United States District Court, W.D. Missouri, Western Division
ORDER GRANTING MOTION TO DISMISS
civil rights action arises from Defendant Kansas City,
Missouri's alleged practice of discriminating against its
black employees, including Plaintiff Tommie Hardy. Now before
the Court is Defendant's motion to dismiss (Doc. 5) and
Plaintiff's request for leave to amend his complaint
(Doc. 13). The Court GRANTS the motion to dismiss because
Plaintiff failed to allege adequate facts to support a claim
of municipal liability. The dismissal is without prejudice,
and Plaintiff shall have thirty days to file an amended
Plaintiff, a black male, worked for Defendant largely without
incident since 1993. However, in 2016 Defendant suspended him
for three days without pay for abandoning a work assignment.
Plaintiff claims that he did not abandon the assignment, but
that his supervisor needed his help elsewhere and replaced
him with a white employee. While he was away, an error
occurred at the project that necessitated substantial
remedial action. Plaintiff informed Defendant that he had no
role in the mishap, but the white employee denied replacing
him. Plaintiff claims that Defendant refused to believe him
because he is black and the other employee white.
in 2017, Plaintiff injured his shoulder and requested that
his supervisor temporarily reassign him to work that did not
require its use. His supervisor asked him to provide a note
from a doctor. Later on, the same supervisor did not demand a
doctor's note from a white employee requesting
reassignment. Based on this and the 2016 suspension,
Plaintiff argues that Defendant discriminates against its
black employees. He filed suit against Defendant in state
court, alleging violations of 42 U.S.C. §§ 1981,
1983, 1985, and 1986. Defendant timely removed the case,
invoking the Court's federal-question jurisdiction, and
now moves to dismiss Plaintiff's claims.
Federal Rule of Civil Procedure 12(b)(6) authorizes the
dismissal of a complaint for “fail[ing] to state a
claim upon which relief can be granted.” A complaint
survives a Rule 12(b)(6) motion if it contains
“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 is plausible on its face when
“the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. Mere
labels and conclusions, or formulaic recitations of the
elements of a cause of action, are insufficient.
Twombley, 550 U.S. at 555. In ruling on a Rule
12(b)(6) motion, a court treats all well-pleaded facts in a
complaint as true and construes them in the plaintiff's
favor. Id. at 554.
I of Plaintiff's complaint alleges that Defendant
deprived him of his rights under 42 U.S.C. § 1981, which
prohibits intentional racial discrimination in contractual
relationships. Gregory v. Dillard's, Inc., 565
F.3d 464, 468 (8th Cir. 2009) (citing Rivers v. Roadway
Exp., Inc., 511 U.S. 298, 302 (1994)). But
municipalities are state actors, Wickersham v. City of
Columbia, 481 F.3d 591, 598 n.4 (8th Cir. 2007), and
state actors cannot be sued under § 1981. Artis v.
Francis Howell N. Band Booster Ass'n, Inc., 161 F.3d
1178, 1181 (8th Cir. 1998) (citing Jett v. Dallas Indep.
Sch. Dist., 491 U.S. 701, 735 (1989)). Instead, a party
seeking to enforce its § 1981 rights against a
municipality must do so through § 1983. Id.
Count I makes no mention of § 1983 and is therefore
II and IV, meanwhile, do assert violations of 42 U.S.C.
§ 1983. In Count II, Plaintiff alleges that Defendant
treated him less favorably than similarly situated white
employees. In Count IV, he claims that Defendant created a
hostile work environment. To state a § 1983 claim
against a municipality, a plaintiff must “plead facts
demonstrating that the defendants violated a constitutional
right either pursuant to official municipal policy or as part
of a custom or usage with the force of law.” Kelly
v. City of Omaha, Neb., 813 F.3d 1070, 1073 (8th Cir.
2016) (citations omitted). The complaint need not
specifically identify an unconstitutional policy or custom,
but it must, at a minimum, set forth facts sufficient to
allow the Court to draw a reasonable inference that one
exists and caused the injury. Crumpley-Patterson v.
Trinity Lutheran Hosp., 388 F.3d 588, 591 (8th Cir.
2004) (citation omitted).
contends that Defendant has “a pattern and
practice” of favoring its white employees. Yet he has
not alleged sufficient facts from which the Court could
reasonably infer that to be the case. Plaintiff claims that
he was mistreated in only two isolated instances, and he
points to no other employees who might also have faced
discrimination. Even accepting Plaintiff's allegations as
true, they fail to suggest widespread and pervasive
unconstitutional misconduct. See Bolderson v. City of
Wentzville, Mo., 840 F.3d 982, 986 (8th Cir. 2016)
(“An unconstitutional custom or usage cannot arise from
a single act.” (citation omitted)); Riley v. City
of Kansas City, Mo., No. 4:16-cv-00188-FJG, 2016 WL
7031907, at *2 (W.D. Mo. Dec. 1, 2016) (“Plaintiff has
only pled mistreatment of herself and a few other co-workers
within the Water Services Department, which is insufficient
to show a pervasive custom of the municipality.”).
Rather, it seems that Plaintiff seeks to hold Defendant
vicariously liable for the purported acts of its employees,
which he cannot do. Monell, 436 U.S. at 691. Counts
II and IV are dismissed.
Count III alleges that Defendant conspired with its
employees-and its employees amongst themselves-to
discriminate against Defendant and his black colleagues in
violation of 42 U.S.C. §§ 1985 and 1986. “In
order to state a claim for conspiracy under § 1985, a
plaintiff must allege with particularity and specifically
demonstrate with material facts that the defendants reached
an agreement.” Kelly, 813 F.3d at 1077
(quoting City of Omaha Emps. Betterment Ass'n v. City
of Omaha, Neb., 883 F.2d 650, 652 (8th Cir. 1989)). This
standard requires “sufficient specificity and factual
support to suggest a meeting of the minds directed toward an
unconstitutional action.” Id. at 1078 (quoting
Nelson v. City of McGehee, Ark., 876 F.2d 56, 59
(8th Cir. 1989)).
Plaintiff advances only the vague, conclusory assertion that
Defendant and its employees “had an agreement or
understanding or otherwise conspired” to deprive black
employees of their rights. Because he supplies no facts
indicating that any such agreement or understanding exists,
he has failed to state a claim of conspiracy under §
1985.See Johnson v. Perdue, 862 F.3d
712, 717-18 (8th Cir. 2017) (affirming the dismissal of a
§ 1985 claim in the absence of specifically pleaded
factual support). And since a cause of action under §
1986 depends on a valid § 1985 claim, the Court
dismisses Count III in its entirety. See Kaylor v.
Fields, 661 F.2d 1177, 1184 (8th Cir. 1981); Rodgers
v. Univ. of Mo. Bd. of Curators, 56 F.Supp.3d 1037,
1054-55 (E.D. Mo. 2014) ...