United States District Court, N.D. Alabama, Southern Division
E. Ott, Chief United States Magistrate Judge
employment discrimination action, plaintiff Lucille Yvette
Arrington, acting pro se, has sued Alabama Power
Company and The Southern Company (collectively, the
“Defendants”) for alleged violations of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. (“Title VII”), and the Americans
with Disabilities Act, 42 U.S.C. § 12101 et
seq. (“ADA”). The Defendants have filed a
motion to dismiss the complaint for failure to state a claim
upon which relief can be granted. (Doc. 14). They have also
filed a motion to stay all discovery pending the Court's
ruling on their motion to dismiss. (Doc. 25). Arrington
opposes both motions. (Docs. 17 & 27). For the reasons
that follow, the court will grant the Defendants' motion
to dismiss but will allow Arrington an opportunity to replead
her claims against Alabama Power in an amended complaint. The
Court will also grant the Defendants' motion to stay
12(b)(6) of the Federal Rules of Civil Procedure authorizes a
motion to dismiss an action on the ground that the
allegations in the complaint fail to state a claim upon which
relief can be granted. On such a motion, the
“‘issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims.'” Little
v. City of North Miami, 805 F.2d 962, 965 (11th Cir.
1986) (quoting Scheur v. Rhodes, 416 U.S. 232, 236
(1974)). In considering a motion to dismiss, the court
assumes the factual allegations in the complaint are true and
gives the plaintiff the benefit of all reasonable factual
inferences. Hazewood v. Foundation Financial Group,
LLC, 551 F.3d 1223, 1224 (11th Cir. 2008) (per
12(b)(6) is read in light of Rule 8(a)(2), which requires
“a short and plain statement of the claim showing that
the pleader is entitled to relief, ” in order to
“‘give the defendant fair notice of what the . .
. claim is and the grounds upon which it rests.'”
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations,
a plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550
U.S. at 555 (citations, brackets, and internal quotation
marks omitted). “Factual allegations must be enough to
raise a right to relief above the speculative level . . .
.” Id. Thus, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face, '”
i.e., its “factual content . . . 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) (citations omitted).
“The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 557).
is a former employee of Alabama Power. She initiated this
action by completing and filing a form “Complaint for a
Civil Case” against Alabama Power and its parent
company, The Southern Company. (Doc. 1). In the form
complaint, Arrington alleges that the Defendants
“violated [her] Civil Rights under Title VII of the
Civil Rights Act of 1964 and the Americans with Disabilities
Act of 1990.” (Doc. 1 at 2). Attached to the form
complaint (along with other attachments) is a six-paragraph
narrative complaint setting forth the facts on which her
claims are based. (Doc. 1-1 at 1-3).
narrative complaint, Arrington first explains that she filed
her case “because of [her] disability discrimination
and retaliation based on complaining of disability
discrimination which are against the Federal Retaliation and
Whistle-Blowing laws.” (Doc. 1-1 at 1). She then
alleges that the retaliation began in September 2013 when she
was employed as a Supervisor in Alabama Power's Metro
Central Business office and reported to her
“leadership” that another employee possessed
pornographic materials in the workplace. She was advised to
“let the situation go” because management was
handling it. (Doc. 1-1 at ¶ 1).
was promoted at the end of 2013 and was assigned to an
Alabama Power office in Columbiana, Alabama. In February
2014, Arrington began complaining about a “mildew
odor” in the office. In response to her complaints,
Alabama Power replaced the air filters and placed air
fresheners in the ducts. In August 2014, it was determined
that there was “toxic mold” throughout the duct
work, and all of the duct work, ceiling tiles, and walls had
to be removed. Arrington became ill in September 2014 and was
diagnosed with asthma caused by her “daily toxic mold
exposure.” (Id. at ¶ 2).
next allegations are somewhat confusing and hard to follow.
As best as the court can determine, in late 2014 Alabama
Power offered to transfer Arrington to a larger office in an
effort to accommodate her “toxic mold exposure
illnesses.” She was told that she would be an Assistant
Manager (rather than a Supervisor) of the larger office but
would not receive a pay increase. According to Arrington,
Alabama Power rescinded the offer when she asked questions
about the “rights” she would be giving up with
the new position. Instead of transferring Arrington to the
larger office, Alabama Power transferred her to its corporate
headquarters in Birmingham, where she was given the position
of Senior Information Analyst. According to Arrington, the
transfer “negatively impacted” her quality of
life because her commute to work was longer. After being
transferred, Arrington was informed that she had one year to
find a new position. Although she applied for multiple
internal and external positions, her efforts to find a new
position were unsuccessful. (Id. at ¶ 3).
next alleges that Alabama Power attempted to force her to
file a fraudulent Sexual Harassment charge against another
employee. She refused to file the charge and
reported the matter to an Alabama Power Vice President.
According to Arrington, she was then subjected to a
“hostile atmosphere of harassment, ” which caused
her emotional distress and aggravated her asthma.
(Id. at ¶ 4).
about January 15, 2016, the “Supervisor and HR Business
Partner” in the Birmingham corporate office informed
Arrington that she was being demoted and would be transferred
to the training department effective January 23, 2016.
Arrington became ill upon learning this news, left work, and
could not return to work for three days. (Id. at
first being diagnosed with asthma in September 2014,
Arrington had been taking annual leave under the Family and
Medical Leave Act of 1993 (“FMLA”). (Id.
at ¶ 4). On or about January 19, 2016, Arrington
submitted a request for a personal leave of absence from
work, but was advised that employees on FMLA leave were not
eligible for personal leave, which caused her more emotional
distress. She was referred to a Disability Management
representative, who encouraged her to request a medical leave
of absence. According to Arrington, this “intentional
infliction of emotional distress” caused her to have an
asthma attack and led her to resign from her employment on
January 20, 2016. She considers her resignation to be a
“forced constructive termination.” (Id.
at ¶ 6).
to bringing this action, Arrington filed two Charges of
Discrimination with the Equal Employment Opportunity
Commission (“EEOC”). She filed her first EEOC
charge on January 19, 2016, and identified Alabama Power as
her employer. (Doc. 1-1 at 17). She checked the box for
discrimination based on “retaliation” and stated
that she believed she was being demoted “in retaliation
for complaining of a hostile work environment and because
[she] reported toxic mold.” (Id. at 17-18).
Arrington filed her second EEOC charge on February 1, 2016,
and again identified Alabama Power as her employer.
(Id. at 15). She checked the boxes for
discrimination based on “retaliation” and
“disability” and alleged that she had been