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 Second Amended Complaint. (Doc. # 46). The
Motion has been fully briefed (see Docs. # 46,
48-49), 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 denied.
worked as a carpenter in the Facilities & 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. # 45 at ¶ 4). The Board
hired Plaintiff in October 2005. (Id. at ¶ 6).
According to Plaintiff, from 2005 to 2009, he received
positive performance reviews and no disciplinary actions.
(Id. at ¶¶ 7-9).
2010, Plaintiff was assigned work in the University's
Health Department Building. (Id. at ¶ 11).
Plaintiff learned 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. (Id. at ¶ 19). His
supervisor, Michael Hubbard. gave him his first corrective
verbal counseling action nineteen days after he reported the
presence of asbestos. (Id.). 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 because he asked permission
to miss a mandatory meeting. (Id.). DiChiara went so
far as to “curse Plaintiff in front of his
co-workers.” (Id. at ¶ 24). 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). Plaintiff again sought relief from the
University's Human Resources Department, but to no avail.
(Id. at ¶ 26). 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 cited 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 and discuss it with him over a series
of meetings. (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 ¶
39). 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 ¶
began counseling and treatment for his depression in early
2015. (Id. at ¶ 44). His supervisors were aware
that he sought counseling because he mentioned it to them.
(Id.). In March 2015, DiChiara issued Plaintiff a
“final counseling” action based on his claim that
Plaintiff displayed an unprofessional demeanor when asked to
complete an assignment. (Id. at ¶ 45).
Plaintiff asked to review the corrective counseling form
DiChiara asked him to sign, but DiChiara refused to let him
see it. (Id.).
2015, University management discovered a locked makeshift
break room in a residence hall project where Plaintiff was
working. (Id. at ¶ 46). On July 27, 2015,
DiChiara terminated Plaintiff for taking unauthorized breaks.
(Id. at ¶ 48). Plaintiff has consistently
denied taking unauthorized breaks. (Id. at ¶
49). The following year on January 26, 2016, the Board of
Appeals for the Alabama Department of Labor “issued a
determination that there was no evidence of misconduct by
Plaintiff.” (Id. at ¶ 52).
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