United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
C. MARKS CHIEF UNITED STATES DISTRICT JUDGE.
pending before the Court is a motion to dismiss
Plaintiff's third amended complaint (Doc.
filed on July 26, 2019, by the Alabama Department of Public
Health (ADPH), Dennis Blair, Mia Sadler, and Lisa Pezent
(collectively “the Defendants”).
Plaintiff, Marie Carastro, originally filed a complaint in
this case on September 14, 2018 (Doc. 1). In her third
amended complaint, the Plaintiff brings a claim for violation
of the Age Discrimination in Employment Act (ADEA) (count
one); claims for retaliation claim under the Rehabilitation
Act of 1973 (count two); and a hostile work environment claim
in violation of Rehabilitation Act (count three) (Doc. 37).
reasons that follow, the Defendants' motion is due to be
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.
facts as alleged in the third amended complaint are as
was employed with the ADPH for approximately thirty years. At
the time her employment ended in October of 2018, she worked
as a Licensure & Certification Surveyor of nursing homes
and related facilities.
Plaintiff filed multiple charges of discrimination with the
Equal Employment Opportunity Commission (“EEOC”),
including charges in December 2015, September 2016, March
2017, and July 2017.
March 2017, Carastro received a letter from State Health
Officer Thomas Miller stating that she was accused of being
argumentative and of engaging in inappropriate behavior at
long-term care facilities. As a result, she had a
pre-suspension hearing, and a recommendation was made to the
ADPH that she receive a seven-day suspension without pay from
June 3, 2017 to June 9, 2017. In September 2018, Carastro
received a letter notifying her of a pre-termination
conference. On October 9, 2018, she was terminated. She
appealed and entered into a settlement with the State
Personnel Department whereby she was reinstated to her
position and allowed to retire effective April 1, 2019.
Plaintiff alleges that nursing home facilities staffs were
told by ADPH employees that she has Alzheimer's and no
longer surveys by herself. (Doc. 37 at ¶15, ¶38).
She also alleges that when she was allowed to survey, the
ADPH forced her to go on long-distance travel by herself. She
finally alleges that ADPH employees asked her when she was
going to retire, and often subjected her to bullying,
physical abuse, and verbal abuse. (Doc. 37 at ¶42).