United States District Court, N.D. Alabama, Western Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
case is before the court on Defendants' Motion to Dismiss
the Complaint. (Doc. # 5). This employment discrimination
action includes claims under Section 504 of the
Rehabilitation Act, the First and Fourteenth Amendments to
the United States Constitution, the Asbestos School Hazard
Abatement Reauthorization Act of 1990 (“ASHARA”),
the Asbestos School Hazard Detection and Control Act
(“ASHDCA”), the State Employee Protection Act,
and 42 U.S.C. § 1983. (See generally Doc. # 1).
The parties have fully briefed the Motion to Dismiss (Docs. #
11, 12), and it is under submission.
worked as a carpenter in the facilities and grounds
department at the University of Alabama at Tuscaloosa (the
“University”), which is governed by Defendant
University of Alabama Board of Trustees (the
“Board”). (Doc. # 1 at ¶ 4). The Board hired
Plaintiff in October 2005. (Id. at ¶ 14).
According to Plaintiff, he received positive performance
reviews in 2007, 2008, and 2009. (Id. at ¶ 16).
2010, Plaintiff was assigned work in the University's
health department building, which was partially occupied by
the University's women's resource center.
(Id. at ¶ 18). “Plaintiff became aware
that asbestos was present in the Health Department Building
in the floor tile in the Tuberculosis Clinic and that [the
University] had failed to properly abate the asbestos.”
(Id.). Plaintiff alleges that the University should
have removed all personnel from the building, but it
continued to require building maintenance and women's
resource center employees to work in the building.
(Id. at ¶ 20). On September 2, 2010, Plaintiff
left the health department building and reported
“concerns that students, [University] personnel, and
workers may be exposed to friable asbestos” to the
University's environmental health and safety department.
(Id. at ¶ 21). Thereafter, Plaintiff and two
other workers expressed concerns about retaliation to a human
resources employee. (Id. at ¶ 22).
September 21, 2010, Plaintiff received a verbal warning from
Michael Hubbard, an associate manager of building
maintenance, for leaving his assigned work site on September
2, 2010 without proper authorization. (Id. at
¶¶ 15, 23). The other employees who reported
concerns about retaliation also received written warnings
from Defendant Neal DiChiara, the manager of building
maintenance. (Id. at ¶¶ 17, 23). Plaintiff
disputed the verbal warning and explained that the warning
was retaliation for his asbestos-related report.
(Id. at ¶ 24). Moreover, Plaintiff recounts in
the Complaint that his crew completed the renovations in the
health department building on time, despite leaving the job
site on September 2. (Id. at ¶¶ 24-25).
2011, DiChiara suspended Plaintiff for three and a half days
without pay for insubordination. (Id. at ¶ 26).
According to the Complaint, DiChiara scheduled “a
‘mandatory' meeting on ethics” at the last
minute to occur after Plaintiff's work shift had ended.
(Id.). Plaintiff asked Hubbard and DiChiara for
leave to miss the meeting, but DiChiara aggressively
responded that Plaintiff could “just see what
happens.” (Id. at ¶ 27). DiChiara used
profanity towards Plaintiff and suspended him for
insubordination, a suspension Plaintiff alleges was based on
his question about missing the meeting. (Id.).
Plaintiff formally disputed the suspension. (Id. at
2013, Plaintiff was assigned to a renovation of the Sigma Chi
fraternity house. (Id. at ¶ 29). Plaintiff
learned that the environmental health and safety department
had not tested the house for asbestos, and he reported his
suspicions of asbestos in a ceiling to an employee of the
University's environmental health and safety department.
(Id.). That University employee notified
Plaintiff's supervisor of the asbestos report, and the
environmental health department discovered asbestos in the
fraternity house. (Id.). On July 12, 2013, DiChiara
placed Plaintiff on a performance improvement plan that
allegedly “questioned Plaintiff's ethics and
integrity and cited seven unidentified incidents of
Plaintiff's attitude or working relationships that
allegedly needed improvement.” (Id. at ¶
30). Plaintiff alleges that the issues identified in his
performance plan did not relate to his job and that the plan
lacked specific measures of improvement. (Id. at
¶¶ 30-31). Plaintiff formally disputed the
performance plan and submitted a formal complaint to the
human resources department. (Id. at ¶ 33).
Ultimately, the University's management upheld the
performance plan. (Id. at ¶¶ 34-35).
Moreover, Defendant Duane Lamb, an assistant vice president
at the University, told Plaintiff during a September 2013
meeting that (1) he could have been terminated for leaving
his job in 2010, (2) he made management look bad by reporting
improper asbestos abatement activity, and (3) he had
triggered an investigation that cut the supervisors' legs
“out from under [them].” (Id. at ¶
September 2013, DiChiara issued Plaintiff a written warning
for allegedly telling another University employee that
“you haven't learned yet that the University is
going to do what benefits the University.”
(Id. at ¶ 37). On October 8, 2013, Plaintiff
formally disputed the written warning, but the reviewing
supervisor found no misconduct. (Id. at ¶ 39).
On October 24, 2013, DiChiara issued Plaintiff a revised
performance plan. (Id. at ¶ 40). In July 2014,
DiChiara discontinued monthly meetings that were part of the
performance plan when Plaintiff volunteered for an unpopular
work assignment. (Id. at ¶ 41).
March 2015, DiChiara issued Plaintiff a “final
counseling” premised on “allegedly displaying an
unprofessional manner when asked to take on assignments by
not following the chain of command, questioning the actions
of his supervisors, asking more than one supervisor the same
question, and referring an employee to another supervisor to
address the employee's concern about a potential
issue.” (Id. at ¶ 42). Plaintiff formally
disputed the counseling, but the University vice president he
called to complain about the discipline would not return his
calls. (Id. at ¶ 43). In the summer of 2015,
Plaintiff sought counseling and treatment for depression and
anxiety. (Id. at ¶ 44). He informed his
supervisors about the counseling when he requested time off
in order to attend counseling sessions. (Id.).
2015, managers in the building maintenance department
discovered a “makeshift break room” in a
residence hall. (Id. at ¶ 45). The room also
functioned as a storage area. (Id.). Plaintiff
occasionally worked in the residence hall, but merely
“entered the storage room on occasion to retrieve
supplies.” (Id.). On July 27, 2015, DiChiara
terminated Plaintiff for taking unauthorized breaks.
(Id. at ¶ 46). Plaintiff denies that he took
unauthorized breaks, and explains that he occasionally had to
wait on site for another employee to finish work.
(Id. at ¶ 47). He also contends that other
employees received no discipline for taking breaks on site
when delayed by other maintenance employees finishing their
work. (Id. at ¶ 48).
Standard of Review
Federal Rules of Civil Procedure require that a complaint
provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). However, the complaint must include
enough facts “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Pleadings that
contain nothing more than “a formulaic recitation of
the elements of a cause of action” do not meet Rule 8
standards, nor do pleadings suffice that are based merely
upon “labels and conclusions” or “naked
assertion[s]” without supporting factual allegations.
Id. at 555, 557. In deciding a Rule 12(b)(6) motion
to dismiss, courts view the allegations in the complaint in
the light most favorable to the non-moving party. Watts
v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir.
survive a motion to dismiss, a complaint must “state a
claim to relief that is plausible on its face.”
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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although “[t]he plausibility standard is not akin to a
‘probability requirement, '” the complaint
must demonstrate “more than a sheer possibility that a
defendant has acted unlawfully.” Id. A
plausible claim for relief requires “enough fact[s] to
raise a reasonable expectation that discovery will reveal
evidence” to support the claim. Twombly, 550
U.S. at 556.
considering a motion to dismiss, a court should “1)
eliminate any allegations in the complaint that are merely
legal conclusions; and 2) where there are well-pleaded
factual allegations, ‘assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.'” Kivisto v. Miller, Canfield,
Paddock & Stone, PLC, 413 F. App'x 136, 138
(11th Cir. 2011) (quoting Am. Dental Ass'n v. Cigna
Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)). That task
is context specific and, to survive the motion, the
allegations must permit the court based on its
“judicial experience and common sense . . . to infer
more than the mere possibility of misconduct.”
Iqbal, 556 U.S. at 679. If the court determines that
all of the well-pleaded facts, accepted as true, do not state
a claim that is plausible, the claims are due to be
dismissed. Twombly, 550 U.S. at 570.
have attached several exhibits to their Motion to Dismiss. In
almost all circumstances, a court cannot consider evidence
that is not attached to the complaint in deciding whether to
dismiss a claim under Rule 12(b)(6). See SFM Holdings,
Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th
Cir. 2010) (explaining that an extrinsic document can only be
considered in deciding a motion to dismiss if it is central
to a plaintiff's claim and its authenticity is not
challenged). The court finds that the attached documents do
not meet this circuit's standard for considering
extrinsic evidence at the motion to dismiss stage. Therefore,
the court has not considered them in ruling upon
Defendants' Rule 12(b)(6) arguments for dismissal.
careful review, the court concludes that all of
Plaintiff's claims are subject to dismissal for failure
to state a claim. Nevertheless, the court will grant
Plaintiff leave to amend his Rehabilitation Act count.
Plaintiff's Rehabilitation Act Count Fails to ...