United States District Court, S.D. Alabama, Northern Division
KATHY J. MOORE, Plaintiff,
JIMMY H. BAKER, et al., Defendants.
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendants Jimmy H. Baker,
Board of Trustees of Alabama Community College System, Kay
Ivey, Al Thompson, Frank Caldwell, Crystal Brown, Milton A.
Davis, Chuck Smith, Blake McAnally, Wallace Community College
Selma,  and James Mitchell's partial motion to
dismiss for lack of jurisdiction and failure to state a claim
upon which relief can be granted (Doc. 28), and Defendants
Ron Fantroy and Susan Foy's motion to dismiss (Doc. 41).
The motions, which have been fully briefed, have been
referred to the undersigned Magistrate Judge for entry of a
report and recommendation pursuant to 28 U.S.C. §
636(b)(1)(B) and S.D. Ala. CivLR 72(a)(2)(S). Upon
consideration of all matters presented, the undersigned
RECOMMENDS, for the reasons stated herein, that
Defendants' motions be GRANTED IN PART and DENIED IN
Kathy S. Moore (“Plaintiff”) commenced this
action against Defendants by filing a complaint in the United
States District Court for the Middle District of Alabama.
February 23, 2018, all of the named Defendants, except for
Defendants Ron Fantroy and Susan Foy, who had not yet been
served with Plaintiff's lawsuit, filed a partial motion
to dismiss for lack of jurisdiction and failure to state a
claim upon which relief can be granted. (Doc. 28). On the
same date, the Defendants filed a motion to transfer venue to
the Southern District of Alabama. (Doc. 29). After being
served, Defendants Fantroy and Foy filed a motion to dismiss
and motion to transfer (Doc. 41), in which they essentially
joined in and incorporated the arguments made in the other
Defendants' earlier motion to dismiss and motion to
transfer. On July 13, 2018, United States District Judge
Myron H. Thompson of the Middle District of Alabama entered
an order that granted the Defendants' motions to transfer
venue, transferred this case to the Southern District of
Alabama, and left all other pending motions, including
Defendants' motions to dismiss, for resolution by this
Court. (Doc. 56). On the same date, Defendants' motions
to dismiss were referred to the undersigned for entry of a
report and recommendation.
an African-American female who was fifty-seven years old at
the time her complaint was filed, alleges that she was hired
as Director of Student Support Services at Wallace Community
College Selma (“Wallace College”) in 2006, and
that on August 31, 2015, Wallace College's President, Dr.
James Mitchell (“President Mitchell”), an
African-American male, informed her that she would be
reassigned to the new position of Adult Education
Counselor/Student Services Coach as of October 1, 2015. (Doc.
1 at ¶¶ 5, 18, 40-41). Plaintiff contends that the
reassignment was a demotion because she no longer supervised
any employees, no longer had decision-making authority, and
was no longer responsible for creating and administering a
budget. (Id. at ¶42).
filed a Charge of Discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on February 19,
2016, asserting that she was involuntarily transferred
because of her gender and age. (Id. at ¶43).
The EEOC issued Plaintiff a Dismissal and Notice of Rights
dated March 3, 2017. (Id. at ¶45).
College posted the Director of Student Support Services
position on April 28, 2016, and then again on July 13, 2016.
(Id. at ¶52). In the first posting, the
position was advertised on salary schedule C3 with a salary
range of $38, 000 to $53, 000 per year, which was consistent
with Plaintiff's classification when she held the
position. (Id. at ¶56). When the
position was posted the second time, no salary range was
included, and the job was advertised as being on schedule C
rather than schedule C3. (Id. at ¶57).
According to Plaintiff, the omission of the salary range on
the job announcement violated Alabama Community College
System (“ACCS”) Uniform Guidelines for
Recruitment and Selection (“Uniform Guidelines”)
and permitted President Mitchell to offer the position at a
higher salary range. (Id. at ¶¶ 57, 59).
December 1, 2016, Wallace College hired Herbert Hoover Thomas
(“Thomas”), a male approximately five years
younger than Plaintiff, as Director of Student Support
Services. (Id. at ¶¶ 47-48). Plaintiff
alleges that Thomas is not as qualified as her and did not
meet the position's minimum requirements because he
lacked experience designing, managing, or implementing a
student support services program and lacked at least five
years of supervisory experience. (Id. at
¶¶ 49, 52, 60-65). Thomas was hired at an annual
salary of $75, 000, which was $16, 500 more than the highest
salary paid to Plaintiff when she held the same position and
performed the same duties. (Id. at ¶51).
25, 2017, Plaintiff filed a second charge of discrimination
with the EEOC, this time over Thomas' hiring.
(Id. at ¶69). The EEOC issued Plaintiff a
Dismissal and Notice of Rights dated October 4, 2017.
(See id. at ¶3(b)). The instant action
complaint, Plaintiff names the following individuals or
entities as Defendants: Jimmy H. Baker (“Chancellor
Baker”), in his official capacity as Chancellor of the
ACCS; the Board of Trustees of the ACCS (“ACCS Board of
Trustees”); Alabama Governor Kay Ivey, in her official
capacity as President of the ACCS Board of Trustees; Al
Thompson, Ron Fantroy, Susan Foy, Frank Caldwell, Crystal
Brown, Milton A. Davis, Chuck Smith, and Blake McAnally, each
in their official capacities as members of the ACCS Board of
Trustees; Wallace College; and President Mitchell,
both individually and in his official capacity as Wallace
College's President. (Doc. 1 at ¶¶ 6-18).
count one of her complaint, Plaintiff alleges that Wallace
College and the ACCS Board of Trustees discriminated against
her on the basis of gender and thus violated Title VII by
paying her less than her male successor, Thomas, for
performing the same job. (Id. at ¶¶
70-78). In count two, Plaintiff alleges that Wallace College
and the ACCS Board of Trustees violated the Equal Pay Act by
paying her a lower salary than that paid to a
similarly-situated male employee in the same position.
(Id. at ¶¶ 79-87). Plaintiff's third
count seeks relief under 42 U.S.C. § 1983 based on
allegations that President Mitchell in his individual
capacity, Chancellor Baker in his official capacity, and the
individual Trustee Defendants in their official capacities,
violated the Fourteenth Amendment's Equal Protection
clause by intentionally discriminating against Plaintiff in
her pay because of her sex. (Id. at ¶¶
88-96). In count four, Plaintiff alleges that Wallace College
and the ACCS Board of Trustees discriminated against her on
the basis of her age by paying her less than a
similarly-situated younger employee, in violation of the
ADEA. (Id. at ¶¶ 97-105). Count five
alleges that Wallace College and the ACCS Board of Trustees
retaliated against Plaintiff for filing her first EEOC charge
of discrimination by intentionally paying her less than her
male successor, in violation of Title VII and the ADEA.
(Id. at ¶¶ 106-118). Plaintiff seeks a
declaratory judgment that Defendants violated her rights
through their employment practices, an order enjoining
Defendants from engaging in discriminatory practices on the
basis of gender, age, and retaliation, an order requiring
Defendants to pay her back pay with interest, front pay,
compensatory damages, punitive damages, liquidated damages,
and nominal damages, and an award of costs and attorneys'
fees. (Id. at pp. 22-23).
seek the dismissal of a number of Plaintiff's claims
pursuant to Rule 12(b)(1) and Rule 12(b)(6), on the basis of
Eleventh Amendment immunity, failure to state a claim,
failure to exhaust administrative remedies, and untimeliness.
(Docs. 28, 41). The motions have been fully briefed and are
now ready for resolution.
STANDARD OF REVIEW
issues are generally construed as challenges to the
subject-matter jurisdiction of a federal court and are thus
properly raised under Rule 12(b)(1), at least where, as here,
the jurisdictional challenge does not implicate the
underlying merits of the case. See Boglin v. Bd. of Trs.
of Ala. Agric. & Mech. Univ., 290 F.Supp.3d 1257,
1261 (N.D. Ala. 2018). A challenge to a district court's
exercise of subject matter jurisdiction may take one of two
forms: a facial or factual attack. Id. In a facial
attack, a court simply must examine the pleading and
determine whether the plaintiff has sufficiently alleged a
basis for subject matter jurisdiction, while accepting the
plaintiff's allegations as true and construing them most
favorably to the plaintiff. Cardwell v. Auburn Univ.
Montgomery, 941 F.Supp.2d 1322, 1327 (M.D. Ala. 2013). A
factual attack challenges the existence of subject matter
jurisdiction in fact, irrespective of the pleadings, and the
court may consider matters outside the pleadings and weigh
conflicting evidence. Boglin, 290 F.Supp.3d at 1261.
Since Defendants do not submit any extrinsic evidence bearing
on this Court's jurisdiction, the Court construes
Defendants' immunity arguments as a facial attack under
12(b)(6) of the Federal Rules of Civil Procedure authorizes a
motion to dismiss an action on the ground that the
allegations in the complaint fail to state a claim upon which
relief can be granted. On such a motion, the “issue is
not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claims.” Little v. City of N. Miami, 805 F.2d
962, 965 (11th Cir. 1986) (quoting Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)). “When
considering a motion to dismiss, all facts set forth in the
plaintiff's complaint ‘are to be accepted as true
and the court limits its consideration to the pleadings and
exhibits attached thereto.'” Grossman v.
Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000)
(quoting GSW, Inc. v. Long Cnty., 999 F.2d 1508,
1510 (11th Cir. 1993)). The court must draw “all
reasonable inferences in the plaintiff's favor.”
St. George v. Pinellas Cnty., 285 F.3d 1334, 1337
(11th Cir. 2002).
the court is not required to accept a plaintiff's legal
conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The U.S. Supreme Court has suggested that courts
adopt a “two-pronged approach” when considering
motions to dismiss: “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.'” Am. Dental
Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir.
2010) (quoting Iqbal, 556 U.S. at 664). Importantly,
“courts may infer from the factual allegations in the
complaint ‘obvious alternative explanation[s],'
which suggest lawful conduct rather than the unlawful conduct
the plaintiff would ask the court to infer.”
Id. (quoting Iqbal, 556 U.S. at 682).
12(b)(6) is read in consideration of Federal Rule of Civil
Procedure 8(a)(2), which requires “‘a short and
plain statement of the claim showing that the pleader is
entitled to relief,' in order to ‘give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'” See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). Although
Rule 8 does not require detailed factual allegations, it does
demand “more than an unadorned,
Iqbal, 556 U.S. at 678. To survive a motion to
dismiss, a complaint must state on its face a plausible claim
for relief, and “[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.” Id. Unless a
plaintiff has “nudged [her] claims across the line from
conceivable to plausible, ” the complaint “must
be dismissed.” Twombly, 550 U.S. at 570.
“The plausibility standard is not akin to a
‘probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S at 678 (quoting
Twombly, 550 U.S at 556).
The Eleventh Amendment Bars Plaintiff's ADEA Claims
Against Wallace College and the ACCS Board of Trustees
(Counts Four and Five).
their motion, Defendants first argue that Wallace College and
the ACCS Board of Trustees are instrumentalities of the state
of Alabama and, as such, are immune from Plaintiff's ADEA
claims under the Eleventh Amendment of the United States
Constitution. (Doc. 28 at 3). The Eleventh Amendment states:
“The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign
State.” U.S. Const. amend. XI. The Supreme Court has
construed the Eleventh Amendment “to establish that an
unconsenting State is immune from suits brought in federal
courts by her own citizens as well as by citizens of another
state.” Port Auth. Trans-Hudson Corp. v.
Feeney, 495 U.S. 299, 304 (1990) (citations and internal
quotation marks omitted). However, the Eleventh Amendment bar
to suit is not absolute, because states may consent to be
sued in federal court and, in certain cases, Congress may
abrogate states' sovereign immunity. Id.
ADEA “makes it unlawful for an employer, including a
State, ‘to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual .
. . because of such individual's age.'”
Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 62 (2000)
(quoting 29 U.S.C. § 623(a)(1)). Although Congress
expressed its intent to abrogate states' Eleventh
Amendment immunity against ADEA claims, the United States
Supreme Court has “held that Congress was without
authority to abrogate states' sovereign immunity against
ADEA claims.” Stroud v. McIntosh, 722 F.3d
1294, 1298 (11th Cir. 2013) (citing Kimel, 528 U.S.
Kimel, the Supreme Court explained that because of
“the indiscriminate scope of the [ADEA's]
substantive requirements, and the lack of evidence of
widespread and unconstitutional age discrimination by the
States, ” the ADEA “is not a valid exercise of
Congress' power under § 5 of the Fourteenth
Amendment.” Kimel, 528 U.S. at 91. As that
section provides the only recognized constitutional basis for
abrogating states' Eleventh Amendment immunity, see
id. at 80, the Supreme Court concluded that “[t]he
ADEA's purported abrogation of the States' sovereign
immunity is accordingly invalid.” Id. at 91.
has not waived its immunity from ADEA claims.
Stroud, 722 F.3d at 1303. Indeed, “Alabama
retains a ‘nearly impregnable' immunity from suit,
and neither the state legislature nor any other state
authority can waive it.” Id. (internal
citations omitted). Further, “Alabama may assert the
defense of immunity from ADEA liability in state
well-settled that a state educational institution, such as a
community college, is an “arm of the state” and
“is entitled to Eleventh Amendment immunity.”
See, e.g., Morris v. Wallace Cmty.
College-Selma, 125 F.Supp.2d 1315, 1335 (S.D. Ala.
2001). Likewise, “Eleventh Amendment immunity extends
to . . . boards of trustees of state universities.”
Greenwell v. Univ. of Ala. Bd. of Trs., 2012 U.S.
Dist. LEXIS 118917, at *36, 2012 WL 3637768, at *10 (N.D.
Ala. Aug. 22, 2012).
does not dispute that both “the ACCS Board [of
Trustees] as a corporate body” and Wallace College are
state entities to which Alabama's Eleventh Amendment
immunity extends. (Doc. 44 at 4). Plaintiff also acknowledges
the Supreme Court's ruling in Kimel that
Congress did not validly abrogate state immunity from ADEA
claims. (Id.). However, Plaintiff argues that
Kimel “does not defeat her private
damage action against state entities” because the
Fourteenth Amendment's Equal Protection clause can still
be violated by age discrimination that is not rationally
related to a legitimate state interest. (Id. at 5)
(emphasis in original). In support of her argument, Plaintiff
cites the cases of Tennessee v. Lane, 541 U.S. 509
(2004), and United States v. Georgia, 546 U.S. 151
(2006), where the Supreme Court found that Title II of the
Americans with Disabilities Act of 1990 (“ADA”)
validly abrogates states' sovereign immunity insofar as
it creates a private cause of action for individuals against
states for conduct that actually violates the Fourteenth
Amendment. Based on the reasoning in those cases, Plaintiff
contends that the Court may find that “the ADEA's
abrogation of state immunity is valid as applied to private
damage claims involving conduct that ‘actually
violates' constitutional rights.” (Doc. 44 at 7).
argument is unpersuasive. Her argument and the cases she
relies upon do not alter the Supreme Court's holding in
Kimel, nor do they overcome the clear precedent that
state agencies cannot be held liable under the ADEA. See
Foster v. Auburn Univ. Montgomery, 2012 U.S. Dist. LEXIS
32378, at *6, 2012 WL 786959, at *2 (M.D. Ala. Mar. 12, 2012)
(“The Plaintiff raises claims under both the ADEA and
Title I of the ADA. The Supreme Court has directly addressed
whether those statutes properly abrogated Eleventh Amendment
state sovereign immunity and answered in the negative.
Accordingly, a private citizen, like Foster, is barred by the
Eleventh Amendment from bringing claims for monetary damages
or injunctive relief against AUM under the ADEA or Title I of
the ADA.”) (internal citations omitted); Jurriaans
v. Ala. Coop. Extension Sys., 2017 U.S. Dist. LEXIS
125238, at *5, 2017 WL 3902571, at *2 (M.D. Ala. Aug. 7,
2017), report and recommendation adopted, 2017 U.S.
Dist. LEXIS 143585, 2017 WL 3902570 (M.D. Ala. Sept. 6, 2017)
(“The ADEA does not constitute a valid abrogation of
sovereign immunity by Congress. And the State of Alabama has
not waived its sovereign immunity. Therefore, both defendants
are immune from suit as to all claims of employment
discrimination brought pursuant to the ADEA, and these claims
will be dismissed.”) (internal citations omitted);
England v. Hillsborough Cmty. Coll., 546 Fed.Appx.
881, 884 (11th Cir. 2013) (“As for the ADEA claim, in
the ADEA, Congress did not validly abrogate the States'
sovereign immunity to suits by private individuals. As an arm
of the state, a Florida community college like defendant . .
. enjoys immunity from suit.”) (internal citations and
quotation marks omitted). Accordingly, Wallace College and
the ACCS Board of Trustees are immune from Plaintiff's
ADEA claims, and Plaintiff's ADEA claims against Wallace
College and the ACCS Board of Trustees are due to be
Plaintiff has Plausibly Alleged that the ACCS Board Of
Trustees is her “Employer” for the Purposes of
Title VII and the Equal Pay Act (Counts One, Two, and
argue that Plaintiff's complaint fails to state a claim
against the ACCS Board of Trustees under Title VII, the ADEA,
the Equal Pay Act because the ACCS Board of Trustees was not
Plaintiff's “employer” for the purposes of
these statutes. (Doc. 28 at 4). Specifically, Defendants
maintain that the “Board of Trustees was not
[Plaintiff's] employer, and her allegations are devoid of
any claim that the Board or any Board member had direct
involvement in her employment or in the specific hiring
decisions of the College.” (Id.). Plaintiff
acknowledges that the ACCS Board of Trustees' status as
her “employer” is a required element of her Title
VII and Equal Pay Act claims against the ACCS Board of
Trustees. (Doc. 44 at 9). Plaintiff contends that her
complaint contains detailed allegations of the ACCS Board of
Trustees' significant regulation, supervision, and shared
control of community colleges' employment relationships
with employees that suffice to show that the ACCS Board of
Trustees was her employer for the purposes of those statutes.
(Id. at 11, 17). Because the term
“employer” is defined differently under Title VII
and the Equal Pay Act, the Court will address
seriatim whether Plaintiff has plausibly alleged
that the ACCS Board of Trustees was her employer under Title
VII and the Equal Pay Act.
VII defines an employer as “a person engaged in an
industry affecting commerce who has fifteen or more employees
for each working day in each of twenty or more calendar weeks
in the current or preceding calendar year, and any agent of
such a person . . . .” 42 U.S.C. § 2000e(b). A
plaintiff must show that the defendant had the requisite
number of employees; however, the term “employer”
is to be construed liberally. Lyes v. City of Riviera
Beach, Fla., 166 F.3d 1332, 1341 (11th Cir. 1999) (en
banc); McKenzie v. Davenport-Harris Funeral Home,
834 F.2d 930, 933 (11th Cir. 1987).
Eleventh Circuit has instructed courts to look beyond the
nominal independence of an entity and ask whether two or more
ostensibly separate entities may be treated as a single,
integrated enterprise when determining whether they qualify
as an “employer” coming within the coverage of
Title VII. Lyes, 166 F.3d at 1341. The Eleventh
Circuit has identified three situations where it is
appropriate to aggregate multiple entities and treat them as
a single employer for the purposes of Title VII:
(1) The “single employer” test - where two
entities are highly integrated with respect to ownership and
(2) The “joint employer” test - where the two
entities contract with each other for the performance of a
task, and one entity has sufficient control over the terms