United States District Court, N.D. Alabama, Southern Division
TERRANCE L. CARR, JR., Plaintiff,
THE WATER WORKS BOARD OF THE CITY OF BIRMINGHAM, Defendant.
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
case is before the court on Defendant's Motion to Dismiss
Plaintiff's Amended Complaint. (Doc. # 18). The Motion
has been fully briefed (Docs. # 23, 26) and 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 in part and denied in part.
Terrance L. Carr, Jr., claims that Defendant discriminated
against him based on his (1) race in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq. (“Title
VII”) and 42 U.S.C. § 1981; (2) age in violation
of the Age Discrimination in Employment Act of 1967, 29
U.S.C. § 621, et seq. (“ADEA”); and
(3) disability in violation of the Americas with Disabilities
Act of 1990, 42 U.S.C. § 12101, et seq
(“ADA”). In support of these claims, Plaintiff
alleges the following facts in his Amended Complaint.
a 52-year-old African-American male, began working for
Defendant nearly thirty years ago (in September 1991) as a
Distribution Maintenance Worker. (Doc. # 17 at ¶ 8).
Plaintiff's degrees and certifications include a Master
of Science in Management, Bachelor of Business
Administration, Associate in Applied Science Degree in
Construction Technology, Architectural Civil Drafting
Certificate, Water Grade IV Certificate, Beginning Welding
Certificate, Certified Master Plumber, and Master Gas Fitter.
(Id. at ¶ 28). He currently works for Defendant
as the Mulberry Intake Supervisor. (Id. at ¶
discrimination claims stem from five employment opportunities
that Defendant awarded to other employees whom Plaintiff
contends are less qualified. In particular, Plaintiff
1. In November 2017, Defendant created the District
Supervisor of Inspections position, but “did not post
the position pursuant to the rules and regulations of the
Water Works.” (Id. at ¶¶ 10-11).
Plaintiff claims that although he was qualified, Defendant
preselected Larry Calhoun, a white male, to fill the
position. (Id. at ¶¶ 12-13). He further
contends that Defendant “knew that [he] would apply for
the position if posted and failed to post in an effort to
discriminate against [him].” (Id. at ¶
2. In January 2018, Plaintiff applied for the position of
Manager of Distribution. (Id. at ¶ 25). He
claims that although he was qualified, a less qualified
African-American male, John Dansby, was chosen for the
position. (Id. at ¶ 26). Defendant told
Plaintiff that he was not qualified to interview for the job.
(Id. at ¶ 27).
3. Also in January 2018, Plaintiff did not have the
opportunity to apply for the Assistant Manager of
Distribution position, because Defendant “did not post
the [job] pursuant to [its] rules and regulations.”
(Id. at ¶ 22). Again, he asserts that Defendant
did not post the position to prevent Plaintiff from applying
“because he was more qualified than the [candidate]
hand picked for the position.” (Id. at ¶
23). Instead, a “less qualified” white male,
Keith Witt, was selected. (Id. at ¶ 24).
According to Plaintiff, the highest level of education Witt
completed is an Associate Degree. (Id. at ¶
4. In February 2018, Plaintiff applied for the Superintendent
of Transmission position. (Id. at ¶ 16). He
submits that although he was qualified, a “less
qualified white male, Chris Kiley, age 46, was awarded the
position.” (Id. at ¶ 17). Specifically,
Plaintiff alleges that the job posting required applicants to
have experience with operating heavy equipment, welding,
shorting, and eight years of experience in the raw water
division. (Id. at ¶¶ 18-21). Plaintiff
claims that although he had experience in each of these
areas, including seven years of experience in the raw water
division, Kiley, on the other hand, had only three years of
experience in the raw water division and no experience in the
other required areas. (Id.). Plaintiff further
contends that the highest level of education Kiley completed
is high school. (Id. at ¶ 29).
5. In April 2018, Plaintiff applied for the Distribution
Supervisor Chemical Plant position. (Id. at ¶
14). Again, he avers that although he was more qualified,
Defendant selected a less qualified and younger (age 35)
African-American male, David Gatt, for the position.
(Id. at ¶ 15).
On May 24, 2018, Plaintiff filed what appears to be a timely
Charge of Discrimination against Defendant with the Equal
Employment Opportunity Commission (“EEOC”). (Doc.
# 17-1). Plaintiff's EEOC charge asserts that he was
subjected to discrimination based on race, age, and
disability. (Id.). He indicated that the alleged
discrimination began on December 1, 2017 and is ongoing.
4, 2018, the EEOC issued Plaintiff a Dismissal and Notice of
Rights. (Doc. # 17-2). Although Plaintiff does not indicate
when he received this letter, Federal Rule of Civil Procedure
6(d) creates a presumption that receipt occurs three days
after the mailing date. Fed.R.Civ.P. 6(d). Thus, Plaintiff is
presumed to have received the Dismissal and Notice of Rights
on June 7, 2018. Plaintiff filed his original pro se
Complaint initiating this action on August 31, 2018 (Doc. #
1), within ninety (90) days of the date he is presumed to
have received the right to sue notice.
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) ...