., No. CV-13-J- 981-NE, 2014 WL 1338103, at *9 (N.D. Ala. Apr. 2, 2014) (-The court can find no support for a finding that the undoing of a disciplinary decision is within the realm of materially adverse employment actions…‖); Graham v. Wal-Mart Stores, Inc., No. 5:04-CV-167-OC-10GRJ, 2005 WL 2810703, at *4 (M.D. Fla. Oct. 27, Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 12 of 23 13 2005) (undermining plaintiff‘s authority and denying him access to a computer, cash register, and the tire cage did not constitute adverse employment actions). III. Plaintiff’s Termination Claim Fails Because She Has Not Alleged That Similarly Situated Employees Were Treated Differently. As previously discussed, to establish a prima facie case of discrimination, Plaintiff must show that: (1) she is a member of a protected class; (2) she was qualified for the job; (3) she suffered an adverse employment action; and (4) she was replaced by someone outside the protected class or was treated less favorably than a similarly situated employee outside the protected class. Nettles, 211 Fed. App‘x at 838 (citation omitted). Plaintiff has not alleged that she was replaced by someone outside the protected class, nor has she alleged that similarly situated employees of another race were treated differently. As such, Plaintiff cannot establish a prima facie case of discrimination under Title VII based on her termination, and this claim should be dismissed. Here, Plaintiff does not allege she was terminated while similarly situated black employees were not. Indeed, Plaintiff alleges less favorable treatment with regards to all alleged conduct except for her termination, specifically: (1) Assistant Chief Jones did not interfere and/or undermine the authority of black directors (Compl. ¶ 21); (2) Chief Labat sent several black employees to the ACA conference and covered most of their expenses, including travel and lodging Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 13 of 23 14 (Compl. ¶ 23); (3) Black directors in the department tasked with maintaining records of employee hours and overtime were provided access to Kronos (Compl. ¶ 27); (4) None of the black directors were subject to a -no talking policy‖ with any of their subordinates (Compl. ¶ 31); (5) Black directors were involved in the screening, interviewing, hiring, promotion, and transfer process of their subordinates (Compl. ¶ 32); (6) Black employees, including directors, were provided sufficient notice of meetings where their attendance was required (Compl. ¶ 41); and (7) Black directors and Plaintiff‘s subordinates were not required to request permission before leaving the building and to clock in and out for their lunch hour. (Compl. ¶ 42). Because Plaintiff‘s Complaint is devoid of allegations that she was treated less favorably than similarly situated employees with respect to her termination, her termination claim should be dismissed because she has not set forth a prima facie case of discrimination. See Norwood v. Costco Wholesale Corp., No. 1:13- CV-1231-WSD, 2014 WL 988863, at *6 (N.D. Ga. Mar. 13, 2014) (finding that plaintiff‘s complaint did not plead -enough facts to state a claim to relief that is plausible on its face‖ because it contained no allegations he was treated less favorably than similarly situated employees); Solorzano v. Univ. of Miami, No. 12-22852-Civ, 2014 WL 12498004, at *3 (S.D. Fla. Feb. 25, 2014) (granting Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 14 of 23 15 motion to dismiss where the plaintiff did not -reference a single other employee, nor any similar incident, that demonstrates an employee outside her classification was treated more favorably.‖); Veale v. Fla. Dep‘t of Health, No. 2:13-CV-77- FtM-38UAM, 2013 WL 5703577, at *5 (M.D. Fla. Jul. 29, 2013) (-[P]laintiff has simply stated that there were other employees that were similarly situated, outside her protected class, who received more favorable treatment…Such a recitation, without any allegations of specific facts to explain how the disparate treatment occurred to even give rise to an inference of discrimination, is insufficient.‖). IV. Plaintiff’s Retaliation Claim Should Be Dismissed Because Plaintiff Has Not Shown A Causal Connection Between Her Protected Conduct And The Termination Of Her Employment. Plaintiff asserts retaliation claims under Section 1983 and Title VII. (Compl. ¶¶ 73-88). At the outset, Plaintiff‘s Section 1983 retaliation claim, which is based on the alleged violation of her right to equal protection, cannot withstand dismissal because the Eleventh Circuit has held that such a claim is not cognizable. See Gardner v. City of Camilla, Ga., 186 Fed. App‘x 860, 864 (11th Cir. 2006) (citation omitted) (emphasis in original) (-The right to be free from retaliation is clearly established as a first amendment right and as a statutory right under Title VII; but no clearly established right exists under the equal protection clause to be free from retaliation.‖); Ratliff v. DeKalb County, Ga., 62 F.3d 338, 341 (11th Cir. Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 15 of 23 16 1995) (emphasis in original) (-[E]ach of these cases holds that a constitutional claim for retaliation may be brought under 42 U.S.C. § 1983 pursuant to the first amendment, not the equal protection clause.‖). To establish a prima facie case of retaliation under Title VII, Plaintiff must allege facts showing that: (1) she engaged in statutorily protected activity; (2) she suffered an adverse employment action; and (3) there is a causal connection between the two events. Flores v. DeVry Univ., 573 Fed. App‘x 833, 835 (11th Cir. 2014); Brochu v. City of Riviera Beach, 304 F.3d 1144, 1155 (11th Cir. 2002). To establish a causal connection, mere temporal proximity between knowledge of the protected activity and an adverse action must be -very close.‖ Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004). -The [Supreme] Court has cited with approval decisions in which a three to four month disparity was found to be insufficient to show causal connection.‖ Id. (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). Plaintiff‘s retaliation claim should be dismissed because the alleged facts do not establish a -very close‖ temporal proximity between Plaintiff‘s protected conduct and the termination of her employment. As alleged in the Amended Complaint, an internal EEO complaint was submitted on Plaintiff‘s behalf on October 5, 2015. (Compl. ¶ 33). Plaintiff‘s employment was not terminated until Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 16 of 23 17 June 10, 2016, which was eight (8) months after the filing of the internal EEO complaint. (Compl. ¶ 45). Indeed, the Eleventh Circuit has held that a causal connection has not been established where eight months had passed between the plaintiff‘s protected activity and the adverse employment action at issue. See Jiles v. United Parcel Serv., 360 Fed. App‘x 61, 67 (11th Cir. 2010) (-[T]he district court did not err when it reasoned that the time-frame of eight months does not sufficiently proximate to establish a causal connection.‖); Grier v. Snow, 206 Fed. App‘x 866, 869 (11th Cir. 2006) (-[P]ursuant to our controlling precedent, an eight-month time period between the protected activity and the adverse employment action is insufficient, alone to satisfy the ‗causal connection‘ element of Grier‘s prima facie case.‖); DeLong v. Best Buy Co., Inc., 211 Fed. App‘x 856, 858 (11th Cir. 2006) (-We note that the temporal proximity between these two events-some eight months-is not ‗very close.‘‖). Accordingly, Plaintiff‘s claim should be dismissed for her failure to establish a prima facie case of retaliation. V. Plaintiff’s Allegations Against The City Fail To State A Claim For Municipal Liability Under Section 1983. Plaintiff alleges that -the City of Atlanta Department of Corrections has a policy or custom of discriminatory practices against white employees.‖ (Compl. ¶ 14). Plaintiff does not set forth any facts in support of this conclusory allegation, Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 17 of 23 18 and as such, she has not stated a claim for municipal liability under Section 1983. The Eleventh Circuit has noted that the -Supreme Court has placed strict limitations on municipal liability under § 1983.‖ Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). Thus, a plaintiff seeking to establish municipal liability must show that the deprivation of her federal right was attributable to the enforcement of a municipal custom or policy. Barrett v. City of Monroe, No. 3:15- CV-86-CAR, 2016 WL 6069997, at *2 (M.D. Ga. Oct. 14, 2016). While an official government policy will support municipal liability, -conclusory or ‗naked allegations‘ are insufficient.‖ Cunningham v. Sch. Bd. of Lake Cnty., No. 5:15-cv-480-Oc-30PRL, 2016 WL 1755612, at *6 (M.D. Fla. May 3, 2016). Where, as here, a plaintiff fails to allege facts in support of a liability theory -that is plausible on its face,‖ the plaintiff has not stated a claim for relief. See id. (dismissing municipal liability claim in amended complaint where there were no factual allegations to support that the school board -condoned‖ or -ratified‖ retaliation against employee); Hammer v. Hillsborough Cnty., 927 F.Supp.1540, 1546 (M.D. Fla. 1996) (dismissing Section 1983 claim where -Plaintiff‘s Amended Complaint states only that the County and the Commission ‗did not promote Plaintiff from her position as Planning technician solely on the Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 18 of 23 19 basis of her sex.‘… This, standing alone, is not sufficient to allege that Plaintiff‘s failure to be promoted was the result of a pattern and practice of discrimination.‖). VI. Plaintiff’s Claims Against Chief Labat And Assistant Chief Jones In Their Official Capacity Should Be Dismissed. It is well-settled that official capacity claims against an officer are -simply another way of pleading an action against an entity of which an officer is an agent.‖ Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991). As such, Plaintiff‘s Section 1983 claims against Chief Labat and Assistant Chief Jones should be dismissed as duplicative or redundant because they are essentially claims brought against the City itself. See McCleskey v. City of Dothan, No. 1:08-cv- 634-MEF, 2009 WL 1258290, at *1 (M.D. Ala. May 5, 2009) (-Courts in this Circuit have rather routinely dismissed claims against municipal employees in their official capacities where the municipality was properly made a defendant.‖). Moreover, because Plaintiff‘s claims against Chief Labat and Assistant Chief Jones are simply claims against the City, Plaintiff‘s punitive damages claim is subject to dismissal. Punitive damages are not available against municipalities for Section 1983 claims. Newport v. Fact Concerts, 453 247, 271 (1981). Moreover, Title VII precludes recovery of punitive damages against municipalities. Walters v. City of Atlanta, 803 F.2d 1135, 1148 (11th Cir. 1986); Young v. City of Mobile, No. 13-0586-KD-B, 2014 WL 2739422, at *2 (S.D. Ala. June 17, 2014). Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 19 of 23 20 Accordingly, Plaintiff‘s punitive damages claim should be dismissed. See Hajhossein v. City of Statesboro, No. 609CV048, 2010 WL 538209, at *6 (S.D. Ga. Feb. 12, 2010) (-As properly argued by the City, §§ 1981 and 1983, and Title VII do not authorize the recovery of punitive damages against municipalities.‖). CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court grant their motion and dismiss Plaintiff‘s Amended Complaint in its entirety. Respectfully submitted, By s/ Anissa D. Floyd Robert N. Godfrey Georgia Bar No. 298550 Anissa D. Floyd Georgia Bar No. 141747 55 Trinity Avenue, S.W. Suite 5000 Atlanta, GA 30303-3520 Telephone: (404) 546-4100 Facsimile: (404) 546-9379 Date: November 30, 2016 Attorneys for Defendants Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 20 of 23 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION KATHY BRAWNER, Plaintiff, v. CITY OF ATLANTA, CHIEF PATRICK LABAT, in his official capacity as the Chief of Department of Corrections, and ASSISTANT CHIEF DIANE JONES, in her official capacity as Assistant Chief of the Department of Corrections, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:16-cv-03792-ELR-AJB CERTIFICATE OF FONT I hereby certify that the foregoing DEFENDANTS‘ MOTION TO DISMISS AMENDED COMPLAINT AND INCORPORATED MEMORANDUM OF LAW IN SUPPORT THEREOF was prepared in Times New Roman 14-point font in conformance with Local Rule 5.1C. s/ Anissa D. Floyd Anissa D. Floyd Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 21 of 23 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION KATHY BRAWNER, Plaintiff, v. CITY OF ATLANTA, CHIEF PATRICK LABAT, in his official capacity as the Chief of Department of Corrections, and ASSISTANT CHIEF DIANE JONES, in her official capacity as Assistant Chief of the Department of Corrections, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:16-cv-03792-ELR-AJB CERTIFICATE OF SERVICE I hereby certify that on November 30, 2016, I served a true and correct copy of DEFENDANTS‘ MOTION TO DISMISS AMENDED COMPLAINT AND INCORPORATED MEMORANDUM OF LAW IN SUPPORT THEREOF with the Clerk of Court using the CM/ECF system, which will automatically send notification to counsel of record. (signature on the following page) Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 22 of 23 Respectfully submitted, By s/ Anissa D. Floyd Robert N. Godfrey Georgia Bar No. 298550 Anissa D. Floyd Georgia Bar No. 141747 55 Trinity Avenue, S.W. Suite 5000 Atlanta, GA 30303-3520 Telephone: (404) 546-4100 Facsimile: (404) 546-9379 Attorneys for Defendants Case 1:16-cv-03792-ELR-AJB Document 10 Filed 11/30/16 Page 23 of 23 Case 1:16-cv-03792-ELR-AJB Document 7-1 Filed 11/20/16 Page 1 of 3Case 1:16-cv-03792-ELR-AJB Docu ent 10-1 Filed 11/30/16 Page 1 of 3 Case 1:16-cv-03792-ELR-AJB Document 7-1 Filed 11/20/16 Page 2 of 3Case 1:16-cv-03792-ELR-AJB Docu ent 10-1 Filed 11/30/16 Page 2 of 3 Case 1:16-cv-03792-ELR-AJB Document 7-1 Filed 11/20/16 Page 3 of 3Case 1:16-cv-03792-ELR-AJB Docu ent 10-1 Filed 11/30/16 Page 3 of 3 Case 1:16-cv-03792-ELR-AJB Document 10-2 Filed 11/30/16 Page 1 of 2 Case 1:16-cv-03792-ELR-AJB Document 10-2 Filed 11/30/16 Page 2 of 2