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Ahmed v. Board of Trustees of Alabama Agricultural & Mechanical University

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

October 10, 2017

DR. NESAR U. AHMED, P.E., Plaintiff,



         On 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 GRANTED.

         I. Standard of Review

          Rule 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.

         To that 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, the-defendant-unlawfully-harmed-me accusation.” 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).

         IT. Factual and Procedural History[2]

         Ahmed 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).

         Ahmed 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).

         The 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).

         Ahmed 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).

         III. Analysis

         A. The Alabama Constitution prohibits Ahmed's breach of contract claim against the Board.

         The 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.

         The Alabama Supreme Court has held that there are six types of actions to which ...

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