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Wilson v. City of St. Petersburg

United States District Court, M.D. Florida, Tampa Division

December 19, 2019




         This matter is before the Court on “Defendants’ Dispositive Motion to Dismiss Third Amended Complaint and Incorporated Memorandum of Law,” filed by counsel on October 24, 2019. (Doc. # 21). On November 11, 2019, Plaintiff Dwight Wilson, through counsel, filed a response in opposition to the motion. (Doc. # 23). After reviewing the motion, response, court file, and the record, the Court finds as follows:


         According to Plaintiff, several allegedly discriminatory incidents occurred over the nine years Plaintiff, an African-American, was employed with the City of St. Petersburg (“the City”). Plaintiff’s employment began on January 2, 2007, when he was hired by Patti Anderson, Director of Water Resources, to serve as Assistant Director of the Water Resources Department. Anderson retired in 2008, and Plaintiff became the first African-American Interim Director of Water Resources. When the City selected George Cassady, a white male, to replace Anderson as the Director, Plaintiff returned to his role as Assistant Director.

         Cassady resigned in 2012, and Plaintiff again filled the role of Interim Director. At that time, Plaintiff was told by another city employee that he was the “black version of his predecessor.” While acting as Interim Director, Plaintiff applied for the permanent position of Director. However, the City promoted another employee, Assistant Director Steve Leavitt, a white male, to fill the position. Leavitt did not have significant experience with the scope and function of much of the Water Resources Department. Plaintiff worked under Leavitt until the City terminated him in 2016. On at least one occasion, Plaintiff reported to Leavitt and to Human Resources that certain white subordinates were openly dismissive of his efforts to manage them and should be counseled on this behavior, and neither Leavitt nor HR did anything to address the problem.[2]

         In August 2015, Michael Connors, Public Works Administrator, chose Plaintiff to be the next Director of Water Resources. However, when Connors informed Defendant Gary Cornwell of his decision, Cornwell told Connors he would not allow Plaintiff to become the Director. Connors then selected a less qualified individual, John Norris, a white male, to be the Director of Storm Water.[3]

         In September 2015, Leavitt told Plaintiff that he planned to retire from his position as Director in the near future. Later that month, Plaintiff spoke with Cornwell in HR about filling the position; however, Cornwell was not receptive to Plaintiff ever becoming Director.

         In January 2016, Defendant Claude Tankersly replaced Connors as the Public Works Administrator. Then, Cornwell instructed Tankersly to take steps to eliminate Plaintiff from his position as Assistant Director by reorganizing the department. Tankersly directed Leavitt to prepare a new organization chart for the Department. Leavitt initially kept Plaintiff in the position of Assistant Director, as he originally intended to retain Plaintiff.

         In April 2016, Cornwell informed Plaintiff he would not be considered to replace Leavitt, despite the fact that he was fully qualified and that he worked as the Assistant Director for over nine years. On April 7, 2016, Tankersly instructed Leavitt to remove Plaintiff from his position as Assistant Director and to make sure Plaintiff was not included in the reorganization. At this time, Leavitt told Tankersly it would be too risky to fire Plaintiff because he was the only African-American in the department. Tankersly responded that Plaintiff could be eliminated for any reason. On April 11, 2016, Leavitt informed Plaintiff that he was eliminating his position and terminating him effective September 30, 2016. Leavitt told Plaintiff that two other specific positions were also selected for elimination. However, these positions were never eliminated and the respective individuals retained their jobs. Additionally, the restructuring did not actually eliminate Plaintiff’s Assistant Director position, but rather split it into two different positions – “Senior Waste Water Manager” and “Senior Water Manager.” In September 2016, the City promoted John Palenchar, a white male, to replace Leavitt as Interim Director. According to Plaintiff, Palenchar is less qualified and experienced than Plaintiff for this position. Palenchar became the full time Director at the end of 2017.


         Plaintiff filed his original complaint in state court on June 12, 2018. (Doc. # 1). He filed an amended complaint on August 14, 2018, and a second amended complaint on July 29, 2019. (Doc. ## 1, 1-1). Defendants removed the action on July 31, 2019. (Doc. # 1). Defendants then filed a motion to dismiss, directed at Counts I, III, and IV of the second amended complaint, on August 8, 2019. (Doc. # 11). On October 10, 2019, with approval from the Court, Plaintiff filed his third amended complaint. (Doc. ## 18, 19). Defendants subsequently moved to dismiss Count V – “Section 1983: Discrimination Based on Race in Violation of 42 U.S.C. § 1981.” (Doc. # 21). On November 11, 2019, Plaintiff filed a response opposing the motion. (Doc. # 23).


         Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement of the claim showing the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a). “Although Rule 8(a) does not require ‘detailed factual allegations,’ it does require ‘more than labels and conclusions’; a ‘formulaic recitation of the cause of action will not do.’” Young v. Lexington Ins. Co., No. 18-62468, 2018 WL 7572240, at *1 (S.D. Fla. Dec. 6, 2018), report and recommendation adopted, No. 18-62468-CIV, 2019 WL 1112274 (S.D. Fla. Jan. 9, 2019) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). In order to survive a motion to dismiss, factual allegations must be sufficient “to state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 555. A claim is facially plausible when the pleaded facts “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         When deciding a Rule 12(b)(6) motion, review is generally limited to the four corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233 (M.D. Fla. 1995). Furthermore, when reviewing a complaint for facial sufficiency, a court “must accept [a] [p]laintiff’s well pleaded facts as true, and construe the [c]omplaint in the light most favorable to the [p]laintiff.” Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 236 ...

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