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Neal v. Backs

United States District Court, N.D. Indiana, Fort Wayne Division

October 12, 2016




         This matter comes before the Court on Defendant City of Marion's Motion to Dismiss [ECF No. 52] and Defendant Rick Backs' Motion to Dismiss [ECF No. 55] the Second Amended Complaint [ECF No. 49] of Plaintiffs Mikel Neal and Rachelle Fears-Neal. The Defendants moved to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting that it fails to state any claim upon which relief can be granted. On June 7, 2016, the Plaintiffs filed their Response [ECF No. 63] to the City's Motion. The City's Reply [ECF No. 66] was dated June 10, 2016. The Plaintiffs' Response [ECF No. 67] to Defendant Backs' Motion was filed on June 17, 2016. On June 23, 2016, Defendant Backs' Reply [ECF No. 68] was filed. This matter is now ripe for the Court's review.


         Plaintiff Neal, an African-American, is a fire department officer in the City of Marion, Indiana. (Second Amend. Compl. ¶ 4, ECF No. 49.) The Plaintiffs are both adult residents of Indiana. (Id. ¶¶ 4-5.) Defendant Backs, a Caucasian, is also an adult resident of Indiana, Deputy Chief of Marion's fire department, and an employee of the City of Marion. (Id. ¶ 6.) The City of Marion is a political subdivision and governmental entity located in Grant County, Indiana. (Id. ¶ 7.)

         The incidents giving rise to this lawsuit arose on February 13, 2015. Plaintiff Neal was on duty at the fire station in Marion with Engineer Jake Morrow, Captain Eddie Miller, and Private Scott Snyder who were participating in ropes and knots training. (Id. ¶ 8) At some point, Defendant Backs arrived and asked Miller for the rope that he was using. (Id. ¶ 13.) Subsequently, Miller said to Defendant Backs that he did not “think you should be doing that.” (Id. ¶ 14.) Defendant Backs then called Plaintiff Neal's name and tossed the rope to him, which he had tied into a hangman's noose. (Id. ¶ 15.)

         “Neal caught the noose and set it down on the table and shook his head in shock.” (Id. ¶ 16.) Defendant Backs left the room, Miller immediately took the noose apart, and “Snyder seemed stunned and just sat with a shocked look on his face.” (Id. ¶¶ 17-18, 20.) “Morrow appeared upset and wanted to immediately record the incident” (Id. ¶ 19), but Plaintiff Neal told him not to (Id. ¶ 21). Plaintiff Neal took a few weeks to “really pray[] on how to handle this situation” and “was unable to shake the severity of . . . Backs' actions.” (Id. ¶ 21.) The only employee that Plaintiff Neal allegedly notified about the incident was Miller, and during their conversation he told Miller that he would file a formal complaint regarding the incident with Defendant Backs. (Id. ¶ 24.)

         “Subsequent to March 5, 2015, but before 300 days after March 5, 2015, [Plaintiff Neal] . . . filed a charge with the EEOC for violation of his rights pursuant to Title VII.” (Id. ¶ 26.) “On September 16, 2015, the U.S. Department of Justice, Civil Rights Division issued its right to sue letter with regard to [Plaintiff Neal's] claims under Title VII.” (Id. ¶ 28.) Plaintiff Neal filed his initial Complaint [ECF No. 1] on June 30, 2015, eventually superseded by the Second Amended Complaint [ECF No. 49] on April 19, 2016. In the Amended Complaint, the Plaintiffs allege that the incident caused “serious and permanent emotional injuries requiring time off work and multiple counseling session[s].” (Id. ¶ 25.) Additionally, Plaintiff Neal was “on sick leave as a result of the Defendants' . . . conduct.” (Id. ¶ 27.) Plaintiff Neal asserted a § 1983 claim against Defendant Backs for violation of the Fourteenth Amendment's Due Process Clause because his behavior “shocks the conscious.” (Id. ¶¶ 38, 40.) Plaintiff Fears-Neal asserted a claim for loss of consortium for Defendant Backs' constitutional tort. (Id. ¶ 43.) Lastly, Plaintiff Neal asserted claims against the City for Title VII discrimination and state tort law violations. (Id. ¶¶ 41-42.)

         In support of his Title VII claim, Plaintiff Neal alleged the following additional incidents of workplace discrimination within the fire department:

● On “October 3, 2014, a firefighter, Sam Pattison, referred to another firefighter, Curtis Garr, as a ‘n*****' in front of several other firefighters.” Only after “public protest on this issue [was] firefighter Pattison . . . eventually suspended.” (Id. ¶ 30.)
● Plaintiff Neal was one of four “African American firemen . . . working together at Station 6” that “Steve Gorrell, who was at that time the Fire Chief and Caucasian, called . . . the ‘Soul Patrol.'” (Id. ¶ 31.)
● At some time, “Larry Emmons, an African American, won a lawsuit against the City of Marion for not being promoted due to his race.” (Id. ¶ 32.)
● Gorrell once said “I am going to have to hire ‘one of them' in order to keep the NAACP from bringing a hiring process lawsuit again.” (Id. ¶ 33.)
● “Captain Jason Lamb, a Caucasian, has a confederate flag on his forearm.” (Id. ¶ 34.)
● Defendant Backs “previously made a noose in the presence of another African American “fire department employee, Fred McMullen.” (Id. ¶ 35.)
● An African American employee “was asked a daily ‘black question'” by a Caucasian employee. (Id. ¶ 36.)
● An attached Exhibit showed that Marion's mayor sent a memorandum to all municipal agencies regarding “Racial or Sexual Slurs” on January 19, 1993. (Id. Ex. B.)


         A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint and not the merits of the suit. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). The court presumes all well-pleaded allegations to be true, views them in the light most favorable to the plaintiff, and accepts as true all reasonable inferences to be ...

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