Bonenberger v. SLMPD

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

DAVID BONENBERGER, )

)

Plaintiff, )

)

v. ) Case No. 4:12-cv-00021

)

THE ST. LOUIS METROPOLITAN, ) JURY TRIAL DEMANDED

POLICE DEPARTMENT, and )

)

THE BOARD OF POLICE )

COMMISSIONERS OF THE ST. )

LOUIS METROPOLITAN POLICE )

DEPARTMENT, and )

)

BETTYE BATTLE-TURNER, RICHARD )

GRAY, and MAYOR FRANCIS G. SLAY, )

in their official and individual capacities )

as members of the Board of Police )

Commissioners, and )

)

MICHAEL L. GERDINE and JERRY )

LEE, in their individual capacities as )

former members of the Board of Police )

Commissioners, and )

)

THOMAS IRWIN, in his official capacity )

as a current member of the Board of )

Police Commissioners, and )

)

CHIEF DANIEL W. ISOM, in his official )

and individual capacities, and )

)

LT. COL. REGGIE L. HARRIS, in his )

official and individual capacities, and )

Case: 4:12-cv-00021-CDP Doc. #: 1 Filed: 01/05/12 Page: 1 of 18 PageID #: 1

2

LT. MICHAEL MUXO, in his official )

and individual capacities, )

)

Defendants. )

COMPLAINT

PARTIES & JURISDICTION

1. At all times relevant herein, Plaintiff, David Bonenberger (hereinafter

“Bonenberger”), was and is a resident of the City of Waterloo, in the State of Illinois and a

citizen of the United States of America. At all times relevant herein, Bonenberger was employed

by the St. Louis Metropolitan Police Department, located in the City of St. Louis, State of

Missouri, in the Eastern Division of the Eastern District of Missouri.

2. At all times relevant herein, Defendant St. Louis Metropolitan Police Department

(hereinafter “Department”) was and is a municipal police department organized and existing

under the laws of the State of Missouri.

3. At all times relevant herein, Defendant Board of Police Commissioners

(hereinafter “Board”) of the Department was and is a public governmental body having its

principal place of business in the City of St. Louis, State of Missouri. Defendant Board is vested

by statute with exclusive jurisdiction over the conduct of the affairs of the Department.

Defendants Bettye Battle-Turner (hereinafter “Battle-Turner”), Richard Gray (hereinafter

“Gray”), and Mayor Francis G. Slay (hereinafter “Slay”) were members of the Board at the time

of the acts complained of herein and are currently members of the Board. They are sued in both

their individual and official capacities. Defendants Michael L. Gerdine (hereinafter “Gerdine”)

and Jerry Lee (hereinafter “Lee”) were members of the Board at the time of the acts complained

of herein but no longer serve on the Board. They are sued in their individual capacities only.


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Defendant Thomas Irwin is currently on the Board. He is sued in his official capacity only.

4. Defendant Daniel W. Isom (hereinafter “Isom”) is the Chief of Police of the

Department. He has ultimate supervisory authority over all facets of the Department. He is sued

in his individual and official capacities. Isom is African-American.

5. Lt. Col. Reggie L. Harris (hereinafter “Harris”) is the Commander of the

Department’s Bureau of Professional Standards. He is sued in both his individual and official

capacities. Harris is African-American.

6. Lt. Michael Muxo (hereinafter “Muxo”) is a lieutenant in the Department, who at

all times relevant herein was and is the Director of the St. Louis Police Academy (hereinafter

“Academy”). He is sued in both his individual and official capacities.

7. The adverse employment action Bonenberger suffered when he was not promoted

to the position of Assistant Director of the Academy by the Defendants occurred in the City of

St. Louis, State of Missouri, within the Eastern Division of the Eastern District of Missouri.

8. This action is brought pursuant to 42 U.S.C. §2000(e) et seq., 42 U.S.C. § 1981,

and § 213.010 et seq. R.S.Mo. This Court has jurisdiction over this action pursuant to 28 U.S.C.

§ 1331. Plaintiff further invokes the supplemental jurisdiction of this Court to hear and decide

claims arising under state law pursuant to 28 U.S.C. § 1367. Venue is proper in this District

pursuant to 28 U.S.C. § 1391(b).

9. Plaintiff demands a trial by jury pursuant to Fed. R. Civ. P. 38(b).

FACTS COMMON TO ALL COUNTS

10. Bonenberger has been an employee of the Department since October 1993 and

was promoted to the rank of sergeant on March 18, 2009.

11. On or about September 24, 2010, the Department posted an open position in the


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St. Louis Police Academy for Sergeant-Assistant Academy Director.

12. After the Assistant Academy Director position was posted, Bonenberger informed

Muxo, then the Director of the Academy, that he intended to apply for the open position.

13. Muxo told Bonenberger not to bother applying for the open position because it

had already been decided that it would be filled by a black female. Muxo also told Bonenberger

that Harris, who as set forth above is an African-American male, wanted a black female in the

Assistant Academy Director position.

14. Even though Bonenberger was told that he would not be considered for the

Assistant Academy Director position because it was going to be given to an African-American

female, Bonenberger applied for the open position.

15. Bonenberger is POST certified as a Generalist Instructor in the State of Missouri.

He is certified by the Department of Homeland Security as a Driver Training Instructor. He is

also certified as a TASER instructor, Stinger Spike Strip instructor, and ETS instructor.

Bonenberger became a Field Training Officer for the Department in 1997.

16. Bonenberger was assigned to the Academy as an instructor as the Academy Class

Supervisor in 2008/2009. While assigned to the Academy, Bonenberger taught the blocks of

instruction in patrol, driver training, and practical application. Bonenberger has been a driver

training instructor since 1996 and authored the current block of driver training instruction used

by the Department for both recruits in the Academy and to retrain officers on the street and as

part of an ongoing in-service as a defensive driver refresher.

17. Additionally, Bonenberger is certified to instruct on the Department’s Sim IV

driver simulator and has served the Department as a firearms instructor with responsibility for

training on the Lasershot (Raptor) firearms simulator. He authored and conducted the CET


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Tactical Vehicle Stop block of instruction and conducted the CET Active Shooter block of

instruction for the Department in 2008/2009.

18. Despite his experience and qualifications, Bonenberger was not even given an

interview when he applied for the Assistant Academy Director position.

19. On or about October 29, 2010, Angela Taylor, an African-American female, was

promoted to the Assistant Academy Director position even though less qualified. Taylor was not

interviewed before being promoted to the Assistant Academy Director position.

20. After Taylor was promoted to the Assistant Academy Director position, Muxo

told Bonenberger that he had to give Taylor the open position because Harris wanted her there

and because he was told by Harris that he had to bring color down to the Academy.

21. Prior to Taylor being promoted to the Assistant Academy Director position, Sgt.

Deborah Boelling was the Assistant Academy Director. Boelling is a white female. She was

warned that she would be removed as the Assistant Academy Director shortly after Muxo was

assigned as the Academy Director. Muxo told Boelling repeatedly while she was assigned to the

Academy that there was no way a white male would get the Assistant Academy Director position

because the upper command did not want a white male in the position.

22. On or about October 29, 2010, Bonenberger filed a grievance with the

Department based upon its failure and refusal to comply with its own policies and procedures in

filling the Assistant Academy Director position. Bonenberger’s grievance was denied without

explanation and in violation of Department policy.

23. Additionally, after Bonenberger was not promoted to the Assistant Academy

Director position, he was contacted by Kim Hicks, a Human Resources Specialist with the

Department. Hicks informed Bonenberger that he had been discriminated against when he was


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not promoted to the open position and that he should file an EEOC complaint. Hicks further

informed Bonenberger that he was not given an interview for the open position because the black

female was less qualified.

24. The sergeant serving as Assistant Academy Director has supervisory authority

over other sergeants assigned to the Academy and visibility in the Department, enhancing the

opportunities for promotion to the rank of lieutenant.

25. Bonenberger timely filed a Charge of Discrimination with the Equal Employment

Opportunity Commission (hereinafter “EEOC”) and the Missouri Commission on Human Rights

(hereinafter “MCHR”).

26. Both the EEOC and MCHR issued Bonenberger “right to sue” letters. The EEOC

issued its letter on October 12, 2011, and the MCHR issued its letter on November 21, 2011.

27. As a direct and proximate result the acts of the Defendants as alleged herein,

Bonenberger was not promoted to the position of Assistant Academy Director, even though more

qualified, and will likely lose other promotional opportunities as a result in the future.

Additionally, and without waiver of the foregoing, as a direct and proximate result of the acts of

the Defendants as alleged herein, Bonenberger has suffered and will continue to suffer emotional

pain and suffering, mental anguish, inconvenience, humiliation, embarrassment, loss of

enjoyment of life, stress, and loss of professional reputation.

28. Upon information and belief, the Department maintains a policy or policies of

insurance with respect to tort claims filed against it and its Board and employees, and therefore,

to the extent that the Department, its Board, or employees may assert the defense of sovereign

immunity with respect to any tort claims set forth below, the Department has waived such

defense under the provisions of §537.610 R.S.Mo. by maintaining such policy or policies of


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insurance.

COUNT I

PLAINTIFF’S TITLE VII AND MHRA CLAIMS

BASED UPON RACE DISCRIMINATION

For Count I of Plaintiff’s cause of action against all Defendants, Plaintiff states:

29. Bonenberger alleges and incorporates by reference as if fully set forth herein,

paragraphs 1 through 28 above.

30. Bonenberger applied for the promotion to the open position of Assistant Academy

Director.

31. Bonenberger was rejected for the position of Assistant Academy Director because

of his race, white, by the Defendants.

32. Bonenberger was more qualified for the position of Assistant Academy Director

than the person ultimately selected for the position, Taylor.

33. A less qualified African-American female was promoted to the position of

Assistant Academy Director by Defendants because of her race.

34. Bonenberger suffered an adverse employment action when he was not promoted

to the position of Assistant Academy Director despite being better qualified for the open

position.

35. Any purported reasons that the Defendants might offer for the promotion of

Taylor over Bonenberger to the position of Assistant Academy Director is nothing but pretext to

conceal the Defendants illegal discrimination against Bonenberger.

36. The actions, policies and practices complained of herein were in violation of

Bonenberger’s rights secured by 42 U.S.C. §2000(e) et seq. and R.S.Mo. §213.010 et seq.



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38. The conduct of the Defendants as set forth herein was wanton, willful, and

showed a reckless indifference to Bonenberger’s statutory rights as set forth above, making an

award of punitive damages appropriate to punish the Defendants and to deter them and others

from the same or similar transgressions in the future.

WHEREFORE, Plaintiff David Bonenberger prays this Court enter judgment in his

favor and against the Defendants and thereafter order Defendants to make him whole by

granting him equitable relief to include but not necessarily be limited to promoting him to the

position of Assistant Academy Director with all privileges and emoluments of such position;

awarding him damages for any and all loses or damages he has suffered including lost

promotional opportunities; awarding damages to Bonenberger for his emotional injuries,

including but not limited to emotional pain and suffering, mental anguish, inconvenience,

humiliation, embarrassment, loss of enjoyment of life, stress, and loss of professional reputation;

awarding Bonenberger punitive damages against the individual Defendants in their individual

capacities in such sum as this Court believes will serve to punish them and to deter them and

others from like conduct; awarding Bonenberger the costs of this action, together with his

reasonable attorneys’ fees; and granting such other and further relief as may appear to the Court

to be equitable and just under the circumstances.


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COUNT II

VIOLATION OF PLAINTIFF’S RIGHT TO EQUAL

PROTECTION COGNIZABLE UNDER 42 U.S.C. SECTION 1983

For Count II of Plaintiff’s cause of action against all Defendants, Plaintiff states as

follows:

39. Plaintiff incorporates by reference as if fully set forth herein paragraphs 1

through 38 of this Complaint.

40. Defendants, acting under color of state law, deliberately acted against

Bonenberger as set forth above because of his race, white, causing him to be deprived of his

rights secured by the Constitution and laws of the United States.

41. The actions, policies and practices complained of were in violation of 42

U.S.C. §1983 in that they have denied Bonenberger of his rights secured by Title VII of the

Civil Rights Act of 1964, as well as equal protection of the law as secured by the Fourteenth

Amendment to the United States Constitution.

42. The actions complained of herein were made by those with final policy-

making authority and/or approved by those with final policy-making authority within the

the Department as part of a deliberate policy of discrimination against a white employee of the

Department more qualified for the open position of Assistant Academy Director.








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showed a reckless indifference to Bonenberger’s constitutional and statutory rights as set forth

above, justifying an award of punitive damages against the Defendants in their individual

capacities to punish them and to deter them and others from the same or similar transgressions in

the future.




position of Assistant Academy Director with all of the privileges and emoluments of such

position; awarding him damages for any and all loses or damages he has suffered including lost









COUNT III

VIOLATION OF PLAINTIFF’S RIGHTS SECURED

BY 42 U.S.C. SECTION 1981

For Count III of Plaintiff’s cause of action against all Defendants, Plaintiff states as

follows:


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46. Defendants refused to promote Bonenberger to the position of Assistant Academy

Director, even though he was more qualified for the open position.

47. Bonenberger’s race was the determining factor, motivating factor, or played a part

in the Defendants’ decision not to promote Bonenberger even though he was more qualified for

the open position.

48. Any stated reason for promoting Taylor over Bonenberger was not the real reason

for promoting her over Bonenberger but a pretext to hide race discrimination.









showed a reckless indifference to Bonenberger’s statutory rights as set forth above, justifying an

award of punitive damages against the Defendants in their individual capacities to punish them

and to deter them and others from the same or similar transgressions in the future.





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position of Assistant Academy Director with all privileges and emoluments of such position;

awarding him damages for any and all loses or damages he has suffered including lost









COUNT IV

CONSPIRACY TO VIOLATE CIVIL RIGHTS

For Count IV of Plaintiff’s cause of action against Defendants Isom, Harris, and Muxo,

Plaintiff states as follows:



52. Defendants, acting under color of state law, conspired together and

amongst themselves and as a result reached a mutual understanding to promote Taylor, an

African-American female, over Bonenberger, a white male, even though Bonenberger was more

qualified to fill the open position of Assistant Academy Director, because of Taylor’s race.

Additionally and without waiver of the foregoing, Defendants conspired to undertake a course of

conduct to protect each other from the consequences of their constitutional and statutory

violations, which in furtherance of the conspiracy violated Bonenberger’s constitutional right to

equal protection under the laws and federal statutory rights to be free from race discrimination.


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In furtherance of this conspiracy, the Defendants committed the following overt acts:

a. Defendants, through Muxo, attempted to discourage Bonenberger from

applying for the position of Assistant Academy Director because he was more qualified

for the open position than Taylor.

b. Defendants refused to interview Bonenberger for the position of Assistant

Academy Director because he was more qualified for the open position than Taylor.

c. Defendants promoted Taylor to the position of Assistant Academy

Director because of her race, even though Bonenberger was more qualified for the

position.

d. When Bonenberger filed an internal grievance regarding the promotion of

Taylor over him and the manner in which it occurred, the Defendants denied the

grievance and would not even provide Bonenberger with a copy of Isom’s response to it

in an effort to conceal their illegal discrimination against Bonenberger.

e. Defendants engaged in the conduct as set forth herein to protect

themselves from the consequences of their misconduct.

53. Defendants shared the general conspiratorial objective which was to promote

Taylor over Bonenberger because of her race, African-American. Such conduct is so pervasive

in the Department and/or is engaged in by Department command rank officers with final policy-

making authority that the Department’s command rank officers and officers assisting them are

effectively insulated from civil and/or internal sanction, and therefore, Defendants felt free to

engage in the misconduct as aforedescribed, without any fear of sanction or retribution.

54. Defendants furthered the conspiracy by participating in it from its inception or by

participating in the cover-up thereof and/or ignoring the course of conduct set forth herein so as


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to insulate themselves and others from liability for the outrageous and unlawful acts of the

Defendants as described herein, showing a tacit understanding to carry out the prohibited

conduct.

55. As a direct and proximate result of the conspiracy amongst the Defendants

and in furtherance thereof, Bonenberger was not promoted to the position of Assistant Academy

Director because of his race, and thereby deprived of his constitutional right to equal protection

under the laws secured by the 14th

Amendment to the United States Constitution and his federal

statutory right to be free from illegal discrimination as secured by Title VII of the Civil Rights

Acts of 1964 and 42 U.S.C. § 1981, protected by 42 U.S.C. § 1983.

56. As a direct and proximate result of the conspiracy amongst Defendants

and in furtherance thereof, Bonenberger was not promoted to the position of Assistant Academy

Director, even though more qualified, and will likely lose other promotional opportunities as a

result in the future. Additionally, and without waiver of the foregoing, as a direct and proximate

result of the acts of the Defendants as alleged herein, Bonenberger has suffered and will continue

to suffer emotional pain and suffering, mental anguish, inconvenience, humiliation,

embarrassment, loss of enjoyment of life, stress, and loss of professional reputation.


showed a reckless indifference to Bonenberger’s constitutional and federal statutory rights as set

forth above, justifying an award of punitive damages against the Defendants in their individual

capacities.


favor and against Defendants Isom, Harris, and Muxo and thereafter order them to make

Bonenberger whole by granting him equitable relief to include but not necessarily be limited to


15

promoting him to the position of Assistant Academy Director with all privileges and emoluments

of such position; awarding him damages for any and all loses or damages he has suffered

including lost promotional opportunities; awarding damages to Bonenberger for his emotional

injuries, including but not limited to emotional pain and suffering, mental anguish,

inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and loss of

professional reputation; awarding Bonenberger punitive damages against the individual

Defendants in their individual capacities in such sum as this Court believes will serve to punish

them and to deter them and others from like conduct; awarding Bonenberger the costs of this

action, together with his reasonable attorneys’ fees; and granting such other and further relief as

may appear to the Court to be equitable and just under the circumstances.

COUNT V

FAILURE TO TRAIN, INSTRUCT, SUPERVISE, CONTROL

AND/OR DISCIPLINE COGNIZABLE UNDER 42 U.S.C. SECTION 1983

For Count V of Plaintiff’s cause of action against Defendants Battle-Turner, Gray,

Gerdine, Lee, Slay, Irwin, and Isom, Plaintiff states as follows:



59. While the Department purportedly has policies and procedures prohibiting

discrimination and requiring employees to report discrimination, there exists within the

Department policies or customs, practices and usages that are so pervasive that they constitute

the policies of these Defendants, that caused the violation of Bonenberger’s constitutional and

federally statutory rights as set forth herein.

60. Isom is the ultimate supervisory officer within the Department and his failure to

affirmatively act in the face of transgressions about which he knew or should have known,


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established the policies of this Defendant to condone or otherwise tolerate conduct that violates

the constitutional and federal statutory rights of employees of the Department in general and

specifically the conduct described in this Complaint. Alternatively, this Defendant has delegated

and abrogated all supervisory power. Had this Defendant acted affirmatively to properly train

and supervise law enforcement personnel under his command or control and/or to properly

discipline the law enforcement personnel under his control when they conduct themselves in

ways that violate the constitutional and federal statutory rights of others, the discrimination

against Bonenberger on the basis of his race would not have occurred.

61. In an effort to protect subordinates engaged in acts of illegal discrimination, Isom

denied the grievance filed by Bonenberger so that his own negligent training and supervision

would not be discovered. Alternatively, and without waiver of the foregoing, Isom denied

Bonenberger’s grievance to protect himself from the consequences of his own misconduct.

62. Similarly, the Board, through its members, is the policy making body governing

the law enforcement personnel described herein. The Board’s failure to affirmatively act in the

face of the transgressions described herein of which they knew or should have known,

established the policies of these Defendants to condone and otherwise tolerate conduct that

violates the constitutional and federal statutory rights of employees of the Department in general

and the rights of Bonenberger as set forth in this Complaint. Alternatively, these Defendants

have delegated and abrogated all or part of their policymaking power. Had these Defendants

affirmatively acted to properly train and/or supervise the law enforcement personnel under their

control and/or to properly discipline the law enforcement personnel under their control when

they conduct themselves in ways that violate the constitutional and federal statutory rights of

others, the race discrimination against Bonenberger would not have occurred.


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63. These failures and refusals were in violation of 42 U.S.C. §1983.

64. In their failures as above-described, these Defendants intentionally disregarded

known facts or alternatively were deliberately indifferent to a risk of violating the federal rights

of others, of which they knew or should have known, and their culpability caused the violation of

Bonenberger’s federally protected constitutional and statutory rights.

65. As a direct and proximate result of the acts and omissions of these Defendants,







66. The conduct of Defendants Battle-Turner, Gray, Gerdine, Lee, Slay, and Isom

was recklessly and callously indifferent to the federally established rights of Bonenberger,

malicious and wanton with respect to those rights, and an award of punitive damages is

warranted and necessary to punish these Defendants and to deter them and others from the same

or similar transgressions in the future.


favor and against Defendants Battle-Turner, Gray, Gerdine, Lee, Slay, Irwin, and Isom and

thereafter order Defendants to make him whole by granting him equitable relief to include but

not necessarily be limited to promoting him to the position of Assistant Academy Director with

all privileges and emoluments of such position; awarding him damages for any and all loses or

damages he has suffered including lost promotional opportunities; awarding damages to


18

Bonenberger for his emotional injuries, including but not limited to emotional pain and suffering,

mental anguish, inconvenience, humiliation, embarrassment, loss of enjoyment of life, stress, and

loss of professional reputation; awarding Bonenberger punitive damages against the individual

Defendants in their individual capacities in such sum as this Court believes will serve to punish

them and to deter them and others from like conduct; awarding Bonenberger the costs of this

action, together with his reasonable attorneys’ fees; and granting such other and further relief as

may appear to the Court to be equitable and just under the circumstances.

Respectfully submitted,

PLEBAN & PETRUSKA LAW, LLC

By: /s/ Lynette M. Petruska

C. John Pleban, Mo. Bar No. 24190

Lynette M. Petruska, Mo. Bar No. 41212

2010 South Big Bend Blvd.

St. Louis, MO 63117

(314) 645-6666 - Telephone

(314) 645-7376 - Facsimile

Attorneys for Plaintiff


Documents

Bonenberger v. SLMPD