Burks v. Gardner

          MEMORANDUM OPINION

          T. MICHAEL PUTNAM, UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on the motions to dismiss Plaintiff Buford Burks's (“Plaintiff” or “Burks”) “Expanded Complaint, ” filed by defendants Anthony Gardner (“Gardner”), Tommie Campbell, Anne P. Luke, Daisybelle Thomas-Quinney, Julene Delaine, Toby Fitch, and Johnny Patrick (collectively “Defendants”) on February 19, 2019. (Docs. 16, 18). Plaintiff was given an opportunity to respond, but to date, no response has been filed.

         Defendants are all employees or board members of the Sumter County Board of Education.^[1] They jointly argue that all claims against them arising from the termination of Plaintiff's employment are due to be dismissed. The parties have consented to the exercise of dispositive jurisdiction by a United States Magistrate Judge in accordance with 28 U.S.C. § 636. (Doc. 21). The court has considered all of the arguments and enters the following memorandum opinion.

         Procedural History and Facts

         Buford Burks filed his initial complaint on November 15, 2018. (Doc. 1). He alleged several violations of law stemming from his termination by the Sumter County Board of Education on October, 16, 2018. Defendants filed a motion for more definite statement on January 10, 2019, alleging that Plaintiff's complaint did not contain a short, plain statement of the facts giving rise to his claims. (Doc. 8). The court convened a hearing on January 25, 2019. (Docs. 10, 13). At that hearing the court explained the pleading requirements to the pro se plaintiff in great detail and ordered him to file an amended complaint.

         Plaintiff filed an amended complaint (titled “Expanded Complaint”) on February 4, 2019. Burks alleged that his termination by the Board violated his rights under the Americans with Disabilities Act, the Family Medical Leave Act, and the Employee Retirement Income Security Act because he was seeking treatment at the Tuscaloosa VA Hospital for a mental disability at the time of his termination. He further alleged that he had sick days that he was entitled to use for his absence from work. Burks also alleged that the Board entered into a contract with him to provide full pay and benefits for 75 days after voting to terminate him but failed to do so, constituting a breach of contract. Finally, Burks alleged that he was denied substantive and procedural due process rights secured by the Fourteenth Amendment of the Constitution. The defendants filed the pending motions to dismiss on February 19, 2019. Gardner filed a motion to dismiss by himself and also joined in a motion to dismiss filed with all of the other defendants.

         Standard of Review

         On a motion to dismiss, the court must accept as true all of the facts alleged in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-51, 173 L.Ed.2d 868 (2009). Federal Rule of Civil Procedure 8(a) requires only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Liberal notice pleading standards embodied in Rule 8(a) “do not require that a plaintiff specifically plead every element of a cause of action, ” Roe v. Aware Woman Ctr. For Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001), or set out in precise detail the specific facts upon which she bases her claim. The complaint must only “contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Id. (quoting In re Plywood Antitrust Litigation, 655 F.2d 627, 641 (5th Cir. Unit A Sept. 8, 1981)). The Supreme Court raised the threshold for a sufficient pleading in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1965 (2007) (rejecting the standard from Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that any “conceivable” set of facts supporting relief is sufficient to withstand a motion to dismiss). The threshold of plausibility is met where the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). To withstand scrutiny under Rule 12(b)(6) a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face, ” and that will thus “nudge [his] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. This requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The Eleventh Circuit Court of Appeals has explained that the principles set forth in Twombly and Iqbal require the complaint to set forth sufficient facts to “raise a right to relief above the speculative level.” Speaker v. U.S. Dep't of Health and Human Servs. Centers for Disease Control and Prevention, 623 F.3d 1371, 1380 (11th Cir. 2010).

         Because the plaintiff is pro se, the court also is required to liberally construe his pleading. See Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). This creates an obvious tension with the Twombly/Iqbal pleading standard, a tension the district courts have struggled with. While pro se pleaders are given a liberal reading, they still must comply with the rules of procedure. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007). This means that, at the least, the pro se pleading must allege facts that “raise a right to relief above the speculative level.” Smith v. Murphy, No. 2:16-CV-01251-MHH-TMP, 2016 WL 7974660, at *1 (N.D. Ala. Nov. 1, 2016), report and recommendation adopted, No. 2:16-CV-01251-MHH-TMP, 2017 WL 345571 (N.D. Ala. Jan. 24, 2017) (quoting Saunders v. Duke, 766 F.3d 1262, 1266 (11th Cir. 2014) (internal quotation marks omitted)).

         Discussion

         Plaintiff asserts five claims in his amended complaint: a violation of the Americans with Disabilities Act, a violation of the Family and Medical Leave Act, a violation of the Employee Retirement Income and Security Act, a state law breach of contract, and a violation of his procedural and substantive due process rights secured by the Fourteenth Amendment. For reasons that will be discussed under the appropriate subheading, the defendants contend that all of the plaintiff's claims against them are due to be dismissed.

         A. Facts Alleged in the Amended Complaint

         The court has assumed to be true the following facts alleged in the amended complaint and the exhibits annexed to it.

         On July 10, 2018, the Sumter County Board of Education (“SCBE”) voted and approved hiring the plaintiff as a Language Arts teacher for the 2018-2019 school year at the Livingston Middle School. This was the first time the plaintiff had been employed by the SCBE. By August 27, 2018, dealing with rowdy eighth grade students caused the plaintiff stress, and he sought treatment at the Veterans Administration Hospital in Tuscaloosa, Alabama. On that day, he wrote the following letter to Dr. Anthony Gardner, the superintendent of the Sumter County schools:

I am a disabled veteran, and the challenging students at Livingston Junior High have made me mentally and physically exhausted. I have come close to grabbing them to force them into line and into their seats. As a result, Saturday Aug. 25, 2018, I called the VA Mental Crisis line, and I am seeking a medical approval to retire effective Nov. 16, 2018. I will visit VA Hospital in Tuscaloosa Monday, August 27, 2018, to have my vital signs checked and VA Crisis Center will contact me next week. I have 59 sick days to use until Nov. 16, 2018. I can leave daily lessons, or Kelly Services can allow substitute teacher to follow the curriculum. Please have all other correspondence after Sept. 20, 2018 including my first check before direct deposit starts sent to my home address at 322 8^th Terrace West Birmingham, Alabama 35204.

         In the body of the amended complaint, the plaintiff alleges that, in fact, he had 61 sick days available for use. Although he was not present at the school, he sent lessons to the principal to cover the days from August 27 to November 13, 2018.

         On September 14, 2018, the plaintiff was notified by letter from Dr. Gardner that he would recommend the plaintiff's termination at a meeting of the SCBE scheduled for October 16, 2018. The letter informed the plaintiff that he had the right to submit a written statement as to why he should not be terminated. On September 21, 2018, the plaintiff responded to Dr. Gardner's letter with the following:

In reference to your letter dated Sept. 14, 2018, I ask that you and the board accept my resignation effective Nov. 16, 2018 when my 61 sick leave days are exhausted. I am a Disabled Veteran, and I was treated for mental stress Spring 1981 at Charleston Air Force Base South Carolina. The recalcitrant students refusing to follow rules of not talking as I taught, walk single-file and orderly in line, and pressure from Principal Maye to get them in order had me under such stress I nearly placed some in seats and in line. As a result, I felt it best to seek treatment from Veteran's Administration Hospital, use sick days, and submit my resignation. I have sent Principal Maye a lesson for each day through Nov. 16, 2018. Due to the mitigating circumstances please^[2]

         Apparently on that same day, the plaintiff wrote a second letter to Dr. Gardner, as follows:

This is a follow up to the statement dated today for members of the school board and you requesting you recommend acceptance of my resignation as English teacher at Livingston Junior High effective Nov. 16, 2018 due to mental stress rather than recommending termination. I am a Disabled veteran with a “Service-connected” disability, and I am still in ...