May v. American Cast Iron Pipe Company

Filing 9

MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 3/16/2014. (KAM, )

FILED
2014 Mar-17 PM 03:12
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RANDELL T. MAY,
Plaintiff,
vs.
AMERICAN CAST IRON PIPE
COMPANY,
Defendant.

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Case Number 2:12-CV-0285-SLB

MEMORANDUM OPINION
This case is presently pending before the court on defendant’s Motion to Dismiss.
(Doc. 6.)1 Plaintiff Randell T. May has sued his former employer, American Cast Iron Pipe
Company [ACIPCO], alleging that defendant failed to accommodate his disability.2 Upon
consideration of the record, the submissions of the parties, and the relevant law, the court is
of the opinion that defendant’s Motion to Dismiss, (doc. 6), is due to be denied in part and
granted in part. However, as set forth below, before dismissing plaintiff’s complaint, the
court will give plaintiff an opportunity to file a Second Amended Complaint which states

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Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.
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Plaintiff’s Application to proceed in forma pauperis stated that a woman and a white
male were placed in jobs that plaintiff could have performed with his permanent restrictions.
(Doc. 1 at 4-5.) The court interpreted these allegations to state a claim for sex and race
discrimination, as well as disability discrimination. (Doc. 2 at 3-4.) However, his amended
Complaint contains only allegations of disability discrimination. (Doc. 3 at 2.) Plaintiff’s
failure to include these claims in his amended Complaint operates as a voluntary dismissal
of these claims. See Cavalino v. Cavalino, 601 F. Supp. 74, 76 (N.D. Ga. 1984).

sufficient facts to support an ADA disability discrimination claim. Therefore, the Motion
to Dismiss will be denied.
MOTION TO DISMISS STANDARD
Defendant has moved to dismiss plaintiff’s amended Complaint for lack of subjectmatter jurisdiction and failure to state a claim upon which relief can be granted.
Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may move
the court to dismiss a case if the court lacks jurisdiction over the subject matter of the case.
Plaintiff, as the party invoking jurisdiction, bears the burden of establishing the court’s
subject matter jurisdiction. Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir.1994).
The purpose of a motion authorized by Rule 12(b)(6) of the Federal Rules of Civil
Procedure is to test the facial sufficiency of the plaintiff’s statement of a claim for relief.
When addressing a 12(b)(6) motion to dismiss, the court accepts the allegations in the
Complaint as true and construes those allegations in the light most favorable to plaintiff.
Ironworkers Local Union 68 v. AstraZeneca Pharmaceuticals, LP, 634 F.3d 1352, 1359
(11th Cir. 2011)(quoting Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir.
2010)). To survive a Motion to Dismiss, “the complaint must contain sufficient factual
matter . . . to state a claim to relief that is plausible on its face.” Id. (quoting Am. Dental
Ass’n, 605 F.3d at 1289 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)))(internal quotations omitted). A claim is “plausible” if the facts are sufficient “to
allow[ ] the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[W]hile notice pleading
may not require that the pleader allege a ‘specific fact’ to cover every element or allege ‘with
precision’ each element of a claim, it is still necessary that a complaint ‘contain either direct
or inferential allegations respecting all the material elements necessary to sustain a recovery
under some viable legal theory.’” Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678,
683 (11th Cir. 2001) (quoting In re Plywood Antitrust Litig., 655 F.2d 627, 641 (5th Cir. Unit
A Sept. 8, 1981)).
DISCUSSION
Plaintiff’s amended Complaint states:
1. Randell May is an individual and resident of Birmingham[,]
[Alabama].
2. Defendant is a company and[,] at the time of this complaint, [a]
resident of Birmingham[, Alabama].
3. On December 9, 2010[,] Plaintiff was injured on the job.
4. Plaintiff was put on light duty.
5. [In] April of 2010 Plaintiff had surgery and was given permanent
restrictions.
6. [On] November 2, 2010[, plaintiff] was terminated [because
defendant could] no longer accommodate [his] restrictions.
COUNT 1 – NEGLIGENCE
Defendant failed to accommodate [plaintiff’s] restrictions. Jobs have come
open but [plaintiff was not] given a chance at the job due to [his] disability.
(Doc. 3 at 2.)
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Defendant has moved to dismiss plaintiff’s on the following grounds: (1) the court
lacks subject-matter jurisdiction, (2) plaintiff failed to timely file his complaint, (3) the
exclusivity provision of the Alabama Workers’ Compensation law bars plaintiff’s claim, and
(4) plaintiff’s amended Complaint fails to state a claim for which relief can be granted. (See
generally doc. 6.)
A. SUBJECT-MATTER JURISDICTION
“In a given case, a federal district court must have at least one of three types of subject
matter jurisdiction: (1) jurisdiction under a specific statutory grant; (2) federal question
jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C.
§ 1332(a).” Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1469 (11th Cir. 1997). Section
1331 provides, “The district courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A district
court has diversity jurisdiction when “the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between . . . citizens of different States.” 28
U.S.C. § 1332(a)(1).
Defendant contends that plaintiff’s amended Complaint “fails to make any assertions
tending to establish federal subject-matter jurisdiction. There is no reference whatsoever to
any federal statute, treaty, or constitutional provision, and the only claim alleged is one of
negligence, a common law tort claim governed by state law,” and that the complaint does not
“establish diversity of citizenship, as it specifically alleges that both plaintiff and defendant

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are residents of Birmingham, Alabama.” (Doc. 6 ¶¶ 3, 4.). Therefore, it argues that
plaintiff’s amended Complaint is due to be dismissed, pursuant to Fed. R. Civ. P. 12(b)(1),
based on a lack of subject-matter jurisdiction.
The court finds that plaintiff’s amended Complaint attempts to assert a claim for
wrongful termination under the Americans with Disabilities Act [ADA], 42 U.S.C. § 12112.3
Plaintiff contends that he was terminated because defendant would not accommodate his
restrictions. (Doc. 3 at 2.) Under the heading “Negligence,” plaintiff states, “Defendant
failed to accommodate my restrictions. Jobs have come open but I wasn’t given a chance at

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Section 12112 states, “No covered entity shall discriminate against a qualified
individual on the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and other
terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
As used in subsection (a) of [§ 12112], the term “discriminate against a
qualified individual on the basis of disability” includes –
...
(5)(A) not making reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with a disability who
is an applicant or employee, unless such covered entity can demonstrate that
the accommodation would impose an undue hardship on the operation of the
business of such covered entity; or
(B) denying employment opportunities to a job applicant or employee who is
an otherwise qualified individual with a disability, if such denial is based on
the need of such covered entity to make reasonable accommodation to the
physical or mental impairments of the employee or applicant . . . .
Id. (b)(5)(A)-(B).
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the jobs due to my disability.” (Id.) The fact that plaintiff does not cite the ADA does not
doom his claim.
“The law is clear that pro se pleadings are held to a less demanding standard than
counseled pleadings and should be liberally construed.” Gilmore v. Hodges, 738 F.3d 266,
281 (11th Cir. 2013)(citing Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008);
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)). Also, as this court has
held:
“Notice pleading requires the plaintiff to set forth in his complaint claims for
relief, not causes of action, statutes or legal theories.” Alvarez v. Hill, 518
F.3d 1152, 1157 (9th Cir. 2008)(citing Fed. R. Civ. P. 8(a)(2))(emphasis in
original).
The Federal Rules of Civil Procedure require only that a pleading
contain “a short and plain statement of the claim showing that the
pleader is entitled to relief, and a demand for judgment for the relief the
pleader seeks.” Fed. R. Civ. P. 8(a). “A complaint need not specify in
detail the precise theory giving rise to recovery. All that is required is
that the defendant be on notice as to the claim being asserted against
him and the grounds on which it rests.” Sams v. United Food &
Comm’l Workers Int’l Union, 866 F.2d 1380, 1384 (11th Cir. 1989);
see also Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 604
(5th Cir. 1981)(“The form of the complaint is not significant if it
alleges facts upon which relief can be granted, even if it fails to
categorize correctly the legal theory giving rise to the claim.”).
Evans v. McClain of Georgia, Inc., 131 F.3d 957, 964 n.2 (11th Cir. 1997). “A
plaintiff is not required to set forth a legal theory to match the facts, so long as
some legal theory can be sustained on the facts pleaded in the complaint.”
O’Grady v. Village of Libertyville, 304 F.3d 719, 723 (7th Cir. 2002)(citing
Wudtke v. Davel, 128 F.3d 1057, 1061-62 (7th Cir. 1997)). “Well-pleaded
facts, not legal theories or conclusions, determine the adequacy of the
complaint.” Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009)
(internal quotations and alterations omitted).
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Jackson v. City of Centreville, 899 F. Supp. 2d 1209, 1226 (N.D. Ala. 2012).
Although the count in plaintiff’s Complaint is for “Negligence,” a count over which
this court would not have jurisdiction, the only facts alleged in the Complaint attempt to state
a claim for relief under the ADA. These facts, not plaintiff’s use of the term “Negligence,”
support a finding that, if plaintiff has alleged a cause of action, it is a cause of action arising
under federal law, as set forth in the ADA. Therefore, defendant’s Motion to Dismiss for
lack of jurisdiction will be denied.
B. STATUTE OF LIMITATIONS
Defendant argues that plaintiff’s claim is barred by the statute of limitations.
Specifically, it contends that plaintiff did not file his Complaint within 90 days of the receipt
of his right-to-sue letter from the EEOC. (Doc. 6 at 3-4.)
In promulgating the ADA, Congress adopted the charge-filing procedures set forth
in Title VII. 42 U.S.C. § 12117(a)(citing 42 U.S.C. § 2000e-5). These procedures require,
inter alia, that an employee file a Charge with the EEOC within 180 days of the date of the
discrimination, and, after the EEOC issues a right-to-sue letter, the employee must file suit
in the district court within 90 days. 42 U.S.C. § 2000e-5(e)-(f).
In this case, the EEOC sent plaintiff a Dismissal and Notice of Rights, commonly
referred to as a right-to-sue letter, on November 29, 2011. (Doc. 1 at 10.) On January 27,
2012, plaintiff filed an Application Under 706(f) of the Civil Rights Act of 1964 for
appointment of an attorney and for leave to proceed in forma pauperis. (Doc. 1 at 1.) The

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court granted in part and denied in part his application and ordered plaintiff to file an
amended Complaint. (Doc. 2.) Plaintiff filed his amended Complaint on March 11, 2013.
(Doc. 3 at 1.)
Defendant contends that plaintiff’s “application for appointment of an attorney and
request for pauper status that plaintiff filed on January 27, 2012[,] is not a complaint and
cannot be treated as a complaint.” (Doc. 6 at 4.) It argues that plaintiff’s application is not
equivalent to a complaint because “[i]t did not contain ‘a short and plain statement of the
claim showing that the pleader is entitled to relief,’ as required by Fed. R. Civ. P. 8(a)(2).”
(Id.) The court disagrees.
Plaintiff’s application, under the heading, “Nature of Alleged Discrimination,” notes,
“ACIPCO has fired [plaintiff] because [he] was injured on the job and it [had] jobs [that
would] have accommodated [his] permanent restrictions.” (Doc. 1 at 4.) He also attached
his EEOC charge to the application. (Id. at 9.) The Charge states:
I am a Black male with a disability. I was hired by [ACIPCO] on February 24,
2004[,] as a laborer. I progressed to a machinist [position]. I had no problems
performing the duties of my job. On December 9, 2009, I received an on the
job injury. I was required to return to work [on] December 11, 2009, two days
after the injury. In January 2010, I was placed in the safety office to work
because of the injury. The injury continued to worsen and surgery was
performed on April 2, 2010. I was required to return to work on April 4,
2010[,] and was still in the safety office. The doctor placed me with a
permanent restriction. In July 2010, I requested to be placed in a full time
position in either the safety office or the mail room where there were positions
available that I could perform. I [bid] on a position in the mail room but it was
awarded to a White female in October 2010 who had less seniority than me.
The employer refused to accommodate my disability. On November 2, 2010,
I was terminated.
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The reason given for not awarding me the position in the mail room was that
I had restrictions . . . . The reason for the termination was that the company
could not accommodate me because of my restrictions . . . .
(Id.)
Under the circumstances the court finds that plaintiff’s application, which was filed
less than 90 days after he received his right to sue letter, “more than comprises a short and
plain statement of the plaintiff’s claim,” and, therefore, the application will be treated as a
complaint for purposes of the statute of limitations. See Robinson v. City of Fairfield, 750
F.2d 1507, 1511 (11th Cir. 1985).
Defendant’s Motion to Dismiss based on plaintiff’s failure to timely file his complaint
will be denied.
C. WORKERS’ COMPENSATION CLAIM
Defendant contends that plaintiff’s “Negligence” claim is “barred by Alabama’s
workers’ compensation exclusivity rule.” (Doc. 6 at 5.) The court disagrees.
Plaintiff’s claim is based on his termination, which was the result of defendant’s
alleged failure to accommodate his disability; he does not allege or claim defendant is liable
for his work injury under common-law negligence, despite stating Count 1 of his Complaint
is for negligence. (Doc. 3 at 2.)
Under Alabama law –
Except as provided in this chapter, no employee of any employer subject to this
chapter . . . shall have a right to any other method, form, or amount of
compensation or damages for an injury or death occasioned by an accident
or occupational disease proximately resulting from and while engaged in the
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actual performance of the duties of his or her employment and from a cause
originating in such employment or determination thereof.
Ala. Code § 25-5-52 (emphasis added). Also –
The rights and remedies granted in [Alabama’s Workers’ Compensation law]
to an employee shall exclude all other rights and remedies of the employee .
. . at common law, by statute, or otherwise on account of injury, loss of
services, or death. Except as provided in this chapter, no employer shall be
held civilly liable for personal injury to or death of the employer’s employee,
for purposes of this chapter, whose injury or death is due to an accident or
to an occupational disease while engaged in the service or business of the
employer, the cause of which accident or occupational disease originates in the
employment. . . .
Ala. Code § 25-5-53 (emphasis added).
The terms of Alabama’s Workers’ Compensation statutes do not bar plaintiff’s ADA
claim. Therefore, defendant’s Motion to Dismiss on this ground will be denied.
D. PLEADING DISABILITY DISCRIMINATION
Defendant argues that, “even if plaintiff’s negligence claim is interpreted as a claim
that defendant violated the ADA, the complaint still fails to plead plaintiff’s status as a
‘qualified individual with a disability,’ which is required in order to state a claim under the
ADA.” (Doc. 6 at 5-6 [citing Cramer v. State of Florida, 117 F.3d 1258, 1264 (11th Cir.
1997)(citing Holbrook v City of Alpharetta, 112 F.3d 1522, 1526 (11th Cir. 1997))].)
“A plaintiff states a prima facie case of disability discrimination by alleging that: (1)
‘he has a disability’; (2) ‘he is qualified to serve [in his position], with or without some
reasonable accommodation by the [employer], despite his disability’; and (3) ‘he has suffered
an adverse employment action because of his disability (i.e., that he has suffered employment
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discrimination).’” Lewis v. Guy, No. 2:12-CV-2250-SLB, 2013 WL 5289957, *3 (N.D. Ala.
Sept. 18, 2013)(quoting Doe v. Dekalb Cnty. Sch. Dist., 145 F.3d 1441, 1445 (11th Cir.
1998)(citation omitted). The ADA defines “disability” as “a physical or mental impairment
that substantially limits one or more major life activities of such individual.”4 42 U.S.C. §
12102(1)(A). However, “the mere existence of a physical impairment does not constitute a
disability under the ADA;” the statute requires that the physical impairment must also
substantially limit a major life activity. Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318,
1328 (11th Cir. 1998).
Plaintiff’s amended Complaint states only that he was injured on the job and, as a
result, he has permanent restrictions. (Doc. 3 at 2.) He does not describe his injury, the
resulting permanent restrictions, or how these restrictions limit one or more of his major life
activities.5 (Id.) He has not alleged facts sufficient to support an inference that he could
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The regulations define “a physical or mental impairment” as “Any physiological
disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body
systems, such as neurological, musculoskeletal, special sense organs, respiratory (including
speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory,
hemic, lymphatic, skin, and endocrine,” or “Any mental or psychological disorder, such as
an intellectual disability . . . , organic brain syndrome, emotional or mental illness, and
specific learning disabilities.” 29 C.F.R. § 1630.2(h)(1)-(2). Also, the regulations state,
“Major life activities include, but are not limited to: Caring for oneself, performing manual
tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting
with others, and working . . . .” Id. (i)(1)(i).
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Defendant submitted the Complaint and Final Judgment from plaintiff’s workers’
compensation case. (See doc. 6-1.) However, the court has not considered these documents
in deciding defendant’s Motion to Dismiss for failure to state a claim for relief. See Fed. R.
Civ. P. 12(d).
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perform his prior job with a reasonable accommodation or that his temporary position in the
safety room was available as a permanent position. (Id.) Such allegations are necessary to
state a claim for disability discrimination. Therefore, defendant’s Motion to Dismiss for
failure to state a claim is due to be granted. However, before dismissing plaintiff’s
complaint, the court will give him leave to file a Second Amended Complaint, which states
sufficient facts to support an ADA disability discrimination claim.
CONCLUSION
For the foregoing reasons, defendant’s Motion to Dismiss will be denied with
prejudice as to its Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and the exclusivity
provision of Alabama Workers’ Compensation law, as well as the statute of limitations.
Defendant’s Motion to Dismiss on the basis of plaintiff’s failure to state a claim will be
denied without prejudice. If plaintiff fails to file an Amended Complaint by the deadline
given in the court’s Order, the court will sua sponte dismiss his Complaint for failure to state
a claim. If plaintiff files an Amended Complaint, defendant should respond as appropriate,
that is, either by filing a Motion to Dismiss or an Answer.

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An Order denying defendant’s Motion to Dismiss, (doc. 6), will be entered
contemporaneously with this Memorandum Opinion.
DONE, this 16th day of March, 2014.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

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