United States District Court, N.D. Alabama, Western Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
case is before the court on Defendant's Motion to Dismiss
Plaintiff's Amended Complaint. (Doc. # 36). The Motion
has been fully briefed (see Docs. # 36, 40-41), and
it is ripe for decision. After careful review, and for the
reasons explained below, the court concludes that
Defendant's Motion to Dismiss is due to be granted, but
Plaintiff is due to be granted an opportunity to amend his
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. # 34 at ¶ 4). The Board
hired Plaintiff in October 2005. (Id. at ¶ 6).
According to Plaintiff, he received positive performance
reviews from 2005 to 2009. (Id. at ¶¶
2010, Plaintiff was assigned work in the University's
health department building. (Id. at ¶ 11).
Plaintiff became aware that the building contained asbestos
and reported his concerns to the University's
environmental health and safety (“EHS”)
department. (Id. at ¶¶ 12, 17-18).
Thereafter, Plaintiff alleges that his supervisors
“began overly criticizing” him, and Michael
Hubbard counseled him nineteen days after he reported the
presence of asbestos. (Id. at ¶ 19). Two other
employees received similar discipline from Neal DiChiara.
(Id. at ¶ 20).
Amended Complaint alleges that DiChiara “continued to
look for opportunities to discipline Plaintiff over frivolous
matters and to make false accusations against
Plaintiff.” (Id. at ¶ 23). In June 2011,
DiChiara suspended Plaintiff for three and a half days
without pay for insubordination. (Id.). Following
this suspension, Plaintiff began to withdraw from coworkers
and “became fearful that Mr. DiChiara was going to
manufacture some excuse for firing him.” (Id.
at ¶ 25). In July 2013, Plaintiff was assigned to a
renovation of the Sigma Chi fraternity house. (Id.
at ¶ 27). Plaintiff learned that the EHS department had
not tested the house for asbestos, and he reported his
suspicion that there was asbestos in a ceiling to an EHS
department employee. (Id.).
12, 2013, DiChiara placed Plaintiff on a performance
improvement plan. (Id. at ¶ 29). DiChiara's
improvement plan discussed Plaintiff's “inability
to interact with others, ” his negative attitude, his
avoidance of other people, and his preference to work alone.
(Id. at ¶ 30). Plaintiff alleges that DiChiara
recognized that he suffered “from a mental
impairment” because he required Plaintiff to read a
self-improvement book. (Id. at ¶ 31).
to the Complaint, “[b]y July 2013, Plaintiff was
manifesting the symptoms of depression.” (Id.
at ¶ 33). Because of his depression, he became
frustrated over small matters, interacted with a small group
of individuals, expressed a negative attitude, felt constant
anxiety at work, and suffered from sleeplessness.
(Id. at ¶ 35). DiChiara allegedly aggravated
Plaintiff's depression by instituting a performance
improvement plan. (Id. at ¶ 36). In September
2013, DiChiara issued Plaintiff a written warning for his
negative attitude in the workplace. (Id. at ¶
October 2013, Plaintiff met with his supervisors and a
University human resources employee. (Id. at ¶
38). During that meeting, DiChiara questioned Plaintiff about
his behaviors and his social interactions at work and at
home. (Id.). Later in October 2013, DiChiara
provided Plaintiff an amended performance improvement plan
that required Plaintiff to meet with his supervisors every
thirty days, even though DiChiara “knew or should have
known that this action would further aggravate
Plaintiff's depression.” (Id. at ¶
March 2015, DiChiara issued Plaintiff a “final
counseling” based on his claim that Plaintiff displayed
an unprofessional demeanor when asked to complete an
assignment. (Id. at ¶ 43). Plaintiff asked to
review the corrective counseling form DiChiara asked him to
sign, but DiChiara refused to let him see it. (Id.).
Plaintiff began counseling and treatment for his depression
during the summer of 2015. (Id. at ¶ 44). His
supervisors were aware that he sought counseling because he
mentioned it to them. (Id.). In July 2015,
University management discovered a locked makeshift break
room in a residence hall. (Id. at ¶ 45). On
July 27, 2015, DiChiara terminated Plaintiff for taking
unauthorized breaks. (Id. at ¶ 47). Plaintiff
has denied taking unauthorized breaks. (Id. at
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 Fed.Appx. 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 ...