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Spivey v. Enterprise City Board of Education

United States District Court, M.D. Alabama, Southern Division

January 29, 2019

PENNY L. SPIVEY, Plaintiff,


          Susan Russ Walker United States Magistrate Judge

         Plaintiff Penny L. Spivey brings this action against defendants[2] Enterprise City Board of Education, Daniel Whitaker, Robert Doerer, Bert Barr, Reid Clark, and Dorothy Richardson[3] (collectively, “ECS”), alleging eight counts of liability. In her first amended complaint, Doc. 20, plaintiff alleges, in counts I, II, III, and V, disability discrimination and retaliation pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the “ADA”), as amended by the ADA Amendments Act (the “ADAAA”), and the Rehabilitation Act, 29 U.S.C. § 701 et seq. (the “RA”). See Doc. 20.[4] In count IV, plaintiff alleges age discrimination pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. See Doc. 20. In count VI, plaintiff alleges a hostile and abusive work environment claim in violation of the ADA, the RA, and Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e et seq. Finally, in counts VII and VIII, plaintiff alleges that defendant violated her due process and equal protection rights pursuant to 42 U.S.C. § 1983.[5]

         This cause is presently before the court on defendant's motion to dismiss. See Doc. 33. Plaintiff filed a response in opposition to the motion, see Doc. 51, and ECS replied, see Doc. 53. Upon review of the motion and the record, the court concludes that defendant's motion to dismiss is due to be granted in part and denied in part.


         This court has subject matter jurisdiction over this lawsuit pursuant to 28 U.S.C. § 1331. ECS states, without further argument, that its motion to dismiss the amended complaint is “pursuant to Rule 12(b)(1) and 12(b)(6).” Doc. 34 at 2. Because all of the claims asserted in the amended complaint implicate federal law, the court's jurisdiction is proper. The parties do not assert that the court lacks personal jurisdiction over them, or that venue is improper.


         A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the legal standard set forth in Rule 8, which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In evaluating a motion to dismiss pursuant to Rule 12(b)(6), the court must take “the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff.” Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         “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.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “Determining whether a complaint states a plausible claim for relief [is] … a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. “[F]acial plausibility” exists “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. at 678 (citing Twombly, 550 U.S. at 556). The standard also “calls for enough facts to raise a reasonable expectation that discovery will reveal evidence” of the claim. Twombly, 550 U.S. at 556. While the complaint need not set out “detailed factual allegations, ” it must provide sufficient factual amplification “to raise a right to relief above the speculative level.” Id. at 555.

         “So, when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic deficiency should … be exposed at the point of minimum expenditure of time and money by the parties and the court.” Twombly, 550 U.S. at 558 (quotations and citations omitted). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556).


         At the time of filing the amended complaint, and at all times material to this action, Penny L. Spivey was disabled and over 40 years of age. When she was 10 years old, Spivey suffered a traumatic brain injury which required the surgical removal of a right temporal lobe hematoma and resulted in an ongoing disability. Spivey also suffers from another ongoing disability, Adult Attention Deficit Hyperactivity Disorder (“AADHD”). Spivey has received continuous medical treatment, monitoring, and medication for her AADHD. During the relevant time period, ECS knew of Spivey's brain injury and of her AADHD diagnosis.

         Since 1999, Spivey had been employed as a teacher by the State of Alabama. Since 2002, Spivey had worked for ECS as a tenured special education teacher. Specifically, since 2014 and throughout the relevant time period, Spivey worked at Hillcrest Elementary School. Before her transfer to Hillcrest, Spivey had not been disciplined in any way. Upon her arrival at Hillcrest, Spivey felt that the special education students were not being given an appropriate education as required by law - specifically, they were not being educated in the least restrictive environment. This prompted Spivey to complain to Hillcrest's administration. After she voiced her concerns, Spivey was removed from her role as a special education teacher during the following school year in 2015-16. In 2016, Spivey's teaching responsibilities were removed altogether. Spivey contends that she was thus effectively demoted to a paraprofessional role and treated as a teacher's aide, while she was still technically employed as a tenured special education teacher.

         Spivey alleges that, because of her attempt to protect the rights of Hillcrest's special education students, she became a victim of retaliation, a hostile work environment, and a retaliatory hostile work environment. Spivey was first disciplined by ECS after she complained about the treatment of the special education students, after she complained about the removal of her teaching responsibilities and demotion, and/or after she refused to seek medical treatment through the American Behavioral Employee Assistance Program. Spivey contends that ECS's requirement that she obtain psychological counseling is prohibited by the ADA.

         On January 23, 2017, Dr. Teri Prim, Hillcrest's principal, and Melissa Layton, Hillcrest's assistant principal, issued a formal letter reprimanding Spivey for, among other things, excessive absences and for refusing to participate in the behavioral assistance program. On February 17, 2017, Spivey was issued a formal letter recommending her suspension. On February 24, 2017, Spivey complained to Gregory S. Faught, ECS's superintendent, of harassment, hostile work environment, and retaliation; Faught later admitted to having received Spivey's letter and taking no action.

         On February 28, 2017, at a meeting of the ECS Board of Education, Spivey was suspended without pay for three days. The ECS Board of Education notified Spivey of the suspension on March 1, 2017. On May 1, 2017, ECS issued a formal letter recommending that Spivey be fired. In support of its recommendation, ECS cited Spivey's refusal to participate in the American Behavioral Employee Assistance Program as well as her failure to appear at the February 28th board meeting. On May 9, 2017, pursuant to Alabama law, Spivey filed a notice of contest and request for hearing, which was acknowledged by ECS on May 15th. The termination hearing was held on June 27, 2017 and, on July 5th, ECS issued another letter which advised Spivey of her firing. Spivey filed an administrative appeal pursuant to Alabama law and, on September 6, 2017, the decision to terminate Spivey's employment was affirmed.


         ECS contends that Spivey's complaint should be dismissed for two primary reasons: (1) Spivey has failed to exhaust her administrative remedies and her claims are now untimely, and (2) Spivey has failed to state a claim.[7] The court addresses these in turn.

         1. The Exhaustion of Administrative Remedies Requirement [8]

         Pursuant to Title VII, the ADEA, and the ADA, [9] an employee alleging discrimination must exhaust his administrative remedies before bringing a civil complaint in federal court. 42 U.S.C. § 2000e-5(e)(1). A plaintiff must first file a charge with the Equal Employment Opportunity Commission (“EEOC”) within 180 days after the alleged improper employment action. See 42 U.S.C. § 2000e-(5)(e)(1). Upon his or her filing a charge, the EEOC investigates the employer's alleged discriminatory practice. 42 U.S.C. § 2000e-5(b).

         A civil action can be brought only after the EEOC has notified the plaintiff of its decision to dismiss the charges. 42 U.S.C. § 2000e-5(e)(1). An employee must completely exhaust the administrative remedies available from the EEOC before filing suit in federal court. See Sanchez v. Standard Brands, Inc., 431 F.2d 455, 459 (5th Cir. 1970).[10]

         As a general rule, a plaintiff cannot bring a lawsuit on a claim that was not included in his or her EEOC charge. Zellars v. Liberty Nat. Life Ins. Co., 907 F.Supp. 355, 358 (M.D. Ala. 1995) (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974)). The scope of an employment discrimination complaint is determined by the EEOC charge and investigation. See Gregory v. Georgia Dep't of Human Res., 355 F.3d 1277, 1280 (11th Cir. 2004).

         A plaintiff is barred from pursuing any claim in a federal court action that is not “like or related” to the claims asserted by the plaintiff in her EEOC charge, or that could not reasonably be expected to arise during the course of the EEOC investigation. See Sanchez, 431 F.2d at 466-67. Therefore, additional charges in a civil complaint, or in a second EEOC charge, which do not arise naturally and logically from the facts presented to the EEOC are not related to the original charge, and cannot be pursued in federal court.

         A. The EEOC ...

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