Martin v. Auburn University Montgomery

Filing 10

MEMORANDUM OPINION AND ORDER directing as follows: (1) the 4 MOTION to Dismiss is GRANTED to the following extent: (a) Counts I, II as to the Title VII race claim and the 1981 race claim, and III are DISMISSED; (b) Count V is DISMISSED with prejudi ce; (2) the motion to dismiss is DENIED in all other respects; (3) this matter will proceed on Count II as to the Title VII gender discrimination and Count IV. Signed by Honorable Judge W. Harold Albritton, III on 12/8/11. (Attachments: # 1 Civil Appeals Checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

DR. RICHARD MARTIN,
Plaintiff,
v.
AUBURN UNIVERSITY
MONTGOMERY,
Defendant.

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) CIVIL ACTION NO. 2:11-cv-715-WHA
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(WO)
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MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This case is before the court on a Motion to Dismiss (Doc. # 4) filed by Defendant
Auburn University Montgomery (“AUM”) on September 29, 2011.
Following this court’s granting of the Defendant’s Motion to Sever (Doc. #2), the
Plaintiff, Dr. Richard Martin (“Martin”), a white male, filed an Amended Complaint (Doc. # 3)
in this court on September 15, 2011, alleging violations of Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 1981 (“§ 1981"), and the Age Discrimination in Employment
Act (“ADEA”). Those claims are as follows: racially hostile working environment in violation
of Title VII (Count I); race, age, and gender discrimination in violation of Title VII and § 1981
(Count II); retaliation in violation of Title VII (Count III); age discrimination in violation of the
ADEA (Count IV); and fraudulent inducement and misrepresentation by the Defendant (Count
V). On September 29, 2011, the Defendant moved this court to dismiss the Plaintiff’s claims
pursuant to Federal Rule of Civil Procedure 12(b)(6). On October 24, 2011, the Plaintiff filed a

Response to the Defendant’s Motion to Dismiss (Doc. # 7), and on October 31, 2011, the
Defendants filed a Reply to the Plaintiff’s Response (Doc. # 8).
For reasons to be discussed, the Motion to Dismiss is due to be GRANTED in part and
DENIED in part.
II. MOTION TO DISMISS
The court accepts the plaintiff's factual allegations as true, Hishon v. King & Spalding,
467 U.S. 69, 73 (1984), and construes the complaint in the plaintiff's favor, Duke v. Cleland, 5
F.3d 1399, 1402 (11th Cir. 1993). In analyzing the sufficiency of pleading, the court is guided
by a two-prong approach: one, the court is not bound to accept conclusory statements of the
elements of a cause of action and, two, where there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to entitlement
to relief. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50 (2009).

“[A] plaintiff's

obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Id. (citation omitted). To survive a
motion to dismiss, a complaint need not contain “detailed factual allegations,” but instead the
complaint must contain “only enough facts to state a claim to relief that is plausible on its face.”
Id. at 570. The factual allegations “must be enough to raise a right to relief above the
speculative level.” Id. at 555.
III. FACTS

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Martin’s Complaint, while sparse on facts, does allege that he is a citizen of the United
States and a resident of Alabama. Martin alleges that he was employed by AUM as its Justice
and Public Safety Department Head and had met all of the requirements for tenure, but was
denied tenure despite this. At the time he was denied tenure, he was over 40 years of age. With
the exception of providing his curriculum vita, the only other relevant facts that Martin alleges is
that “younger persons and females similarly situated were granted tenure,” (Doc. #3 ¶ 9), and
that “[t]hose younger individuals and females similarly situated did not meet the tenure
requirements imposed upon Dr. Martin and were far less qualified.” (Doc. #3 ¶ 10).
IV. DISCUSSION
1. Timeliness of Motion to Dismiss
As a threshold matter, Martin’s first contention is that AUM’s Motion to Dismiss is
untimely. Specifically, Martin contends that the Federal Rules of Civil Procedure require AUM
to file an answer within 21 days after being served with the Complaint. Fed. R. Civ. Pro.
12(a)(1)(A)(i). Martin argues that this deadline has passed without any action on behalf of
AUM. Martin further contends that by filing the Motion to Sever in response to the Complaint,
instead of a Motion to Dismiss or other responsive pleading, AUM has essentially waived the
arguments raised by the Motion to Dismiss.
AUM counters by explaining that Martin’s argument confuses responsive pleadings with
motions. AUM argues that Rule 12(a), upon which Martin relied, governs only to those
pleadings enumerated under Rule 7(a) of the Federal Rules of Civil Procedure. AUM argues that
Rule 12(b)(6) motions to dismiss are governed instead by Rule 12(h)(2) which explains in
relevant part that “[f]ailure to state a claim upon which relief can be granted ... may be raised:
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(A) in any pleading allowed or ordered under Rule 7(a).” Fed. R. Civ. Pro. 12(h). In this court’s
order granting AUM’s Motion to Sever, Martin was instructed to file an Amended Complaint by
September 16, 2011. (Doc. #2 at 8). Because of the order to re-file an Amended Complaint,
AUM argues that they had 14 days to respond to the Amended Complaint. See Fed. R. Civ. Pro.
15(a)(3) (“Unless the court orders otherwise, any required response to an amended pleading must
be made within the time remaining to respond to the original pleading or within 14 days after
service of the amended pleading, whichever is later.”). AUM argues that pursuant to Rule 12(b)
Martin’s new pleading date, September 16, 2011, is the proper one for determining if AUM’s
September 30, 2011, Motion to Dismiss is timely filed, and, having been filed within 14 days of
the Amended Complaint, the Motion to Dismiss is timely.
This court agrees with AUM and finds that the Motion to Dismiss is not untimely
because it was filed within 14 days of the Amended Complaint pursuant to Rules 12(b), 12(h)(2),
and 15(a)(3) of the Federal Rules of Civil Procedure.
2. Individual Claims
Count I – Hostile Work Environment
As stated by the Eleventh Circuit, to plead a hostile work environment claim the plaintiff
is “required to allege that: (1) he belongs to a protected group; (2) he was subjected to
unwelcome harassment; (3) the harassment was based on his membership in the protected group;
(4) it was severe or pervasive enough to alter the terms and conditions of employment and create
a hostile or abusive working environment; and (5) the employer is responsible for that
environment under a theory of either vicarious or direct liability.” Edwards v. Prime, Inc., 602
F.3d 1276, 1300 (11th Cir. 2010). Although the Edwards court was addressing a § 1981 claim,
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the Eleventh Circuit has explained that the analytical frameworks are the same for both § 1981
and Title VII retaliation claims. See Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275
(11th Cir. 2002) (requiring the same elements for both § 1981 and Title VII hostile work
environment claim); Shields v. Fort James Corp., 305 F.3d 1280, 1282 & n. 2 (11th Cir. 2002)
(noting that Title VII and § 1981 hostile work environment claims have the same elements and
are subject to the same analytical framework).
Turning to Martin’s Complaint, he alleges that he was denied tenure because of his age
and gender, but he does not allege generally or specifically any facts “severe or pervasive
enough to alter the terms and conditions of employment and create a hostile or abusive working
environment.” Therefore, Martin has not satisfied Rule 8's plausibility requirement for hostile
work environment under Title VII.
Count II – Discrimination in Violation of Title VII and § 1981
“Although a Title VII complaint need not allege facts sufficient to make out a classic
McDonnell Douglas prima facie case, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct.
992, 997, 152 L.Ed.2d 1 (2002), it must provide ‘enough factual matter (taken as true) to
suggest’ intentional race discrimination. Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d
955, 974 (11th Cir. 2008). Moreover, complaints alleging discrimination must still meet the
Iqbal and Twombly “plausibility” standard. See Edwards v. Prime, Inc., 602 F.3d 1276, 1300
(11th Cir. 2010) (addressing the effect of Iqbal and Twombly on the sufficiency of a Title VII
hostile work environment claim). Therefore, in order to survive a motion to dismiss the
plaintiff’s complaint must contain facts which “[allow] the court to draw the reasonable
inference” that the defendant has engaged in intentional race discrimination. Iqbal, _ U.S. _,
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129 S.Ct. at 1949. This court recognizes that the methods for alleging“a prima facie case are not
fixed; they are flexible and depend to a large degree upon the employment situation.” Wilson v.
B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). One such way is for a plaintiff to
allege that she is qualified for a job, yet she is fired and replaced by an individual outside of her
protected class. Krieg v. Paul Revere Life Ins., Co., 718 F.2d 998, 999 (11th Cir. 1983) (per
curiam). Another method is for a plaintiff to allege “that she was a qualified member of a
protected class and was subjected to an adverse employment action in contrast with similarly
situated employees outside the protected class.” Wilson, 376 F.3d at 1087.
It is also important to note that a “claim for disparate treatment pursuant to Title VII and
pursuant to § 1981 has the same legal elements.” Leige v. Capitol Chevrolet, Inc., 895 F. Supp.
289, 293 (M.D. Ala. 1995). Therefore, if a plaintiff alleges facts sufficient to support a Title VII
claim, then she alleges facts sufficient to support a § 1981 claim. Leige, 895 F. Supp. at 293.
The important distinction between a Title VII claim and a § 1981 claim is that Title VII provides
for relief against an employer, Death v. Collins, 441 F.3d 931, 933 (11th Cir. 2006), while
employers and “[s]upervisors with the capacity to hire and fire or those who can recommend
such decisions are subject to liability under § 1981.” Leige, 895 F. Supp. at 293.
Turning to Martin’s Complaint, he alleges that he was denied tenure despite his extensive
academic work and otherwise “having met all the requirements for tenure.” (Doc. #3 ¶ 8). He
alleges that there were younger females, with fewer qualifications, who were also seeking tenure,
and the younger females received tenure while he was denied tenure. Therefore, he has alleged
that similarly-situated individuals out of his protected group received disparate treatment.
Accordingly, he has properly satisfied the Rule 8 plausibility burden for his Title VII gender
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discrimination. He has failed, however, to plead any facts alleging racial discrimination.
Therefore, his § 1981 claim, which applies only racial discrimination, see 42 U.S.C. § 1981, and
his Title VII racial discrimination claim are both dismissed.
Count III – Title VII Retaliation
“To state a prima facie case of retaliation under Title VII, a plaintiff must show that: (1)
he engaged in an activity protected under Title VII; (2) he suffered an adverse employment
action; and (3) there was a causal connection between the protected activity and the adverse
employment action. Lord v. City of Ozark, No. 1:10cv451–WHA, 2010 WL 4780680, *5 (M.D.
Ala. November 17, 2010) (citing Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th
Cir.2001)). “There are two types of protected activity that can serve as the basis for a retaliation
claim: (1) if an employee opposed any practice that is an unlawful employment practice (the
‘opposition clause’); and (2) if an employee ‘made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under this subchapter’ (the ‘participation
clause’).” Lord, 2010 WL 4780680 at *5 (citing 42 U.S.C. § 2000e–3(a)). Therefore, to allege a
case of retaliation, a plaintiff will have to allege either an act falling under the opposition clause
or the participation clause.
Turning to Martin’s Complaint, he alleges that he was denied tenure because of his
gender and his age. He does not allege any facts that would meet the conduct requirements of
the opposition or the participation clauses. Absent this key component of retaliation, Martin has
not alleged enough facts to allow for recovery under a theory of retaliation. Therefore, Martin
has not satisfied Rule 8's plausibility requirement for retaliation under Title VII.
Count IV – ADEA Violation
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The Eleventh Circuit, like most other circuits, employs nearly identical frameworks for
proving a prima facie case for both Title VII and the ADEA. See Cofield v. Goldkist, Inc., 267
F.3d 1264, 1267 (11th Cir. 2001). Like Title VII, the ADEA is a suit that is properly brought
against employers and not individual employees in either their individual or official capacities.
See Griswold v. Alabama Dept. of Inuds. Relations, 903 F. Supp. 1492, 1496-97 (M.D. Ala.
1995). In order to plead a prima facie case, the plaintiff will need to show that “he was: (1) a
member of the protected class; (2) qualified for his current position; (3) subject to adverse
employment action; and (4) treated less favorably than any younger, similarly situated
employee.” East v. Clayton County, GA, No. 10–15749, 2011 WL 3279197, *6 (11th Cir. August
1, 2011) (citing Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453, 1457 (11th Cir. 1997)).
Although it is likely not required, any complaint that alleges the elements articulated in East will
meet the plausibility requirement of Rule 8. Cf. Edwards v. Prime, Inc., 602 F.3d 1276, 1300
(11th Cir. 2010) (addressing the effect of Iqbal and Twombly on the sufficiency of a Title VII
hostile work environment claim).
Turning to Martin’s Complaint, he alleges that he was over 40 years of age at the time of
the events giving rise to his claim and thus is a member of the ADEA’s protected class of
individuals. His Complaint alleges that younger professors received tenure despite being
similarly-situated to himself. (Doc. #3 ¶ 10). That allegation, along with the allegations
previously discussed, demonstrate that Martin has alleged that he was a member of the protected
age group, he was qualified for his position when he was denied tenure, and that a younger
individual received tenure when he did not. Accordingly, Martin has satisfied the plausibility
requirement of Rule 8.
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Count V – Fraudulent Inducement and Misrepresentation
Martin also alleges that AUM fraudulently induced him to begin his employment and
made false representations about AUM’s policies regarding favorable treatment of loyal
employees. Singleton’s claim is due to be dismissed.
As Martin concedes in his brief, Auburn University, of which AUM is a part, is
considered the State of Alabama for the purpose of sovereign immunity. See, e.g., Gulf State
Park Auth. v. Gulf Beach Hotel, Inc., 22 So. 3d 432, 435 (Ala. 2009). Therefore, pursuant to the
Alabama Constitution Article I, § 14, AUM is immune to the state law claims brought by Martin.
Accordingly, his state law claim is due to be dismissed with prejudice.
3. Material to Strike
Martin’s Complaint contains a few errors appearing to stem from his attorney’s handling
of this court’s motion to sever. It appears that his attorney simply repeated identical language
for each plaintiff’s claims which resulted in immaterial language appearing in Martin’s Count I
for Title VII hostile work environment and Count II for Title VII and § 1981 workplace
discrimination. Specifically, as explained above, Title VII claims only apply to race and gender
discrimination and § 1981 claims only encompass racial discrimination, therefore, the mention of
age discrimination found in Martin’s Counts I and II are immaterial. Pursuant to Rule 12(f) of
the Federal Rules of Civil Procedure, “[t]he court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1)
on its own.” Accordingly, the enumerated immaterial matter in Counts I and II are hereby
struck.
V. CONCLUSION
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For the foregoing reasons, it is hereby ORDERED as follows:
1. The Motion to Dismiss is GRANTED to the following extent:
a. Counts I, II as to the Title VII race claim and the § 1981 race claim, and III are
DISMISSED.
b. Count V is DISMISSED with prejudice.
2. The Motion to Dismiss is DENIED in all other respects.
3. This matter will proceed on Count II as to Title VII gender discrimination and
Count IV.

Done this 8th day of December, 2011.
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/s/ W. Harold Albritton
W. HAROLD ALBRITTON
UNITED STATES DISTRICT JUDGE

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