MEMORANDUM OPINION

T. MICHAEL PUTNAM, Magistrate Judge.

This matter is before the court on the motion for a more definite statement (doc. 7) and the motion to dismiss or, in the alternative, for summary judgment (doc. 11) filed by the defendants, the City of Birmingham ("the City") and John Colon. Also pending is the motion to stay summary judgment pending the completion of discovery (doc. 18), filed by plaintiff Carol Dixon. The motions have been fully briefed and the parties have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c).

BACKGROUND

This action arises from plaintiff's eight-year employment with the City. Plaintiff alleges that she is over the age of 40 and is disabled as defined by the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"). She also alleges that she is a member of a protected class based on race, although her complaint does not specify her race. (Complaint, doc. 1, para. 71).1 She was first employed by the City as an accountant in 2007, and was supervised at times relevant to this action by Colon, the director of the City's Department of Community Development. The City terminated Dixon's employment on June 30, 2015, asserting in subsequent appeals that she was absent without leave in violation of Jefferson County Personnel Rule 13.6.

Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on July 24, 2015, and timely filed this action after receiving a right-to-sue letter dated July 12, 2016. Her complaint alleges that she was subjected to discrimination by the City on account of her race in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a), and 42 U.S.C. §1983. (Counts I and VI). She further asserts that she was discriminated against on account of her age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA")2 (Count II), and on account of disability, in violation of the ADA (Count III).3 She further alleges that she was retaliated against after she objected to and reported acts of age, race, and disability discrimination. (Count V).4 This is not her first lawsuit alleging discrimination against the City. What follows is a brief synopsis of her employment history with the defendant.

The City hired Dixon in October of 2007, and she worked as an accountant in the City's Department of Community Development until January 2009, when she left work to undergo knee surgeries. She did not return to her position until October 2011.5 Less than a year later, in July of 2012, she filed her first EEOC charge against the City, alleging that she was denied promotions in 2010 and training opportunities in 2012 because of her age and disability. In February of 2013, Dixon filed a complaint against the City in this court, alleging age and disability discrimination, and asserting tort and contract claims arising under Alabama law. See Dixon v. City of Birmingham, Case No. 2:13-cv-404-WMA.6 She withdrew her age claims and state-law tort claims, but maintained claims for disability discrimination and retaliation, along with a claim that the City had breached a settlement agreement.7 Those claims were dismissed on the defendant's motion for summary judgment when Senior United States District Judge William M. Acker accepted and adopted the recommendation of United States Magistrate Judge John H. England, III. (Docs. 35, 37, and 38 in Case No. 2:13-cv-404-WMA). Final judgment was entered on January 27, 2015, and there is no indication in the court record of any appeal.

In the 2013 action, Dixon asserted that she was disabled by lupus, carpal tunnel syndrome, and knee surgeries, which impaired her ability to type on a normal keyboard, to lift more than two pounds, and to walk and bend. The Magistrate Judge recommended summary adjudication in favor of the defendants. More specifically, he recommended dismissal of (1) her claim regarding discriminatory assignment of job duties as without a factual basis and time-barred; (2) her promotion claims as unsupported by substantial evidence and time-barred; (3) her claim regarding training as being without merit because she failed to provide evidence that she was a "qualified individual," and (4) her retaliation claim for failure to present sufficient evidence to establish a prima facie case.8 The District Judge accepted and adopted the recommendations, dismissing all federal claims with prejudice, and dismissing the state-law contract claim without prejudice. The district judge further added that Dixon's ADA retaliation claim was barred for an additional reason, citing University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), for the proposition that retaliation must be a "but-for" cause of the defendant's actions. (Doc. 37 in 2:13-cv-404-WMA).

During the litigation, and even after the court granted summary judgment in favor of the City on January 27, 2015, Dixon continued to work as an accountant for the City. In February 2015, she requested that she be considered for two positions that were open for senior accountants. On March 9, 2015, before those positions were filled, she fell while at work. Later in March 2015, while plaintiff was off work following her fall, the City hired Timothy Smith, a white, younger, less experienced male, as a Principal Accountant. In April 2015, the city promoted Stephanie George, a white, younger, less experienced female, to Senior Accountant. After the fall on March 9, 2015, Dixon did not return to work, and she did not request any type of leave. On June 30, 2015, a determination hearing was held by the City and Dixon's employment was terminated. Dixon was released by her doctor to go back to work on July 1, 2015.9

Dixon litigated this issue of her termination by filing an appeal with the Jefferson County Personnel Board. (Doc. 12-4). She received a hearing, was allowed to call witnesses and to introduce evidence, and was represented by counsel. The hearing officer determined that her termination for being absent without leave comported with the Personnel Board rules. The hearing officer's recommendation was affirmed by the Personnel Board, and she appealed that decision to the Jefferson County Circuit Court, where the panel of three circuit judges reviewed the "entire record," and heard the arguments of counsel. The state court affirmed the Personnel Board's termination of Dixon. (Doc. 12-5).

In this case, the defendants seek dismissal of all of plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, summary adjudication pursuant to Rule 56. The motion filed by the defendants relies upon the pleadings in this action, court rulings from the 2013 case in this court, and her appeal to the Personnel Board that went on to a panel of three judges from the Jefferson County Circuit Court. (Docs. 12-1 through 12-5). The plaintiff has moved to stay the motion for summary judgment, or to strike the exhibits relied upon by the defendants.10 The court takes judicial notice of the court orders, and need not convert the motion to dismiss to a motion for summary judgment because consideration of these orders does not constitute reliance upon matters outside of the pleadings. See, e.g., Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1276-77 (11th Cir. 1999).11 It is also not clear what additional discovery on this narrow question could accomplish. Given that the evidence being considered is court orders and judgments from prior litigation, it is not clear what light additional discovery may shed. It is the existence of these orders and judgments that is important, not the facts underlying them. Plaintiff has not disputed that the court orders and judgments exist and were the product of prior litigation. Accordingly, the plaintiff's motion to strike the exhibits or to stay the motion for summary judgment pending the completion of discovery (doc. 18) is DENIED.

STANDARD OF REVIEW

Because the instant motion to dismiss is premised upon the pleadings in this case and public court records, the motion is evaluated under Federal Rule of Civil Procedure 12(b)(6), because the defendants have asserted that the plaintiff fails to state a claim upon which relief may be granted. On a motion to dismiss, the court must accept as true all of the well-pleaded facts alleged in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-51, 173 L. Ed. 2d 868 (2009). Federal Rule of Civil Procedure 8(a) requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." Liberal notice pleading standards embodied in Rule 8(a) Ado not require that a plaintiff specifically plead every element of a cause of action," Roe v. Aware Woman Center for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001), or set out in precise detail the specific facts upon which she bases her claim. The complaint must only "contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Id. (quoting In re Plywood Antitrust Litigation, 655 F.2d 627, 641 (5th Cir. Unit A, Sept. 8, 1981)). The Supreme Court raised the threshold for a sufficient pleading in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1965 (2007) (rejecting the standard from Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L. Ed. 2d 80 (1957), that any "conceivable" set of facts supporting relief is sufficient to withstand a motion to dismiss). The threshold of plausibility is met where the plaintiff Apleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).

DISCUSSION

The defendants seek dismissal of all of the plaintiff's claims, asserting more than a dozen grounds for dismissal. Rather than addressing each ground as separately set out, the grounds for the motion can be addressed in groups. First, the motion seeks dismissal of all claims against John Colon, on the basis that he is not an "employer" amenable to suit under the ADEA, the ADA, or Title VII. Second, the motion seeks to interpose the doctrine of collateral estoppel as to (1) any claim that requires plaintiff to demonstrate that she was a "qualified individual" for the jobs described in the complaint because that issue was decided in the 2013 action, and (2) the determination that her employment dismissal was violative of federal law because the state court determined that it was based on a legitimate cause. Third, the defendants seek dismissal of plaintiff's age- and disability-related claims because she alleges multiple motives for the employment actions about which she complains, which, they contend, is logically inconsistent with the "but-for" standard required for ADEA and ADA claims. Fourth, the defendant argues that the plaintiff cannot assert claims arising under Section 1983 while also asserting Title VII, ADEA, and ADA claims. Fifth and finally, the defendants assert that punitive damages and damages for pain and suffering are not available under the federal statutes giving rise to the claims.12

1. Claims against John Colon

The plaintiff asserts that John Colon, in both his individual and official capacities, is liable for the discrimination alleged in the complaint. The defendants counter that Colon is not a proper defendant under the ADA, ADEA, or Title VII, because, in his individual capacity, he is not the "employer," and, in his official capacity, a suit against him is merely duplicative of the suit against the City. In response to the motion to dismiss the claims against Colon, the plaintiff asserts that he may be personally liable "where failure to act or supervise amounts to gross negligence or deliberate indifference." (Doc. 19, p. 7). Plaintiff further asserts that an individual defendant may be liable for retaliatory actions under Title II of the ADA, 42 U.S.C. §12132.

Turning first to claims against Colon in his official capacity, the clear language of Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L. Ed. 2d 114 (1985), provides that official capacity lawsuits are "only another way of pleading an action against the entity" for whom the official acts. In this case, the City of Birmingham already is a named defendant, and the claims against Colon in his official capacity are duplicative of the claims against the City. Any relief plaintiff seeks against Colon in his official capacity may be obtained through her claims against the City; accordingly, the motion to dismiss claims against Colon in his official capacity is due to be granted.

With respect to Colon's personal liability, plaintiff asserts there are circumstances under which Colon may be personally liable to her, under both her § 1983 claim (Count VI) and her ADA retaliation claim (Count V). (See Plaintiff's Response to Defendants' Motion, Doc. 19, pp. 6-7).13 Citing the Eleventh Circuit Court of Appeals case of Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816 (11th Cir. 1998), plaintiff contends that the court of appeals has recognized that public employment is covered by Title II of the ADA, which prohibits disability discrimination in relation to "participation in or. . . [denial of] the benefits of the services, programs, or activities of a public entity. . . ." Although Bledsoe has been rejected by every other circuit court of appeals to address the issue, see Reyazuddin v. Montgomery County, Maryland, 789 F.3d 407, 420 (4th Cir. 2015), and cases cited therein, it remains the law in this circuit. Thus, public employment is a "public service" which cannot be denied on the basis of disability. The question presented by this case, however, is whether the plaintiff's supervisor (Colon) can be personally liable under the ADA for employment decisions affecting the plaintiff's public employment.

The ADA consists of four parts: Subchapter I prohibits disability discrimination in employment by "covered entities," 42 U.S.C § 12112; Subchapter II prohibits the denial of "public services" on the basis of disability, 42 U.S.C. § 12132; Subchapter III prohibits disability discrimination in "public accommodations," 42 U.S.C. § 12182; and Subchapter IV, among other provisions, prohibits retaliation against "any individual" who has "opposed any act or practice made unlawful by this chapter. . . ." For purposes of Subchapter I, "[t]he term `covered entity' means `an employer, employment agency, labor organization, or joint labor-management committee.'" See 42 U.S.C. § 12111(2); Albra v. Advan, Inc., 490 F.3d 826, 830 (11th Cir. 2007). Thus, supervisors who are not "employers" can have no individual liability for employment discrimination under Subchapter I. See Albra v. Advan, Inc., 490 F.3d 826, 830 (11th Cir. 2007) ("individual defendants are not amenable to private suit for violating the anti-discrimination provision of Subchapter I of the ADA."). Colon, therefore, is not amenable to suit against him personally for any employment related decisions or failures to accommodate the plaintiff's disability.

He also cannot be personally liable for disability-related employment decisions or failures-to-accommodate involving public employment under Subchapter II. Under Bledsoe, a public employer may be liable under Subchapter II for the disability-based denial of "the benefits of the services, programs, or activities of a public entity," including public employment, or when a public employee is "subjected to [disability-based] discrimination by any such entity." 42 U.S.C. § 12132; Todd v. Carstarphen, 2017 WL 655756, at *10 (N.D. Ga. Feb. 17, 2017). But this statutory language clearly limits the scope of the remedy to the "public entity"; it does not extend potential liability to the plaintiff's supervisors or co-employees working for the public entity. Title II does not provide for individual liability where the nature of the claim is that the public employee has been denied a public benefit (such as public employment) on the basis of a disability or has denied an accommodation for a disability.

By contrast, however, the Eleventh Circuit has recognized that the very different statutory language found at § 12203 works a different result for claims of ADA retaliation. In Shotz v. City of Plantation, Fla., 344 F.3d 1161 (11th Cir. 2003), the court appeals noted that ADA retaliation claims are founded on § 12203, found in Subchapter IV of the Act, which states:

42 U.S.C. § 12203 (emphasis added). Unlike the other provisions of the ADA, which refer to "public entit[ies]" and "covered entit[ies]," the retaliation section expressly prohibits any other "person" from subjecting someone to retaliation for opposing any act or practice proscribed by the statute. The court of appeals conducted that, for retaliation actions, "an individual may be sued privately in his or her personal capacity for violating § 12203 in the public services context." Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1179-80 (11th Cir. 2003). Thus, under Shotz, the plaintiff may allege facts showing that her supervisor retaliated against her for opposing disability discrimination in public employment. In this case, plaintiff alleges that her supervisor, Colon, retaliated against her for having filed an earlier EEOC complaint and a federal lawsuit alleging disability discrimination in her employment, and that he did so by denying her a promotion she sought and by terminating her employment. Count V of the complaint adequately alleges a plausible claim of § 12203 retaliation by Colon, so that his motion to dismiss that count is due to be denied.14

In Count VI of her complaint, the plaintiff alleges pursuant to 42 U.S.C. § 1983, that both the City and Colon15 "discriminated against the plaintiff in the terms, conditions, and privileges of employment when it failed to promote Dixon, the most qualified employee with the most seniority for the two positions of Sr. Accountant or the position of Principal Accountant, and placed two younger, less qualified, non-disabled employees in those positions." (Complaint, Doc. 1, ¶ 91). As explained in more detail below, the plaintiff may not use § 1983 as an alternative to or to supplement her employment discrimination claims under the ADEA (age) and the ADA (disability). Thus, insofar as Count VI alleges a § 1983 claim against Colon, it too is due to be DISMISSED on the defendants' motion.

Accordingly, the court finds that the claims alleging employment discrimination under the ADA, the ADEA, and Title VII against Colon in both his official and individual capacities are due to be dismissed. Likewise, the claim in Count VI arising under Section 1983 in his individual capacity also is due to be dismissed. The motion to dismiss is DENIED, however, as to Count V alleging ADA retaliation by Colon.

2. Collateral Estoppel

The defendants also assert that Dixon is collaterally estopped from litigating whether she is a "qualified individual" pursuant to the ADA because that issue was determined by the federal court in the 2013 action. The plaintiff counters that, while the 2013 lawsuit involved a similar issue, the precise issue was not litigated, and that any finding by the court in 2015 that she was not "qualified" did not mean that she could not become a "qualified individual" at a later date.

The preclusive effect of a federal court judgment involving an issue of federal law is determined by federal common law, and not state law. Taylor v. Sturgell, 553 U.S. 880, 891, 128 S.Ct. 2161, 171 L. Ed. 2d 155 (2008). The federal courts recognize the general principles of res judicata that prevent a party from relitigating an issue that already has been decided by a competent court. The doctrine encompasses both claim preclusion, usually referred to as res judicata, and issue preclusion, also known as collateral estoppel. Community State Bank v. Strong, 651 F.3d 1241, 1263 (11th Cir. 2011). The defendants assert that collateral estoppel prevents Dixon from relitigating the issue of whether she is a qualified individual for purposes of the ADA. A party invoking collateral estoppel must demonstrate that (1) the issue decided in the prior case is identical to the issue asserted in the new case; (2) the issue was actually litigated in the prior case, (3) determination of the issue was essential to the court's judgment in the prior litigation; and (4) the plaintiff had a full and fair opportunity to litigate the issue. See, e.g., Christo v. Padgett, 223 F.3d 1324, 1339-40 (11th Cir. 2000).

The court is persuaded that these elements are met as to the plaintiff's "qualification" under the ADA until January 27, 2015, but not after that date. Even though the position of senior accountant was dismissed in the prior action as time-barred, it is clear from the report and recommendation in the prior case that the various positions that were filled by accountants—whether given the title of accountant, senior accountant, or principal accountant—all required manual dexterity and a minimal amount of ambulation.16 Therefore, the identical issue of the qualifications for the accounting positions at issue in this case were actually litigated in the prior case, and the determination of the qualification issue was essential to the final judgment. The parties indisputably had a full and fair opportunity to litigate the issue. Accordingly, all four elements of collateral estoppel have been met.

The court finds unpersuasive the defendants' argument that the doctrine of collateral estoppel applies after January 27, 2015, most notably for the common sense reason that the defendant City kept the plaintiff working in the position of accountant after the court deemed her to be unqualified. Even though the court determined that she was unable to perform the manual dexterity work and to do the minimal amount of walking, bending, and lifting that was necessary even for the sedentary work of accounting, she continued to perform those very functions for the City. The fact that the City continued to employ Dixon after the January 2015 decision belies its position that the plaintiff was not qualified to work after the judgment was entered in January of 2015. Certainly the City cannot have it both ways, arguing that plaintiff was not a "qualified person" to meet the minimal physical demands of her job, while allowing her to work and prove that she could perform the job. Although the plaintiff's argument is similarly tenuous—contending that, while she may have not have been qualified to do the jobs prior to January 27, 2015, she was qualified after that date, and remained qualified even after she suffered an additional injury and was unable to report to work for more than three months after March 9, 2015—it is at least possible that she could demonstrate that her condition improved after the January 27, 2015, judgment, and that she became a "qualified individual" under the ADA on that date or at some point prior to her termination. Moreover, the plaintiff argues that there are reasonable accommodations, most notably "Dragon software," that remove the need for manual dexterity in order for the plaintiff to be able to perform the data entry or "typing" necessary to the accounting positions. Dixon also argues that leave would have been a reasonable accommodation after the March 9, 2015.

To the limited extent that the plaintiff may be permitted to demonstrate that her ability to work, if given a reasonable accommodation, improved after January 27, 2015, the motion to dismiss her ADA claim on grounds of collateral estoppel is due to be denied.17 To the extent that the defendant seeks to bar the plaintiff from arguing that she was a "qualified individual" prior to January 27, 2015, however, the motion is due to be granted.

The defendants also seek to bar the plaintiff from asserting that she was terminated for a retaliatory reason, arguing that this issue was litigated in the state courts, when Dixon appealed her termination to the Jefferson County Personnel Board and the board's decision was affirmed by the Jefferson County Circuit Court.18 The plaintiff argues that the issue before the state court was not the same legal issue presented here, because the issue before the state court was "whether being absent while not being on approved leave was AWOL i.e. a violation of a [Personnel Board] rule." (Doc. 19, p. 17).

The application of the doctrine of collateral estoppel to a claim decided by a state court is governed by the applicable state law. Community State Bank, 651 F.3d at 1263. The Eleventh Circuit Court of Appeals has stated that "[w]hen a state agency, acting in a judicial capacity, resolves disputed issues of fact properly before it that the parties have had an adequate opportunity to litigate, federal courts must give the agency's fact finding the same preclusive effect to which it would be entitled in the State's court." Travers v. Jones, 323 F.3d 1294, 1296 (11th Cir. 2003) (citing University of Tennessee v. Elliott, 478 U.S. 788, 799, 106 S.Ct. 3220, 92 L. Ed. 2d 635 (1986)). In Alabama, the elements of collateral estoppel require: (1) identity of the parties; (2) identity of issue to be estopped; (3) an opportunity to litigate the issue; (4) that the issue was actually litigated and determined; and (5) that the determination of the issue was necessary to the decision. See Petty v. United Plating, Inc., 2012 WL 2047532 at *11-14 (N.D. Ala. May 31, 2012), and cases cited therein.

The preclusive effect of a state court's determination of an administrative board's decision in an employment case was examined in Ross v. Renaissance Montgomery Hotel & Spa, 2012 WL 1032618 (M.D. Ala. March 27, 2012). In Ross, a hotel employee was fired for failing to perform an assigned task, and he appealed a claim for unemployment benefits to the Alabama Department of Industrial Relations, which found that he had been fired for misconduct. The agency's determination was appealed to the state circuit court, which affirmed. The employee then filed a claim in federal court asserting age discrimination under the ADEA, arguing that there were other reasons for his firing. Ross, 2012 WL 1032618 at * 1. That court discussed whether the decision that he was fired for misconduct precluded his claim under the ADEA:

Ross, 2012 WL 1032618 at *2-3.

In the instant case, as in Ross, the first two requirements are met. Additionally, the issue is the same because both this case and the case before the Jefferson County Personnel Board turn upon a determination of the reason for Dixon's termination. Dixon had counsel present at her hearing and the Personnel Board hearing officer specifically noted that Dixon had "not shown that [the City] did not have a legitimate reason for terminating her, or that the punishment imposed was too severe." The hearing officer further found that Dixon failed to show that "any other employee engaged in the same misconduct but was treated more favorably." (Doc. 12-4, p. 18). It is clear from the hearing officer's recommendation that Dixon had a full and fair opportunity to assert that she was fired for some reason other than her failure to comply with the rule regarding leave, and that she did not present evidence that there was another reason for the City's personnel action. Accordingly, the reason for Dixon's termination has been litigated in the state court, and the reason was found to be a legitimate, non-retaliatory reason. This, of course, does not dispose of her Count V allegation that she was also denied promotions in retaliation for having opposed disability discrimination. The state court action litigated only the reasons for her termination, and it did not address the reasons she was not promoted. Therefore, plaintiff's retaliation claim alleging a retaliatory termination is barred by the doctrine of collateral estoppel under Alabama law, but not her claims of retaliatory denial of promotions, which remain pending. The defendants' motion to dismiss her retaliation claim in Count V is due to be granted in part (as to retaliatory termination claim) and denied in part (as to retaliatory denial of promotions), as discussed above.

3. Multiple Motives

The defendants, citing Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 2351, 174 L. Ed. 2d 119 (2009), argue that the plaintiff cannot prevail on age, race, and disability discrimination claims simultaneously. They assert that the "but-for" standard of proof required for age discrimination and disability discrimination claims makes it logically inconsistent to assert that multiple motives were involved in employment decisions. The Eleventh Circuit Court of Appeals recently made clear, however, that the pleading of alternative and inconsistent claims is permitted. Karen Savage v. Secure First Credit Union, 2016 WL 2997171 (May 25, 2016); citing United Techs. Corp. v. Mazer, 556 F.3d 1260, 1273 (11th Cir. 2009). The court is persuaded by precedent that the "but for" element in ADEA actions does not prohibit a plaintiff from pleading alternative theories of liability. At the pleading stage of a case, Rule 8(d)(3) of the Federal Rules of Civil Procedure plainly provides that a "party may state as many separate claims or defenses as it has, regardless of consistency." (Emphasis added). Thus, simply because an ADEA claim and a race-, disability- or age-based discrimination claim ultimately may be inconsistent with one another because of the "but for" requirement of an ADEA claim, this does not mean that a plaintiff must choose between them at the pleading stage of the case. The plaintiff may plead them alternatively and then determine through discovery which is better supported by the evidence and consistent with the true motivation for the employment decisions taken against her. At this stage, therefore, the defendants are not entitled to dismissal of any of the claims based on the "but-for" requirement of the ADEA. Accordingly, the motion to dismiss on this premise is due to be denied.

4. Section 1983

The defendants assert that plaintiff's Section 1983 claims alleging age and disability discrimination are due to be dismissed because such claims are foreclosed by her ADA and ADEA claims, based upon the Supreme Court's holding in Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 20 (1980) (holding that when remedial schemes provided by federal statutes are "sufficiently comprehensive," they demonstrate congressional intent to preclude remedy pursuant to Section 1983). The plaintiff's brief in opposition to the motion does not address this argument.

The Eleventh Circuit Court of Appeals has determined that the remedial framework of the ADA is sufficiently comprehensive to foreclose an action under Section 1983 based solely on rights created by the ADA. Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1531 (11th Cir. 1997). A claim under § 1983 cannot be pleaded as an alternative to a claim under the ADA. The appellate court has not, however, extended this rationale to claims raised under the ADEA, even though other circuits have imposed that limitation. See McNa v. Communications Inter-Local Agency, 551 F.Supp.2d 1343, 1348-49 (M.D. Fla. 2008) (citing and following cases from Fifth and Fourth Circuits extending that rationale to the ADEA); but see Williams v. Alabama Dept. of Corrections, 2014 WL 636977 (N.D. Ala. 2014) (stating that the Eleventh Circuit Court of Appeals should be left to decide whether to apply the bar to claims arising under the Equal Protection Clause).19 As many of these cases have observed:

Committe v. Bd. of Trustees of the Florida State Univ., 016 WL 4942044, at *4 (N.D. Fla. Aug. 26, 2016), report and recommendation adopted sub nom. Bruce Committe v. Bd. of Trustees of the Florida State Univ., 2016 WL 4942015 (N.D. Fla. Sept. 15, 2016), appeal dismissed sub nom. Bruce Committe v. Board of Trustees of the Florida State Univ., et al., (11th Cir. Nov. 17, 2016). This court agrees that because the ADEA has a comprehensive remedial scheme, § 1983 cannot be used to supplement an age-discrimination claim asserted under the ADEA. Accordingly, the motion to dismiss any claims under Section 1983 that assert discrimination or retaliation based on age or disability is due to be granted.

5. Punitive Damages

The Defendants rely upon City of Newport v. Fact Concerts, Inc., 453 U.S.247, 271, 101 S.Ct. 2748, 69 L. Ed. 2d 616 (1981), for their contention that the City is not liable for any punitive damages. The plaintiff concedes, arguing only that Colon, in his individual capacity, may be liable for punitive damages under Section 1983. (Doc. 19, p. 19). Defendants have not sought to dismiss any claims for damages against Colon. The motion also, however, seeks to dismiss the claims for damages for pain and suffering against the municipality, citing Goldstein v. Manhattan Industries, Ind., 758 F.2d 1435, 1446 (11th Cir. 1985). Plaintiff argues that the defendant cites no authority for the dismissal of claims for damages for pain and suffering arising from Title VII, the ADA, or Section 1983. The case cited does address only claims arising under the ADEA, and plaintiff does not appear to dispute that pain and suffering is not a recoverable damage under the ADEA. Accordingly, the motion is due to be granted as to any punitive damage claims against the City, and as to damages for pain and suffering that arise from plaintiff's ADEA claim.

CONCLUSION

Based upon the foregoing, the motion to dismiss filed by the defendants (doc. 11) is due to be granted in part and denied in part. The motion is due to be GRANTED, as follows:

1. All claims against John Colon, in both his individual and official capacities, filed pursuant to the ADEA and Title VII, and all claims of employment discrimination under the ADA, with the exception of the plaintiff's ADA retaliation claim based on post-January 2015 failure to promote the plaintiff, are due to be dismissed. To the extent that Count V alleges that Colon failed to promote plaintiff to open positions after January 27, 2015, in retaliation for her earlier complaints of disability discrimination, it remains pending.

2. All claims of disability-related employment discrimination under the ADA based on events occurring prior to January 27, 2015, are precluded by collateral estoppel, and are dismissed.

3. Plaintiff's claim of retaliatory termination of employment is precluded by collateral estoppel, and is dismissed.

4. All claims for punitive damages against the City of Birmingham are dismissed.

5. All claims under 42 U.S.C. § 1983 for employment-related discrimination based on age or disability are dismissed. Section 1983 claims for race-based employment discrimination remain pending.

The motion to dismiss otherwise is due to be denied.20 In addition, the motion for a more definite statement (doc. 7) is due to be granted to the extent that the plaintiff must more clearly set forth the factual and legal basis of Count IV, and the motion for a more definite statement is otherwise due to be denied.

A separate order will be entered dismissing the claims as described herein.