United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER 
H. ENGLAND, III, UNITED STATES MAGISTRATE JUDGE
25, 2016, Plaintiff Percy Johnson (“Johnson” or
“Plaintiff) initiated this action, alleging a count for
employment discrimination by Defendants on the basis of his
age in violation of the Title VII of the Civil Rights Act of
1964 and the Age Discrimination in Employment Act
(“ADEA”), a count for constructive discharge from
his employment, and a count for violation of his civil rights
under 42 U.S.C. 1983. (Doc. 1). Defendants responded with a
motion to dismiss portions of Johnson's first count and
the entirety of his second and third counts. (Doc. 6).
Johnson filed a response in opposition on September 6, 2016.
(Doc. 8). Defendants did not file a reply. For the reasons
stated more fully below, the motion to dismiss is GRANTED.
Standard of Review
Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations, ' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 1949 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). Mere
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action” are
insufficient. Iqbal, 556 U.S. at 678, 129 S.Ct. at
1949 (citations and internal quotation marks omitted).
“Nor does a complaint suffice if it tenders
‘naked assertion[s]' devoid of ‘further
factual enhancement.'” Id. (citing
Bell Atl. Corp., 550 U.S. at 557, 127 S.Ct. 1955).
Additionally, “[i]n alleging fraud or mistake, a party
must state with particularity the circumstances constituting
fraud or mistake.” Fed.R.Civ.P. 9(b).
Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief can be
granted. “To survive a motion to dismiss, 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, 129 S.Ct. at 1949 (citations
and internal quotation marks omitted). A complaint states a
facially plausible claim for relief “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citation omitted).
The complaint must establish “more than a sheer
possibility that a defendant has acted unlawfully.”
Id.; see also Twombly, 550 U.S. at 555, 127
S.Ct. at 1965 (“Factual allegations must be enough to
raise a right to relief above the speculative level.”).
Ultimately, this inquiry is a “context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S.
at 679, 129 S.Ct. at 1950.
court accepts all factual allegations as true on a motion to
dismiss under Rule 12(b)(6). See, e.g., Grossman
v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir.
2000). However, legal conclusions unsupported by factual
allegations are not entitled to that assumption of truth.
Iqbal, 556 U.S. at 678, 129 S.Ct. at 1950.
Factual and Procedural Background
now 57, was hired by the Blount County Commission (the
“BCC”) on March 31, 2010, and last employed by
Blount County as a Motor Grader Operator/Heavy Equipment
Operator III, grade 8. (Doc. 1 at 4-5). Johnson made $13.48
per hour and was the only employee at his location with this
role. (Id. at 5). At some point, the BCC hired a
32-year-old named Jeff, for a “Truck Driver”
position. (Id.). Jeff was not qualified for the
Operator III position but nevertheless was placed in it and
received the same pay as Johnson. (Id.). In December
2015, the BCC hired another younger employer, 32-year-old
Colby McAnally, for a “Truck Driver” position;
McAnally was also placed in the Operator III position and
received higher pay than Johnson. (Id. at 5-6).
Neither McAnally nor Jeff were hired, paid, or placed through
a vote by all the commissioners of the BCC, as required by
its policy. (Id.).
the county commissioners, Carthal Self, told Johnson he was
being discriminated against because of his age, as McAnally
made more money than Johnson despite having less experience.
(Id. at 6). Johnson raised this issue with the
county commissioners and requested a raise, but, although two
commissioners supported Johnson's efforts, Defendants
Chris Green (the county commission chair) and Dean Calvert (a
county commissioner) told him he could not have a raise.
Calvert justified this by stating a raise for Johnson would
require an across-the-board raise. (Id. at 7).
Calvert offered to reclassify Johnson as a mechanic, which
would indirectly give Johnson a raise; Johnson would not be
required to do the actual work of a mechanic, but would
simply get a different title and higher pay. (Id. at
7-8). Johnson refused, stating it was against policy and
unethical. (Id. at 8). Calvert then denied to Self
he had offered Johnson the mechanic title; Self relayed that
denial to Johnson. (Id.). Johnson's complaints
about this to the human resources department were met with
the statement the “rule book was dead.”
(Id.). Johnson suffered “stress,
embarrassment, humiliation, shame, high blood pressure, and
low self-esteem” and resigned, whereupon he was
replaced by a younger employee. (Id.).
have moved for partial dismissal of Johnson's claims.
Specifically, they seek to dismiss any claims using
“Jeff as a comparator, Johnson's claims of
constructive discharge, and Johnson's § 1983 claim.
Count I - ADEA Claims Related to “Jeff
first move to dismiss Johnson's claims of age
discrimination founded on the comparison of himself and Jeff,
the employee Johnson alleges was paid the same as him despite
being less qualified. (Doc. 6 at 1). Defendants state Johnson
has failed to make out a prima facie case of discrimination
with respect to Jeff because Jeff did not receive a higher
wage than Johnson. (Id. at 1-2). Johnson
acknowledges he and Jeff made the same wage but states Jeff
was not qualified for that wage. (Doc. 8 at 5). He
additionally responds he has alleged other facts supporting a
claim of age discrimination: that McAnally received a higher
wage and that Johnson was replaced by a younger employee
after being constructively discharged. (Id. at 5-6).
Defendants misstate Johnson's burden at the motion to
dismiss stage. Defendants argue Johnson's claims using
Jeff as a comparator fail to establish a prima facie case of
age discrimination under the burden-shifting framework of
McDonnell Douglas. However, both the Supreme Court
and the Eleventh Circuit have expressly refused to treat the
evidentiary standard of McDonnell Douglas as a
pleading standard for an employment discrimination
plaintiff's complaint. See Swierkiewicz v. Sorema
N.A.,534 U.S. 506, 515, 122 S.Ct. 992, 999 (2002)
(“[A]n employment discrimination plaintiff need not
plead a prima facie case of discrimination . . . to survive
[a] motion to dismiss.”); Davis v. Coca-Cola
Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir. 2008)
(Title VII complaint not required to make out McDonnell
Douglas prima facie case); Jackson v. BellSouth
Telecomms., 372 F.3d 1250, 1270-71 (11th Cir. 2004)
(“McDonnell Douglas [is] an evidentiary rather
than a pleading ...