Handley moves to dismiss ‘untimely allegations’ against him in racism lawsuit

The fired patrol sergeant says the statute of limitations is up for most claims brought against him by a former deputy. Jamin Johnson alleges Handley engaged in a “years-long racist tirade.”

Former Albany County Sheriff’s Office Sergeant Christian Handley is seeking dismissal in a federal lawsuit brought against him by one of his former subordinates.

Former Corporal Jamin Johnson alleges that Handley subjected him to a “years-long racist tirade,” and filed a lawsuit in January describing various instances in which Handley allegedly aimed racial slurs and innuendos at detainees, community members, Johnson himself and even Johnson’s family.

At the time, Johnson was the sheriff’s only Black deputy.

Handley was fired one year ago, soon after Aaron Appelhans took over as sheriff. Appelhans is the state’s first Black sheriff and said that under his administration, the office will deal “swiftly” with racist behavior, “as we’ve done with Christian Handley.”

Handley has now filed a motion to dismiss, seeking to throw out the lawsuit on the grounds that the statute of limitations has passed for nearly all of the claims listed therein.

The lawsuit further argues that the one claim occurring within the statute of limitations, taken alone, can not be shown to be the product of racism. Handley accuses Johnson of “opportunism” for bringing the lawsuit about racism only after learning of Handley’s recent termination for racist behavior.

Handley does not directly dispute that he used racial slurs and innuendos during his time at the Albany County Sheriff’s Office.

“Johnson’s hostile work environment claim is premised on acts that occurred beyond the statute of limitations and should therefore be dismissed,” Handley’s motion argues. “The continuing violation doctrine does not apply to claims under § 1981, and no ongoing harassing conduct is alleged to have occurred within the limitations period that would save these otherwise untimely allegations.”

Handley’s motion says the relevant statute of limitations is four years because Johnson’s claims relate to 42 U.S. Code § 1981.

Johnson and Handley actually agreed to a “tolling” period last summer — hitting pause on the statute of limitations clock — that lasted until mid-January.

But even factoring in that extra time, Handley argues, the four-year statute of limitations has expired for nearly all claims brought in Johnson’s lawsuit.

“Johnson complains of ‘overt and abhorrent’ acts of racism beginning in 2011, and alleges Handley used derogatory racial terms when they worked together from 2011-2014. Johnson further asserts Handley used a racial epithet in his presence during a 2014 stop involving several Black people, and made other racial comments and slurs as late as June 2017,” the motion states. “However, Johnson does not specify any acts of racial hostility or harassment occurring after that time. These allegations of racial harassment/hostile work environment are based on conduct prior to July 27, 2017. They are therefore untimely and fail to state a viable claim.”

Johnson’s lawsuit does make reference to one event occurring after that date in 2017 — the ‘ultimatum’ he was allegedly given at Handley’s insistence that forced him to resign from the sheriff’s office.

“This allegation does not represent an act in furtherance of hostile work environment, but rather an independent employment action that must itself be sufficient to state a claim,” the motion argues. “Such discrete acts may not be used to pull in otherwise untimely conduct under a continuing violation theory.”

The continuing violation doctrine allows courts to consider events beyond the statute of limitations if they represent “an ongoing unlawful employment practice,” the motion states, adding that Johnson “may assume” the old harassment counts under this doctrine.

“Such an assumption is misplaced,” the motion states.

Handley’s motion argues the continuing violation theory does not apply to claims brought under the specific civil rights statute Johnson used in his lawsuit. Handley’s motion cites case law to back up its assertion.

“In this case, Johnson admits he was well aware of what he alleges to be racial harassment as far back as 2011, when he and Handley first worked together,” Handley’s motion states. “And yet he waited a decade, and nearly four years after resigning in 2017, before asserting any such claims.”

The motion is incredulous that Johnson, allegedly experiencing a “steady barrage of dehumanizing comments,” would wait so long to bring this lawsuit.

“Johnson does not indicate that he ever complained to anyone at his workplace about such alleged racist hostile work environment, either formally or informally, even after retaining counsel to assist him at or near the time of his resignation,” the motion states. “Rather, he concedes that he came forward with these allegations only after happening to be told of the results of an ACSO internal investigation that he perceived as helpful to his case. This is exactly the kind of opportunism the continuing violation doctrine does not and should not reward … ”

There is, however, one claim Johnson brings that falls within the statute of limitations, Handley’s motion admits. That is the “sham disciplinary process,” in which Johnson alleges that Handley persuaded then-Sheriff Dave O’Malley to force Johnson out of the office.

Johnson alleges that O’Malley gave him an ultimatum in 2017: accept a demotion, accept a suspension, or quit. Johnson further alleges that this occurrence was orchestrated by Handley, who was Johnson’s superior at the time.

Handley’s motion argues this claim is “far too vague, conclusory, and devoid of necessary factual detail to suggest racial animus and state a plausible claim for relief.”

“The only act of alleged discrimination that arguably survives as having occurred within the statute of limitations is a discrete act of employee discipline involving Handley persuading O’Malley to issue an ‘ultimatum’ to Johnson on July 31, 2017,” Handley’s motion states. “That discrete act alone, and not in relation to or contingent upon other prior conduct, must be ‘independently discriminatory’ to be sufficient to state a claim.”

Handley argues Johnson would need more than one discrete act to constitute the longer term claim of a hostile work environment. Because only one act falls within the applicable window of time, Handley’s motion alleges, there are no grounds for a hostile work environment claim. Handley’s lawsuit alleges there is not enough “factual detail” surrounding the ultimatum incident itself to demonstrate that that specific disciplinary action was brought with the “intent to discriminate based on race.”

“Such conclusory statements are not enough,” the motion states. “A plaintiff must include sufficient context and detail to link the alleged discriminatory action to a discriminatory motive with something besides sheer speculation or conjecture.”

Johnson hasn’t done that, Handley’s motion argues.

“Johnson should also know and be able to allege what, if anything, Handley did to him in initiating the discipline that would suggest his acts toward Johnson during the relevant time were racially-motivated, as opposed to genuine disagreement over a performance issue,” the motion states. “Reliance on hearsay from later investigations or prior sporadic use of epithets from years gone by are insufficient to plausibly conclude that, but for racial animus, the adverse employment action would not have occurred.”

To call O’Malley’s ultimatum racist or racially motivated is “mere conjecture,” the motion alleges, adding Johnson should have compared his treatment to that of other non-African American employees of the Albany County Sheriff’s Office.

Handley is represented by lawyers from the Wyoming Attorney General’s Office: Deputy Attorney General Mark Klassen and Senior Assistant Attorney General Timothy Miller.