United States District Court, N.D. Alabama, Northeastern Division
DR. NESAR U. AHMED, P.E., Plaintiff,
THE BOARD OF TRUSTEES OF ALABAMA AGRICULTURAL & MECHANICAL UNIVERSITY, et al., Defendants.
MEMORANDUM OPINION AND ORDER 
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE
April 7, 2017, Defendants Andrew Hugine, Jr., Daniel K. Wims,
and Chance Glenn (the “University Officials”)
filed a partial motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6) and a brief in support. (Docs. 75 & 76). The
same day, the Board of Trustees for Alabama Agricultural and
Mechanical University (the “Board”) filed its own
partial motion to dismiss, also under Rule 12(b)(6),
accompanied by a supporting brief. (Docs. 77 & 78). Ahmed
opposed each, (docs. 85 & 86), and both the University
Officials, (doc. 87), and the Board, (doc. 88), filed reply
briefs. The motions are fully briefed and ripe for review.
For the reasons stated more fully below, the motions are
Standard of Review
12(b)(6), Fed. R. Civ. P., 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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(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; accord Bell Atlantic v.
Twombly, 550 U.S. 544, 555 (2007) (“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.
end, under Federal Rule of Civil Procedure 8(a)(2), a
pleading must contain “a short and plain statement of
the claim showing 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,
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555). Mere “labels and conclusions” or
“a formulaic recitation of the elements of a cause of
action” are insufficient. Iqbal, 556 U.S. at
678. (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).
Factual and Procedural History
alleges the University Defendants discriminated against him
on the basis of his race, ancestry, ethnicity, and national
origin in violation of 42 U.S.C. § 1981 (through §
1983). Hugine, as University President, created new
high-level positions and did not offer Ahmed any of the
positions despite his achievements. (Doc. 68, ¶¶
12-14). Instead, the University gave preference to
African-American candidates over better-qualified applicants
such as Ahmed. (Doc. 68, ¶ 19). Ahmed also claims that
Glenn discriminated against him when he selected an
African-American for a non-advertised position as Coordinator
of Masters Programs of Engineering despite Ahmed's
experience and his many services in establishing the program.
(Doc. 68, ¶¶ 22-24).
received multiple job offers from Abu Dhabi University in the
United Arab Emirates. (Doc. 68, ¶¶ 28, 31). The
University persuaded him not to take the offer by offering
him two additional months of summer employment to provide him
with additional 2/9 of his salary and allowing him to draw up
to an additional 33% of his salary from externally funded
projects. (Doc. 68, ¶ 29). Ahmed submitted a form for
supplemental pay pursuant to the agreement and Wims, as
Provost, denied the request multiple times. (Doc. 68,
¶¶ 34, 37). At least one denial was allegedly a
pretext for denying Ahmed pay based on his race and national
origin. (Doc. 68, ¶. 34). After the denials, Ahmed met
with Wims and Glenn in February 2013, and Wims disrespected
Ahmed in front of Glenn. (Doc. 68, ¶ 38).
University continued to deny Ahmed pay, and later notified
him that he would no longer be receiving his summer salary
after the upcoming summer of 2014 due to an allegedly
insufficient teaching load. (Doc. 68, ¶ 40). Ahmed
claims the retraction of his summer salary was in retaliation
for an EEOC charge he filed on February 28, 2013, complaining
of discrimination and denial of pay. (Doc. 68, ¶¶
39, 42, 62-64). Ahmed also contends the Board breached its
contract with him when it denied him pay and terminated his
agreed-upon summer salary. (Doc. 68, ¶¶ 66-69).
has amended his complaint several times, most recently after
the undersigned granted his motion for leave to amend, (doc.
49). (Doc. 67). The operative pleading is Ahmed's third
amended complaint. (Doc. 68). The University Officials move
to dismiss Ahmed's official capacity claims against them
in Count Six of that complaint (which alleges promissory
fraud) and his official capacity claims for monetary damages
in Counts Three and Four of his Third Amended Complaint
(which allege race/ethnicity/ancestry discrimination and
retaliation, respectively) on the basis of Eleventh Amendment
immunity and sovereign immunity under the Alabama
Constitution. (Doc. 75 at 2). Additionally, the Board moves
to dismiss Ahmed's breach of contract claim on the basis
of sovereign immunity. (Doc. 77 at 2).
The Alabama Constitution prohibits Ahmed's breach of
contract claim against the Board.
Board asserts Ahmed's breach of contract claim is
defeated by its sovereign immunity. (Doc. 78 at 2). Under the
Alabama Constitution, “the State of Alabama shall never
be made a defendant in any court of law or equity.”
Ala. Const. of 1901, art. I, § 14. The Board, which is
an instrumentality of the State of Alabama, is entitled to
this absolute immunity from suit. Alabama A&M Univ.
v. Jones, 895 So.2d 867, 873 (Ala. 2004) (citations
omitted). This wall of immunity is nearly impregnable.
Id. at 872-874.
Alabama Supreme Court has held that there are six types of
actions to which ...