Texas Cases June 30, 2023: Kinsey v. City of Bellmead

Case Description

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TO: THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

JEFFREY C. MANSKE, UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court are Defendant Yousef Zakhary's Motion to Dismiss (ECF No. 17), Defendant City of Bellmead's Motion to Dismiss (ECF No. 18), and Plaintiff's Response to Defendants' Motions to Dismiss (ECF No. 25). For the following reasons, the undersigned RECOMMENDS Defendants' Motions be GRANTED IN PART AND DENIED IN PART .

I. BACKGROUND

Brenda Kinsey had been employed in law enforcement for over twenty-one years in 2021. Pl.'s Am. Compl. (ECF No. 16) at | 18. At that time, the City of Bellmead employed Kinsey as the Assistant Chief of Police. Id. Kinsey alleges that she was imminently qualified for the position of Assistant Chief. Id. On March 31, 2021, Bellmead's then-Chief-of-Police, Kinsey's direct supervisor, retired. Id. at ¶ 19. Upon the Chief's retirement, Kinsey became a

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candidate for the Interim Chief of Police position. Id. Kinsey alleges that Zakhary, Bellmead's City Manager, “diminished her role within the Bellmead Police Department and made discriminatory comments and suggestions to the City Council regarding [Kinsey's] fitness for the position. Id. After these comments, Zakhary became the Interim Chief of Police rather than Kinsey. Id.

Kinsey alleges that after Zakhary became the Interim Chief, Kinsey reported exclusively to Zakhary and that he “consistently diminished or marginalized [her] role at the City in favor of her male subordinates.” Id. at ¶ 23. Kinsey alleges that Zakhary pressured her into using FMLA-leave during her divorce; attempted to “poison the Council against [her] in order to eliminate her as a candidate” for the Chief of Police position; lied to the Council about the qualifications of two of Kinsey's male subordinates for the Chief of Police position; intentionally lowered the qualifications necessary to apply for the Chief of Police position for the “sole benefit of male prospective applicants;” gave Kinsey lower performance reviews without explanation or comment; used derogatory language to refer to female employees; consistently granted male employees privileges while denying them to Kinsey. Id. at ¶24, 25, 26, 28, 29, 30.

As a result of these actions, Kinsey submitted a Notice of Discrimination Claim to Zakhary and other Bellmead officials on December 13, 2021. Id. at ¶35. That same day, Kinsey filed an Employee Discrimination Complaint with the TWC and EEOC and notified Bellmead of her EEOC Complaint. Id. The very next day, Zakhary “initiated and caused a written complaint ... to be sworn out by another City employee under his direction and control for the purpose of filing criminal charges against Plaintiff for alleged “Misuse of Official Information” for alleged misbehavior from August 2021. Id. at ¶ 36. As a result of the sworn complaint, Kinsey was arrested on December 14, 2021. Id. at ¶ 37.

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On December 17, 2021, Bellmead suspended Kinsey indefinitely without pay effective December 15, 2021. Id. at ¶ 39. Kinsey alleges that Bellmead and Zakhary blatantly ignored all of Bellmead's policy's controlling the suspension of an officer with or without pay. Id. at ¶4055. Plaintiff alleges that the criminal complaint against her was dismissed by the McLennan County District Attorney on December 28, 2022, without being presented to a grand jury. Id. at ¶50.

Kinsey sued the City of Bellmead and Zakhary for violations of Title VII of the Civil Rights Act and under 42 U.S.C. § 1983. Pl.'s Compl. (ECF No. 1). Defendants filed Motions to Dismiss Plaintiff's Original Complaint. ECF No. 12; ECF No. 13. Plaintiff amended her Complaint. ECF No. 16. Defendants responded by filing their Motions to Dismiss Plaintiff's Amended Complaint, which are the subject of this Report & Recommendation. ECF No. 17; ECF No. 18.

II. LEGAL STANDARDS

Upon motion or sua sponte, a court may dismiss an action that fails to state a claim upon which relief may be granted. FED. R. CIV. P. 12(B)(6); Carroll v. Fort James Corp. , 470 F.3d 1171, 1177 (5th Cir. 2006). To survive Rule 8, a nonmovant must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). “The court's task is to determine whether the plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff's likelihood of success.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC , 594 F.3d 383, 387 (5th Cir. 2010). The court begins by identifying which allegations are well-pleaded facts and which are legal conclusions or elemental recitations, accepting as true the former and rejecting the latter. Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). A court need not blindly accept every allegation of fact; properly pleaded allegations

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of fact amount to more than just conclusory allegations or legal conclusions “masquerading as factual conclusions.” Taylor v. Books A Million, Inc. , 296 F.3d 376, 378 (5th Cir. 2002). The court then determines whether the accepted allegations state a plausible claim to relief. Id. at 379.

“Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly , 550 U.S. at 555. “The court accepts all well-pleaded facts as true, viewing them in the light most favorable to the [nonmovant].” In re Katrina Canal Breaches Litig. , 495 F.3d 191, 205 (5th Cir. 2007) (quotation marks omitted). “A claim has facial plausibility when the [nonmovant] pleads factual content that allows the court to draw the reasonable inference that the [movant] is liable for the misconduct alleged.” Ashcroft , 556 U.S. at 678. “The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. For purposes of Rule 12(b)(6), “pleadings” include the complaint, its attachments, and documents referred to in the complaint and central to a plaintiff's claims. Collins v. Morgan Stanley Dean Witter , 224 F.3d 496, 498-499 (5th Cir. 2000).

III. DISCUSSION

A. Kinsey's Substantive Due Process Claims against Zakhary and Bellmead

Zakhary and Bellmead move to dismiss Kinsey's substantive due process claims under 42 U.S.C. § 1983. Zakhary's Mot. at 4; Bellmead's Mot. at 6. They argue that Plaintiff has not alleged that she had any federally protected property interest in her at-will employment with Bellmead. Zakhary's Mot. at 4; Bellmead's Mot. at 6. Kinsey “does not oppose Defendants' motions for only her substantive due process claim .” Pl.'s Resp. at 2, n. 2. Accordingly, Kinsey's substantive due process claims against Zakhary and Bellmead should be dismissed.

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B. Kinsey's Equal Protection Claims against Zakhary and Bellmead

Zakhary and Bellmead also move to dismiss Kinsey's Equal Protection Clause claims under 42 U.S.C. § 1983. Zakhary's Mot. at 6; Bellmead's Mot. at 9. Zakhary asserts that Kinsey failed to allege “any facts to suggest that Zakhary generally treated other women employees poorly relative to similarly-situated men.” Zakhary's Mot. at 7. Similarly, Bellmead argues that Plaintiff has failed to plausibly allege that her constitutional rights under the Equal Protection were violated because she “has not alleged any specific facts to suggest that the City generally treated women poorly relative to similarly-situated men.” Bellmead's Mot. at 9. Zakhary and Bellmead rely on Engquist v. Or. Dept. of Agr , 553 U.S. 591 (2008) to find this pleading requirement. Kinsey argues that Engquist is inapplicable here. The undersigned agrees.

In Engquist , a former employee of a state agency sued the agency, alleging violations of the Equal Protection Clause of the Fourteenth Amendment. Engquist , 553 U.S. at 594-95. The former employee brought two types of Equal Protection claims: (1) discrimination against her on the basis of her race, sex, and national origin; and (2) a “class-of-one” claim. Id. at 595. A “class-of-one” is one in which the plaintiff alleges that “she was fired not because she was a member of an identified class ..., but simply for ‘arbitrary, vindictive, and malicious reasons.'” Id. The district court decided that the class-of-one theory was applicable in the public employment context. Id. At trial, the jury found in the employee's favor on her class-of-one claim. Id. at 596. On appeal, the Ninth Court of Appeals held that the class-of-one theory is “inapplicable to decisions made by public employers with regard to their employers.” Id. (citation omitted). The Supreme Court affirmed. Id. at 597.

Importantly, the Supreme Court distinguished between typical Equal Protection claims and “class-of-one” claims. Id. at 595. Defendants improperly read in a requirement that a

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plaintiff in the public employment context present evidence in her complaint that the employer treated all members of the class wrongly. Defendants apparently believe that a woman being “treated negatively because she is a woman cannot support an equal protection claim” unless the woman comes forward with class-wide proof that the employer treats all women negatively. Bellmead's Mot. at 10; see Zakhary's Mot. at 8. Engquist does not support this assertion, and instead implicitly upholds the legitimacy of Equal Protection claims brought by an individual without reference to other individuals in that class.

Here, Plaintiff alleges at length that she was subjected to discrimination on the basis of her sex. “By subjecting Plaintiff Kinsey, a female, to a gender discrimination, sexually hostile work environment on the basis of her gender .. Bellmead and/or Zakhary violated the Equal Protection Clause ... of the Fourteenth Amendment to the United States Constitution.” Pl.'s Compl. at ¶ 76. “Plaintiff Kinsey was subjected to disparate treatment due to her gender.” Id. at ¶ 77. “The disparate treatment, harassment and retaliation was based upon her membership in the protected class.” Id. Plaintiff is clearly not alleging a “class-of-one” theory. Importantly, Kinsey does not allege a single time in her Complaint that Zakhary was motivated by “arbitrary, vindictive, and malicious reasons” unconnected to her membership in a protected class. Engquist , 553 U.S. at 595. Instead, she consistently alleges that Zakhary discriminated against her based on her membership in a protected class. Pl.'s Compl. at ¶¶ 19, 22, 23, 25, 26-30.

Zakhary and Bellmead also argue that Kinsey failed to state a claim that her Equal Protection rights were violated because she has failed to assert that she received treatment different than that of a similar situated comparator group. Zakhary Mot. at 10; Bellmead Mot. at 10. Kinsey clearly alleged that male employees were not subjected to the same disparate treatment that she was. Pl.'s Compl. at ¶ 22-26. She also alleged that Zakhary lowered the

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written qualifications for the Chief of Police position by removing the Master Peace Officer's License requirement. Id. at ¶ 26. This resulted in Kinsey no longer being the only qualified applicant. Id. Kinsey alleged that Zakhary did this “for the sole benefit of male prospective applicants,” and justifies this allegation because the rest of the officers in the department were males without Master Peace Officer's Licenses. Id. She also alleged that Zakhary granted male officers special privileges that he denied Plaintiff and reduced her responsibilities by giving her authority to her male subordinates. Id. at ¶¶ 25, 30. These facts, when taken as true, clearly show that Kinsey received treatment different than males based on her sex. Accordingly, Kinsey has stated a claim that her rights under the Equal Protection clause were violated.

C. Monell Liability against The City of Bellmead

Bellmead argues that Kinsey has failed to allege facts required to support her claim against Bellmead under Monell . Bellmead Mot. at 11. A municipality may not face liability based on its employees' actions under the doctrine of respondeat superior. Monell v. Dep't of Soc. Serv. , 436 U.S. 658, 691 (1978). Instead, municipalities face Section 1983 liability “when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Id. at 694. A municipality may be held liable under section 1983 only when the enforcement of the municipal policy or practice was the “moving force” behind the violation of the plaintiff's federally protected right. Bd. Of Cnty. Comm'rs v. Brown , 520 U.S. 397, 410-11 (1997). The plaintiff must prove three elements to establish liability against a municipality: (1) a policymaker; (2) an official policy; and (3) a violation of constitutional rights whose moving force is the municipal policy or custom. Piotrowski v. City of Houston , 237 F.3d 567, 578 (5th Cir. 2001) citing Monell , 436 U.S. at 694. The proper analysis of municipal liability under

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section 1983 “requires [a separation of] two different issues . . . (1) whether plaintiff's harm was caused by a constitutional violation, and (2) if so, whether the city is responsible for that violation.” Collins v. City of Harker Heights , 503 U.S. 115 (1992).

Bellmead argues that Kinsey has not alleged any relevant official policy that caused a violation of Kinsey's rights. Bellmead Mot. at 12. It further argues that Kinsey has not alleged the existence of any relevant custom or practice. Id. at 16. Kinsey does not point to a formal written policy, but she does adequately allege a relevant official policy that caused the alleged violations of her rights.

Kinsey has alleged that a policymaker, in this case Zakhary, performed the specific act that forms the basis of Kinsey's Section 1983 claim. Pl.'s Resp. at 9, citing Davidson v. City of Stafford , 848 F.3d 384, 395 (5th Cir. 2017). Kinsey clearly alleged that Zakhary, as City Manager and Interim Chief of Police, was a “policy/decision maker with the City of Bellmead.” Pl.'s Compl. at ¶ 22. Kinsey also alleged that Zakhary was the alleged perpetrator of the violations of Kinsey's constitutional rights. “In ‘rare circumstances,' a single unconstitutional action may be sufficient to impose municipal liability ‘if undertaken by the municipal official or entity possessing “final policy making authority” for the action in question.'” Davidson , 848 F.3d at 395 (citation omitted). When a policymaker performs the specific act that forms the basis of a Section 1983 claim, a municipal policy exists. Pembaur v. City of Cincinnati , 475 U.S. 469, 480-81 (1986); Davidson , 848 F.3d at 395.

Bellmead argues that Plaintiff has not adequately alleged that Zakhary was a final policymaker for Bellmead. Bellmead's Mot. at 13. Bellmead argues that a “chief of police is a final policymaker only if the chief is the ‘official responsible for internal policy and where no other municipal officials comment authoritatively on the internal procedures of the department.'”

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Id. at 14, citing Zarnow v. City of Wichita Falls, Tex. , 614 F.3d 161, 168 (5th Cir. 2010). Bellmead argues that Kinsey failed to adequately allege that Zakhary, as Interim Chief of Police, had that authority. Id. Kinsey clearly alleged that Zakhary had such authority.

Kinsey alleged that the Bellmead Personnel Policy Manual provides that, “The City Manager may change or amend the provisions of the policies within the Personnel Policy Manual as deemed necessary for the proper administration of the affairs of the City.” Pl.'s Compl. At ¶ 83. It also states that “the general and final authority for personnel matters rests with the City Manager who shall develop, administer, and interpret personnel policies and procedures as they apply to all departments and employees.” Id. It also provides that, “Each Department Director [i.e. [sic] the Chief of Police for the Police Department], with the approval of the City Manager, may develop and implement departmental policies, procedures, codes of conduct, practices, rules and regulations which are separate from ... the personnel policies contained within the Employee Personnel Policy Manual.” Id. at ¶84. Based on these allegations, Kinsey has stated sufficient facts to state a plausible claim that Zakhary was the final policymaker.

Finally, Bellmead argues that Kinsey has failed to adequately allege that the policy in question was adopted with deliberate indifference. Bellmead's Mot. at 18. To establish that a policy was the moving force behind the violation of a plaintiff's constitutional rights, the plaintiff must show that (1) the policy itself was unconstitutional, or (2) that it was adopted with deliberate indifference to the known or obvious fact that a specific constitutional violation would follow. Liggins v. Duncanville, Tex. , 52 F.4th 953, 955 (5th Cir. 2022). “Intentional discrimination on the basis of gender by state actors violates the Equal Protection Clause.” J.E.B. v. Al. ex rel. T.B. , 511 U.S. 127, 130-31 (1994). Here, Kinsey has challenged Bellmead's alleged

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policy of discriminating against her on the basis of her gender. Accordingly, she has satisfied her burden at the pleading stage.

IV. CONCLUSION

For the foregoing reasons, the undersigned RECOMMENDS that Zakhary's Motion to Dismiss (ECF No. 17) and The City of Bellmead's Motion to Dismiss (ECF No. 18) be GRANTED IN PART AND DENIED IN PART . Should the Court adopt this Recommendation, the following claims will remain: Plaintiff's 42 U.S.C. § 1983 claims against Zakhary for gender discrimination, sexual harassment, and retaliation for violations of the Equal Protection Clause; Plaintiff's 42 U.S.C. § 1983 claims against The City of Bellmead for gender discrimination, sexual harassment, and retaliation for violations of the Equal Protection Clause; and Plaintiff's claims against the City of Bellmead for violations of Title VII of the Civil Rights Act.

V. OBJECTIONS

The parties may wish to file objections to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm'n , 834 F.2d 419, 421 (5th Cir. 1987).

A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn , 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n , 79 F.3d 1415 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further bar the party from appellate

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review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas , 474 U.S. at 150-53; Douglass , 79 F.3d at 1415.

SIGNED this 30th day of June 2023.