United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE, Chief District Judge.
This matter is before the Court on three motions to dismiss filed by the defendants. (Docs. 10, 12, 14). The parties have submitted briefs in support of their respective positions, (Docs. 11, 13, 15, 17-19), and the motions are ripe for resolution.
According to the complaint, (Doc. 1), the plaintiff is an employee of the entity defendant ("the School System"). On or about May 23, 2013, her principal notified her that she was being placed on a mandatory transfer. The plaintiff contested the transfer and received a hearing before the School System's Board ("the Board") on July 25, 2013. At the hearing, the plaintiff complained that the transfer was in retaliation for prior complaints of discrimination at her school. At the hearing, the plaintiff expressed additional concerns regarding discriminatory practices at her school. On July 25, 2013, the Board approved the plaintiff's transfer. All transfer offers and options that had been extended to the plaintiff before the hearing were withdrawn, and the plaintiff was not considered for any of numerous posted para-professional positions available between July 26 and September 16, 2013. The plaintiff's transfer resulted in a constructive demotion.
The plaintiff's single claim is for retaliation in violation of Title VII. The defendants are the School System, its superintendent, and the members of the Board.
I. Entity Defendant.
"A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred...." 42 U.S.C. § 2000e-5(e)(1). "A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed.... [I]t is merely an unfortunate event in history which has no present legal consequences." United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977). "Failure to file a timely complaint with the EEOC mandates the dismissal of the Title VII suit." Wilson v. Bailey, 934 F.2d 301, 304 n.1 (11th Cir. 1991). The School System's sole argument is that the plaintiff's charge was not timely filed. (Doc. 10 at 1; Doc. 11 at 4).
The complaint alleges that the plaintiff filed her charge of discrimination on or about December 27, 2013, (Doc. 1 at 3), and the School System acknowledges that the charge was filed "on or after December 27, 2013." (Doc. 11 at 4). The School System argues that the 180-day period began to run on May 23, 2013, when the plaintiff's principal notified her that she was being placed on a mandatory transfer. (Doc. 11 at 4). Because December 27 is more than 180 days after May 23, the School System concludes that the plaintiff's lawsuit is time-barred.
As the School System's own authority states, "[t]he 180-day filing period begins to run from [a] final decision to [transfer] the employee." Wright v. AmSouth Bancorporation, 320 F.3d 1198, 1201 (11th Cir. 2003) (emphasis added, internal quotes omitted). The School System assumes that a final decision had been made as of May 23, 2013, but the plaintiff responds that, under the School System's rules, a transfer is not a final decision until either the employee accepts the transfer or the Board approves the transfer. (Doc. 17 at 2). The School System does not respond to this argument and does not explain how the four corners of the complaint negate the plaintiff's position so as to entitle the School System to dismissal under Rule 12(b)(6). The Court declines to consider that possibility on its own.
In addition, the complaint alleges additional acts of retaliation following the July 25 hearing, all of which occurred less than 180 days before the charge was filed. As to those portions of the plaintiff's retaliation claim, any untimeliness argument is plainly untenable.
In its reply brief, the School System appears to suggest that the complaint's allegations of retaliation after July 25 fall outside the scope of her charge and cannot be maintained in this action. (Doc. 20 at 1-2). "District courts, including this one, ordinarily do not consider arguments raised for the first time on reply." Gross-Jones v. Mercy Medical, 874 F.Supp.2d 1319, 1330 n.8 (S.D. Ala. 2012) (citing cases and explaining the underlying rationale). The School System identifies no reason to depart from this well-established rule, and the Court declines to do so. However, the Court notes that the School System's brief treatment of the issue would be inadequate to support dismissal even had the argument been timely raised.
Superintendent Martha Peek is sued in her official capacity. She argues that, since the plaintiff has sued her employer (the School System) directly, her official-capacity suit against the ...