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Forsyth v. University of Alabama Board of Trustees

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

February 23, 2018

MARTIN FORSYTH, Plaintiff,
v.
UNIVERSITY OF ALABAMA BOARD OF TRUSTEES, et al., Defendants.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Background

         Plaintiff 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).

         In 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).

         On 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).

         In June 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 ¶ 28).

         In July 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 ¶ 36).

         In 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).

         In 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.).

         In July 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).

         II. Standard of Review

         The 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. 2007).

         To 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.

         In 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.

         Defendants 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.

         III. Analysis

         After 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.

         A. Plaintiff's Rehabilitation Act Count Fails to ...


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