Lawsuit Against The City of Homewood - Breastmilk Pumping Allegations
Lawsuit Against The City of Homewood - Breastmilk Pumping Allegations
Lawsuit Against The City of Homewood - Breastmilk Pumping Allegations
undersigned counsel, and pursuant to Rule 15(1)(A) of the Fed. R. Civ. P., file and
INTRODUCTION
Plaintiffs file and serve this First Amended Complaint for the purpose of:
(a) adding Steve Sparks as a co-defendant (in his individual capacity) in this
Homewood's Family Medical Leave Act (29 U.S.C. §2601, et seq.) violations as
such involve Plaintiff Charity Moore, and regarding Homewood and Homewood
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Police Department policies; (c) correcting a few scrivener’s errors in the original
Complaint; and, (d) adding Counts V, VI, VII and VIII to this action.
Counts and Requests for Relief as set forth in the original June 7, 2019, Complaint.
simply, "Sparks"] is an adult individual over the age of nineteen (19) years of age
Supervisor.
A5. Sparks' acts and omissions regarding Moore are set forth in Original
A6. Sparks' acts and omissions regarding Smith are set forth in Original
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A8. Defendant City of Homewood is subject to the break time and privacy
requirements for nursing mothers by and under the Patient Protection and
work at the Homewood Police Department [Homewood PD] from maternity leave.
A10. When Moore returned to work, she told Sparks she was breastfeeding
that a small room was cleaned-out and made available for the white woman, the
white woman needing to pump breast milk, to work and pump in private.
A13. In mid- to late-April 2017, Sparks told Plaintiff to just pump at her
desk and to place a sign on the doorway as needed. During that period the dispatch
room required an access code to enter it and most Homewood PD police officers
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did not have that access code. However, other dispatchers, Sparks and the
occasional officer with a dispatch code could come and go into and out of the
A14. Between May and July 2017, several white male officers "joked"
about Moore's needing to pump breast milk, ranging in offensiveness from, “Are
you hooked up like a cow?" to, “[ ] would love to purchase some of that milk!” (in
bodybuilder).
that Homewood PD Officer Mark Trippe grew concerned for Moore and at least
cruel "jokes" and ridicule during the several-month period she, the white
earlier.
A17. One day towards the end of May 2017, in Homewood PD Lt. Andrew
Didcoct's office, with Sparks also present, Moore told both Didcoct and Sparks
officers to Moore and, again, her needing a private place to pump her breast milk.
Lt. Didcoct said he'd, "Look into it," or words to that effect. He did not.
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police officers with access codes to easily enter the locked dispatch room; access
codes that had not previously been provided to the majority of those officers.
A19. As set forth above, when Moore needed to pump, she placed a bright
yellow sign that read “Private: Pumping in Progress," or words to that effect, on
the door and informed the officers at roll call that the sign indicated that she would
A20. Especially beginning in late June, and increasingly in July 2017, more
and more Homewood PD police officers walked in and out of the dispatch room,
number of police patrol units, but did not make a commensurate increase in
dispatcher hires. This meant longer working hours for Homewood PD dispatchers
meal or restroom breaks. For Plaintiff Moore, this meant in July 2017 she was
virtually locked-into the dispatch room, with more police officers coming and
going in and out of it, and no chance to even attempt to seek a private refuge to
desk in dispatch.
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A22. On July 20, 2017, Plaintiff Moore emailed Sparks, again asking for
accommodation in order to private pump her breast milk. In her email Moore even
A23. On July 21, 2017, Sparks sent a reply email telling Moore that her
previous day's email was "the first time anyone has notified me" of a need for a
private place to pump. This was untrue, as Sparks had been put on actual notice of
A24. In both Sparks July 21, 2017, email and a follow-up email sent four
(4) days later, Sparks offered accommodations, but said, "options [for privacy]
were limited." However, about one-and-a-half years before, options were less
limited for a white Homewood PD employee needing a private space to pump her
breast milk.
pump. But, as Moore had previously pointed out in her July 20, 2017, email to
Sparks, under the Patient Protection and Affordable Care Act of 2010, the United
States Department of Labor notes bathrooms, even if private, are not permissible
A26. In or around October 2017, the jail bathroom, one story above the
dispatch office, leaked what smelled like and appeared to be sewage into the
dispatch room and onto Moore's dispatch room desk. This caused exposure to
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disease of already expressed, bottled breast milk on Moore's desk, thus causing the
loss of the milk, and loss of Moore's breast pump, which was on her desk, due to
sewage contamination.
A27. Homewood bought a new breast pump for Moore, but in the two-or-so
weeks she could not sit at her desk in dispatch due to the biohazardous nature of
the spill, Moore was obliged to sit at the desk closest to the entry door of dispatch.
A28. The temporary, entry door desk Moore was stationed in front of a
window, unshielded from the view of anyone in the squad room including officers,
supervisors , prisoners, attorneys present for court, and visitors of the department.
This desk, or the bathroom / locker room, or Lt. Didcoct's windowed office, were
the only places Sparks and Homewood provided Moore to express her breast milk
through pumping.
A29. Defendant Homewood's Police Department neither had nor has any
and damages.
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not limited to, Dispatch Supervisor Steve Sparks, Lt. Keith Peterson [Peterson] and
Lt. Andrew Didcoct -- has been on actual notice of Plaintiff Moore's diagnosis, i.e.,
A33. From around February into May 2019, Moore asked Homewood, by
and through Defendant Sparks and Lt. Peterson, about her rights; she requested
information about her available FMLA options; she made leave time requests
A34. From February into May 2019, Defendant Homewood interfered with
Moore's exercise and/or attempts to exercise her rights under the FMLA.
exercise her rights under the FMLA included, but are not limited to:
A35. . . . Sparks and Peterson telling Moore she needed to submit more
submit.
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A37. . . . Peterson telephoning Moore and telling Moore her doctor needed
to amend Moore's FMLA paperwork in order for her to work more hours (to
A38. . . . Sparks telephoning Moore and demanding she work more than
what her FMLA time-off directed. Sparks cited staffing issues and his need to
accommodate two (2) white dispatchers who were taking time off, one for her new
A39. . . . Sparks telling Moore he did not like or appreciate her having
A40. . . . Sparks emailing Moore, altering her work schedule to prevent her
"Fit for Duty" assessment and drug test, both actions she had not had to go through
since being hired by Homewood, even after she had had an emergency C-Section
in 2017.
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exacerbated and increased pain she was already suffering owing to her medical
condition.
A45. It is clearly established law in both the Eleventh Circuit and the
A46. Given Plaintiff Moore's diagnosis, increasing pain and need for
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A47. On the Homewood intranet, Moore saw a menu icon for forms and
policies. When she clicked on that icon she was taken to a page titled
Homewood "handbook."
A49. When she searched the online Homewood handbook she stumbled
than the 3-sentence policy found in hard copy, 3-ring binder, Homewood Police
through 44) both Moore and Smith had been provided and were expected to abide
by.
A50. The hard copy Police Department Policy and Procedure Manual
directs those who believe they've been discriminated against to file a grievance "as
Handbook and the Personnel Board of the Jefferson County Rules and
A51. The hard copy Police Department Policy and Procedure Manual
directs aggrieved City of Homewood employees to find and fill out three (3)
different grievance forms: One contained somewhere else in the hard copy
Manual; a second (perhaps the Intranet Policy form, but no mention is made of an
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online or intranet form) City of Homewood form; and a third Jefferson County
Personnel Board form (though no guidance is provided in the hard copy Manual
A52. The hard copy Manual is overly onerous with respect to its
discrimination.
A53. As for the Intranet Policy, in the roughly four (4) years since Moore's
been a Homewood employee and in the roughly five (5) years since Smith's been a
any other communication from Homewood -- not from its Mayor, Chief of Police,
Human Resources or any Supervisor -- that the Intranet Policy even existed.
A54. As for the Intranet Policy, in the roughly four (4) years since Moore's
been a Homewood employee and in the roughly five (5) years since Smith's been a
Homewood employee, neither has been invited or required to attend any meeting,
A55. Neither Moore nor Smith did not know about the Intranet Policy until
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A56. As Homewood provided both Moore and Smith with the the hard copy
Manual, and has never guided them to or discussed the Intranet Policy, it is
reasonable for both Plaintiffs to believe and understand the Homewood PD hard
jurisdiction."
"With the exception of the single, July 2016 meeting (which Smith could not attend
COUNT V
Plaintiff Charity Moore
Defendant Steve Sparks -- 42 U.S.C. §1983
all allegations set forth in preceding paragraphs, and those in the original
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A60. Steve Sparks deprived and violated Plaintiff Moore's civil rights under
color of law in his treatment, acts and omissions, towards her in the terms and
A61. Steve Sparks' deprivations and violations of Moore's civil rights under
color of law proximately caused her to suffer the aforementioned physical and
emotional damages.
COUNT VI
Plaintiff Charity Moore
29 U.S.C. §207(r) -- Nursing Mother Accommodations
all allegations set forth in preceding paragraphs, and those in the original
U.S.C. §207(r) rights by failing or refusing to provide her the safety and privacy
rights proximately caused her to suffer the aforementioned privations, physical and
emotional damages.
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COUNT VII
all allegations set forth in preceding paragraphs, and those in the original
A68. Said deprivations and violations proximately caused her to suffer the
COUNT VIII
Plaintiff Charity Moore
29 U.S.C. §2601, et seq. -- Family Medical Leave Act
all allegations set forth in preceding paragraphs, and those in the original
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U.S.C. §2601, et seq. rights by interfering in her rights and/or attempts to exercise
her rights under the Family Medical Leave Act and/or by retaliating against her for
exercising and/or attempting to exercise her rights under the Family Medical Leave
Act.
seq. rights proximately caused her to suffer the aforementioned privations, physical
COUNT IX
all allegations set forth in preceding paragraphs, and those in the original
seq. FMLA rights under color of law violated her rights under 42 U.S.C. §1983.
A75. Said deprivations and violations proximately caused her to suffer the
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COUNT X
Plaintiff LaShawn Smith
Steve Sparks -- 42 U.S.C. §1983
all allegations set forth in preceding paragraphs, and those in the original
A77. Steve Sparks deprived and violated Plaintiff Smith's civil rights under
color of law in his treatment, acts and omissions, towards her in the terms and
A78. Steve Sparks' deprivations and violations of Smith's civil rights under
color of law proximately caused her to suffer the aforementioned physical and
emotional damages.
original Complaint, Plaintiff Charity Moore respectfully requests the Court enter
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severally, for reasonable costs and attorneys fees associated with Counts V through
IX.
grant.
fees.
grant.
Plaintiffs respectfully request the Court take this First Amended Complaint's
Paragraphs A45 through A56 into account when contemplating and developing the
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employees, etc.) to undo the deliberate indifference and training & supervisory
failures that are endemic to the Homewood Police Department, and grant to
Plaintiffs any other relief in law or equity the Court deems appropriate to grant.
Respectfully filed and served on this, the 20th day of June, 2019.
_____________________________
Richard R. Newton (NEW032)
Attorney for Plaintiffs Charity Moore
and LaShawn Smith
1203 Regal Avenue
Birmingham, AL 35213
Tel: 205.356.2498
Email: [email protected]
ASB 0776-W85R
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CERTIFICATE OF SERVICE
This is to certify that on this, the 20th day of June, 2019, I served the
foregoing Plaintiffs' First Amended Complaint upon Defendant City of
Homewood, by sending same by email to Michael Kendrick, Esq., at his email
address, [email protected], per undersigned counsel's agreement with Mr.
Kendrick on June 13, 2019. Mr. Kendrick's office address is:
or at such other place as the Process Server can deliver Summons, Original
Complaint and Plaintiffs' First Amended Complaint to Defendant Sparks, pursuant
to Rule 4(e) of the Federal Rules of Civil Procedure.
_____________________________
Richard R. Newton (NEW032)
Attorney for Plaintiffs
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