R. DAVID PROCTOR, District Judge.
This case is before the court on Defendant's Motion to Dismiss Plaintiff's Amended Complaint. (Doc. # 18). The Motion has been fully briefed (Docs. # 23, 26) and is ripe for decision. After careful review, and for the reasons explained below, the court concludes that Defendant's Motion to Dismiss is due to be granted in part and denied in part.
Plaintiff, Terrance L. Carr, Jr., claims that Defendant discriminated against him based on his (1) race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") and 42 U.S.C. § 1981; (2) age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA"); and (3) disability in violation of the Americas with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq ("ADA"). In support of these claims, Plaintiff alleges the following facts in his Amended Complaint.
Plaintiff, a 52-year-old African-American male, began working for Defendant nearly thirty years ago (in September 1991) as a Distribution Maintenance Worker. (Doc. # 17 at ¶ 8). Plaintiff's degrees and certifications include a Master of Science in Management, Bachelor of Business Administration, Associate in Applied Science Degree in Construction Technology, Architectural Civil Drafting Certificate, Water Grade IV Certificate, Beginning Welding Certificate, Certified Master Plumber, and Master Gas Fitter. (Id. at ¶ 28). He currently works for Defendant as the Mulberry Intake Supervisor. (Id. at ¶ 8).
Plaintiff's discrimination claims stem from five employment opportunities that Defendant awarded to other employees whom Plaintiff contends are less qualified. In particular, Plaintiff alleges:
On May 24, 2018, Plaintiff filed what appears to be a timely Charge of Discrimination against Defendant with the Equal Employment Opportunity Commission ("EEOC"). (Doc. # 17-1). Plaintiff's EEOC charge asserts that he was subjected to discrimination based on race, age, and disability. (Id.). He indicated that the alleged discrimination began on December 1, 2017 and is ongoing. (Id.).
On June 4, 2018, the EEOC issued Plaintiff a Dismissal and Notice of Rights. (Doc. # 17-2). Although Plaintiff does not indicate when he received this letter, Federal Rule of Civil Procedure 6(d) creates a presumption that receipt occurs three days after the mailing date. Fed. R. Civ. P. 6(d). Thus, Plaintiff is presumed to have received the Dismissal and Notice of Rights on June 7, 2018. Plaintiff filed his original pro se Complaint initiating this action on August 31, 2018 (Doc. # 1), within ninety (90) days of the date he is presumed to have received the right to sue notice.
The Federal Rules of Civil Procedure require that a complaint provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). However, the complaint must include enough facts "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain nothing more than "a formulaic recitation of the elements of a cause of action" do not meet Rule 8 standards, nor do pleadings suffice that are based merely upon "labels and conclusions" or "naked assertion[s]" without supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6) motion to dismiss, courts view the allegations in the complaint in the light most favorable to the non-moving party. Watts v. Fla. International Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).
To survive a motion to dismiss, a complaint must "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads 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, 678 (2009). Although "[t]he plausibility standard is not akin to a `probability requirement,'" the complaint must demonstrate "more than a sheer possibility that a defendant has acted unlawfully." Id. A plausible claim for relief requires "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence" to support the claim. Twombly, 550 U.S. at 556.
In considering a motion to dismiss, a court should "1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, `assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.'" Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App'x 136, 138 (11th Cir. 2011) (unpublished) (quoting Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)). That task is context specific and, to survive the motion, the allegations must permit the court based on its "judicial experience and common sense . . . to infer more than the mere possibility of misconduct." Iqbal, 556 U.S. at 679. If the court determines that well-pleaded facts, accepted as true, do not state a claim that is plausible, the claims are due to be dismissed. Twombly, 550 U.S. at 570.
In its Motion to Dismiss, Defendant seeks dismissal of Plaintiff's claims based on the following grounds: (1) the Water Works Board cannot be subject to punitive damages since it is a governmental entity (Docs. # 18 at 1-2; 26 at 1-3); (2) Plaintiff has failed to sufficiently plead facts to state a claim for disability, race, or age discrimination (Doc. # 18 at 2-5); and (3) any potential retaliation claim must be dismissed because neither the Amended Complaint nor the EEOC charge contain allegations supporting such a claim (Id. at 5-8). The court addresses each argument in turn and concludes that Defendant's Motion is due to be granted in part and denied in part.
In his pleadings, Plaintiff requests punitive damages in association with his race discrimination claim under Title VII (Doc. # 17 at 6) and his disability discrimination claim under the ADA (Id. at 10). Defendant argues that punitive damages are not recoverable for any of Plaintiff's claims because the Water Works Board is a governmental entity. (Docs. # 18 at 1-2; 26 at 1-3). In his response brief, Plaintiff refuses to concede his claims for punitive damages because he "does not have sufficient knowledge of the Defendant's corporate structure to determine whether punitive damages are appropriate." (Doc. # 23 at 5).
The Water Works Board "is a public corporation created under Alabama Code § 11-50-230, et seq." Scruggs v. Water Works Bd. of the City of Birmingham, 2014 WL 5325750, at *6 (N.D. Ala. Oct. 20, 2014) (citing Water Works and Sewer Bd. of City of Birmingham v. Shelby Cnty., 624 So.2d 1047, 1048 (Ala. 1993)). Due to its status as a governmental entity, punitive damages are not available under any of Plaintiff's claims. See 42 U.S.C. § 1981a(b)(1) (2012) ("A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision")); see also Scruggs, 2014 WL 5325750, at *6 ("Punitive damages are permitted for Title VII violations, but only against non-governmental entities."); see also Reeves v. Coosa Valley Youth Servs., 2011 WL 13285086, at *3 (N.D. Ala. Sept. 20, 2011) ("[P]unitive damages are not recoverable against a governmental entity under § 1983 and/or § 1981"); see also Smith v. Vestavia Hills Bd. of Educ., 218 F.Supp.3d 1285, 1291 (N.D. Ala. 2016) ("Punitive damages are not available under the ADEA."); see also Green v. City of Birmingham, 2012 WL 13024719, at *9 (N.D. Ala. March 5, 2012) ("[T]he plain statutory language clearly prohibits recovery of punitive damages against [a governmental entity] for alleged ADA violations"). For these reasons, Plaintiff's claims for punitive damages are due to be dismissed with prejudice.
Defendant argues that Plaintiff's disability discrimination claim under the ADA should be dismissed because "there are no supporting factual allegations other than a single vague and conclusory allegation that [Plaintiff] was discriminated against based on a disability." (Doc. # 18 at 2). The court agrees that Plaintiff has failed to allege sufficient factual matter supporting his claim for disability discrimination. However, rather than dismiss this claim, the court will allow Plaintiff one last opportunity to replead.
The ADA prohibits "discriminat[ion] against a qualified individual on the basis of a disability in regard to job application procedures; the hiring, advancement, or discharge of employees; employee compensation; job training; and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). To state a claim for disability discrimination, a plaintiff must allege that "(1) he has a disability; (2) he is qualified to serve in his position, with or without some reasonable accommodation by the employer, despite his disability; and (3) he has suffered an adverse employment action because of his disability (i.e., that he has suffered employment discrimination)." Lewis v. Guy, 2013 WL 5289957, at *3 (N.D. Ala. Sept. 18, 2013) (quoting Doe v. Dekalb Cnty. Sch. Dist., 145 F.3d 1441, 1445 (11th Cir. 1998)) (internal quotations omitted). The ADA defines a disability as "a physical or mental impairment that substantially limits one or more major life activities of such individual." 42 U.S.C. § 12102(1)(A).
Here, Plaintiff's allegations fall far short of meeting these requirements. The only allegations related to a disability claim appear in Count Four of the Amended Complaint, where Plaintiff flatly states that "Defendant subjected the Plaintiff to discrimination because of his disability which is renal failure," and "Plaintiff was subjected to unequal treatment regarding his employment because of disabilities." (Doc. # 17 at ¶¶ 51-52). First, Plaintiff has failed to describe how his disability substantially limits a major life activity. Indeed, "the mere existence of a physical impairment does not [necessarily] constitute a disability under the ADA." Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1328 (11th. Cir. 1998).
Plaintiff properly asserts his claim of race discrimination under Section 1981, "by and through 42 U.S.C. § 1983." (Doc. # 17 at 7). Section 1981 "protects people, and some entities, from racial discrimination during the making of contracts." Webster v. Fulton County, Ga., 283 F.3d 1254, 1256 (11th Cir. 2002). It is well-settled within the Eleventh Circuit that Section 1981 "does not provide an implicit cause of action against state actors." Bryant v. Jones, 575 F.3d 1281, 1288 n. 1 (11th Cir. 2009) (citing Butts v. County of Volusia, 222 F.3d 391, 394-95 (11th Cir. 2000)). Instead, Section 1983 "constitutes the exclusive federal remedy for violation by state actors of the rights guaranteed under § 1981." Id. Thus, "[a] plaintiff bringing a section 1981 claim must show a custom or policy within the meaning of Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), because section 1981 can provide no broader remedy against a state actor than section 1983." Isom v. Birmingham Water Works Bd., 2017 WL 2984865, at *2, n. 2 (N.D. Ala. July 13, 2017). "For a plaintiff to demonstrate a policy or custom, it is generally necessary to show a persistent and wide-spread practice." Minnifield v. City of Birmingham, 325 F.R.D. 450, 466 (N.D. Ala. 2018) (citing McDowell v. Brown, 392 F.3d 1283, 1290 (11th Cir. 2004)) (internal quotations omitted).
Defendant argues that Plaintiff has failed to allege that any custom or practice of the Water Works Board caused his claimed injuries because he has only pointed to instances involving himself. (Doc. # 18 at 3). Plaintiff counters that he has sufficiently pled a "custom or policy" through his allegation that he was subjected to "systemic employment discrimination on the basis of race." (Docs. # 23 at 9; 17 at ¶ 1). Although referencing an ingrained system of employment discrimination is a good start, the court finds that Plaintiff's allegations — involving only Plaintiff — fall short of identifying a "persistent and wide-spread practice" of racial discrimination. Consequently, the court denies Defendant's Motion to Dismiss, but grants Plaintiff a final opportunity to provide factual allegations which support his Section 1981 race discrimination claim.
Defendant challenges Plaintiff's Title VII race discrimination claims on two grounds. First, Defendant argues that Plaintiff's failure to promote claims based on the District Supervisor of Inspections and Assistant Manager of Distribution positions should be dismissed because Plaintiff did not apply for these jobs. (Doc. # 18 at 3-4). Second, Defendant contends that Plaintiff's allegations related to the Superintendent of Transmission position are insufficient to state a claim of discriminatory failure to promote because he has not alleged "any information as to what the job requirements were for this position or what qualifications, other than his education, the person selected had." (Id. at 4). The court disagrees with both arguments and finds that Plaintiff has adequately pled a claim of race discrimination under Title VII.
Defendant is correct that generally, in order to establish a prima facie case of discrimination, a plaintiff must show that (1) he belongs to a protected class; (2) he was qualified for and applied for the position in question; (3) he was rejected despite his qualifications; and (4) a person outside the protected class was chosen for the position. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 (11th Cir. 2005) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). However, "where an employer does not formally announce a position, but rather uses informal and subjective procedures to identify a candidate, a plaintiff need not show under the second prong that he applied for the position—only that the employer had some reason to consider him for the post." Id. (citing Jones v. Firestone Tire & Rubber Co., 977 F.2d 527, 533 (11th Cir. 1992)). Plaintiff has alleged that he is an African-American male with several relevant degrees and certifications and that Defendant either (1) awarded the jobs to white males that Plaintiff describes as less qualified to prevent him from applying or (2) awarded the job to someone who was of a different race and less qualified.
Plaintiff claims that Defendant denied his application for the Distribution Supervisor Chemical Plant position due to his age, and instead, chose a less qualified 35-year-old African-American male for the job.
To plead a discrimination claim under the ADEA, Plaintiff must allege "(1) that he was a member of the protected group of persons between the ages of forty and seventy; (2) that he was subject to adverse employment action; (3) that a substantially younger person filled the position that he sought or from which he was discharged; and (4) that he was qualified to do the job for which he was rejected." Smith v. AI Signal Research Inc., 2013 WL 2338612, at *2 (N.D. Ala. May 28, 2013) (quoting Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998)).
Here, Plaintiff has alleged that (1) he was 51 or 52 years of age at all relevant times; (2) he was denied the position on the basis of his age; (3) a less qualified 35-year-old male was awarded the position; and (4) he was qualified for the position based on his degrees and certifications listed in the Statement of Facts. (Doc. # 17 at ¶¶ 15, 28, 44-47). These allegations provide Defendant with sufficient notice of the contours of Plaintiff's claim. Accordingly, Plaintiff has adequately pled his claim to advance to discovery.
Plaintiff also alleges that he "complained to Human Resources on numerous occasions and the offending supervisors have and continue to retaliate against him." (Id. ¶ 9). However, Plaintiff has not alleged a separate claim for retaliation in his Amended Complaint. Out of an abundance of caution, Defendant moves to dismiss any potential retaliation claim Plaintiff may be asserting. (Doc. # 18 at 5-8). Without more detail, Plaintiff's allegations are insufficient to put Defendant on notice of any retaliation claim. Plaintiff has not offered any information as to what protected conduct he engaged in, what form the retaliation took, when (in his 18-year career with the Water Works Board) the retaliation took place, and/or why there is a nexus between any protected conduct and adverse action. Accordingly, any retaliation claim is due to be dismissed without prejudice and, if Plaintiff intends to pursue such a claim, he must adequately plead it.
For the reasons stated above, Defendant's Motion to Dismiss is due to be granted in part and denied in part without prejudice. The court directs that, to the extent he wishes to pursue his disability discrimination and Section 1981 race discrimination claims, Plaintiff must file an amended complaint on or before May 10, 2019. An Order consistent with this Memorandum Opinion will be entered.
Furthermore, there is no administrative exhaustion requirement for a retaliation claim brought under Section 1981. See Brune v. Wal-Mart Stores E. LP, 2017 WL 4621790, at *2 (N.D. Ala. Oct. 16, 2017) (noting that a plaintiff must exhaust administrative remedies by filing a charge of discrimination with the EEOC before filing a complaint); see Harris v. Bd. of Trustees Univ. of Alabama, 846 F.Supp.2d 1223, 1240 (N.D. Ala. 2012) (noting that a Section 1981 retaliation claim is not subject to any administrative exhaustion of remedies requirement). Because it is unclear whether Plaintiff intended to assert a retaliation claim, much less whether he intended to bring the claim under Section 1981, the court declines to weigh in on whether the claim is administratively barred.
