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Dixon v. City of Birmingham

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

June 1, 2017

CAROL DIXON, Plaintiff,



         This matter is before the court on the motion for a more definite statement (doc. 7) and the motion to dismiss or, in the alternative, for summary judgment (doc. 11) filed by the defendants, the City of Birmingham (“the City”) and John Colon. Also pending is the motion to stay summary judgment pending the completion of discovery (doc. 18), filed by plaintiff Carol Dixon. The motions have been fully briefed and the parties have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c).


         This action arises from plaintiff's eight-year employment with the City. Plaintiff alleges that she is over the age of 40 and is disabled as defined by the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”). She also alleges that she is a member of a protected class based on race, although her complaint does not specify her race. (Complaint, doc. 1, para. 71).[1] She was first employed by the City as an accountant in 2007, and was supervised at times relevant to this action by Colon, the director of the City's Department of Community Development. The City terminated Dixon's employment on June 30, 2015, asserting in subsequent appeals that she was absent without leave in violation of Jefferson County Personnel Rule 13.6.

         Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on July 24, 2015, and timely filed this action after receiving a right-to-sue letter dated July 12, 2016. Her complaint alleges that she was subjected to discrimination by the City on account of her race in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a), and 42 U.S.C. §1983. (Counts I and VI). She further asserts that she was discriminated against on account of her age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”)[2] (Count II), and on account of disability, in violation of the ADA (Count III).[3] She further alleges that she was retaliated against after she objected to and reported acts of age, race, and disability discrimination. (Count V).[4] This is not her first lawsuit alleging discrimination against the City. What follows is a brief synopsis of her employment history with the defendant.

         The City hired Dixon in October of 2007, and she worked as an accountant in the City's Department of Community Development until January 2009, when she left work to undergo knee surgeries. She did not return to her position until October 2011.[5] Less than a year later, in July of 2012, she filed her first EEOC charge against the City, alleging that she was denied promotions in 2010 and training opportunities in 2012 because of her age and disability. In February of 2013, Dixon filed a complaint against the City in this court, alleging age and disability discrimination, and asserting tort and contract claims arising under Alabama law. See Dixon v. City of Birmingham, Case No. 2:13-cv-404-WMA.[6]She withdrew her age claims and state-law tort claims, but maintained claims for disability discrimination and retaliation, along with a claim that the City had breached a settlement agreement.[7] Those claims were dismissed on the defendant's motion for summary judgment when Senior United States District Judge William M. Acker accepted and adopted the recommendation of United States Magistrate Judge John H. England, III. (Docs. 35, 37, and 38 in Case No. 2:13-cv-404-WMA). Final judgment was entered on January 27, 2015, and there is no indication in the court record of any appeal.

         In the 2013 action, Dixon asserted that she was disabled by lupus, carpal tunnel syndrome, and knee surgeries, which impaired her ability to type on a normal keyboard, to lift more than two pounds, and to walk and bend. The Magistrate Judge recommended summary adjudication in favor of the defendants. More specifically, he recommended dismissal of (1) her claim regarding discriminatory assignment of job duties as without a factual basis and time-barred; (2) her promotion claims as unsupported by substantial evidence and time-barred; (3) her claim regarding training as being without merit because she failed to provide evidence that she was a “qualified individual, ” and (4) her retaliation claim for failure to present sufficient evidence to establish a prima facie case.[8] The District Judge accepted and adopted the recommendations, dismissing all federal claims with prejudice, and dismissing the state-law contract claim without prejudice. The district judge further added that Dixon's ADA retaliation claim was barred for an additional reason, citing University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), for the proposition that retaliation must be a “but-for” cause of the defendant's actions. (Doc. 37 in 2:13-cv-404-WMA).

         During the litigation, and even after the court granted summary judgment in favor of the City on January 27, 2015, Dixon continued to work as an accountant for the City. In February 2015, she requested that she be considered for two positions that were open for senior accountants. On March 9, 2015, before those positions were filled, she fell while at work. Later in March 2015, while plaintiff was off work following her fall, the City hired Timothy Smith, a white, younger, less experienced male, as a Principal Accountant. In April 2015, the city promoted Stephanie George, a white, younger, less experienced female, to Senior Accountant. After the fall on March 9, 2015, Dixon did not return to work, and she did not request any type of leave. On June 30, 2015, a determination hearing was held by the City and Dixon's employment was terminated. Dixon was released by her doctor to go back to work on July 1, 2015.[9]

         Dixon litigated this issue of her termination by filing an appeal with the Jefferson County Personnel Board. (Doc. 12-4). She received a hearing, was allowed to call witnesses and to introduce evidence, and was represented by counsel. The hearing officer determined that her termination for being absent without leave comported with the Personnel Board rules. The hearing officer's recommendation was affirmed by the Personnel Board, and she appealed that decision to the Jefferson County Circuit Court, where the panel of three circuit judges reviewed the “entire record, ” and heard the arguments of counsel. The state court affirmed the Personnel Board's termination of Dixon. (Doc. 12-5).

         In this case, the defendants seek dismissal of all of plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, summary adjudication pursuant to Rule 56. The motion filed by the defendants relies upon the pleadings in this action, court rulings from the 2013 case in this court, and her appeal to the Personnel Board that went on to a panel of three judges from the Jefferson County Circuit Court. (Docs. 12-1 through 12-5). The plaintiff has moved to stay the motion for summary judgment, or to strike the exhibits relied upon by the defendants.[10] The court takes judicial notice of the court orders, and need not convert the motion to dismiss to a motion for summary judgment because consideration of these orders does not constitute reliance upon matters outside of the pleadings. See, e.g., Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1276-77 (11th Cir. 1999).[11] It is also not clear what additional discovery on this narrow question could accomplish. Given that the evidence being considered is court orders and judgments from prior litigation, it is not clear what light additional discovery may shed. It is the existence of these orders and judgments that is important, not the facts underlying them. Plaintiff has not disputed that the court orders and judgments exist and were the product of prior litigation. Accordingly, the plaintiff's motion to strike the exhibits or to stay the motion for summary judgment pending the completion of discovery (doc. 18) is DENIED.


         Because the instant motion to dismiss is premised upon the pleadings in this case and public court records, the motion is evaluated under Federal Rule of Civil Procedure 12(b)(6), because the defendants have asserted that the plaintiff fails to state a claim upon which relief may be granted. On a motion to dismiss, the court must accept as true all of the well-pleaded facts alleged in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-51, 173 L.Ed.2d 868 (2009). Federal Rule of Civil Procedure 8(a) requires only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Liberal notice pleading standards embodied in Rule 8(a) Ado not require that a plaintiff specifically plead every element of a cause of action, ” Roe v. Aware Woman Center for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001), or set out in precise detail the specific facts upon which she bases her claim. The complaint must only “contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Id. (quoting In re Plywood Antitrust Litigation, 655 F.2d 627, 641 (5th Cir. Unit A, Sept. 8, 1981)). The Supreme Court raised the threshold for a sufficient pleading in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1965 (2007) (rejecting the standard from Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that any “conceivable” set of facts supporting relief is sufficient to withstand a motion to dismiss). The threshold of plausibility is met where the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).


         The defendants seek dismissal of all of the plaintiff's claims, asserting more than a dozen grounds for dismissal. Rather than addressing each ground as separately set out, the grounds for the motion can be addressed in groups. First, the motion seeks dismissal of all claims against John Colon, on the basis that he is not an “employer” amenable to suit under the ADEA, the ADA, or Title VII. Second, the motion seeks to interpose the doctrine of collateral estoppel as to (1) any claim that requires plaintiff to demonstrate that she was a “qualified individual” for the jobs described in the complaint because that issue was decided in the 2013 action, and (2) the determination that her employment dismissal was violative of federal law because the state court determined that it was based on a legitimate cause. Third, the defendants seek dismissal of plaintiff's age- and disability-related claims because she alleges multiple motives for the employment actions about which she complains, which, they contend, is logically inconsistent with the “but-for” standard required for ADEA and ADA claims. Fourth, the defendant argues that the plaintiff cannot assert claims arising under Section 1983 while also asserting Title VII, ADEA, and ADA claims. Fifth and finally, the defendants assert that punitive damages and damages for pain and suffering are not available under the federal statutes giving rise to the claims.[12]

         1. Claims against John Colon

         The plaintiff asserts that John Colon, in both his individual and official capacities, is liable for the discrimination alleged in the complaint. The defendants counter that Colon is not a proper defendant under the ADA, ADEA, or Title VII, because, in his individual capacity, he is not the “employer, ” and, in his official capacity, a suit against him is merely duplicative of the suit against the City. In response to the motion to dismiss the claims against Colon, the plaintiff asserts that he may be personally liable “where failure to act or supervise amounts to gross negligence or deliberate indifference.” (Doc. 19, p. 7). Plaintiff further asserts that an individual defendant may be liable for retaliatory actions under Title II of the ADA, 42 U.S.C. §12132.

         Turning first to claims against Colon in his official capacity, the clear language of Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), provides that official capacity lawsuits are “only another way of pleading an action against the entity” for whom the official acts. In this case, the City of Birmingham already is a named defendant, and the claims against Colon in his official capacity are duplicative of the claims against the City. Any relief plaintiff seeks against Colon in his official capacity may be obtained through her claims against the City; accordingly, the motion to dismiss claims against Colon in his official capacity is due to be granted.

         With respect to Colon's personal liability, plaintiff asserts there are circumstances under which Colon may be personally liable to her, under both her § 1983 claim (Count VI) and her ADA retaliation claim (Count V). (See Plaintiff's Response to Defendants' Motion, Doc. 19, pp. 6-7).[13] Citing the Eleventh Circuit Court of Appeals case of Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816 (11th Cir. 1998), plaintiff contends that the court of appeals has recognized that public employment is covered by Title II of the ADA, which prohibits disability discrimination in relation to “participation in or… [denial of] the benefits of the services, programs, or activities of a public entity….” Although Bledsoe has been rejected by every other circuit court of appeals to address the issue, see Reyazuddin v. Montgomery County, Maryland, 789 F.3d 407, 420 (4th Cir. 2015), and cases cited therein, it remains the law in this circuit. Thus, public employment is a “public service” which cannot be denied on the basis of disability. The question presented by this case, however, is whether the plaintiff's supervisor (Colon) can be personally liable under the ADA for employment decisions affecting the plaintiff's public employment.

         The ADA consists of four parts: Subchapter I prohibits disability discrimination in employment by “covered entities, ” 42 U.S.C § 12112; Subchapter II prohibits the denial of “public services” on the basis of disability, 42 U.S.C. § 12132; Subchapter III prohibits disability discrimination in “public accommodations, ” 42 U.S.C. § 12182; and Subchapter IV, among other provisions, prohibits retaliation against “any individual” who has “opposed any act or practice made unlawful by this chapter….” For purposes of Subchapter I, “[t]he term ‘covered entity' means ‘an employer, employment agency, labor organization, or joint labor-management committee.'” See 42 U.S.C. § 12111(2); Albra v. Advan, Inc., 490 F.3d 826, 830 (11th Cir. 2007). Thus, supervisors who are not “employers” can have no individual liability for employment discrimination under Subchapter I. See Albra v. Advan, Inc., 490 F.3d 826, 830 (11th Cir. 2007) (“individual defendants are not amenable to private suit for violating the anti-discrimination provision of Subchapter I of the ADA.”). Colon, therefore, is not amenable to suit against him personally for any employment related decisions or failures to accommodate the plaintiff's disability.

         He also cannot be personally liable for disability-related employment decisions or failures-to-accommodate involving public employment under Subchapter II. Under Bledsoe, a public employer may be liable under Subchapter II for the disability-based denial of “the benefits of the services, programs, or activities of a public entity, ” including public employment, or when a public employee is “subjected to [disability-based] discrimination by any such entity.” 42 U.S.C. § 12132; Todd v. Carstarphen, 2017 WL 655756, at *10 (N.D.Ga. Feb. 17, 2017). But this statutory language clearly limits the scope of the remedy to the “public entity”; it does not extend potential liability to the plaintiff's supervisors or co-employees working for the public entity. Title II does not provide for individual liability where the nature of the claim is that the public employee has been denied a public benefit (such as public employment) on the basis of a disability or has denied an accommodation for a disability.

         By contrast, however, the Eleventh Circuit has recognized that the very different statutory language found at § 12203 works a different result for claims of ADA retaliation. In Shotz v. City of Plantation, Fla., 344 F.3d 1161 (11th Cir. 2003), the court appeals noted that ADA retaliation claims are founded on § 12203, found in Subchapter IV of the Act, which states:

No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.

42 U.S.C. § 12203 (emphasis added). Unlike the other provisions of the ADA, which refer to “public entit[ies]” and “covered entit[ies], ” the retaliation section expressly prohibits any other “person” from subjecting someone to retaliation for opposing any act or practice proscribed by the statute. The court of appeals conducted that, for retaliation actions, “an individual may be sued privately in his or her personal capacity for violating § 12203 in the public services context.” Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1179-80 (11th Cir. 2003). Thus, under Shotz, the plaintiff may allege facts showing that her supervisor retaliated against her for opposing disability discrimination in public employment. In this case, plaintiff alleges that her supervisor, Colon, retaliated against her for having filed an earlier EEOC complaint and a federal lawsuit alleging disability discrimination in her employment, and that he did so by denying her a promotion she sought and by terminating her employment. Count V of the complaint adequately alleges a plausible claim of § 12203 retaliation by Colon, so that his motion to dismiss that count is due to be denied.[14]

         In Count VI of her complaint, the plaintiff alleges pursuant to 42 U.S.C. § 1983, that both the City and Colon[15] “discriminated against the plaintiff in the terms, conditions, and privileges of employment when it failed to promote Dixon, the most qualified employee with the most seniority for the two positions of Sr. Accountant or the position of Principal Accountant, and placed two younger, less qualified, non-disabled employees in those positions.” (Complaint, Doc. 1, ¶ 91). As explained in more detail below, the plaintiff may not use § 1983 as an alternative to or to supplement her employment discrimination claims under the ADEA (age) and the ADA (disability). Thus, insofar as Count VI alleges a § 1983 claim against Colon, it too is due to be DISMISSED on the defendants' motion.

         Accordingly, the court finds that the claims alleging employment discrimination under the ADA, the ADEA, and Title VII against Colon in both his official and individual capacities are due to be dismissed. Likewise, the claim in Count VI arising under Section 1983 in his individual capacity also is due to be dismissed. The motion to dismiss is DENIED, however, as to Count V alleging ADA retaliation by Colon.

         2. ...

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