Carastro v. Alabama Department of Public Health

          MEMORANDUM OPINION AND ORDER

          EMILY C. MARKS CHIEF UNITED STATES DISTRICT JUDGE.

         Now pending before the Court is a motion to dismiss Plaintiff's third amended complaint (Doc. 38)^[1] filed on July 26, 2019, by the Alabama Department of Public Health (ADPH), Dennis Blair, Mia Sadler, and Lisa Pezent (collectively “the Defendants”).

         The 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).

         For the reasons that follow, the Defendants' motion is due to be GRANTED.

         I. LEGAL STANDARD

         “To 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.

         In 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.

         II. FACTS

         The facts as alleged in the third amended complaint are as follows:

         Carastro 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.

         The 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.

         In 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.

         The 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).

         III. ...