Rosado et al v. Chattahoochee Valley Community College et al
Filing
51
OPINION AND ORDER: it is ORDERED that: (1) The renewed partial motion to dismiss filed by defendants Chattahoochee Valley Community College, Dr. Glen Cannon, and Dr. David Hodge (Doc. 21 ) and the motion to dismiss filed by defendant Dr. Mark A. Heinrich (Doc. 26 ) are granted in part and denied in part as follows: (a) Plaintiff Ivonne Rosado's AADEA claim against defendant Chattahoochee Valley Community College is dismissed. (b) Plaintiff Rosado's 1983 claims for age discriminati on against defendants Cannon, Hodge, and Heinrich are dismissed. (c) Plaintiffs Rosado's and Michelle L. Ortiz's 1983 claims for monetary damages against defendants Cannon and Hodge in their official capacities are dismissed. (d) Plaintiffs Rosados and Ortiz's 1983 claims for backpay, front pay, retroactive benefits, and injunctions to obey the law against defendants Cannon, Hodge, and Heinrich in their official capacities are dismissed. (e) Plaintiffs Rosado's and Ortiz' ;s 1983 claims for declaratory relief against defendants Cannon, Hodge, and Heinrich in their official capacities are dismissed. (f) Plaintiff Ortiz's Title VII discrimination claim against defendant Chattahoochee Valley Community College based on her rejection from a recruiter position is dismissed insofar as she asserts it as an independent ground for relief. (g) Plaintiffs Rosado and Ortiz may proceed on their 1983 claims for monetary damages and declaratory relief against defendants Ca nnon and Hodge in their individual capacities; their 1983 claims for promotions and pay raises against defendants Cannon, Hodge, and Heinrich in their official capacities; and their Title VII discrimination and retaliation claims against defendant Ch attahoochee Valley Community College (subject to the limitation on Ortiz's claim described above). (2) The motion for order of substitution filed by plaintiffs Rosado and Ortiz (Doc. 37 ) is denied as moot. This case is not closed. Signed by Honorable Judge Myron H. Thompson on 3/29/2024. (CWL)
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
IVONNE ROSADO and
MICHELLE L. ORTIZ,
)
)
)
Plaintiffs,
)
)
v.
)
)
CHATTAHOOCHEE VALLEY
)
COMMUNITY COLLEGE, et al., )
)
Defendants.
)
CIVIL ACTION NO.
3:14cv33-MHT
(WO)
OPINION AND ORDER
Plaintiffs
bring
this
Ivonne
Rosado
and
Michelle
employment-discrimination
lawsuit
L.
Ortiz
against
defendants Chattahoochee Valley Community College; its
president,
David
Dr.
Hodge;
Department
Heinrich.
of
Glen
and
Cannon;
the
its
vice
Chancellor
Postsecondary
of
Education,
president,
the
Dr.
Dr.
Alabama
Mark
A.
Rosado and Ortiz assert that the defendants
subjected
retaliation.
them
to
unlawful
discrimination
and
Rosado
and
Ortiz
bring
disparate-treatment
and
retaliation claims against the College under Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§§ 1981a and 2000e through 2000e-17 (counts one, two,
five,
Hodge,
and
and
ten).
They
Heinrich
further
violated
contend
the
that
Equal
Cannon,
Protection
Clause of the Fourteenth Amendment, as enforced through
42 U.S.C. § 1983 (counts three, four, seven, eight, and
nine).
While both plaintiffs’ equal-protection claims
allege discrimination based on ethnicity, color, race,
and
national
origin,
discrimination.
claim
also
claims
age
She brings another age-discrimination
against
Discrimination
Rosado
the
in
College
under
Employment
Act
the
Alabama
(AADEA),
Ala.
Age
Code
§§ 25-1-20 through 25-1-29 (count six).
Rosado
judgments,
and
and
Ortiz
seek
injunctive
damages,
relief.
The
declaratory
court
has
jurisdiction over their federal claims under 28 U.S.C.
§ 1331
(federal
question),
2
28
U.S.C.
§ 1343
(civil
rights),
The
and
court
42
U.S.C.
discusses
§ 2000e-5(f)(3)
later
whether
it
(Title
can
VII).
exercise
supplemental jurisdiction over Rosado’s state-law AADEA
claim.
Pending
renewed
before
partial
the
motion
court
to
are
three
motions:
dismiss
filed
by
a
Cannon,
Hodge, and the College, a motion to dismiss filed by
Heinrich, and a motion to substitute parties filed by
Rosado and Ortiz.
The College argues that it is immune
from suit under the AADEA and that portions of Ortiz’s
Title VII discrimination claim are procedurally barred.
Cannon, Hodge, and Heinrich argue that they are immune
from the plaintiffs’ equal-protection claims and that,
in any event, Rosado’s age-discrimination claims are
not cognizable under § 1983.
For the reasons set forth below, the motions to
dismiss will be granted in part and denied in part.
The
motion
to
substitute
parties
moot.
3
will
be
denied
as
I. MOTION-TO-DISMISS STANDARD
The defendants do not specify whether they bring
their motions to dismiss pursuant to Federal Rule of
Civil Procedure Rule 12(b)(6), for failure to state a
claim
upon
12(b)(1),
Unless
a
which
for
relief
lack
defendant
of
can
be
granted,
subject-matter
disputes
the
or
Rule
jurisdiction.
factual
contentions
relevant to subject-matter jurisdiction, Rule 12(b)(1)
“employs
standards
similar
to
those
governing
12(b)(6)
review.”
Willett
v.
United
States,
Rule
24
F.
Supp. 3d 1167, 1173 (M.D. Ala. 2014) (Watkins, J.).
Here,
introduce
the
defendants
competing
are
not
jurisdictional
record.
Although
they
evidence
extrinsic
to
invite
the
the
attempting
facts
court
pleadings,
into
to
they
to
the
consult
do
not
purport to contradict any of the jurisdictional facts
asserted in the complaint.
not
mounting
a
Because the defendants are
factual
attack
4
on
the
court’s
subject-matter
jurisdiction,
any
distinction
between
Rule 12(b)(6) and Rule 12(b)(1) is immaterial to the
instant motions.
Accordingly,
the
court
will
evaluate
the
defendants’ motions using the standards applicable to
Rule
12(b)(6).
Ortiz’s
The
allegations
Spalding,
467
U.S.
court
as
69,
must
true,
73
accept
see
Rosado’s
Hishon
(1984),
and
v.
and
King
construe
&
the
complaint in their favor, see Duke v. Cleland, 5 F.3d
1399, 1402 (11th Cir. 1993).
The court may also draw
“reasonable inferences” from the facts alleged in the
complaint.
Chesser
v.
Sparks,
248
F.3d
1117,
1121
(11th Cir. 2001).
To survive a motion to dismiss under Rule 12(b)(6),
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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550
U.S.
544,
570,
(2007)).
5
“A
claim
has
facial
plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference
that
the
alleged.”
defendant
is
liable
for
the
misconduct
Id.
II. BACKGROUND
The
allegations
in
the
complaint,
taken
in
the
light most favorable to Rosado and Ortiz, establish the
following facts.
Rosado and Ortiz were the only Hispanic employees
who worked full time at the College.
During the time
in question, Rosado was the administrative assistant to
the
associate
education.
dean
for
workforce
and
technical
Ortiz worked as an admissions clerk.
a. Rosado
In
2012
or
early
2013,
Rosado
applied
for
two
promotions: one to work as the assistant to Cannon, the
College’s
president,
and
another
6
to
work
as
the
assistant
Cannon,
to
who
Hodge,
made
the
the
College’s
College’s
rejected Rosado’s candidacy.
vice-president.
hiring
decisions,
He hired a white woman as
his assistant and, for Hodge, an African-American woman
whom Hodge had recommended.
Both women were around 20
years younger than Rosado, who was in her late fifties,
and had less professional experience.
Rosado filed a charge of discrimination with the
Equal Employment Opportunity Commission (EEOC) in March
2013.
Subsequently,
the
College
phased
out
a
non-credit phlebotomy program that Rosado ran and that
provided her supplemental income.
disciplinary
write-up
for
She later received a
proctoring
a
national
certification exam in phlebotomy without first seeking
her supervisor’s approval.
Her supervisor knew that
she had proctored the test on several prior occasions
but had never raised an issue.
7
Rosado filed a retaliation charge with the EEOC in
August
2013
and
received
a
right-to-sue
letter
in
October of that year.
b. Ortiz
Ortiz started working for the College in 2007 as an
admissions clerk.
In 2011, she assumed the additional
role of military liaison and moved from the College’s
main campus in Phenix City to the Fort Benning campus.
As military liaison, she recruited military personnel
to take classes at the College and prepared semesterly
reports on her efforts.
While at Fort Benning, she
continued her work in admissions for the Phenix City
campus.
She did not receive a pay raise to accompany
her new duties.
The
skills
College
to
seek
allowed
‘reclassification’
payment purposes.
Ortiz’s
employees
requests
who
of
developed
their
jobs
new
for
At least twice, the College denied
for
reclassification
8
so
that
her
salary would reflect the skills she had honed and the
additional
responsibilities
her
title
as
military
liaison entailed.
Hodge informed her in March 2012 that the College
had denied her first reclassification request.
Earlier
that month, Ortiz had filed a complaint with the State
Ethics Commission after she was asked to pick up food
for an event that she had thought was a campus-wide
diversity
celebration,
employee’s
private
but
birthday
was
actually
party.
a
Ortiz
College
was
later
denied a promotion to a recruiter position, reassigned
to the Phenix City campus, and stripped of her title as
military
liaison,
though
she
remained
an
admissions
clerk for the College.
In late 2012, Ortiz filed an internal grievance
alleging a hostile work environment, which triggered a
grievance
proceeding,
proceeding
Ortiz’s
in
January
second
reclassification was denied.
9
2013.
request
After
for
a
the
job
Ortiz filed a formal charge of discrimination with
the EEOC in March 2013.
Her charge discussed only the
denial of reclassification (and a corresponding salary
increase) and the additional job responsibilities for
which she was not adequately compensated.
did
not
state
recruiter
that
position,
the
College
subjected
her
had
to
The charge
denied
a
her
hostile
a
work
environment, or removed her title as military liaison.
After she filed the EEOC charge, her supervisors
ordered her to appear for a meeting, during which a
verbal altercation ensued.
In August 2013, she amended
her EEOC charge to add a retaliation claim.
In
lawsuit.
January
At
2014,
the
Rosado
time,
and
Rosado
Ortiz
had
filed
this
received
a
right-to-sue notice from the EEOC, but Ortiz had not.
After the defendants filed a motion to dismiss, Ortiz,
with the assistance of counsel, filed an amendment to
her EEOC charge in February 2014.
mirrored
the
allegations
in
10
her
The amended charge
complaint.
She
received a right-to-sue letter from the EEOC in March
2014, and she and Rosado filed an amended complaint two
weeks later.
III. DISCUSSION
The defendants raise three sets of arguments in
their
motions
to
dismiss:
first,
that
the
Eleventh
Amendment forbids Rosado’s and Ortiz’s § 1983 claims
and
Rosado’s
AADEA
claim;
second,
that
portions
of
Ortiz’s Title VII discrimination claim are barred by
the
limitations
administrative-exhaustion
that
Rosado’s
cognizable
under
period
requirement;
age-discrimination
§ 1983.1
The
and
the
and,
finally,
claims
court
are
not
agrees
that
1. Cannon, Hodge, and the College also note that
the complaint alludes to a “pattern and practice” of
discrimination at the College and ask the court to
dismiss any pattern-or-practice claim. Cannon et al.’s
Mot. to Dismiss (Doc. 21) at 2 (quoting Compl.
(Doc. 19) at 3).
Title VII authorizes the Attorney
General to bring a civil action for equitable relief
against “any person or group of persons ... engaged in
a pattern or practice” of employment discrimination.
(continued...)
11
Rosado’s age-discrimination claims must be dismissed in
their entirety.
claims
for
Rosado and Ortiz may proceed on their
damages
and
declaratory
relief
against
Cannon and Hodge in their individual capacities; their
equitable claims for promotions and pay raises against
Cannon,
Hodge,
capacities;
and
and
their
Heinrich
Title
in
VII
their
claims
official
against
the
College, except that Ortiz may not assert the College’s
decision not to hire her for a recruiter position as an
independent ground for relief.
any
claims
Hodge
in
The court will dismiss
for
monetary
damages
against
their
official
capacities;
the
Cannon
and
claims
for
declaratory relief against Cannon, Hodge, and Heinrich
in their official capacities; and Rosado’s and Ortiz’s
42 U.S.C. § 2000e-6(a).
Although the authority to
bring a lawsuit under § 2000e-6(a) has been extended to
class actions, it does not reach individual litigants.
See Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d
955, 967 (11th Cir. 2008), abrogated on other grounds
by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). No
class has been certified here, so to the extent Rosado
and Ortiz are asserting a pattern-or-practice claim, it
must be dismissed.
12
claims
against
the
individual
defendants
for
other
forms of equitable relief.
a. Jurisdiction over Rosado’s State-Law Claim
The
court
Rosado’s
lacks
state-law
supplemental
supplemental
AADEA
jurisdiction
jurisdiction
claim.
statute,
28
over
The
federal
U.S.C.
§ 1367,
“does not extend to claims against nonconsenting state
defendants.”
Raygor v. Regents of Univ. of Minn., 534
U.S. 533, 542 (2002).
The parties do not dispute that
“Alabama’s
state
law
sovereign
community
colleges.”
Morris
Coll.-Selma,
125
F.
2001) (Vollmer, J.).
Alabama
State,
Constitution
and
“Alabama
Supp.
2d
immunity
v.
1315,
extends
Wallace
1335
(S.D.
to
Cmty.
Ala.
Article I, Section 14 of the
forbids
lawsuits
has
expressly
not
immunity from AADEA claims.”
against
the
waived
its
Stroud v. McIntosh, 722
F.3d 1294, 1299 n.2 (11th Cir. 2013).
The court cannot
exercise supplemental jurisdiction over Rosado’s AADEA
13
claim without the College’s consent to be sued, which
the College has not given.
The court will therefore
dismiss Rosado’s AADEA claim.
b. Section 1983 Claims Against Cannon and Hodge
Pursuant
to
42
U.S.C.
§ 1983,
Rosado
brings
equal-protection claims against Cannon and Hodge for
rejecting
her
applications
administrative
decisions
origin,
to
to
assistants.
her
and
equal-protection
ethnicity,
age.
She
color,
Ortiz
claim
serve
their
attributes
race,
brings
against
as
both
national
a
§ 1983
Cannon
for
discriminating against her based on ethnicity, color,
race, and national origin.
Cannon and Hodge are sued in both their official
and
individual
capacities.
Rosado
and
Ortiz
seek
damages, equitable relief, declarations that Cannon and
Hodge violated their constitutional rights, and “other,
14
different relief to which the plaintiffs are entitled.”
Compl. (Doc. 19) at 34.
Cannon and Hodge argue that the Eleventh Amendment
bars Rosado’s and Ortiz’s § 1983 claims.
The Eleventh
Amendment gives the States sovereign immunity against
most lawsuits.
(1890).
See Hans v. Louisiana, 134 U.S. 1, 21
Under
some
circumstances,
this
immunity
extends to state officials.
See Pennhurst State Sch. &
Hosp.
U.S.
v.
However,
Halderman,
sovereign
465
immunity
does
89,
101-02
not
bar
all
(1984).
claims
against a State or its employees, and, as discussed
below,
Rosado’s
and
Ortiz’s
§ 1983
claims
against
Cannon and Hodge may proceed with respect to certain
requests for relief.
1. Damages
Insofar as Rosado and Ortiz seek damages against
Cannon
and
Hodge
in
defendants are immune.
their
official
capacities,
the
“[T]he Eleventh Amendment bars
15
a damages action against a State in federal court,”
including “when State officials are sued for damages in
their official capacity.”
Kentucky v. Graham, 473 U.S.
159, 169 (1985).
However, Cannon and Hodge are not immune to suit
for
damages
capacities.
under
§ 1983
In
individual-capacity
an
in
their
individual
suit,
the
plaintiff is “seeking to recover from the individual
defendant, who is personally liable for the judgment.”
Jackson v. Ga. Dep’t of Transp., 16 F.3d 1573, 1577
(11th Cir. 1994).
to
Sovereign immunity does not extend
individual-capacity
suits
against
under § 1983 for monetary damages.
502 U.S. 21, 30-31 (1991).
state
officials
See Hafer v. Melo,
Cannon and Hodge argue that
the plaintiffs’ § 1983 claims are individual-capacity
suits
in
name
only
and
that
the
College--and,
by
extension, the State--is the real party in interest.
The court is unpersuaded.
16
“The general test for determining whether the state
is the real party in interest, even though it is not a
named defendant, is whether the relief sought against
the nominal defendant would in fact operate against the
state, especially by imposing liability damages that
must be paid out of the public fisc.”
at 1577.
Jackson, 16 F.3d
“Eleventh Amendment immunity applies only if
the judgment must, under all circumstances, be paid out
of state funds.”
Cannon
and
Id. (emphasis in original).
Hodge
do
not
contend
that
the
State
would be obligated to cover the costs of a judgment
against them in their individual capacities.
they
argue
interest
their
that
because
authority
the
College
they
as
were
is
the
real
“acting ...
president
and
dean
Instead,
party
in
pursuant
to
when
they
allegedly made the employment decisions” in dispute.
Cannon et al.’s Mot. to Dismiss (Doc. 21) at 5-6.
argument
misses
the
mark
because
the
This
distinction
between official-capacity and individual-capacity suits
17
turns primarily on the nature of the relief sought, not
the source of the alleged injury.
at 165-68.
damages
See Graham, 473 U.S.
Rosado’s and Ortiz’s § 1983 claims seek
from
the
defendants
themselves,
sovereign immunity is no bar to relief.
difference
that
the
complaint
concerns
and
so
It makes no
actions
that
Cannon and Hodge allegedly undertook in their roles as
state officials.
Rosado and Ortiz may therefore proceed on their
individual-capacity
claims
for
damages
without
offending sovereign immunity.2
2. Equitable Relief
Rosado and Ortiz request several forms of equitable
relief,
benefits,
including
and
two
backpay,
types
front
of
pay,
retroactive
injunctions:
first,
2. The court need not address whether the doctrine
of qualified immunity forecloses Rosado’s and Ortiz’s
claims for damages under § 1983, as Cannon and Hodge
“did not raise qualified immunity, but, rather,
sovereign immunity in their motion to dismiss.” Cannon
et al.’s Reply (Doc. 29) at 5.
18
injunctions
violating
prohibiting
[federal
employment,”
law]
Compl.
“injunctions
Cannon
with
regard
(Doc. 19)
requiring
and
at
Hodge
to
34;
plaintiffs’
and,
defendants
“from
to
second,
increase
plaintiffs’ compensation and job status to pay grades
and
rank
commensurate
experience,” id. at 3.
with
their
education
and
Cannon and Hodge respond that
the Eleventh Amendment bars these claims.
Each of the equitable remedies Rosado and Ortiz
request,
aside
from
injunctions
ordering
Cannon
and
Hodge to conform their conduct to the law, pertains to
compensation, benefits, and wages allegedly withheld by
or that would be furnished by the College.
will
therefore
construe
those
claims
The court
as
asserted
against Cannon and Hodge in their official capacities.
Before reaching the parties’ arguments under the
Eleventh
Amendment,
Rosado’s
and
Hodge
from
the
court
Ortiz’s
requests
violating
their
19
must
to
dispense
enjoin
federal
Cannon
rights.
with
and
An
“injunction [that] would do no more than instruct the
[defendant] to ‘obey the law’” does not satisfy the
specificity
requirement
Procedure 65(d).
of
Federal
Rule
of
Civil
Burton v. City of Belle Glade, 178
F.3d 1175, 1201 (11th Cir. 1999).
Whether the Eleventh Amendment bars the remaining
claims depends on the type of equitable relief sought.
Ex parte Young, 209 U.S. 123 (1908), carves out an
exception
to
sovereign
immunity
for
“suits
against
state officers seeking prospective equitable relief to
end continuing violations of federal law.”
Summit Med.
Assocs., P.C. v. Pryor, 180 F.3d 1326, 1336 (11th Cir.
1999) (emphases in original).
Prospective relief may
be awarded even if compliance will have “an ancillary
effect on the state treasury.”
Edelman v. Jordan, 415
U.S. 651, 667-68 (1974).
Rosado’s
retroactive
and
Ortiz’s
benefits
requests
are,
by
for
backpay
definition,
and
not
prospective and do not fall within the Ex parte Young
20
exception.
The
Eleventh
requests for front pay.
Amendment
also
bars
their
Front pay is technically a
form of equitable prospective relief that is meant to
serve as an alternative to reinstatement when lingering
hostility prevents an employee from returning to the
workplace.
758
F.2d
See Goldstein v. Manhattan Indus., Inc.,
1435,
1448-49
(11th
Cir.
1985).
However,
courts have held consistently that front pay does not
fall within the Ex parte Young exception because it
“provide[s]
which
nothing
would
coffers.”
have
more
to
than
be
paid
compensatory
from
the
damages
[State’s]
Blanciak v. Allegheny Ludlum Corp., 77 F.3d
690, 698 (3d Cir. 1996); see also Campbell v. Arkansas
Dep’t of Correction, 155 F.3d 950, 962 (8th Cir. 1998);
Freeman v. Michigan Dep’t of State, 808 F.2d 1174, 1179
(6th Cir. 1987).
claims
for
front
The court sees Rosado’s and Ortiz’s
pay
against
differently.
21
Cannon
and
Hodge
no
On
the
promotions
other
and
hand,
pay
the
raises
requested
are
equitable
orders
for
prospective
remedies within the meaning of Ex parte Young.
Taking
the allegations in the complaint as true, Cannon’s and
Hodge’s
unlawful
discrimination
has
resulted
in
the
plaintiffs’ ongoing exclusion from positions and pay on
discriminatory
grounds.
The
injunctions
Rosado
and
Ortiz now request would remedy the ongoing effects of
the alleged constitutional violations, not merely, as
Cannon
and
Hodge
discrimination.”
suggest,
“discrete
acts
of
past
Cannon et al.’s Reply (Doc. 29) at 4.
Indeed, courts have held in the context of wrongful
termination that reinstatement is an available remedy
under Ex parte Young because it addresses a continuing
denial of employment.
Coll.,
772
F.3d
1349,
See Lane v. Cent. Ala. Cmty.
1351
(11th
Cir.
2014)
(per
curiam); see also Nelson v. Univ. of Tex. at Dall., 535
F.3d 318, 322 (5th Cir. 2008) (collecting cases).
same logic applies here.
22
The
In sum, the court will dismiss Rosado’s and Ortiz’s
claims for backpay, retroactive benefits, front pay,
and injunctions ordering Cannon and Hodge to obey the
law.3
The claims for promotions and pay raises may
proceed.
3. Declaratory Relief
Finally,
Rosado
and
Ortiz
request
declaratory
judgments that Cannon and Hodge violated the Fourteenth
Amendment by discriminating against them.
(Doc. 19) at 33-34.
against
Cannon
and
See Compl.
These claims are properly asserted
Hodge
in
only
their
individual
capacities.
Under
the
Declaratory
Judgment
Act,
28
U.S.C.
§ 2201(a), the court “may declare the rights and other
legal relations of any interested party seeking such
declaration, whether or not further relief is or could
3. The parties have not asked the court to evaluate
whether Rosado and Ortiz may recover any of these
remedies from the College.
23
be sought.”
The Eleventh Amendment prohibits federal
courts from issuing declaratory judgments against the
State and its officials unless, under Ex parte Young,
the
plaintiff
seeks
prospective
relief
ongoing violations of federal law.
Young
requires
that
the
to
prevent
Because Ex parte
remedy
requested
be
prospective, “a plaintiff may not use the doctrine to
adjudicate the legality of past conduct.”
Summit, 180
F.3d at 1337.
Rosado and Ortiz attempt to do precisely that with
their requests for declaratory relief.
They ask this
court to issue declaratory judgments that Cannon and
Hodge “violated the 14th Amendment to the United States
Constitution, as enforced through 42 U.S.C. § 1983, in
subjecting [Rosado and Ortiz] to disparate and illegal
conduct in [their] employment.”
33-34.
These
requests
for
Compl. (Doc. 19) at
declaratory
judgments
concern the legality of actions undertaken by Cannon
and Hodge in 2012 and 2013.
24
Given the retroactive
character of the remedies sought, Ex parte Young does
not authorize Rosado and Ortiz to obtain declaratory
relief
against
capacities.
Cannon
and
Hodge
in
their
official
The court will dismiss those claims.
However, the Eleventh Amendment has no bearing on
the individual-capacity claims, and Cannon and Hodge
have
presented
immunity
to
judgments.
no
other
dismiss
reason
the
Insofar
requests
as
Rosado
besides
for
and
sovereign
declaratory
Ortiz
seek
declaratory relief against Cannon and Hodge in their
individual capacities, their claims may proceed.
c. Section 1983 Claims Against Heinrich
Rosado and Ortiz each bring a § 1983 claim against
Heinrich
“in
purposes
of
settlement.”
[his]
official
injunctive
capacity
relief
and
Compl. (Doc. 19) at 3.
monetary damages.
only
approval
for
the
of
any
They do not seek
They further request a declaratory
25
judgment
that
he
violated
their
equal-protection
rights.4
Like Cannon and Hodge, Heinrich invokes sovereign
immunity.
He also contends that he is an unnecessary
party, as he was not personally involved in the conduct
underlying the complaint.
On his telling, Rosado and
Ortiz need not name him to secure a remedy.
Insofar as Heinrich’s arguments overlap with those
of Cannon and Hodge, the result is no different.
For
4. The complaint also sounds in the language of
supervisory liability when it alleges that Heinrich
“acted with indifference to statutes and constitutional
authority.”
Compl. (Doc. 19) at 20; id. at 29.
“Supervisory
liability
occurs
either
when
the
supervisor personally participates in the alleged
constitutional violation or when there is a causal
connection between actions of the supervising official
and the alleged constitutional deprivation.” Brown v.
Crawford, 906 F.2d 667, 671 (11th Cir. 1990).
Rosado
and Ortiz acknowledge that Heinrich did “not ...
approve[] the illegal action[s]” they allege and was
not otherwise personally involved in the events
underlying the complaint. Compl. (Doc. 19) at 20; id.
at 29. They have pled no facts to support any causal
connection between Heinrich’s actions or inaction and
the alleged discrimination either. Any attempt to hold
him accountable on a theory of supervisory liability
must be dismissed.
26
the reasons discussed above, sovereign immunity does
not bar Rosado’s and Ortiz’s claims for promotions and
pay raises, but the court will dismiss their requests
for
non-prospective
equitable
relief
and
declaratory
judgments.
Turning to Heinrich’s remaining arguments, his lack
of personal involvement in the alleged discrimination
does
not
warrant
dismissing
him
as
a
defendant.
“Personal action by defendants individually is not a
necessary condition of injunctive relief against state
officers
in
their
official
capacity.”
Luckey
Harris, 860 F.2d 1012, 1015 (11th Cir. 1988).
v.
Rather,
“it is sufficient that the state officer sued must, ‘by
virtue of his office, ha[ve] some connection’ with the
unconstitutional act or conduct complained of.”
1015-16
(quoting
Additionally,
Ex
parte
multiple
Young,
circuit
209
U.S.
courts
have
Id. at
at
157).
observed
that a state official “who can appropriately respond to
injunctive
relief”
is
a
27
proper
defendant
in
an
official-capacity suit.
Parkell v. Danberg, 833 F.3d
313, 332 (3d Cir. 2016) (quoting Hartmann v. California
Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir.
2013)); see also Gonzalez v. Feinerman, 663 F.3d 311,
315 (7th Cir. 2011) (per curiam).
Heinrich satisfies those criteria.
of
the
Department
supervises
operation
of
Postsecondary
community-college
of
Alabama’s
As Chancellor
Education,
presidents,
community
manages
colleges,
and
he
the
is
responsible for ensuring that they comply with state
policy,
including
policies
based on race and age.
forbidding
discrimination
Although Heinrich protests that
his presence in this lawsuit is not strictly necessary
to enforce a judgment, he does not dispute that he has
authority over College officials like Cannon and Hodge
or that his oversight over the community-college system
would
enable
injunction.
him
to
“appropriately
respond”
Hartmann, 707 F.3d at 1127.
to
an
The nexus
between Heinrich’s responsibilities as chancellor and
28
the
subject
matter
of
the
instant
litigation
is
sufficient to make him a proper defendant.
Accordingly, Rosado and Ortiz may proceed against
Heinrich on their claims for promotions and pay raises.
Their claims for declaratory judgments and other forms
of equitable relief are denied.
d. Ortiz’s Title VII Discrimination Claim
Ortiz
College:
brings
one
retaliation.
two
for
Title
VII
claims
discrimination,
and
against
the
another
for
The retaliation claim is not at issue in
the College’s motion to dismiss.
Ortiz
contends
that
the
College
discriminated
against her in violation of Title VII by demoting her,
assigning her two jobs’ worth of work without adjusting
her
pay,
denying
her
requests
for
reclassification,
rejecting her candidacy for a job as a recruiter, and
fostering a hostile work environment.
29
The College makes a twofold argument that parts of
her Title VII discrimination claim should be dismissed:
first,
that
the
limits
Ortiz
administrative-exhaustion
to
seeking
relief
based
requirement
on
the
pay
discrimination alleged in her March 2013 EEOC charge;
and, second, that any claim for relief based on the
decision not to hire her as a recruiter is time-barred.
The court will deny the College’s motion to dismiss
with leave to renew at summary judgment on the first
ground and grant the motion on the second ground to the
extent that Ortiz may not assert a stand-alone claim
for relief based on her rejection from the recruiter
position.
1. Administrative Exhaustion
The
College
submits
administrative-exhaustion
Title
VII
contained
discrimination
in
her
March
that
requirement
claim
to
2013
EEOC
30
limits
the
the
Ortiz’s
allegations
charge,
which
mentioned only her concerns about her pay and requests
for
reclassification.
The
College
argues
that
any
other alleged acts of discrimination cited in Ortiz’s
amended charge and complaint are not within the scope
of the March 2013 EEOC charge and, for that reason, are
not actionable under Title VII.
The court will deny
the College’s motion with leave to renew at summary
judgment given the gaps in the parties’ briefing and
the factual record.
“[A] ‘plaintiff’s judicial complaint is limited by
the
scope
of
the
EEOC
investigation
which
can
reasonably be expected to grow out of the charge of
discrimination.’”
Gregory
v.
Georgia
Dep’t
of
Hum.
Res., 355 F.3d 1277, 1280 (11th Cir. 2004) (per curiam)
(quoting Alexander v. Fulton Cty., 207 F.3d 1303, 1332
(11th Cir. 2000)).
matter
most
expected
theory
to
the
for
grow
“The facts alleged in the charge
determining
out
charging
of
an
party
31
what
can
EEOC
charge;
articulates
reasonably
is
the
far
be
legal
less
important.”
Patterson v. Georgia Pac., LLC, 38 F.4th
1336, 1345 (11th Cir. 2022).
may
“amplify,
original
clarify,
charge,
or
Although judicial claims
more
“[a]llegations
clearly
of
focus”
the
acts
of
new
discrimination ... are not appropriate.”
Wu v. Thomas,
863 F.2d 1543, 1547 (11th Cir. 1989) (quoting Ray v.
Freeman, 626 F.2d 439, 443 (5th Cir. 1980)).5
The College is adamant that Ortiz’s complaint and
her
2014
amended
charge
allege
new
acts
of
discrimination beyond the scope of the March 2013 EEOC
charge.
the
Perplexingly, the College omits any mention of
retaliation
August 2013.
charge
she
filed
with
the
EEOC
in
The College appears to concede that her
retaliation charge was timely, as even if the court
were
to
grant
the
motions
to
dismiss
in
full,
the
College acknowledges that Ortiz’s Title VII retaliation
5. In Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
Court of Appeals adopted as binding precedent all of
the decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.
32
claim would go forward.
(Doc. 29) at 9.
See Cannon et al.’s Reply
Neither party has submitted a copy of
the EEOC retaliation charge or divulged what factual
allegations it contained.
Without further evidence in
the record and argument from the parties, the court
cannot discount the possibility that the retaliation
charge
alleged
facts
related
to
the
acts
of
discrimination for which Ortiz now seeks to recover.
The court will therefore deny the College’s motion to
dismiss based on administrative exhaustion with leave
to renew at summary judgment.
2. Limitations Period
The College insists that Ortiz cannot bring her
Title VII discrimination claim based on the decision
not to hire her as a recruiter.
For a claim to be
actionable under Title VII, an employee must file an
EEOC charge within 180 days “after the alleged unlawful
employment
practice
occurred.”
33
42
U.S.C.
§ 2000e-5(e)(1).
An
employee
may
not
recover
under
Title VII for discrete acts of discrimination outside
the
180-day
limitations
period.
See
Nat’l
R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
Ortiz
learned
application
that
for
the
the
College
recruiter
had
position
rejected
in
May
her
2012,
more than 180 days before she filed the March 2013 EEOC
charge.
To the extent Ortiz asserts the rejection as
an independent ground for relief under Title VII, her
claim
that
the
rejection
was
discriminatory
is
time-barred.6
6. Ortiz counters that the court may nonetheless
consider her rejection insofar as it constitutes part
of her hostile-work-environment claim.
“Provided that
an act contributing to the claim occurs within the
filing period, the entire time period of the hostile
environment may be considered by a court for the
purposes of determining liability.”
Morgan, 536 U.S.
at 117.
Ortiz did not allege a hostile work
environment explicitly in her March 2013 EEOC charge.
Her argument that the rejection from the recruiter
position contributed to a hostile work environment
assumes that her hostile-work-environment claim is not
barred by the administrative-exhaustion requirement.
As stated above, the court cannot yet rule on whether
Ortiz has exhausted her administrative remedies.
34
e. Rosado’s § 1983 Age-Discrimination Claims
Rosado brings § 1983 claims for age discrimination
against Cannon, Hodge, and Heinrich.
The defendants
respond that § 1983 does not provide a cause of action
for age discrimination.
Appeals
has
not
yet
The Eleventh Circuit Court of
determined
whether
stand-alone
age-discrimination claims under § 1983 are cognizable.
See Duva v. Bd. of Regents of the Univ. Sys. Of Ga.,
654 F. App’x 451, 454 (11th Cir. 2016) (per curiam).
Most of its sister circuits have held that Congress
intended for the Age Discrimination in Employment Act
(ADEA),
29
exclusive
employment.
U.S.C.
remedy
§§ 621
for
through
634,
age-discrimination
to
be
claims
the
in
See id. (collecting cases).
Rosado does not attempt to argue that she can bring
an age-discrimination claim independent of the ADEA.7
7. Her brief in opposition--which notes that Rosado
“does not sue College officers Cannon and Hodge, nor
Postsecondary
Chancellor
Heinrich,
for
age
(continued...)
35
Under similar circumstances, this court ruled that the
ADEA precluded an age-discrimination claim where the
plaintiff did not offer any substantial argument to the
contrary.
See Kilpatrick v. Crenshaw Cty. Comm’n, No.
2:13-cv-953-MHT, 2016 WL 3251605, at *2-4 (M.D. Ala.
June 8, 2016) (Thompson, J.).
The court will do the
same here and, following the majority approach of the
courts of appeal, dismiss Rosado’s age-discrimination
claims under § 1983.
f. Motion to Substitute
Apart from the motions to dismiss, the parties have
noted
that
substitution
of
several
official-capacity
defendants is appropriate pursuant to Federal Rule of
Civil
Procedure
25(d).
Rosado
and
Ortiz
moved
to
substitute Valerie Richardson, in her official capacity
as interim president of the College, for Cannon in his
discrimination,” Br. in Opp. to Cannon et al.’s Mot. to
Dismiss (Doc. 25) at 9--suggests that she may have
abandoned
her
federal
age-discrimination
claims
altogether.
36
official capacity.
(Doc. 37) at 1.
See Mot. for Order of Substitution
However, the defendants represent that
Richardson is no longer the interim president of the
College.
at 2.
See Mot. to Set Status Conference (Doc. 46)
The defendants add that substitution may be
appropriate as to at least one other official-capacity
defendant, given Heinrich’s retirement as chancellor.
See id.
Based on these representations, the pending
motion to substitute will be denied as moot.
The court
will take up any new motions to substitute that the
parties may file in light of the court’s resolution of
the motions to dismiss.
IV. CONCLUSION
Rosado’s state-law AADEA claim against the College
is
dismissed.
To
the
extent
indicated
above,
the
defendants’ motions to dismiss are granted in part and
denied in part.
The motion to substitute parties is
denied as moot.
37
* * *
Accordingly, it is ORDERED that:
(1) The renewed partial motion to dismiss filed by
defendants Chattahoochee Valley Community College, Dr.
Glen
Cannon,
motion
to
and
dismiss
Dr.
David
filed
Hodge
by
(Doc. 21)
defendant
Dr.
and
Mark
the
A.
Heinrich (Doc. 26) are granted in part and denied in
part as follows:
(a)
against
Plaintiff
defendant
Ivonne
Rosado’s
Chattahoochee
AADEA
Valley
claim
Community
College is dismissed.
(b) Plaintiff Rosado’s § 1983 claims for age
discrimination
against
defendants
Cannon,
Hodge,
and
Heinrich are dismissed.
(c) Plaintiffs Rosado’s and Michelle L. Ortiz’s
§ 1983 claims for monetary damages against defendants
Cannon
and
Hodge
in
their
dismissed.
38
official
capacities
are
(d)
Plaintiffs
Rosado’s
and
Ortiz’s
§ 1983
claims for backpay, front pay, retroactive benefits,
and
injunctions
Cannon,
to
Hodge,
obey
and
the
law
Heinrich
against
in
defendants
their
official
capacities are dismissed.
claims
Cannon,
(e)
Plaintiffs
for
declaratory
Hodge,
and
Rosado’s
relief
Heinrich
and
Ortiz’s
against
in
§ 1983
defendants
their
official
capacities are dismissed.
(f) Plaintiff Ortiz’s Title VII discrimination
claim against defendant Chattahoochee Valley Community
College
based
on
her
rejection
from
a
recruiter
position is dismissed insofar as she asserts it as an
independent ground for relief.
(g) Plaintiffs Rosado and Ortiz may proceed on
their
§ 1983
claims
for
monetary
damages
and
declaratory relief against defendants Cannon and Hodge
in their individual capacities; their § 1983 claims for
promotions and pay raises against defendants Cannon,
39
Hodge, and Heinrich in their official capacities; and
their Title VII discrimination and retaliation claims
against
College
defendant
(subject
Chattahoochee
to
the
limitation
Valley
on
Community
Ortiz’s
claim
described above).
(2) The motion for order of substitution filed by
plaintiffs
Rosado
and
Ortiz
(Doc. 37)
is
denied
moot.
This case is not closed.
DONE, this the 29th day of March, 2024.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
40
as
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