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Moore v. Baker

United States District Court, S.D. Alabama, Northern Division

March 8, 2019

KATHY J. MOORE, Plaintiff,
JIMMY H. BAKER, et al., Defendants.



         This 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, [1] 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 PART.


         Plaintiff 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. (Doc. 1).

         On 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.


         Plaintiff, 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).

         Plaintiff 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.[3] (Id. at ¶45).

         Wallace 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.[4] (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).

         Effective 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).

         On May 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 followed.

         In her 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;[5] Wallace College; and President Mitchell, both individually and in his official capacity as Wallace College's President. (Doc. 1 at ¶¶ 6-18).

         In 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).

         Defendants 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.[6]


         Immunity 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 Rule 12(b)(1).

         Rule 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).

         However, 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).

         Rule 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, the-defendant-unlawfully-harmed-me accusation.” 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).

         IV. ANALYSIS

         A. The Eleventh Amendment Bars Plaintiff's ADEA Claims Against Wallace College and the ACCS Board of Trustees (Counts Four and Five).

         In 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.

         The 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. at 91-92).

         In 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.

         Alabama 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 court.” Id.

         It is 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).

         Plaintiff 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).

         Plaintiff's 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 dismissed.[7]

         B. 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 Five).

         Defendants argue that Plaintiff's complaint fails to state a claim against the ACCS Board of Trustees under Title VII, the ADEA, [8] and 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.

         i. Title VII.

         Title 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).

         The 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 operations;
(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 ...

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