Case 2:19-cv-00879-SGC Document 5 Filed 06/20/19 Page 1 of 20 FILED

2019 Jun-20 PM 06:11

U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

CHARITY MOORE and )

LaSHAWN SMITH, )
)
Plaintiffs, )
) Civil Action No. 2:19-cv-00879-SGC
vs. )
) JURY DEMAND
CITY OF HOMEWOOD, et al. )
)
Defendant. )

FIRST AMENDED COMPLAINT

Come now the Plaintiffs in the above-captioned cause, by and through

undersigned counsel, and pursuant to Rule 15(1)(A) of the Fed. R. Civ. P., file and

serve this First Amended Complaint.

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

action; (b) stating additional facts, e.g., regarding Defendant Homewood's

violations of 29 U.S.C. §207(r) regarding nursing mothers, and regarding

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.

AMENDMENTS TO THE COMPLAINT

A1. By this reference Plaintiffs re-allege jurisdiction, venue, parties, facts,

Counts and Requests for Relief as set forth in the original June 7, 2019, Complaint.

ADDITIONAL DEFENDANT: STEVE SPARKS

A2. Defendant Steve Sparks [hereafter: "Defendant Sparks," or more

simply, "Sparks"] is an adult individual over the age of nineteen (19) years of age

who resides in Jefferson County, Alabama.

A3. Defendant Homewood employs Defendant Sparks as a Dispatcher

Supervisor.

A4. Sparks is both Plaintiffs', Charity Moore's [Moore] and LaShawn

Smith's [Smith], director supervisor.

A5. Sparks' acts and omissions regarding Moore are set forth in Original

Complaint Paragraphs 45 - 63, in passim.

A6. Sparks' acts and omissions regarding Smith are set forth in Original

Complaint Paragraphs 64-75, in passim.

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A7. Additional acts and omissions perpetrated by Sparks against Moore

and Smith are set forth below in this Amended Complaint.

PATIENT PROTECTION: PLAINTIFF MOORE as a NURSING MOTHER

A8. Defendant City of Homewood is subject to the break time and privacy

requirements for nursing mothers by and under the Patient Protection and

Affordable Care Act of 2010, specifically, 29 U.S.C. 207(r) of the Act.

A9. In or around mid-April 2017, Plaintiff Charity Moore returned to

work at the Homewood Police Department [Homewood PD] from maternity leave.

A10. When Moore returned to work, she told Sparks she was breastfeeding

and needed a private place to express, to pump, breast milk.

A11. Around or about one-and-a-half (1 1/2) years earlier, in or around

2015, a white Homewood PD employee, in the same building as Moore, also

needed a private place to pump.

A12. The then-Chief and/or other Homewood PD decision-makers saw to it

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

dispatch room as they pleased, and did, Moore's sign notwithstanding.

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

the latter instance, referring to a Homewood police officer, a competitive

bodybuilder).

A15. The demeaning, offensive comments and ridicule came so frequently

that Homewood PD Officer Mark Trippe grew concerned for Moore and at least

once asked Plaintiff if she was okay.

A16. Plaintiff Moore's white counterpart never suffered such offensive,

cruel "jokes" and ridicule during the several-month period she, the white

Homewood PD employee, was pumping breast milk about one-and-a-half years

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

about the aforementioned, repeated, offensive remarks made by Homewood PD

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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A18. In or around June or July 2017, the Homewood PD provided its

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

be pumping breast milk and needed privacy when doing so.

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,

ignoring Moore's sign requesting privacy.

A21. In or around spring or early summer 2017, Homewood increased its

number of police patrol units, but did not make a commensurate increase in

dispatcher hires. This meant longer working hours for Homewood PD dispatchers

with a decrease, and sometimes elimination, of opportunities for dispatchers to take

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

pump. Additionally, there was a Homewood PD CCTV camera in front Moore's

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

mentioned the other woman, white, who was accommodated.

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

such needs at least two (2) months earlier.

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.

A25. Sparks offered the women's bathroom / locker room as a place to

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

locations for a nursing mother to express milk.

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

policy or consistent, non-discriminatory, practice regarding its employees who are

nursing mothers; at best its decision-makers just make it up as they go along,

which in turn proximately caused Moore suffering the aforementioned privations

and damages.

FAMILY MEDICAL LEAVE ACT VIOLATIONS

A30. Defendant Homewood is subject to and prohibited from violating the

Family Medical Leave Act [FMLA], 29 U.S.C. 2601, et seq.

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A31. The FMLA prohibits an employer from interfering with an employee's

rights under the law.

A32. Since in or around February 2019, Defendant Homewood -- by and

through Homewood PD supervisors, officials and decision-makers, including but

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.,

of a tumor embedded in her paraspinal muscles.

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

under the FMLA.

A34. From February into May 2019, Defendant Homewood interfered with

Moore's exercise and/or attempts to exercise her rights under the FMLA.

Defendant Homewood's interference with Moore's exercise and/or attempts to

exercise her rights under the FMLA included, but are not limited to:

A35. . . . Sparks and Peterson telling Moore she needed to submit more

paperwork than other Homewood or Homewood PD employees are required to

submit.

A36. . . . Sparks implying and/or threatening Moore with disciplinary action

for her attempting to avail herself of her FMLA rights.

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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

accommodate Defendant Homewood's fire and police dispatch staffing issues).

Homewood, by and through its agent, Peterson, was effectively attempting to

practice medicine by seeking to override Moore's doctor's advice and orders.

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

baby and the other for elective surgery.

A39. . . . Sparks telling Moore he did not like or appreciate her having

longer, FMLA agreed-upon weekends.

A40. . . . Sparks emailing Moore, altering her work schedule to prevent her

from having consecutive days off.

A41. . . . Peterson effectively overriding Moore's FMLA plan by

authorizing / directing Sparks to schedule Moore "as needed" to meet Homewood

PD dispatch staffing shortages.

A42. . . . As noted in the original Complaint, Moore being subjected both a

"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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A43. The foregoing and additional FMLA interference perpetrated by

Defendants against Moore constituted race-based double standards and disparate

treatment, as such was not perpetrated against Moore's white co-workers.

A44. The foregoing and additional FMLA interference perpetrated by

Defendants proximately caused Moore stress, anxiety, mental anguish and

exacerbated and increased pain she was already suffering owing to her medical

condition.

ADDITIONAL RE: HOMEWOOD POLICIES

A45. It is clearly established law in both the Eleventh Circuit and the

Northern District of Alabama that municipalities (e.g., Defendant City of

Homewood) are prohibited from treating their employees differently, subjecting

their employees to different terms and conditions, based on race; establishing,

maintaining, practicing or allowing race-based double-standards or treatment

within their employment ranks; and/or discouraging employees or setting-up

impediments to employees reporting or otherwise notifying such employers of

alleged discrimination (race-based or otherwise).

A46. Given Plaintiff Moore's diagnosis, increasing pain and need for

surgery, on Tuesday, June 18, 2019, Plaintiff Moore attempted to navigate

Homewood's employee-only intranet in order to find information about

Homewood's long-term disability policy.

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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

"Miscellaneous City Forms." Under Miscellaneous City Forms there's a City of

Homewood "handbook."

A48. Moore searched this Homewood intranet handbook.

A49. When she searched the online Homewood handbook she stumbled

across a "Discrimination" policy [Intranet Policy], a policy more comprehensive

than the 3-sentence policy found in hard copy, 3-ring binder, Homewood Police

Department Policy and Procedure Manual (see original Complaint, Paragraphs 32

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

provided for elsewhere in this Manual, the City of Homewood Employee

Handbook and the Personnel Board of the Jefferson County Rules and

Regulations." [emphasis added].

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

for finding that).

A52. The hard copy Manual is overly onerous with respect to its

discrimination reporting / notification requirements, thus effectively discouraging

or setting up barriers to reporting / notifying Homewood of workplace

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

Homewood employee, neither has received a note, memorandum, letter, email or

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,

training session or other gathering sponsored by Homewood or the Homewood PD

in which the Intranet Policy was discussed.

A55. Neither Moore nor Smith did not know about the Intranet Policy until

the night of June 18, 2019.

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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

copy Manual controls.

CORRECTING ORIGINAL COMPLAINT SCRIVENER’S ERRORS

A57. Paragraph 3 of the original Complaint is hereby corrected to read:

". . . situated in Jefferson County, Alabama, which is within this Court's

jurisdiction."

A58. Paragraph 31 of the original Complaint is hereby corrected to read:

"With the exception of the single, July 2016 meeting (which Smith could not attend

owing to child care responsibilities), since. . ."

COUNT V
Plaintiff Charity Moore
Defendant Steve Sparks -- 42 U.S.C. §1983

A59. By this reference Plaintiff Charity Moore reiterates and incorporates

all allegations set forth in preceding paragraphs, and those in the original

Complaint, as if fully set forth herein.

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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

conditions of her work based on race.

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

A62. By this reference Plaintiff Charity Moore reiterates and incorporates

all allegations set forth in preceding paragraphs, and those in the original

Complaint, as if fully set forth herein.

A63. Defendant Homewood deprived and violated Plaintiff Moore's 29

U.S.C. §207(r) rights by failing or refusing to provide her the safety and privacy

accorded to her under the Act.

A64. Defendant Homewood's violations of Moore's 29 U.S.C. §207(r)

rights proximately caused her to suffer the aforementioned privations, physical and

emotional damages.

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COUNT VII

Plaintiff Charity Moore

42 U.S.C. §1983 and Nursing Mother Accommodations

A65. By this reference Plaintiff Charity Moore reiterates and incorporates

all allegations set forth in preceding paragraphs, and those in the original

Complaint, as if fully set forth herein.

A66. Defendant Homewood deprived and violated Plaintiff Moore's 29

U.S.C. §207(r) rights under color of law.

A67. Defendant Homewood's violations of Moore's 29 U.S.C. §207(r)

under color of law violated her rights under 42 U.S.C. §1983.

A68. Said deprivations and violations proximately caused her to suffer the

aforementioned privations, physical and emotional damages.

COUNT VIII
Plaintiff Charity Moore
29 U.S.C. §2601, et seq. -- Family Medical Leave Act

A69. By this reference Plaintiff Charity Moore reiterates and incorporates

all allegations set forth in preceding paragraphs, and those in the original

Complaint, as if fully set forth herein.

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A70. Defendant Homewood deprived and violated Plaintiff Moore's 29

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.

A71. Defendant Homewood's violations of Moore's 29 U.S.C. §2601, et

seq. rights proximately caused her to suffer the aforementioned privations, physical

and emotional damages.

COUNT IX

Plaintiff Charity Moore

42 U.S.C. §1983 and the Family Medical Leave Act

A72. By this reference Plaintiff Charity Moore reiterates and incorporates

all allegations set forth in preceding paragraphs, and those in the original

Complaint, as if fully set forth herein.

A73. Defendant Homewood deprived and violated Plaintiff Moore's 29

U.S.C. §2601, et seq. FMLA rights under color of law.

A74. Defendant Homewood's violations of Moore's 29 U.S.C. §2601, et

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

aforementioned privations, physical and emotional damages.

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COUNT X
Plaintiff LaShawn Smith
Steve Sparks -- 42 U.S.C. §1983

A76. By this reference Plaintiff LaShawn Smith reiterates and incorporates

all allegations set forth in preceding paragraphs, and those in the original

Complaint, as if fully set forth herein.

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

conditions of her work based on race.

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.

ADDITIONAL REQUESTS FOR RELIEF

A. Following trial by jury, and in addition to the relief requested in the

original Complaint, Plaintiff Charity Moore respectfully requests the Court enter

judgment in her favor in an amount to be determined by jury:

1. Against Defendant Sparks for compensatory and punitive

damages under Count V.

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2. Against Defendant Homewood for compensatory damages

under Counts VI through IX.

3. Against Defendants Sparks and Homewood, jointly and

severally, for reasonable costs and attorneys fees associated with Counts V through

IX.

4. Any other relief in law or equity the Court deems appropriate to

grant.

B. Following trial by jury, and in addition to the relief requested in the

original Complaint, Plaintiff LaShawn Smith respectfully requests the Court

enter judgment in her favor in an amount to be determined by jury:

1. Against Defendant Sparks for compensatory and punitive

damages under Count X.

2. Against Defendant Sparks for reasonable costs and attorneys

fees.

3. Any other relief in law or equity the Court deems appropriate to

grant.

C. Following trial by jury, and in addition to the injunctive relief

requested by both Plaintiffs Moore and Smith in the original Complaint,

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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Order sought by Plaintiffs regarding Homewood undertaking those steps necessary

(e.g., overhauling and updating its workplace discrimination policies and

procedures, providing substantive, annual training of all Homewood PD

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: richardrussellnewton@gmail.com
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, kendrick@wskllc.com, per undersigned counsel's agreement with Mr.
Kendrick on June 13, 2019. Mr. Kendrick's office address is:

Waldrep Stewart & Kendrick, LLC

2323 2nd Avenue North
Birmingham, AL 35203
Tel: 205.254.3216

Defendant Steve Sparks will be served by Process Server at:

1833 29th Avenue South

Homewood, AL 35209,

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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