United States District Court, M.D. Florida, Tampa Division
ORDER DENYING “DEFENDANTS’ DESPOSITIVE
MOTION TO DISMISS THIRD AMENDED COMPLAINT AND INCORPORATED
MEMORANDUM OF LAW”
BARBER, UNITED STATES DISTRICT JUDGE
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
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.
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
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.
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.
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.
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.
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).
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).
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 ...