Henderson v. Dade Cnty. Police Benevolent Ass'n, Inc.

ANGELIQUE HENDERSON, Plaintiff, v. DADE COUNTY POLICE BENEVOLENT ASSOCIATION, INC., Defendant.

Case Number: 14-20321-CIV-MORENO

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Miami Division

Dated: July 18, 2014

ORDER GRANTING IN PART AND DENYING IN PART

MOTION TO DISMISS SECOND AMENDED COMPLAINT

Plaintiff Angelique Henderson, an African-American, female sergeant with the Miami-Dade Police Department, filed a lawsuit against Defendant Dade County Police Benevolent Association (the "PBA"), alleging discrimination and retaliation. Plaintiff's Second Amended Complaint asserts ten counts of discrimination based on race, sex and national origin, as well as retaliation for protected activity, brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000, et seq., the Florida Civil Rights Act, Fla. Stat. § 760.01, et seq., and 42 U.S.C. § 1981.

For the reasons provided below, the Court finds that Defendant PBA's Motion to Dismiss Second Amended Complaint is granted in part and denied in part. The Motion to Dismiss is granted as to Counts I, II, III, V, VI, VII and IX, and denied as to Counts IV, VIII and X. Plaintiff is granted leave to amend the dismissed claims. A Third Amended Complaint must be filed no later than July 24, 2014 if Plaintiff chooses to continue to allege those counts. Defendant shall answer or respond to the remaining claims, and to any amended claims in a Third Amended Complaint if filed, by August 11, 2014. Furthermore, in accordance with the Court's Scheduling Order, issued simultaneously with the instant Order, this case is set for trial for the two-week period commencing February 23, 2015.

I. Plaintiff's Factual Allegations

In 2009, Plaintiff took the Miami-Dade County police lieutenant's exam and placed 6th out of 62 applicants, which made her the highest ranking black female candidate on the 2009 promotional list. In September 2010, Plaintiff complained to the PBA that no sergeants from the 2009 List were being promoted to fill the various promotional vacancies, and therefore her contractual rights were being violated, but according to her the PBA refused to do anything about her complaints.

Plaintiff then met with PBA attorney Andrew Axelrad to ask for his assistance in extending the 2009 List's effective period. Mr. Axelrad refused, stating it "could cause all kinds of grievances and lawsuits." In February 2011, Plaintiff again met with Mr. Axelrad and complained about the County's failure to fill promotional vacancies, during which meeting Plaintiff gave documents to Mr. Axelrad that showed a Hispanic male, Amado Ojeda, was promoted to lieutenant on December 13, 2009, despite the fact that Ojeda did not qualify on the 2009 List. Mr. Axelrad refused to consider Plaintiff's documents.

On November 17, 2011, almost two years after the 2009 List became effective and less than a month before it was scheduled to expire, the PBA filed a grievance alleging that the County failed to promote personnel to the rank of lieutenant as required by the 2008 Collective Bargaining Agreement. The PBA then filed a grievance in February 2012 - nine weeks after the 2011 List became effective - similarly alleging failure to promote personnel to the rank of lieutenant as required under the 2011 Collective Bargaining Agreement.

On December 8, 2011, three weeks after the PBA filed a grievance for the 2009 List, the 2009 List expired. Plaintiff believed, however, that her promotional rights were being protected in goodfaith by the PBA. On June 25, 2012, the PBA sent an email to Plaintiff and others, stating in part:

As some of you have received by now, the new promotional list is out announcing promotions to the ranks of Chief, Major, Lieutenant and Sergeant. We congratulate all those who were promoted and have no doubt that it is well-deserved and warranted. For those who were on the "old" list and were not promoted, the PBA still has a grievance pending and will continue to go forth with that grievance and proceed with the hearing. It is the PBA's position that what is right is right - if the positions existed at the time the old list expired then the PBA feels they should have been filled out from the old list[.]

On August 2, 2012, the PBA issued notice that an arbitration hearing regarding the 2009 List grievance had been scheduled for October 26, 2012. On October 12, 2012, Plaintiff attempted to meet with Simone Lopez, an attorney for the PBA, but Ms. Lopez was not in her office. Plaintiff had brought various documents relevant to the pending grievance, including documents evidencing existing vacancies where the City claimed none existed. Plaintiff left copies of the documents with a PBA receptionist, and left a message for Ms. Lopez to call when she returned.

On October 17, 2012, Plaintiff called the PBA's President, John Rivera, and explained that she had provided documents to the PBA that she had gathered through public record requests and otherwise from the County, but the PBA supposedly refused to review or use them in support of its case. Mr. Rivera's response was that the PBA had its "top attorney" handling the matter, and in the Plaintiff's view was "blowing off Plaintiff and the evidence she was attempting to offer in support of the grievance.

On October 25, 2012, Plaintiff contacted Ms. Lopez and was told that the County had agreed to settle the grievance by promoting four lieutenants. Recognizing that this deal could exclude her -despite allegedly having provided evidence from which it could be concluded that there were ten or more lieutenant vacancies - Plaintiff pointed out to Ms. Lopez that the settlement would exclude her, the highest ranking black female on the 2009 List. Ms. Lopez responded that it did not matter and shewould not fight to get plaintiff promoted "just because" plaintiff was the "highest ranking black female."

On October 26, 2012, Plaintiff, without the assistance of counsel, filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC), alleging that the PBA discriminated against her on the basis of race, gender, and national origin. On November 26, 2012, Plaintiff emailed PBA President John Rivera and complained that the handling of the 2009 List promotional process had been discriminatory toward black females and that the PBA's attorneys had ignored her concerns and grievances. Plaintiff in her email included references to discrimination provisions from Chapter 11A of Miami-Dade County's Code of Ordinances, and Administrative Order No.7-6 - Personnel Policy on Equal Employment Opportunity Promotion and Training. Plaintiff expressed concerns that the PBA had supported discriminatory practices by the Miami-Dade Police Department. Mr. Rivera never responded.

On November 30, 2012, the PBA entered an agreement with Miami-Dade County to settle the pending grievance relating to the 2009 List in exchange for, among other things, the County making three sergeant-to-lieutenant promotions from the 2009 List. Each of the three promotions went to Hispanic males. Also on November 30, 2012, the PBA agreed to extend the 2011 List an additional year. In so doing, Plaintiff - who is not on the 2011 List - could not be promoted from the 2009 List, and would have to wait an additional year before having an opportunity to again qualify for promotion. On December 4, 2012, Plaintiff, without the assistance of counsel, filed an amended Charge of Discrimination with the Equal Employment Opportunity Commission, adding retaliation to her previously filed charge.

On May 14, 2013, after Plaintiff compiled additional documents from public recordsrequests, she emailed PBA President John Rivera and PBA executive board members, asking for representation during an upcoming meeting with Director Patterson of the Miami-Dade Police Department. Plaintiff advised that she wanted to present evidence to the PBA and Director Patterson regarding how the promotional process was handled during 2010 and 2011, and she asked for the PBA's "assistance and legal representation." The PBA's counsel, Mr. Axelrad, denied Plaintiff's request for help and did not review Plaintiff's evidence. On June 19, 2013, Plaintiff met with Director Patterson with no assistance or representation.

II. Standard of Review

Under Rule 8, a plaintiff must provide a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). When ruling on a motion to dismiss, a court must view the complaint in the light most favorable to the plaintiff and assume the veracity of well-pleaded factual allegations. Speaker v. U.S. Dep't of Health & Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). However, this tenet does not apply to legal conclusions, and such conclusions "must be supported by factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Though a proper complaint "does not need detailed factual allegations," it must contain "more than labels and conclusions, and a formulaic recitation of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2008).

III. Legal Analysis

Defendant filed a Motion to Dismiss Second Amended Complaint, arguing the complaint should be dismissed for several reasons. First, the allegations in the Second Amended Complaint go far beyond the scope of the original and amended charges of discrimination filed with the Equal Employment Opportunity Commission, and therefore do not reasonably relate to the actionscomplained of in the charges. Second, Plaintiff has failed to demonstrate the PBA discriminated against Plaintiff on the basis of race, gender or national origin, and similarly has failed to allege any discriminatory acts committed by the PBA which are actionable, and therefore cannot allege violations of Title VII of the Civil Rights Act, the Florida Civil Rights Act, or § 1981. Third, Plaintiff has failed to demonstrate that the PBA...