United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
C. MARKS CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on a motion to dismiss
Plaintiff's second amended complaint (Doc. 31), filed on
June 12, 2019.
Plaintiff, Marie Carastro (“Carastro”),
originally filed a complaint in this case on September 14,
2018. (Doc. 1). She has filed two amended complaints. (Doc.
18 & 30). In her second amended complaint, Carastro
brings a claim of retaliation pursuant to Title VII, 42
U.S.C. § 2000 et seq. (“Title
VII”), against the Alabama Department of Public Health
(“the ADPH”) (count one); a claim for injunctive
relief as a remedy for age discrimination against Dennis
Blair, Mia Sadler, and Lisa Pezent (count two); a claim of
disability discrimination brought pursuant to the
Rehabilitation Act against the ADPH (count three); and a
Title VII hostile working environment claim against the ADPH
reasons that follow, the Defendants' motion is due to be
GRANTED in part and DENIED in part.
survive a motion to dismiss [for failure to state a claim], a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “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. at 678. “Determining whether a complaint
states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. at 679.
analyzing a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6), the court assumes the factual
allegations in the complaint to be true. However, “if
allegations [in the complaint] are indeed more conclusory
than factual, then the court does not have to assume their
truth.” Chaparro v. Carnival Corp., 693 F.3d
1333, 1337 (11th Cir. 2012) (citing Mamani v.
Berzain, 654 F.3d 1148, 1153- 54 (11th Cir. 2011)).
“[A] plaintiff's obligation to provide the grounds
of his entitlement to relief 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.
allegations of the second amended complaint are as follows:
began working for the ADPH in 1989. At the time her
employment ended in October of 2018, she worked as a
Licensure & Certification Surveyor of nursing homes and
related facilities. Carastro is ninety years old.
identifies actions taken by the ADPH which she contends were
discriminatory on the basis of her age and that she was
regarded by the ADPH as being disabled.
alleges that as a result of three complaint letters, she was
recommended for suspension from surveying facilities. She was
subsequently suspended without pay from June 3, 2017 to June
regard to the three complaints, Carastro alleges that staff
at nursing homes had been told by the ADPH to call if they
had a problem with her and were told that she has
Alzheimer's disease. (Doc. 30, at p. 8). Carastro states
that she does not have Alzheimer's disease. Carastro also
alleges that she was forced to drive long distances to do
inspection work and that when she arrived, she was prohibited
from doing inspection work. She alleges that no other
surveyor was treated that way. (Doc. 30, at p. 8). Carastro
alleges that she was required to use electronic devices and
computers and that this requirement is evidence of age
discrimination. (Doc. 30, at p. 9). Carastro states that the
ADPH incorrectly perceived that she is disabled and attempted
to make her appear incompetent because of her age.
alleges that she has filed multiple charges of discrimination
with the Equal Employment Opportunity Commission
(“EEOC”), including charges in December 2015,