May 22, 2023




NICOLE REEVES,                                                                    Plaintiff,                                                         vs.   COLUMUBUS CONSOLIDATED                   GOVERNMENT; RICKY T. BOREN;              SKIP HENDERSON; RYAN VARDMAN;    JANE EDENFIELD; RONNIE                            HASTINGS; CHARLES KENNEDY;               GIL SLOUCHICK; ISAIAH HUGHLEY;     REATHER HOLLOWELL; JERRY     BARNES; GLENN DAVIS; BRUCE                  HUFF; TOYIA TUCKER;                                  CHARMAINE CRAB; GARY ALLEN;            EVELYN WOODSON; WALKER                    GARRETT; JUDY THOMAS; JOHN            HOUSE AND FREDDIE BLACKMON,                                                         Defendants                                                Case No. 4:21-CV-80 (CDL).      


            Plaintiff hereby submits the following Brief in Opposition to Defendants’ Motion to Dismiss Plaintiff’s Complaint. For the reasons set forth below, Plaintiff requests that this Court deny the Motion to Dismiss in its entirety.


            Plaintiff commenced this case on or about [ENTER DATE]. In the Complaint, Plaintiff made several allegations, inter alia, that Defendants discriminated against her in the disciplinary action taken against her. Notbly, she alleges that the Defendant(s) arrested her and terminated her employment for various violations while other white police officers who were involved in similar violations, or committed acts of violence against persons, or and more severe than the accusations against her were allowed to continue working.

On or about September 22, 2021, Defendants filed a Defense to the complaint nad further filed a Motion to Dismiss alleging, inter alia, that Plaintiff failed to state a claim upon which relief can be granted.



            To warrant dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, it must be “clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. “Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994) (quoting Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). In determining whether to grant a motion to dismiss, a court must accept all the factual allegations in the complaint as true and consider all reasonable inferences derived therefrom in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir. 1994); Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir. 1994)       

            Generally, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See In re Johannessen, 76 F.3d 347, 349 (11th Cir. 1996).

            In the instant action, there is no allegation in the Complaint that Plaintiff cannot prove by evidence. Besides, it is incumbent upon this Honorable Court to accept all factual allegations in Plaintiff’s complaint as true, and in the light most favorable to the Plaintiff.


            Agents may beheld personally liable for actions which were undertaken without the apparent, actual or implied authority of the employer. Restatement (Second) of Agency § 349C(1) (1958) [hereinafter “Restatement”].  The agency doctrine thus contemplates joint and several liability for tortious conduct against both agent and employer. See Restatement, § 217B, 359C(1). See also Tomka v. Seiler Corp. 66 F.3d 1295 1995 WL 572112 at 1323-24 (Parker, J., dissenting). Therefore “[p]rincipal and agent can be joined in an action for a wrong resulting from thetortious conduct of an agent or that of an agent and principal, and a judgement can be rendered against each.” Restatement, § 217B.

Whether respondeat superior is applied, and whether agents are thereby excluded from Title VII liability, turns largely on courts’ construction of the Act. Courts refer to canons of statutory construction to determine Title VII liability. These analyses begin by interpreting the Act in accordance with the statute’s plain meaning. American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (in all statutory construction cases starting point is language). See also Freytag v. Commissioner of Internal Revenue, 501 U.S. 868 (1991) (if statute is unambiguous, judicial inquiry iscomplete except in rare circumstances); United States v. Monsanto, 491 U.S. 600, 611(1989) (clear statutory language precludes further inquiry); Rodriguez v. United States, 480 U.S. 522, 526 (1987). Where courts find a statute’s plain language to dictate an outcome, further inquiries into legislative intent and public policy are precluded, and the inquiry ends. See United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242 (1989) (plain meaning of statue is conclusive “except in rare cases”); Commissioner of Internal Revenue Service v. Asphalt Products Co., 482 U.S. 117, 121 (1987) (“Judicial perception that a particular result would be unreasonable may enter into the construction of ambiguous provisions, but cannot justify disregard of what Congress has plainly and intentionally provided.”).

The wholesale importation of respondeat superior principles into Title VII is an invalid application of judicial authority. Jendusa v. Cancer Treatment Centers of America, Inc., 868 F. Supp. 1006 (N.D. Ill. 1994). See also, Tomka, 66 F.3d at 1319 (Parker, J., dissenting). Besides, Respondeat superior concepts are not expressly mentioned in Title VII, and Title VII’s legislative history is notably devoid of express contemplation of respondeat superior liability. See E.E.O.C. v. Vucitech, 842 F.2d 936, 942 (7th Cir. 1988) (joint and several Title VII liability against employers and their agents via court-ordered contribution makes individual Title VII liability conceivable).

Courts which find statutory language to be ambiguous inquire into legislative intent, if a plain language interpretation will frustrate Congress’s clear intention. See Crandon v. United States, 494 U.S. 152, 158 (1990) (courts may look to object, policy and design of ambiguous statute to determine meaning); National Labor Relations Board v. Lion Oil Co., 352 U.S. 282, 288 (1957). Courts may also look to similar statutes as a guide to interpreting ambiguous statutes. Northcross v. Bd. Educ. Of Memphis City Schools, 412 U.S. 427, 428 (1973) (statutes containing similar language and showing common “raison d’etre” should be interpreted equably); cf. Thompson v. Mississippi, 414 U.S. 890, 892 (1973) (comparing state statute to similar federal statute). The more similar the language and policies between the comparative statutes, the more likely it is that Congress intended the statutes to be read similarly. Thompson, 414 U.S. at 892.

            Under the Family Medical Leave Act (FMLA), which is a law requiring covered employers to provide employees with job-protected and unpaid leave for qualified medical and family reasons, an individual may be held personally liable for violation of the Act.  For instance, in 2017 the Eastern District of Pennsylvania held that an HR director may be individually liable for FMLA and wage violations. See Edelman v. Source Healthcare Analytics, LLC, 265 F.Supp.3d 534 (2017).  The court determined that there is individual liability under the statute because it defines an “employer” to include “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.” The court next found the HR director acted in the interest of the employer when she terminated plaintiff.

            In the instant action, the Defendants who are sued individually undertook their actions and/or inactions without the apparent, actual or implied authority of Defendant CCG. Notably, Defendant CCG states in its defense that at it all times exercised reasonable care to prevent and promptly correct any unlawful employment actions. Therefore, the said Defendants are personally liable for violation of Columbus Police Department Policy 1-5.11 which states “When an employee is arrested or is the subject to criminal charges the employee shall initially be placed on administrative leave with pay.”

            Plaintiff also contends that a correct interpretation of the Act shows that the Act prohibits all forms of discrimination against employees. Therefore, limiting liability under the Act to employers alone under respondeat superior, would go againt the legislatibe intent. Employees who commit discriminatory acts may easily avoid liability.

            Lastly, Plaintiff contends that this Court should interpret Title VII in the same way as Family Medical Leave Act (FMLA), which recognizes personal liability. The two Acts were enacted to protect employees and ensure rights of employees are guaranteed.


            The Eleventh Circuit has previously held that the question the Court should consider is  “whether the plaintiff ‘has a cause of action under the statute.’ ” Griffin Gen. Mills, Inc., No. 15–12157, 634 Fed.Appx. 281, 284, 2015 WL 9466979, at *2 (11th Cir. Dec. 29, 2015) (per curiam) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., ––– U.S. ––––, 134 S.Ct. 1377, 1387–88 & n. 4, 188 L.Ed.2d 392 (2014) (internal quotation marks omitted).

A complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

In the instant action, Plaintiff expressly mentioned individual defendants when making her allegations therein. Besides, Plaintiff’s Complaint raises valid cause(s) of action against the Defendants. The Defendants are therefore liable for the allegations made therein.  


            Title VII requires, as a prerequisite to maintaining an action in federal court, that the complainant file a charge of discrimination with the EEOC. See 42 U.S.C. § 2000e-5 et seq. See also, Doe v. Oberweis Dairy, 456 F.3d 704, 708 (7th Cir. 2006).

            Further, “the EEOC charge and the complaint must, at minimum, describe the same conduct and implicate the same individuals.” Cheek v. Western Southern Life Ins. Co., 31 F.3d 497, 501 (7th Cir. 1994). (Emphasis added).

            In the action, Plaintiff contends that she duly followed the administrative prerequisite by filing a discrimination complaint against the Columbus Consolidated Government with the Equal Employment Opportunity Commission on January 6, 2020. The said Complaint met the minimum threshold in Cheek ., 31 F.3d 497. It implicated the Defendants in the instant action and described the same conduct. Therefore, the Plaintiff satisfied the required prerequisite.


“To be considered an adverse employment action . . . , the action must either be an ultimate employment decision or else must meet some threshold level of substantiality.” Stavropoulos v. Firestone, 361 F.3d 610, 616-617 (11th Cir. 2004) (examining whether employer’s alleged conduct qualified as an adverse employment action in Title VII retaliation case). “Ultimate employment decisions include decisions such as termination, failure to hire, or demotion.” Id. (Emphasis added). To meet the “threshold level of substantiality” requirement, the employer’s conduct must alter the employee’s compensation, terms, conditions, or privileges of employment, deprive him or her of employment opportunities, or adversely affects his or her status as an employee. Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000).

            In the instant action, the Plaintiff’s employment was terminated. Termination of Plaintiff’s employment amounts to an adverse employment action.


            “[A] district court’s discretion to dismiss a complaint without leave to amend is severely restricted by Fed. R. Civ. P. 15(a).”). To be sure, “[w]here a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).

            “Leave to amend a complaint shall be freely given when justice so requires.” Moore v. Baker, 989 F.2d 1129, 1131 (11th Cir. 1993) (citing Fed. R. Civ. P. 15(a)). “While a decision whether to grant leave to amend is clearly within the discretion of the district court, a justifying reason must be apparent for denial of a motion to amend.” Id. “In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.—the leave sought should, as the rules require, be freely given.” Foman v. Davis, 371 U.S 178, 182 (1962).

            Plaintiff contends that in the event this Court finds errors in Plaintiff’s Complaint, she is entitled to the right to amend the Complaint. Besides, it would amount to a furtherance of justice for the Court to grant the leave to amend the Complaint.


            Plaintiff has raised sufficient facts to establish a case against the Defendants. Accordingly, Plaintiff asks the Court to deny the defendant’s Motion in its entirety.

DATED:    _______


I, [ENTER NAME], certified on this                                      day of                           .2021, I deposited a true copy of the above to the Defendants by placing the document with prepaid postage in the United States mailbox address to the following addresses.


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