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Simpson v. State of Alabama Department of Human Resources

United States District Court, N.D. Alabama, Middle Division

February 8, 2017

SAMMY EDWARD SIMPSON, II, Plaintiff,
v.
STATE OF ALABAMA DEPARTMENT OF HUMAN RESOURCES, et al., Defendants.

          MEMORANDUM OPINION AND ORDER [1]

          STACI G. CORNELIUS U.S. MAGISTRATE JUDGE

         This 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.

         I.LEGAL STANDARDS

         Rule 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 suit.”).

         Rule 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 marks omitted).

         To 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).

         Finally, 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 construed.”).

         II.RELEVANT FACTUAL ALLEGATIONS

         Simpson 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).[2] In support of his claims, Simpson alleges as follows:

         The 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).[3] 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, 104).[4]

         Simpson has been on “the register”[5] 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).

         Of 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).[6]

         DeKalb 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).

         On 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).

         Simpson 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).[7] 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).

         Simpson 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).

         III.DISCUSSION

         A. Procedural Bars To Claims

         1. Res Judicata

         In 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).

         The 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.

         On the 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 dismissal, stating:

[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 at 1359).

         The 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.

         By 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.

         Simpson's 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.

         Pleming 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 ...


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