IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DENISE CONGLETON,

Plaintiff,

v. Case No. 4: 11-CV-00097-SPM-WCS

GADSDEN COUNTY, FLORIDA,

Defendant.

______________________________/

ORDER DENYING DEFENDANT’S MOTION TO DISMISS

THIS CAUSE comes before the Court upon the Defendant’s Motion to Dismiss

(doc. 10) for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), and Plaintiff’s

response (doc. 12). For the reasons set forth below, the Court will DENY the motion.

I. BACKGROUND AND PROCEDURAL HISTORY

Beginning in December 2006, Denise Congleton (Congleton), a female, was

employed by Gadsden County, Florida (Gadsden County), as an Emergency Medical

Technician. Congleton alleges that a co-worker, Byron Potter (Potter), on numerous

occasions (and citing three specific examples) made sexual remarks to her, remarks

which Congleton thought to be crude, unprofessional and offensive. On December 24,

2006, one particular incident was witnessed by her supervisor, Greg Lawler (Lawler). 

Congleton filed a complaint with Lawler concerning this incident. 

As a result of this report, Gadsden County made an inquiry into the incident and

decided to suspend Potter for one week without pay. However, Congleton alleges that

upon his return, Potter was given extra shifts and overtime pay to account for the

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missed time. Further, Congleton alleges that her own hours were cut, she was

excluded from workplace activities, ignored by Gadsden County’s male employees and

subject to a hostile work environment and hostile treatment due to her gender. 

Congleton alleges she was informed that male co-workers no longer wished to work

with Congleton for fear of discipline. 

Congleton alleges that she was subjected to an increasingly hostile work

environment during her employment. Congleton alleges that upon complaining of

sexual harassment and the hostile work environment, she was told “that’s how we do it

around here; if you don’t like it, there’s other counties hiring” (doc. 4 at 11). Congleton

alleges that Gadsden County was unwilling to take any corrective action regarding the

sexual harassment and disparate treatment for its female employees and was

unreceptive to complaints of sexual harassment filed by other female employees. 

Further, Congleton alleges that Gadsden County had not provided sexual harassment

training since 2006. This hostile work environment continued until Congleton was

forced to resign and constructively discharged in May 2007. This suit followed.

II. MOTION TO DISMISS STANDARD

Pursuant to the Federal Rules of Civil Procedure, a plaintiff must plead only a

short plain statement of the claim showing that the plaintiff is entitled to relief. Fed. R.

Civ. P. (8)(a)(2). The Supreme Court clarified this Rule by stating that the complaint

must assert factual allegations which raise the entitled relief above the speculative

level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Court does not

require a heightened pleading standard but only enough facts to state a claim of relief

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that is plausible on its face. Id. at 557. A complaint has facial plausibility when a

plaintiff pleads enough facts to allow a court to “draw a reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

(2009) (citing Twombly, 550 U.S. at 556). Further, although the facts pled must be

more than merely consistent with a defendant’s liability and show more than a mere

possibility of entitled relief, a well pled complaint may continue even if the actual proof

of the facts is improbable and recovery is very remote and unlikely. Twombly, 550 U.S.

at 556-57.

This “simplified pleading standard applies to all civil actions.” Randall v. Scott,

610 F.3d 701, 706 (11th Cir. 2010) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506

(2002)). Specifically, the Supreme Court has held that this standard, and not a

heightened pleading standard, applies when a plaintiff’s complaint makes allegations

against municipal entities pursuant to 42 U.S.C. §1983. Leatherman v. Tarrant Cnty.

Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993); Randall, 610 F.3d at

706 (finding that the Leatherman holding applies to § 1983 actions against entities). 

Further, the Eleventh Circuit has stated that “[p]leadings for § 1983 cases involving

defendants who are able to assert qualified immunity as a defense shall now be held to

comply with the standards described in Iqbal.” Randall, 610 F.3d at 709. Since

Congleton’s complaint is alleged against Gadsden County, this Court applies this

simplified pleading standard in reviewing Gadsden County’s Motion to Dismiss.

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III. DISCUSSION OF LIABILITY UNDER 42 U.S.C. §1983

A. General Standard

In applying § 1983, the Supreme Court has held local governing bodies can be

sued directly because “Congress did intend municipalities and other local government

units to be included among those persons to whom § 1983 applies.” Monell v. Dep’t of

Soc. Servs., 436 U.S. 658, 690 (1978). To sustain a claim against a local government

body, a plaintiff must show that either (1) a policy, ordinance, regulation or decision that

has been officially adopted or promulgated by the governing body is unconstitutional; or

(2) that a “custom” of the governing body, even though not officially adopted is

unconstitutional. Id. at 690-91.

B. Respondeat Superior

However, a local governing body cannot be held liable pursuant to § 1983 solely

on the basis of respondeat superior, such that a governing body is not liable merely by

employing a tortfeasor. Id. at 691. Rather, the governing body is liable pursuant to §

1983 when the execution of a policy or custom – whether through a lawmaker or person

representing the official policy – inflicts the injury. Id. at 694. Thus, “recovery from a

municipality is limited to acts that are, properly speaking, acts of the municipality.” 

Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1479 (11th Cir. 1991) (internal

citations omitted). Acts of the municipality not only include “decisions made by the

city’s official legislative body or in written agreements” but also include “acts of

individual policymaking officials” and “pervasive city custom.” Id. at 1480.

This Court recognizes that Gadsden County cannot be held liable simply

because one of its employees is a tortfeasor. Thus, if Congleton’s allegations had

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concerned only Potter and his sexual harassment and this suit was based solely on the

fact that Gadsden County employs Potter, this complaint would not meet the requisite

standard of liability. However, Congleton has made factual allegations against

Gadsden County as a policymaker, using the specific Potter incident as an example of

the alleged harm. Congleton’s complaint includes allegations against her supervisor,

Lawler; against an unnamed source associated with Gadsden County telling Congleton

to move if she didn’t like Gadsden County’s policy and the work environment it created;

against Gadsden County for its failure to respond to other female employees and their

attempts to receive redress from sexual harassment and disparate treatment; against

Gadsden County for the cut in Congleton’s hours as a result of her reporting the Potter

incident; and against other male employees of Gadsden County who, while under the

control and supervision of Gadsden County, avoided, were hostile to or harassed

Congleton. Thus, because Congleton’s allegations are not against Gadsden County

solely because it employs Potter, but instead against Gadsden County in its capacity as

policy maker, this Court will not dismiss Congleton’s claim under this exception to §

1983.

C. Final Policy Maker

The main thrust of Congleton’s allegations concerns Gadsden County and its

unofficial policy or custom. Although Congleton has not alleged that Gadsden County

has officially adopted or promulgated a policy that is unconstitutional, Congleton can

establish a county’s policy through “an unofficial custom or practice of the county shown

through repeated acts of a final policymaker of the county.” Grech v. Clayton County,

Ga., 335 F.3d 1326, 1329 (11th Cir. 2003). However, even though “[n]ormally random

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acts or isolated incidents are insufficient to establish a custom or policy,” Depew v. City

of St. Marys, Ga., 787 F.2d 1496, 1499 (11th. Cir. 1986), the Supreme Court has

opined that “municipal liability may be imposed for a single decision by municipal

policymakers under appropriate circumstances.” Pembaur v. City of Cincinnati, 475

U.S. 469, 480 (1986); see also Mandel v. Doe, 888 F.2d 783, 792 (11th Cir. 1989)

(reaffirming that Pembaur “stands for the proposition that, under certain circumstances,

municipal liability may be imposed for a single decision by a municipal policymaker).

Thus, the local governing body is responsible for any actions taken by a

particular official who possesses final policymaking authority to establish municipal

policy when the challenged action falls within that authority. Brown, 923 F.2d at 1480. 

“Whether a particular official has final policymaking authority is a question of state law.” 

Id. However, this Court’s task is “not to determine who, in fact, wields final

policymaking authority but only to consider whether plaintiff has alleged sufficient facts

to withstand the [defendant’s] motion to dismiss.” Id.

Congleton has pled enough factual allegations to establish the plausibility that

Lawler was both an official of Gadsden County with final policymaker authority and that

he established county policy through his actions. Congleton alleges that after filing a

complaint against Potter for sexual harassment, which report led to the suspension of

Potter, any further complaints or reports were ignored. It is reasonable to infer that

Lawler had the ability to begin the investigation process and to punish wrongful acts. It

is also reasonable to infer that Congleton’s other complaints, regarding sexual

harassment and disparate treatment, were disregarded because her supervisor, Lawler,

failed to act upon them. It is plausible on the face of Congleton’s allegations that the

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culture, custom and unofficial policy that permitted sexual harassment and disparate

treatment of women was established by Lawler’s lack of response to the complaints of

sexual harassment by Congleton and other female employees.

Further, Lawler, in his status as immediate supervisor, could plausibly have final

policymaking authority. The Eleventh Circuit in Mandel found that, despite the fact that

supervised treatment was contemplated, a physician’s assistant was an official with

final policymaker authority with regards to the unsupervised treatment of inmates. 

Mandel, 888 F.2d at 794. Thus, Lawler’s position as an immediate supervisor does not

discount the plausibility that he wields final policymaking authority. This Court is not

deciding whether Lawler had final policymaking authority, only whether Congleton

alleged sufficient facts to make it plausible that Lawler had such authority. On the basis

of Congleton’s allegations, it is reasonable for this Court to draw the inference that

Gadsden County is liable for the actions of Lawler, who plausibly has official authority to

act for the county.

Gadsden County’s reliance on Depew’s holding - that there needs to be more

than an isolated incident or random act to establish unofficial policy or custom - is

misplaced for two reasons. Depew, 787 F.2d at 1499. First, the Supreme Court held in

Pembaur that a single decision may be enough to establish unofficial policy. Pembaur,

475 U.S. at 480. Moreover, despite Gadsden County’s attempts to reduce Congleton’s

complaint to a single alleged incident of sexual harassment, it is clear that Congleton

has alleged multiple incidents involving sexual harassment, including three against

Potter, and other instances of her and fellow employees’ complaints concerning

disparate treatment and sexual harassment being ignored. Congleton alleged that

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Gadsden County has not been receptive to claims of sexual harassment, Congleton

was subjected to a hostile work environment as a result of reporting the sexual

harassment incident, and her hours were cut and she was constructively discharged

because she reported the sexual harassment. Therefore, Congleton’s allegations refer

to events that can neither be classified as isolated, nor random.

D. Custom or Widespread Practice

A plaintiff can also demonstrate a county’s custom by establishing a widespread

practice so permanent and well-settled that it constitutes a custom or usage. Brown,

923 F.2d at 1481. A “longstanding and widespread practice is deemed authorized by

the policymaking officials because they must have known about it and failed to stop it.” 

Id.

Congleton alleges that Gadsden County has been unreceptive and unresponsive

to complaints concerning sexual harassment and disparate treatment of female

employees. In fact, Congleton alleges that when reporting a particular instance of

sexual harassment to Gadsden County, Congleton was informed “that’s how we do it

around here” (doc. 4 at 11) and that she should find another county to work in if she

didn’t like it. Accordingly, it is reasonable for this Court to infer from Congleton’s

allegations that Gadsden County knew of this widespread practice and failed to stop it.

E. Lack of Training

 A local governing body may also be held liable under § 1983 for a deficiency in

training its employees. City of Canton v. Harris, 489 U.S. 378 (1989). A governing

body’s deficiency in training is deemed a policy or custom and comes within the

authority of § 1983 when the governing body’s deficiency “evidences deliberate

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indifference to the rights of its inhabitants.” Id. at 389. Moreover, to hold a local

governing body liable, the deficiency complained of must be closely related to the

plaintiff’s injury. Id. at 391.

Regarding this point, Congleton alleges that Gadsden County failed to train its

employees concerning sexual harassment. Although Congleton does not specifically

allege that such lack of training was a “deliberate indifference” to the rights of Gadsden

County’s employees, such an allegation is not required. Rather, the fact that Congleton

alleged that sexual harassment training was completely lacking is sufficient to make it

plausible that such a lack of training was inadequate. Further, this deficiency – the lack

of sexual harassment training – is logically connected to Congleton’s injury. In fact, it is

hard to miss the causal link between an allegation that Gadsden County lacked any

sexual harassment training and an allegation that Congleton was the victim of sexual

harassment and a hostile work environment from reporting it. Therefore, Congleton’s

allegation that Gadsden County completely lacked sexual harassment training since

2006, is sufficient to overcome Gadsden County’s Motion to Dismiss.

IV. ORDER

Based upon the foregoing reasons, it is hereby

ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss (doc. 10) is

DENIED.

DONE AND ORDERED on this first day of June, 2011

s/ Stephan P. Mickle 

Stephan P. Mickle

Chief United States District Judge

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