Stroud v. McIntosh et al

Filing 55

MEMORANDUM OPINION AND ORDER GRANTING def ABPP's 27 Second MOTION for Judgment on the Pleadings and GRANTING def McIntosh's 29 MOTION to Dismiss ; further ORDERING that plf's state-law claims are REMANDED to the Circuit Court of Montgomery County, AL, as further set out in order. Signed by Honorable Judge Mark E. Fuller on 12/29/11. Certified copy mailed to Circuit Court Clerk, Montgomery County, AL.(djy, )

IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
PATRICIA G. STROUD,
Plaintiff,
v.
PHILLIP MCINTOSH, et al.,
Defendants.

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CASE NO. 2:11-cv-006-MEF [WO]

MEMORANDUM OPINION AND ORDER
After this case was removed (Doc. # 2) by Defendants Phillip McIntosh (“McIntosh”)
and the Alabama Board of Pardons and Paroles (“ABPP”) from the Circuit Court of
Montgomery County, Alabama, Plaintiff filed an Amended Complaint (Doc. # 25), bringing
claims under 42 U.S.C. § 1983; Title VII, 42 U.S.C. § 2000e et seq. (“Title VII”); the Age
Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (“ADEA”); and several state law
causes of action against Defendant McIntosh. The case is before the Court on Defendant
ABPP’s Motion for Judgment on the Pleadings (Doc. # 27) and Defendant McIntosh’s
Motion to Dismiss (Doc. # 29). Both motions have been fully briefed and are ripe for
review. After careful consideration of the arguments of counsel and the relevant law, the
Court finds that Defendants’ motions are due to be GRANTED.
I. JURISDICTION AND VENUE
Subject matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331, 1343, and
1367(a).

Personal jurisdiction and venue are not contested, and there are adequate

allegations in support of both.

II. STANDARD OF REVIEW
The Federal Rules of Civil Procedure provide that “[a]fter the pleadings are closed –
but early enough not to delay trial – a party may move for judgment on the pleadings.” Fed.
R. Civ. P. 12(c). A judgment on the pleadings is limited to consideration of “the substance
of the pleadings and any judicially noticed facts.” Bankers Ins. Co. v. Fla. Residential Prop.
& Cas. Joint Underwriting Ass’n, 137 F.3d 1293, 1295 (11th Cir. 1998). In considering a
motion for judgment on the pleadings, the court must accept all facts in the complaint as true.
Moore v. Liberty Nat’l Life Ins. Co., 267 F.3d 1209, 1213 (11th Cir. 2001); Ortega v.
Christian, 85 F.3d 1521, 1524 (11th Cir. 1996). A judgment on the pleadings pursuant to
Rule 12(c) is appropriate when “no issues of material fact exist, and the movant is entitled
to judgment as a matter of law[,]” Ortega, 85 F.3d at 1524, or when “the complaint lacks
sufficient factual matter to state a facially plausible claim for relief that allows the court to
draw a reasonable inference that the defendant is liable for the alleged misconduct.” Jiles
v. United Parcel Serv., Inc., 413 F. App’x 173, 174 (11th Cir. 2011) (citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 556, 570 (2007)).
A Rule 12(b)(6) motion tests the legal sufficiency of a complaint; thus, in assessing
the merits of a Rule 12(b)(6) motion, the court must assume that all the factual allegations
set forth in the complaint are true. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (“To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007))). To state a claim that survives a Rule 12(b)(6)
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challenge, a complaint need not contain “detailed factual allegations,” but must include
enough facts “to raise a right to relief above the speculative level on the assumption that all
allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 545.
III. BACKGROUND
Accepting as true the factual allegations in the Amended Complaint, the Court finds
the following facts:
Plaintiff, who is more than sixty years of age, began working for the State of Alabama
in 1975. (Am. Compl. ¶¶ 4, 7.) She became employed by ABPP in 2004, assuming the
position of Personnel Assistant II (“PA II”). (Am. Compl. ¶ 7.) Due to her increased
responsibilities, ABPP promoted Plaintiff to Personnel Assistant III (“PA III”) in October
of 2005. (Am. Compl. ¶ 7.) By June of 2009, Plaintiff was approaching the maximum pay
level for her PA III position, and discussed with Defendant McIntosh the position of
Administrative Services Officer I (“ASO I”). (Am. Compl. ¶ 8.) McIntosh had previously
encouraged Plaintiff to apply for the ASO I position, and “promised [Plaintiff] that he would
personally take the request for reallocation to the [S]tate’s personnel office for approval if
[Plaintiff] qualified for the position.” (Am. Compl. ¶¶ 8,9.)
However, instead of supporting Plaintiff’s ASO I application, McIntosh allegedly
prioritized securing a promotion for “a black employee from [PA II] to . . . [PA III] . . . .”
(Am. Compl. ¶ 9.) He justified this action to the decisionmaker by falsely stating that
Plaintiff intended to retire and that her PA III position soon would become vacant. (Am.
Compl. ¶ 9.) McIntosh allegedly told other state employees that he wished that Plaintiff
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“would hurry up and retire.” (Am. Compl. ¶ 9.) Plaintiff alleges that she was “adversely
affected by McIntosh’s utilization of her age as a factor in effecting these personnel actions.”
(Am. Compl. ¶ 9.)
Plaintiff initiated an internal complaint, later followed by an EEOC charge of
discrimination, regarding Defendant McIntosh’s allegedly discriminatory conduct, which
allegedly resulted in him receiving a lateral transfer to the Alabama Department of
Transportation. (Am. Compl. ¶¶ 12,13.) Plaintiff’s internal complaint was then terminated
by ABPP after Defendant McIntosh’s transfer. Plaintiff alleges that Defendant McIntosh’s
replacement at ABPP “has caused alterations to the professional responsibilities of [Plaintiff]
which adversely affect her future employment with the State of Alabama.” (Am. Compl. ¶
13.) Plaintiff alleges that Defendant McIntosh’s transfer and the subsequent alterations to
her employment responsibilities were retaliatory in response to her complaints of age and
race discrimination.

IV. DISCUSSION
A.

Plaintiff’s Federal Claims
1.

Defendant ABPP
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a.

ABPP is Not a “Person” for Purposes of the § 1983 Claim and is
Entitled to Eleventh Amendment Sovereign Immunity

Plaintiff’s Amended Complaint is unclear as to whether both McIntosh and ABPP are
named as defendants in the § 1983 count, or just Defendant McIntosh. The § 1983 claim
makes allegations regarding Defendant McIntosh’s conduct, but nowhere mentions
Defendant ABPP. Furthermore, the allegations in the § 1983 claim refer to “Defendant” in
the singular, while other counts refer to “Defendants” plurally. Plaintiff nevertheless argues
in her Brief in Opposition that the “Amended Complaint plainly states [a claim under § 1983
for] prospective injunctive relief . . . against [D]efendant [ABPP] . . . .” (Doc. # 36, at 6.)
Even assuming Plaintiff has pleaded such a claim against ABPP, ABPP is entitled to
judgment on the pleadings.
ABPP, as an arm of the State, is not a “person” for purposes of § 1983 relief. See Will
v. Mich. Dep’t of State Police, 491 U.S. 58 (1989); see also McGinley v. Fla. Dep’t of
Highway Safety and Motor Vehicles, No. 10-15240, 2011 WL 3428128, at *1 (11th Cir. Aug.
8, 2011). ABPP also is entitled to Eleventh Amendment sovereign immunity on Plaintiff’s
§ 1983 claim. See Quern v. Jordan, 440 U.S. 332, 342 (1979). Plaintiff’s attempt to avoid
Will and Quern by seeking only prospective injunctive relief against ABPP is futile as well.
Prospective injunctive relief is available against state officials in their official capacity, but
not against the State itself. See Will, 491 U.S. at 71 n.10 (citing Ex parte Young, 209 U.S.
123, 159-160 (1908)); see also Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,
506 U.S. 139, 146 (1993) (“The doctrine of Ex parte Young . . . has no application in suits

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against the States and their agencies, which are barred regardless of the relief sought[.]”).
Accordingly, to the extent that ABPP is named as a defendant to Plaintiff’s § 1983 claim,
ABPP is entitled to judgment on the pleadings.
b.

ABPP’s Sovereign Immunity on the ADEA Claim

Plaintiff argues that ABPP, by removing this case to federal court, has waived its
Eleventh Amendment immunity under Lapides v. Board of Regents of the University System
of Georgia, 122 S. Ct. 1640, 1646 (2002). As observed by this Court, “[s]ome language in
Lapides suggests a broad holding – that any time a [S]tate removes a case to federal court,
the [S]tate has waived its immunity.” Stallworth v. Ala. Dep’t of Mental Health & Mental
Retardation, No. 2:10cv918, 2011 WL 3503177, at *2-3 (M.D. Ala. Aug. 10, 2011)
(published) (Fuller, J.); see also Lapides, 122 S. Ct. at 1646 (“We conclude that the State’s
action joining the removing of this case to federal court waived its Eleventh Amendment
immunity . . . .”). Despite the broad language, the Lapides holding was narrow. The scope
of the holding was delimited at the outset of the Lapides opinion: “It has become clear that
we must limit our answer to the context of state-law claims, in respect to which the State has
explicitly waived immunity from state-court proceedings.” Lapides, 122 S. Ct. at 1643.
As this Court found in Stallworth, “[t]he narrow holding of Lapides does not apply
to this case.” 2011 WL 3503177, at *3. Unlike Lapides, Plaintiff’s ADEA claim against
Defendant ABPP is based in federal law, and there is no allegation that Alabama has waived
its immunity in state court for ADEA claims. Stallworth, 2011 WL 3503177, at *3 (“Unless
waived by other law, Alabama retains sate sovereign immunity from suits brought in its own
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courts.” (citing Ala. Const. art. I § 14 (1901))); see also Kimel v. Fla. Bd. of Regents, 528
U.S. 62, 82-83, 92 (2000) (holding that “the ADEA does not validly abrogate the States’
sovereign immunity”); see also Hillemann v. Univ. of Cent. Fla., 167 F. App’x 747, 748
(11th Cir. 2006). And, as this Court noted in Stallworth, “[t]he Eleventh Circuit has yet to
speak on the subject [of the scope of Lapides], and accordingly there is no case law binding
on this Court . . . In the absence of such case law, this Court declines to find that a state
always waives its sovereign immunity upon removing a case to federal court.” Id. at *3. The
Court sees no reason to withdraw from this position, and ABPP is entitled to Eleventh
Amendment sovereign immunity on Plaintiff’s ADEA claim.1
c.

2

Plaintiff’s Title VII Claim

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Plaintiff’s ADEA claim is also due to be dismissed on account of pleading defects.
Nevertheless, the Court must address the antecedent issue of ABPP’s Eleventh Amendment immunity,
which raises a question of the Court’s subject matter jurisdiction. See Thomas v. U.S. Postal Serv., 364
F. App’x 600, 601 n.3 (11th Cir. 2010) (noting that “a dismissal on sovereign immunity grounds should
be pursuant to Rule 12(b)(1) because no subject-matter jurisdiction exists” (citing Bennett v. United
States, 102 F.3d 486, 488 n.1 (11th Cir. 1996))). Put briefly, Plaintiff necessarily alleges failure to
promote claims since she “continues to serve” as PA III. (Am. Compl. ¶ 7.) However, Plaintiff’s factual
allegations only obliquely hint at a cognizable age discrimination claim. Any direct evidence claim
based upon Defendant McIntosh’s statements is futile because Defendant McIntosh was not the
decisionmaker with respect to Plaintiff’s promotion. Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318,
1330 (11th Cir. 1998) (“Remarks by non-decisionmakers or remarks unrelated to the decisionmaking
process itself are not direct evidence of discrimination.”). Plaintiff’s allegations regarding a
circumstantial evidence claim are woefully inadequate. Plaintiff does not allege that she applied for or
was qualified for the ASO I position. Plaintiff identifies no comparator outside the protected class who
was promoted to the ASO I position. Plaintiff does not allege that the decisionmaker – the personnel
office – failed to promote Plaintiff because of her age. In fact, no allegations linking the personnel office
to Plaintiff’s ADEA claim appear anywhere in the Amended Complaint.
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To the extent that Plaintiff’s retaliation claim is rooted in the ADEA, Defendant ABPP is
entitled to sovereign immunity on that claim as well.

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Unlike the ADEA claim, there is no Eleventh Amendment sovereign immunity for
Defendant ABPP on Plaintiff’s Title VII claim. In 1972, Congress amended Title VII to
expand its reach to state and local governments by including within the definition of “person”
the words “governments, governmental agencies, [and] political subdivisions.” 1 Merrick
T. Rossein, Employment Discrimination Law and Litigation § 12:16 (quoting 42 U.S.C. §
2000e-(a)). In so amending, Congress validly exercised its power under § 5 of the Fourteenth
Amendment to abrogate the states’ Eleventh Amendment immunity for Title VII claims. In
re Emp’t Discrimination Litig. Against State of Ala., 198 F.3d 1305, 1317 (11th Cir. 1999)
(citing and quoting Fitzpatrick v. Bitzer, 427 U.S. 445, 447-48 (1976)). Because its Eleventh
Amendment immunity has been abrogated, ABPP is a proper Title VII defendant.
Nevertheless, Plaintiff’s Title VII discrimination and retaliation claims against ABPP
are due to be dismissed for substantially the same reasons that Plaintiff’s ADEA claim also
would have failed, supra at note 1. To the extent that Plaintiff brings a direct evidence claim
based on Defendant McIntosh’s conduct, that claim fails for multiple reasons. First, “‘only
the most blatant remarks, whose intent could be nothing other than to discriminate on the
basis of [race]’ will constitute direct evidence of discrimination.” Dixon v. The Hallmark
Cos., Inc., 627 F.3d 849, 854 (11th Cir. 2010) (quoting Wilson v. B/E Aerospace, Inc., 376
F.3d 1079, 1086 (11th Cir. 2004)). Second, “[r]emarks by non-decisionmakers or remarks
unrelated to the decisionmaking process itself are not direct evidence of discrimination.”
Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). To the extent that

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Plaintiff brings a circumstantial evidence claim, Plaintiff makes little progress alleging the
elements of a prima facie case. See Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.
1999). Plaintiff does not explicitly allege that she was qualified for the ASO I position.
Plaintiff does not explicitly allege that she applied for the ASO I position and was rejected.
Plaintiff does not allege that a person outside her protected class was promoted to the ASO I
position, or that anyone was promoted to the ASO I position. Plaintiff identifies no proper
comparators. See Wilson, 376 F.3d at 1091 (explaining that the “comparator must be
similarly situated in all relevant respects” and “nearly identical to the plaintiff”). Plaintiff
does not allege that the decisionmaker – the personnel office – used race as a substantial or
motivating factor in failing to promote Plaintiff to the ASO I position. In fact, no allegations
linking the personnel office to Plaintiff’s Title VII claim appear anywhere in the Amended
Complaint.
Plaintiff’s Title VII retaliation claim is doomed as well. Plaintiff alleges that after she
engaged in statutorily protected activity by filing an internal complaint against Defendant
McIntosh and an EEOC complaint, Defendant McIntosh was laterally transferred. His
replacement then “caused alterations to the professional responsibilities of [Plaintiff] which
adversely affect her future employment with the state of Alabama.” (Am. Compl. ¶ 13.)
These vague allegations do not meet Rule 8(a)’s pleading standard and are not sufficient to
survive a motion to dismiss. Twombly, 550 U.S. at 545 (To state a claim that survives a Rule
12(b)(6) challenge, a complaint need not contain “detailed factual allegations,” but must

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include enough facts “to raise a right to relief above the speculative level on the assumption
that all allegations in the complaint are true (even if doubtful in fact)”). Defendant ABPP
is entitled to judgment on the pleadings on Plaintiff’s Title VII claim.
2.

Defendant McIntosh

The only potentially viable federal claim against Defendant McIntosh is the § 1983
claim. See Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991) (“The relief granted
under Title VII is against the employer, not individual employees whose actions would
constitute a violation of the Act.”); see also Smith v. Lomax, 45 F.3d 402, 403 n.4 (11th Cir.
1995) (Individuals “cannot be liable under the ADEA or Title VII”).
Section 1983 “creates no substantive rights, but merely provides a remedy for
deprivations of federal rights created elsewhere.” Oklahoma City v. Tuttle, 471 U.S. 808,
816 (1985). To establish a claim under § 1983 against Defendant McIntosh in his individual
capacity, Plaintiff must show: (1) a deprivation of a federal statutory or federal constitutional
right and (2) that the deprivation was committed by a person acting under color of state law.
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999); see also Maine v. Thiboutot,
448 U.S. 1 (1980) (holding that § 1983 creates a cause of action against state officials for
violations of federal statutes).
Plaintiff alleges that Defendant McIntosh, acting under color of state law,
discriminated against Plaintiff “on the basis of age and/or race” in violation of the ADEA;

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the Alabama Age Discrimination Act; Title VII; the Alabama Administrative Code; and the
Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Plaintiff’s § 1983 theories based on alleged deprivations of state law are due to be
dismissed. See Parratt v. Taylor, 451 U.S. 527, 536 (1981) (§ 1983 plaintiff must allege
deprivation of federal, not state, right). Plaintiff’s § 1983 discrimination theories based on
the ADEA, Title VII, and the Equal Protection Clause are likewise due to be dismissed for
the reasons stated above in footnote 1 (ADEA) and Part IV.A.1.c. (Title VII) of this opinion.
Cross v. Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995) (“When [§] 1983 is used as a
parallel remedy for violation of [Title VII], the elements of the two causes of action are the
same.”); Bryant v. Jones, 575 F.3d at 1281, 1296 n.20 (11th Cir. 2009) (noting that
“discrimination claims . . . brought under the Equal Protection Clause . . . or [Title VII] are
subject to the same standards of proof and employ the same analytical framework”); see also
Burns v. Gadsden State Cmty. Coll., 908 F.2d 1512, 1518 n.8 (11th Cir. 1990) (same for
ADEA). Because Plaintiff’s § 1983 claim against Defendant McIntosh is due to be
dismissed, the Court need not address Defendant McIntosh’s qualified immunity defense.

B.

Plaintiff’s State Law Claims
28 U.S.C. § 1367(c) states that “the district courts may decline to exercise

supplemental jurisdiction over a claim under subsection (a) if . . . the district court has
dismissed all claims over which it has original jurisdiction . . . .” § 1367(c)(3). Having

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dismissed Plaintiff’s federal claims, the court exercises its discretion to decline supplemental
jurisdiction over Plaintiff’s state law claims against Defendant McIntosh. See Shotz v. City
of Plantation, Fla., 344 F.3d 1161, 1185 (11th Cir. 2003) (a district court’s decision to
decline supplemental jurisdiction is reviewed for abuse of discretion); see also Crosby v.
Paulk, 187 F.3d 1339, 1352 (11th Cir. 1999) (instructing district courts to “take into account
concerns of comity, judicial economy, convenience, fairness, and the like”). Weighing these
considerations, the Court concludes that remanding Plaintiff’s state-law claims is the
appropriate action. See Lewis v. City of St. Petersburg, 260 F.3d 1260, 1267 (11th Cir. 2001)
(stating that “[supplemental state-law] claims shall be remanded to state court, rather than
dismissed, because this case was originally filed in state court and removed to federal court”
(citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351 (1988))).
V. CONCLUSION
Based on the foregoing, it is ORDERED that Defendant ABPP’s Motion for Judgment
on the Pleadings (Doc. # 27) is GRANTED and Defendant McIntosh’s Motion to Dismiss
(Doc. # 29) is GRANTED. It is further ORDERED that Plaintiff’s state-law claims are
REMANDED to the Circuit Court of Montgomery County, Alabama.
An appropriate judgment will be entered.
DONE this 29th day of December, 2011.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

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