United States District Court, N.D. Alabama, Middle Division
MEMORANDUM OPINION AND ORDER 
G. CORNELIUS U.S. MAGISTRATE JUDGE
employment discrimination case was filed by Sammy Edward
Simpson, II, proceeding pro se. On August 12, 2016,
the undersigned directed Simpson to file a second amended
complaint. (Doc. 30). On August 12, 2016, Simpson filed his
second amended complaint, which is now the operative
complaint. (Doc. 32). Simpson named as defendants the State
of Alabama Department of Human Resources (“Alabama
DHR”), DeKalb County Department of Human Resources
(“DeKalb DHR”), Etowah County Department of Human
Resources (“Etowah DHR”), Jefferson County
Department of Human Resources (“Jefferson DHR”),
Marshall County Department of Human Resources
(“Marshall DHR”), St. Clair County Department of
Human Resources (“St. Clair DHR”), Denise Raines
(director of DeKalb DHR), Jane Bonds (a DeKalb DHR
supervisor), and Cherri Pilkington (director of St. Clair
DHR). (Id.). The defendants have moved to dismiss
the second amended complaint, and Simpson has responded.
(Docs. 35, 38). For the reasons discussed below, pursuant to
Rules 12(b)(1) and (6) of the Federal Rules of Civil
Procedure, the defendants' motion to dismiss (Doc.
35) is denied in part and granted in part.
12(b)(1) provides for dismissal of actions over which a
federal district court has no subject matter jurisdiction,
while Rule 12(b)(6) provides for dismissal of complaints that
fail to state a claim upon which relief may be granted.
Fed.R.Civ.P. 12(b)(1) & (6). “Because the Eleventh
Amendment represents a constitutional limitation on the
federal judicial power established in Article III, federal
courts lack jurisdiction to entertain claims that are barred
by the Eleventh Amendment.” McClendon v. Georgia
Dep't of Cmty. Health, 261 F.3d 1252, 1256 (11th
Cir. 2001) (internal citation omitted); see also Seminole
Tribe of Florida v. State of Florida, 11 F.3d 1016, 1021
(11th Cir. 1994) (Where no exception applies, “the
Eleventh Amendment serves as a jurisdictional bar to the
12(b)(6) must be considered against the backdrop of Rule
8(a)(2) of the Federal Rules of Civil Procedure.
Rule 8(a)(2) “requires only ‘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.'” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). Rule 8 “does not
require ‘detailed factual allegations, ' but it
demands more than an unadorned, the
defendant-unlawfully-harmed me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (quoting
Twombly, 550 U.S. at 555). “[L]abels and
conclusions, ” “a formulaic recitation of the
elements of a cause of action, ” and “naked
assertion[s] devoid of further factual enhancement” are
insufficient. Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555, 557) (internal quotation
survive a motion to dismiss for failure to state a claim upon
which relief may be granted brought pursuant to Rule
12(b)(6), “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Iqbal,
556 U.S. at 678 (quoting 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.” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 556). “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.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556).
because Simpson proceeds pro se, his complaint will
be construed liberally. See Hughes v. Lott, 350 F.3d
1157, 1160 (11th Cir. 2003) (“Pro se pleadings
are held to a less stringent standard than pleadings drafted
by attorneys and will, therefore, be liberally
is a licensed social worker with a bachelor's degree in
social work from Jacksonville State University and fifteen
graduate hours in special education. (Doc. 32 at ¶ 34).
He is a member of the Echota Cherokee Tribe, has been
diagnosed with bi-polar disorder, and has attention deficit
disorder and a learning disability. (Id. at ¶
35). He claims the defendants have knowledge of his race and
disabilities and have not hired him for a social worker
position on account of his race and disabilities and in
retaliation for multiple lawsuits he has brought against them
and of which they are aware. (Id. at ¶¶
149-57). According to Simpson, he has been forced to sue the
defendants multiple times to make information regarding who
the defendants have hired public. (Id. at
¶¶ 8, 41). In support of his claims, Simpson alleges
defendants have knowledge of Simpson's disabilities and
race through his previous lawsuits and other documentation.
(Id. at ¶ 8). One of Simpson's previous
lawsuits concerned the termination of his employment with
Marshall DHR in 2004. (Id. at ¶
103). In response to the termination of his
employment with Marshall DHR and his failure to be re-hired,
Simpson sued Marshall DHR and other Alabama DHR entities in
2006, alleging he was discriminated against on the basis of
his disabilities. (Id. at ¶¶ 88, 103). In
November 2010, Simpson sued various Alabama DHR entities and
individuals employed by those entities, alleging the
defendants failed to interview or hire him in retaliation for
his earlier lawsuits. (Id. at ¶¶ 88,
has been on “the register” since October 7,
2011, and has remained on the register at all times relevant
to this suit. (Id. at ¶ 37). Simpson alleges he
has “good faith” that in the two years preceding
his commencement of this action in August 2013, all of the
defendants were hiring. (Id. at ¶¶ 43-44).
All of the defendants were aware of Simpson's race and
disability. (Id. at ¶¶ 150, 153).
sixty-three applicants for a position with St. Clair DHR in
June 2012, Simpson was the only Native American.
(Id. at ¶ 124). That position was filled by
Amanda Johnson, who was white and had two criminal
convictions. (Id.). In July 2012, Simpson sued St.
Clair DHR, various other Alabama DHR entities, and
individuals employed by the Alabama DHR entities for
disability discrimination and retaliation in connection with
his failure to be hired for the St. Clair County position or
other social worker positions. (Id. at ¶¶
92, 105, 116).
DHR interviewed Simpson for a social worker position on
January 13, 2013. (Id. at ¶ 50). Denise Raines,
the director of DeKalb DHR, conducted the interview.
(Id. at ¶¶ 52). Three other people
participated in the interview, including Jane Bonds, a DeKalb
DHR supervisor. (Id. at ¶¶ 138). Raines
asked incomplete, fragmented, and personal questions for the
purpose of making them unintelligible to Simpson.
(Id. at ¶ 54). Simpson asked Raines whether she
“ ‘[got] everything right the first time,
'” and Raines responded, “ ‘I must[;] I
am the one asking the questions here, '” which
Simpson alleges was a reference to a December 2007 deposition
Raines gave in connection with his November 2006 lawsuit.
(Id. at ¶¶ 53, 55). During the 2013
interview, Raines made “inappropriate, disruptive
Indian howls” at Simpson. (Id. at ¶ 56).
At the close of the interview, Simpson gave Raines
information regarding the discriminatory action taken against
him in 2004. (Id. at ¶ 59).
January 30, 2013, Simpson received a letter from Raines
informing him he was not selected for the position.
(Id. at ¶¶ 51). A liberal reading of the
complaint suggests Simpson believes the person selected for
the position is white. (See Id. at ¶ 71). In
the letter, Raines stated the decision was hard to make
because all of the candidates were so qualified and asked
Simpson to interview again. (Id. at ¶ 57).
According to Simpson, the word “qualified” is a
legal term associated with his prior lawsuits against the
defendants, and Raines used the term to mock him.
(Id. at ¶ 58).
alleges that on February 4, 2013, he filed a charge of
disability discrimination and retaliation against DeKalb DHR
with the Equal Employment Opportunity Commission.
(Id. at ¶ 60). He further alleges that on March
6, 2013, he filed race discrimination charges against St.
Clair DHR and DeKalb DHR with the EEOC. (Id. at
¶¶ 117, 140). Finally, he alleges that on March 22,
2013, when his disability-related EEOC charge against DeKalb
DHR had been pending for almost two months, Bonds cut in
front of him, tried to run him off the road, and cursed at
him from her vehicle. (Id. at ¶ 142, 143).
commenced this action in August 2013, while his 2012 lawsuit
remained pending. He asserts the following claims against
each of the DHR entity defendants, as well as the individual
defendants in their official and individual capacities: (1)
race discrimination under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e, et seq., (2)
race discrimination under 42 U.S.C. § 1983, (3) a
violation of the Fourteenth Amendment's Equal Protection
Clause under § 1983, (4) disability discrimination and
retaliation under the Rehabilitation Act of 1973, 29 U.S.C.
§§ 701, et seq., and (5) “breach of
written agreement.” (Id. at ¶¶ 10 -
32; 148-175). He seeks a position with DHR as a social worker
through a permanent injunction, back pay, and benefits.
(Id. at 26).
Procedural Bars To Claims
their motion to dismiss the amended complaint, the defendants
argue Simpson's present case is not his first action
filed against DHR entities and individuals. (Doc. 35). They
suggest this suit relies on the same set of facts as his 2012
case and urge dismissal based on res judicata and
collateral estoppel. (Id. at 27-30). In his 2012
lawsuit, Simpson brought claims against the State of Alabama
DHR, Marshall DHR, Jefferson DHR, and St. Clair DHR; he also
sued individual defendants Nancy Buckner, William King, Vera
Warrant, and Terri Coley. Simpson v. Ala. Dep't Human
Resources, et al., No. 7:12-cv-02467-RDP (N.D. Ala.
filed July 16, 2012), Doc. 1. Simpson alleged
retaliation and discrimination in violation of the
Rehabilitation Act and the Fourteenth Amendment.
(Id. at ¶¶ 6-15). The court dismissed all
individual defendants (Id. at Doc. 18) and granted
summary judgment in favor of the remaining defendants
(Id. at Doc. 39).
doctrine of res judicata “bars the filing of
claims which were raised or could have been raised in an
earlier proceeding.” Ragsdale v. Rubbermaid,
Inc., 193 F.3d 1235, 1238 (11th Cir. 1999). Res
judicata bars not just the precise legal theory argued
in the earlier litigation but “all legal theories and
claims arising out of the same nucleus of operative
fact.” Manning v. City of Auburn, 953 F.2d
1355, 1358 (11th Cir. 1992). Claims cannot be brought twice,
and to the extent Simpson's latest suit involves the same
causes of action decided in his 2012 suit, those causes
cannot be heard now. This includes claims he could have
included in the 2012 complaint, whether he actually brought
them at that time or not.
other hand, res judicata does not bar claims which
accrued after the earlier complaint was filed. This is true
even if Simpson could have added them to the earlier
complaint by supplemental pleadings. See Pleming v.
Universal-Rundle Corp., 142 F.3d 1354 (11th Cir. 1998).
In Pleming, the Eleventh Circuit addressed whether
res judicata barred claims in a plaintiff's
second lawsuit. The facts were similar to the present case in
that the causes of action were employment discrimination and
retaliation over a series of interactions and hiring events.
While the first suit was pending, Pleming brought a second
suit over an alleged incident that occurred during the
pendency of the earlier case. Once the first suit was
disposed of in favor of the defendants, they moved to dismiss
the second suit as barred by res judicata, arguing
that Pleming could have supplemented his pleadings to include
the “after-acquired” cause of action. The
defendants pointed out that he had referred to the later
round of alleged discrimination/retaliation in briefs filed
in the first suit. The district court agreed and
dismissed the second suit, but the circuit court reversed the
[W]e do not believe that the res judicata preclusion of
claims that “could have been brought” in the
earlier litigation includes claims which arise after the
original pleading is filed in the earlier litigation.
Instead, we believe that, for res judicata purposes, claims
that “could have been brought” are claims in
existence at the time the original complaint is filed or
claims actually asserted by supplemental pleadings or
otherwise in the earlier action.
Pleming, 142 F.3d at 1357 (quoting Manning
Pleming court looked to the Manning
decision's observation that “Federal Rule of Civil
Procedure 15(d), which governs supplemental pleadings, makes
such a pleading optional” and held that “the
doctrine of res judicata does not punish a plaintiff
for exercising the option not to supplement the pleadings
with an after-acquired claim.” 142 F.3d at 1357.
contrast, the Eleventh Circuit in Ragsdale
distinguished Pleming in reviewing a suit by a
relator who lost his qui tam suit and then attempted
to bring a retaliation claim against his employer - after his
False Claims Act suit was entirely disposed of.
Ragsdale, 193 F.3d at 1237. The retaliation he
complained of was based on exactly the same “common
nucleus of operative fact” as the qui tam
suit. Specifically, he was fired, and then ten months later
he filed the qui tam action. Id. His
termination was the retaliatory action alleged in his
employment suit, so it was clear that claim had to have
accrued by the time he filed the qui tam complaint.
The Ragsdale court held the relator/plaintiff was
obliged to include all then-available claims in his first
complaint. Id. at 1240. The court reasoned that if
he were not required to do so, it would encourage exactly the
behavior res judicata is designed to prevent: the
reservation of claims that could be brought later if the
initial action was unsuccessful.
earlier suit was filed on July 16, 2012. Simpson now alleges
he was interviewed by Denise Raines and Jane Bonds at DeKalb
DHR in January of 2013, and his application was rejected
shortly after. (Doc. 32 at ¶¶ 50-79; 138-47). He
filed an EEOC charge in February 2013, and claims he was run
off the road by Bonds in March 2013. (Id. at
¶¶ 141-42). Simpson also seeks relief under the
Rehabilitation Act, alleging he was on the employment
register for all of the defendant entities and that although
they were hiring and were aware of him as a candidate, the
defendant entities engaged in discrimination and retaliation
by refusing to make him aware when they were hiring or to
consider him for open positions. (Doc. 32 at ¶¶
43-45; 49; 61-65; 81-82; 93; 98; 106-09; 151-56; 168; 169). A
reasonable reading of the complaint construes these
allegations, leveled against all DHR entity defendants, to
include the period after the filing of Simpson's 2012
complaint. These facts could have been, but were not, added
to the earlier suit while it was pending.
makes clear that it was within Simpson's discretion to
decline to add his 2013 claims to the pending 2012 lawsuit.
Having declined to do so, he has the right to bring a
subsequent action based on claims that accrued after the
filing of his earlier suit. Therefore, Simpson's claims
accruing after July 16, 2012 - i.e., his claims
stemming from any retaliation or discrimination which
occurred after that date against the DHR entity defendants,
as well as his claims ...