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Carr v. The Water Works Board of City of Birmingham

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

April 16, 2019

TERRANCE L. CARR, JR., Plaintiff,
v.
THE WATER WORKS BOARD OF THE CITY OF BIRMINGHAM, Defendant.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Background

         Plaintiff, 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.

         Plaintiff, 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 ¶ 8).

         Plaintiff's discrimination claims stem from five employment opportunities that Defendant awarded to other employees whom Plaintiff contends are less qualified. In particular, Plaintiff alleges:

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 ¶ 12).
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).[1]
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 ¶ 30).
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. (Id.).

         On June 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.

         II. Standard of Review

         The 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) ...


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