Davis v. JK Johnson Mechanical Contractors Inc et al
MEMORANDUM OPINION AND ORDER: 13 , MOTION to Dismiss or, in the Alternative, Motion for Summary Judgment, is GRANTED in part and DENIED in part, as further set out in order. Signed by Judge Abdul K Kallon on 03/07/13. (CVA)
2013 Mar-07 PM 12:39
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JK JOHNSON MECHANICAL
CONTRACTORS INC, et al.,
Civil Action Number
MEMORANDUM OPINION AND ORDER
Plaintiff James Davis brings this action against Defendants JK Johnson
Mechanical Contractors, Inc. (“JK Johnson”), GUBMK Construction, Inc.
(“GUBMK”), T. Wayne Wallace, William B. Sansom, Marilyn A. Brown, William
A. Graves, Barbara S. Haskew, Richard Howorth, and Neil McBride1 (collectively
“Defendants”) under the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 633a, and the Rehabilitation Act, 29 U.S.C. § 701, et seq., for alleged age
and disability based discrimination and retaliation. Doc. 1. GUBMK seeks
Sansom, Brown, Graves, Haskew, Howorth, and McBride are Tennessee Valley
Authority (“TVA”) Board Members. See doc. 1. Plaintiff specified that TVA employee T.
Wayne Wallace is sued in his individual capacity, but did not make a similar designation for the
board members. See id. Accordingly, the court presumes that the board members are being sued
in their official capacity and, therefore, that the claim is raised against TVA itself.
dismissal of or, alternatively, summary judgment on, Davis’s claims. Doc. 13.
The motion is fully briefed and ripe for review. Docs. 13, 17, 19. For the reasons
stated more fully below, GUBMK’s motion to dismiss is DENIED with respect to
the Rehabilitation Act and GRANTED in all other respects.
I. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a
short and plain statement of the claim showing that the pleader is entitled to
relief.” “[T]he pleading standard Rule 8 announces does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action” are
insufficient. Iqbal, 129 S. Ct. at 1949 (citations and internal quotation marks
omitted). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Id., at 1949 (citing Bell Atl. Corp., 550 U.S. at
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief can be granted. “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Iqbal, 129 S. Ct. at
1949 (citations and internal quotation marks omitted). A complaint states a
facially plausible claim for relief “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. (citation omitted). The complaint must establish
“more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also
Bell Atl. Corp., 550 U.S. at 555 (“Factual allegations must be enough to raise a
right to relief above the speculative level.”). Ultimately, this inquiry is a “contextspecific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 129 S. Ct. at 1950.
II. PROCEDURAL AND FACTUAL BACKGROUND2
Some time prior to 2011, Defendants hired Plaintiff as a Journeyman
Machinist assigned to the Tennessee Valley Authority (“TVA”) Power Service
Shops in Muscle Shoals, Alabama. Doc. 1 at ¶ 9. In June 2011, JK Johnson
subjected Plaintiff to a drug test and Plaintiff tested positive for prescribed
arthritis medications. Id. at ¶ 11. Due to the positive drug test, TVA released
“When considering a motion to dismiss, all facts set forth in the plaintiff’s complaint
‘are to be accepted as true and the court limits its consideration to the pleadings and exhibits
attached thereto.’” Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000)
(quoting GSW, Inc. v. Long Cnty., 999 F.2d 1508, 1510 (11th Cir. 1993)). However, legal
conclusions unsupported by factual allegations are not entitled to that assumption of truth. See
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950 (2009).
Plaintiff from his employment contract. Id. at ¶ 12. Thereafter, Plaintiff attempted
to demonstrate that his prescribed medications caused the positive test result by
forwarding medical documentation from his health care providers and a
verification statement from Dr. Joe Hall. Id. at ¶ 13.
In August, Plaintiff filed a union grievance after his union steward informed
him a TVA manager barred Plaintiff from seeking further employment with TVA.
Id. at ¶ 14. As part of the investigation, Plaintiff met with union representatives
Johnny Crittenden and Jack Daniels and TVA supervisor T. Wayne Wallace to
discuss his job status. Id. at ¶ 15. During the meeting, Wallace stated that he
would not return Plaintiff to work because Plaintiff was “getting too old.” Id.
Consequently, Plaintiff contacted TVA’s Equal Employment Opportunity
Collateral Duty Counselor, Daisy Oakley, to complain of age and disability
discrimination. Id. at ¶ 16. In light of Plaintiff and Oakley’s inability to resolve
the dispute during pre-complaint counseling, Plaintiff filed a formal complaint of
age and disability discrimination with TVA’s Equal Opportunity Compliance
Agency (“EEOCA”). Id. Plaintiff subsequently filed an Equal Employment
Opportunity Commision (“EEOC”) charge of age and disability discrimination
against JK Johnson. Id. at ¶ 18.
A few days after Plaintiff filed his EEOCA and EEOC charges, TVA
banned Plaintiff from its work sites for a three year period. Id. at ¶ 19. Three
months later, in February 2010, Plaintiff’s union sent him to work at a TVA site in
Memphis, Tennessee. Id. at ¶ 20. However, based on its prior ban, TVA denied
Plaintiff employment. Id. In the following months, Plaintiff’s union sent him to
work at a Day & Zimmerman TVA site, a TVA/GUBMK site, and other TVA
sites, but each time Defendants barred Plaintiff. Id. at ¶¶ 21-23.
In response to GUBMK’s motion, Plaintiff conceded his claims under the
ADA, ADEA, and Title VII. See doc. 17 at 2. Therefore, the only claims in
contention are Plaintiff’s Rehabilitation Act claims of discrimination and
retaliation. GUBMK contends that these claims fail because Plaintiff failed to
properly plead them and, alternatively, that it is due summary judgment. See docs.
13 and 19. The court discusses each contention below.
The Rehabilitation Act
The Rehabilitation Act prohibits employment discrimination by federal
agencies against qualified individuals with a disability. 29 U.S.C. § 791. To
survive a motion to dismiss, a plaintiff must properly plead a prima facie case of
discrimination, namely, “that (1) he has a disability; (2) he is otherwise qualified
for the position; and (3) he was subjected to unlawful discrimination as the result
of his disability.” Sutton v. Lader, 185 F.3d 1203, 1207 (11th Cir. 1999).
GUBMK contends that Plaintiff failed to properly plead a prima facie case
because drug use is not a disability under the Act. Doc.13 at 7-8. This assertion is
unavailing because Plaintiff’s alleged disability is based on severe arthritis. Doc.1
at ¶¶ 11, 13. Next, GUBMK asserts that Plaintiff failed to plead causation by
asserting that GUBMK specifically had knowledge of his asserted disability. Doc.
13 at 7-8. This assertion is likewise unpersuasive. Although Plaintiff only
references GUBMK by name in two paragraphs of the complaint, doc. 1 at ¶¶ 5
and 22, Plaintiff includes GUBMK in the general identifier “Defendants”
throughout the complaint. Specifically, Plaintiff alleges that he “had a record of
[his] disability with [GUBMK] and/or was regarded by [GUBMK] as having such
a disability . . . [but] [GUBMK] deliberately exclud[ed] him from employment
without considering whether he could perform the job with or without reasonable
accommodation,” doc. 1 at ¶¶ 27-28, that GUBMK “unlawfully refused to hire
[him] or . . . deprived him of employment opportunities because of disability,” id.
at ¶ 33, that GUBMK “promulgat[ed] and enforc[ed] discriminatory drug testing
policies that discriminate against qualified individuals with disabilities,” id. at ¶
36, and that GUBMK “discriminated against Plaintiff by administering drug
testing and/or utilizing test results in a manner that discriminated against qualified
individuals with disabilities,” id. at ¶ 37. Whether Plaintiff will ultimately be able
to establish that GUBMK had knowledge of his disability and denied him
employment because of his alleged disability is a matter for the court to address
later. For now, based on Plaintiff’s allegations, the court finds that Plaintiff has
sufficiently alleged that GUBMK had knowledge of his disability or regarded him
as disabled and that GUBMK discriminated against him on the basis of this
disability. Therefore, GUBMK’s motion is DENIED.
However, the court places Plaintiff on notice that it will not hesitate to tax
costs and attorney’s fees against Plaintiff if it becomes clear that Plaintiff
continued to pursue his claims against GUBMK even though the evidence
suggests that no credible basis exists to do so.
Alternative Motion for Summary Judgment
GUBMK alternatively seeks summary judgment, based on its assertion that
the Balentine Declaration attached to its motion to dismiss definitively establishes
that Plaintiff’s claims will fail. See doc. 13. However, “[a]s a general rule
summary judgment should not be granted until the party opposing the motion has
had an adequate opportunity to conduct discovery.” Reflectone, Inc. v. Farrand
Optical Co., 862 F.2d 841, 843 (11th Cir. 1989). Since Plaintiff has not been
afforded an opportunity to conduct discovery regarding his Rehabilitation Act
claims against GUBMK, the motion is premature. Accordingly, GUBMK’s
alternative motion is DENIED without prejudice to file a renewed motion at the
For the reasons stated above, GUBMK’s motion is DENIED with respect to
Plaintiff’s Rehabilitation Act claims, but GRANTED as to all other claims.
DONE this 7th day of March, 2013.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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