Buford-Clark v. Birmingham Board of Education

Filing 8

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 1/16/15. (SAC )

FILED
2015 Jan-16 PM 03:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
HAROLD BUFORD-CLARK,

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Plaintiff,
v.
BIRMINGHAM BOARD OF
EDUCATION,
Defendant.

CIVIL ACTION NO.
2:14-CV-2108-WMA

MEMORANDUM OPINION
This action is before the court on a motion to dismiss filed
by

defendant

Birmingham

Board

of

Education

(“the

Board”)

on

December 3, 2014 (Doc. 3). Plaintiff Harold Buford-Clark instituted
the action pro se, alleging violations of the Americans with
Disabilities Act and the Rehabilitation Act of 1973. This court has
jurisdiction under 28 U.S.C. § 1331. For the reasons stated below,
the Board’s motion to dismiss will be granted, but Buford-Clark
will be granted leave to amend the complaint.
BACKGROUND1
Buford-Clark has been employed as a teacher for the Board
since

1996.

(Doc.

1

at

2-3,

¶

5).

He

suffers

from

several

disorders, including a seizure disorder, meningioma, and idiopathic
hypersomnia. (Doc. 1 at 3, ¶ 6). He has had a shunt placed in his
brain. (Doc. 1 at 3, ¶ 6).

1

Because of the standard of review for motions brought under Fed. R.
Civ. P. 12(b)(6), all facts alleged by Buford-Clark are accepted as true.

1

On August 16, 2013, Buford-Clark was called to a meeting with
school officials. (Doc. 1 at 3, ¶ 9). The officials examined his
medical records and questioned him about his conditions. (Doc. 1 at
3, ¶ 9). One of the officials indicated to Buford-Clark that his
medical

conditions

insinuated

that

diminished

the

his

conditions

chances

adversely

of

promotion

affected

his

and
job

performance. (Doc. 1 at 3-4, ¶ 10). Buford-Clark denied that his
conditions caused him any difficulty in discharging his duties.
(Doc. 1 at 4, ¶ 10).
After the meeting, school officials “began to subject [BufordClark] to increased scrutiny and wrote him up twice for minor job
infractions.” (Doc. 1 at 4, ¶ 11). Officials also watched him teach
and critiqued him in front of his students, which exacerbated his
medical conditions. (Doc. 1 at 4, ¶ 11).2
Buford-Clark filed a charge of discrimination with the EEOC on
February 25, 2014. (Doc. 3-1). He received notice of his right to
sue from the EEOC and filed this suit on October 30, 2014, within
90 days of his receipt of the notice. (Doc. 1 at 2, ¶ 4). The Board
filed its motion to dismiss on December 3, 2014. (Doc. 3).

2

Buford-Clark does not allege his current employment status with the
Board in his complaint. From his charge of discrimination filed with the EEOC,
it appears that he suffered a traumatic episode at the school on August 30,
2013, requiring him to be rushed to a hospital. He was placed on short-term
disability and, at the time of the charge, had not returned to work. (Doc. 3-1
at 2).

2

DISCUSSION
A. Standard of Review
When reviewing a motion to dismiss under Fed. R. Civ. P.
12(b)(6),

the

court

must

“‘accep[t]

the

allegations

in

the

complaint as true and constru[e] them in the light most favorable
to the plaintiff.’” M.T.V. v. DeKalb Cnty. Sch. Dist., 446 F.3d
1153, 1156 (11th Cir. 2006) (quoting Hill v. White, 321 F.3d 1334,
1335 (11th Cir. 2003)). A complaint must, however, “state a claim
to relief that is plausible on its face” to survive such a motion.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Supreme
Court has identified two working principles for district courts to
follow in ruling on motions to dismiss. “First, the tenet that a
court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “Second, only a complaint that states a plausible claim for
relief survives a motion to dismiss.” Id. at 679. “A claim has
facial plausibility when the plaintiff pleads factual content that
allows

the

court

to

draw

the

reasonable

inference

that

the

defendant is liable for the misconduct alleged.” Id. at 678. “The
plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id.
3

B. Discrimination vs. Hostile Work Environment and Exhaustion of
Administrative Remedies
In its motion to dismiss, the Board argues that Buford-Clark’s
ADA claim,3 while purportedly alleging “disability discrimination,”
(Doc. 1 at 1), actually functions as a hostile work environment
claim because Buford-Clark does not allege the necessary facts to
establish a claim for disability discrimination. This contention is
incorrect. The complaint begins by saying, “This is an action
alleging disability discrimination.” (Doc. 1 at 1). The phrase
“hostile

work

environment”

does

not

appear

anywhere

in

the

complaint. Further, Buford-Clark lists in his complaint each of the
elements required to establish a prima facie case of disability
discrimination, while the elements of a hostile work environment
claim are missing. Because “the plaintiff” — not the defendant —
“is the master of the complaint,” Caterpillar, Inc. v. Williams,
482 U.S. 386, 398-99 (1987), this court will not construe the
complaint to assert a hostile work environment claim when it
plainly claims disability discrimination.
The Board also contends that Buford-Clark’s claims are barred
for a failure to exhaust his administrative remedies, unless his
claim is for a hostile work environment. In support, the Board
cites Buford-Clark’s EEOC charge of discrimination, which alleges

3
Because “[d]iscrimination claims under the Rehabilitation Act are
governed by the same standards used in ADA cases,” Cash v. Smith, 231 F.3d
1301, 1305 (11th Cir. 2000), the court will discuss the claims together and
refer to them as ADA claims.

4

that he was “subjected to harassment and a hostile work environment
because of [his] disability.” (Doc. 3-1 at 2).
As in Title VII cases, an ADA plaintiff must file a charge of
discrimination with the EEOC before bringing suit. 42 U.S.C. §
12117 (2012); see also Zillyette v. Capital One Fin. Corp., 179
F.3d 1337, 1339 (11th Cir. 1999). A 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. Ga. Dep’t of
Human Res., 355 F.3d 1277, 1280 (11th Cir. 2004) (quoting Alexander
v. Fulton Cnty., Ga., 207 F.3d 1303, 1332 (11th Cir. 2000)).
“[A]llegations of new acts of discrimination are inappropriate,”
but claims are allowed “if they ‘amplify, clarify, or more clearly
focus’ the allegations in the EEOC complaint.” Id. at 1279-80
(quoting Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989)).
This court finds that Buford-Clark adequately exhausted his
administrative remedies. While he did not affirmatively state in
the EEOC charge that his claim is for discrimination under the ADA,
such a claim could reasonably grow out of a charge for harassment
and a hostile work environment under the ADA. After all, the same
conduct — discrimination because of a disability — is at issue. The
charge adequately notified the EEOC of the alleged discriminatory
acts and gave the EEOC “‘the first opportunity to investigate the
alleged discriminatory practices to permit it to perform its role
in

obtaining

voluntary

compliance

5

and

promoting

conciliation

efforts.’” Id. at 1279 (quoting Evans v. U.S. Pipe & Foundry Co.,
696 F.2d 925, 929 (11th Cir. 1983)). Because the charge thus served
its function,

Buford-Clark

adequately

exhausted

his

available

administrative remedies.
C. Buford-Clark’s Prima Facie Case under the ADA
The ADA prohibits an employer from “discriminat[ing] 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)
(2012). Therefore, “[i]n order to establish a prima facie case of
discrimination under the ADA, the plaintiff must show that: (1) he
is disabled; (2) he was a ‘qualified individual’ at the relevant
time . . . and (3) he was discriminated against because of his
disability.” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255
(11th Cir. 2001). The Board contends that Buford-Clark fails to
allege with sufficient specificity any of the required elements.
Each will be discussed in turn.
1. Disability
First, the Board argues that Buford-Clark has not alleged
sufficient facts to state a plausible case that he is disabled.
Disability is defined under the ADA as “(A) a physical or mental
impairment

that

substantially

limits

one

or

more

major

life

activities of such individual; (B) a record of such impairment; or
6

(C) being regarded as having such an impairment.” 42 U.S.C. §
12102(1) (2012). Buford-Clark states that he is disabled, has a
history of disability, and is perceived as having a disability.
Under

Twombly

and

Iqbal,

however,

these

are

mere

ultimate

conclusions due to be ignored; the court is instead concerned with
whether Buford-Clark’s factual allegations plausibly show that he
is disabled under the statute.
Buford-Clark alleges that he “suffers from a seizure disorder
and has a CNS shunt. He also has a history of meningioma and
idiopathic hypersomnia.” (Doc. 1 at 3. ¶ 6). While these conditions
certainly qualify as impairments, a person is not disabled under §
12102 unless the impairments substantially limit a major life
activity. Buford-Clark does not allege how any major life activity
is limited by his conditions; by simply listing his impairments, he
neither identifies an affected major life activity nor alleges how
his conditions affect his ability to perform such activities.
Buford-Clark

has

thus

failed

to

plausibly

allege

that

he

is

disabled under § 12102(1)(A). See Cash v. Smith, 231 F.3d 1301,
1305-06 (11th Cir. 2000) (finding the plaintiff’s “fail[ure] to
specify a

major

life

activity

in

which

she

is

substantially

impaired” fatal to her ADA claim). Neither has he alleged any facts
to show that he has a record of disability under § 12102(1)(B).
Buford-Clark also contends that he is regarded as disabled
under § 12102(1)(C). As part of the ADA Amendments Act of 2008,

7

Pub.

L.

No.

“significantly

110-325,
easier

122

for

Stat.

3555,

plaintiffs

to

Congress
bring

made

‘regarded

it
as’

disabled claims.” E.E.O.C. v. American Tool & Mold, Inc., 21 F.
Supp. 3d 1268, 1275 (M.D. Fla. 2014). Under the new definition:
An individual meets the requirement of “being regarded as
having such an impairment” if the individual establishes
that he or she has been subjected to an action prohibited
under this chapter because of an actual or perceived
physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life
activity.
42 U.S.C. § 12102(3)(A) (2012). The inquiry, formerly concerned
with whether the defendant believed that the plaintiff had an
impairment affecting a major life activity, see E.E.O.C., 21 F.
Supp. 3d at 1275 n.2, now only asks whether the defendant took a
prohibited

action

(i.e.

discrimination

against

the

plaintiff)

because of a perceived impairment. In his complaint, Buford-Clark
alleges that school officials told him that they believed his
conditions “caused him difficulty in doing his job” and impeded his
promotion. (Doc. 1 at 3-4, ¶ 10). Buford-Clark has sufficiently
alleged that the Board took action against him because it regarded
him as disabled. Whether this action was “prohibited” is better
left for the discrimination prong of the prima facie case.
2. Qualified Individual
The Board also argues that Buford-Clark fails to allege facts
to establish that he is a qualified individual under the statute.
A person is “qualified” under the ADA if he is able to, “with or

8

without reasonable accommodation, . . . perform the essential
functions of [his] employment position.” 42 U.S.C. § 12111(8)
(2012). The Board claims that Buford-Clark alleges no facts that
would show that he is qualified, but this is a misconstruction of
the allegations. Buford-Clark alleges that he has worked as a
teacher since 1996 and denies that his conditions cause him any
difficulty performing his job. (Doc. 1 at 2-4, ¶¶ 5, 10). In Rieve
v. E-Z Serve Convenience Stores, Inc., No. CA 00-358-P-C, 2000 WL
1566516, *4 (S.D. Ala. Sept. 29, 2000), the court found the
plaintiff’s

allegation

that

she

was

a

qualified

individual

sufficient because she averred that she was “capable of returning
to

work and

performing

the

essential

functions

of

her

job.”

Similarly, in Puckett v. Board of Trustees, 17 F. Supp. 3d 1339,
1343 (N.D. Ga. 2014), the plaintiff alleged that he could work 40
hours per week and had performed his duties well for years prior to
his termination; the court found this acceptable as well. Like the
plaintiffs in these cases, Buford-Clark’s allegations that he has
been a teacher for 17 years and is capable of doing his job are
sufficient allegations that he is able to perform the essential
functions of his position.
3. Discrimination
Finally,

the

Board

contends

that

Buford-Clark

has

not

plausibly alleged that the Board discriminated against him because
of his disability. Employers are prohibited from discriminating on

9

the basis of disability “in regard to job application procedures,
the

hiring,

compensation,

advancement,
job

or

training,

discharge
and

other

of

employees,

terms,

employee

conditions,

and

privileges of employment.” 42 U.S.C. § 12112(a) (2012). § 12112(b)
contains

a

non-exhaustive

list

of

actions

deemed

to

be

discriminatory. Buford-Clark alleges that the Board discriminated
against him

in

some

of

the

listed

ways,

but

he

does

so

in

conclusory fashion without alleging any facts to support these
claims. For aught appearing in the complaint Buford-Clark is still
employed.
Buford-Clark alleges discrimination outside of the § 12112(b)
list. The Eleventh Circuit has found such discrimination to be
actionable if it constitutes an adverse employment action, looking
to Title VII case law to define the standard. See Doe v. Dekalb
Cnty. Sch. Dist., 145 F.3d 1441, 1448 (11th Cir. 1998). Action
taken by an employer is adverse, and thus discriminatory under the
ADA, if the action effects “a serious and material change in the
terms, conditions, or privileges of employment.” Davis v. Lake
Park,

Fla.,

omitted).

245

“[N]ot

F.3d

1232,

‘every

1239

unkind

(11th
act’

Cir.

amounts

2001)
to

(emphasis

an

adverse

employment action,” Doe, 145 F.3d at 1449 (quoting Wu, 996 F.2d at
273 n.3), nor does “‘everything that makes an employee unhappy.’”
Id. (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.
1996)). “An employment action is considered ‘adverse’ only if it

10

results in some tangible, negative effect on the plaintiff's
employment.” Lucas, 257 F.3d at 1261.
Buford-Clark essentially alleges three actions taken by the
Board to be adverse. The first is that the Board subjected him to
increased scrutiny because of his disability. Specifically, BufordClark alleges that school officials harassed him by “watching him
teach and critiquing him in front of students.” (Doc. 1 at 4, ¶
11). This scrutiny, however, does not rise to the level of an
adverse

employment

action

because

it,

although

abusive,

was

unaccompanied by formal disciplinary action or any other tangible
consequences. This court and others within this circuit have
uniformly held that heightened scrutiny, without “evidence that any
disciplinary action was taken against [the plaintiff] or that he
was subjected to any tangible consequence,” does not constitute an
adverse employment action. See, e.g., Perkins v. Kushla Water
Dist., 21 F. Supp. 3d 1250, 1262 (S.D. Ala. 2014); Watson v. Dean
Dairy Holdings LLC, No. 2:12-CV-972-RDP, 2014 WL 1155799, *9 (N.D.
Ala. Mar. 21, 2014); Little v. Peach Cnty. Sch. Dist., No. 5:07-CV101(CAR), 2009 WL 198003, *11 (M.D. Ga. Jan. 27, 2009). Because
Buford-Clark

has

not

alleged

that

he

suffered

any

tangible

consequences as a result of the heightened scrutiny, it does not
constitute an adverse employment action.
The same holds true for Buford-Clark’s two written reprimands
for minor job infractions. The Eleventh Circuit, addressing this

11

precise issue, held that “[t]he reprimand of an employee does not
constitute an adverse employment action when the employee suffers
no tangible harm as a result.” Summerlin v. M&H Valve Co., 167 Fed.
App’x 93, 97 (11th Cir. 2006); see also Lucas, 257 F.3d at 1261
(“Negative

performance

evaluations,

standing

alone,

do

not

constitute adverse employment action.”). Buford-Clark’s two writeups, then, do not qualify as adverse employment actions.
Finally, Buford-Clark alleges that school officials told him
that “his medical conditions were an impediment to him receiving
better positions.” (Doc. 1 at 3, ¶ 10). While a failure to promote
may constitute an adverse employment action, Buford-Clark must
allege that he was qualified for and applied for an actual position
and did not receive it because of a disability or perceived
disability. Discrimination in the abstract is not enough. See
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089 (11th Cir. 2004)
(listing qualification and application for a position as an element
of a failure-to-promote prima facie case). Because Buford-Clark
alleged no facts regarding an actual promotion that the Board
denied

him,

this

allegation

does

not

constitute

an

adverse

employment action. He has thus failed to establish a prima facie
case of discrimination.
CONCLUSION
For the reasons stated above, the Board’s motion to dismiss
will be granted, but with leave to amend. A separate order will be
12

entered.
DONE this 16th day of January, 2015.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

13