Simpson v. Alabama Department of Human Resources, State of et al

Filing 39

MEMORANDUM OPINION AND ORDER- The defts Motion to Dismiss the Second Amended Complaint (Doc 35 ) is GRANTED in part and DENIED in part as stated within this order. Signed by Magistrate Judge Staci G Cornelius on 2/8/17. (MRR, )

FILED
2017 Feb-08 AM 11:48
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
SAMMY EDWARD SIMPSON, II,
Plaintiff,
v.
STATE OF ALABAMA DEPARTMENT OF
HUMAN RESOURCES, et al.,
Defendants.

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Case No.: 4:13-cv-01450-SGC

MEMORANDUM OPINION AND ORDER1
This employment discrimination case was filed by Sammy Edward Simpson, II,
proceeding pro se. On August 12, 2016, the undersigned directed Simpson to file a second
amended complaint. (Doc. 30). On August 12, 2016, Simpson filed his second amended
complaint, which is now the operative complaint. (Doc. 32). Simpson named as defendants the
State of Alabama Department of Human Resources (“Alabama DHR”), DeKalb County
Department of Human Resources (“DeKalb DHR”), Etowah County Department of Human
Resources (“Etowah DHR”), Jefferson County Department of Human Resources (“Jefferson
DHR”), Marshall County Department of Human Resources (“Marshall DHR”), St. Clair County
Department of Human Resources (“St. Clair DHR”), Denise Raines (director of DeKalb DHR),
Jane Bonds (a DeKalb DHR supervisor), and Cherri Pilkington (director of St. Clair DHR).
(Id.). The defendants have moved to dismiss the second amended complaint, and Simpson has
responded. (Docs. 35, 38). For the reasons discussed below, pursuant to Rules 12(b)(1) and (6)

This action was assigned to the undersigned magistrate judge pursuant to the court’s General Order for
Referral of Civil Matters to the United States Magistrate Judges of the Northern District of Alabama dated
January 14, 2013. The parties have unanimously consented to the exercise of dispositive jurisdiction by a
magistrate judge pursuant to 28 U.S.C. § 636(c). (Doc. 29).
1

1

of the Federal Rules of Civil Procedure, the defendants’ motion to dismiss (Doc. 35) is denied in
part and granted in part.
I.

LEGAL STANDARDS
Rule 12(b)(1) provides for dismissal of actions over which a federal district court has no

subject matter jurisdiction, while Rule 12(b)(6) provides for dismissal of complaints that fail to
state a claim upon which relief may be granted. FED. R. CIV. P. 12(b)(1) & (6). “Because the
Eleventh Amendment represents a constitutional limitation on the federal judicial power
established in Article III, federal courts lack jurisdiction to entertain claims that are barred by the
Eleventh Amendment.” McClendon v. Georgia Dep’t of Cmty. Health, 261 F.3d 1252, 1256
(11th Cir. 2001) (internal citation omitted); see also Seminole Tribe of Florida v. State of
Florida, 11 F.3d 1016, 1021 (11th Cir. 1994) (Where no exception applies, “the Eleventh
Amendment serves as a jurisdictional bar to the suit.”).
Rule 12(b)(6) must be considered against the backdrop of Rule 8(a)(2) of the Federal
Rules of Civil Procedure. Rule 8(a)(2) “requires only ‘a short and plain statement of the claim
showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what
the … claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Rule 8 “does not require
‘detailed factual allegations,’ but it demands more than an unadorned, the defendant-unlawfullyharmed me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (quoting Twombly, 550
U.S. at 555). “[L]abels and conclusions,” “a formulaic recitation of the elements of a cause of
action,” and “naked assertion[s] devoid of further factual enhancement” are insufficient. Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557) (internal quotation marks omitted).

2

To survive a motion to dismiss for failure to state a claim upon which relief may be
granted brought pursuant to 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.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). “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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556).
Finally, because Simpson proceeds pro se, his complaint will be construed liberally. See
Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003) (“Pro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys and will, therefore, be liberally
construed.”).
II.

RELEVANT FACTUAL ALLEGATIONS
Simpson is a licensed social worker with a bachelor’s degree in social work from

Jacksonville State University and fifteen graduate hours in special education. (Doc. 32 at ¶ 34).
He is a member of the Echota Cherokee Tribe, has been diagnosed with bi-polar disorder, and
has attention deficit disorder and a learning disability. (Id. at ¶ 35). He claims the defendants
have knowledge of his race and disabilities and have not hired him for a social worker position
on account of his race and disabilities and in retaliation for multiple lawsuits he has brought
against them and of which they are aware. (Id. at ¶¶ 149-57). According to Simpson, he has
been forced to sue the defendants multiple times to make information regarding who the

3

defendants have hired public. (Id. at ¶¶ 8, 41).2 In support of his claims, Simpson alleges as
follows:
The defendants have knowledge of Simpson’s disabilities and race through his previous
lawsuits and other documentation. (Id. at ¶ 8). One of Simpson’s previous lawsuits concerned
the termination of his employment with Marshall DHR in 2004. (Id. at ¶ 103).3 In response to
the termination of his employment with Marshall DHR and his failure to be re-hired, Simpson
sued Marshall DHR and other Alabama DHR entities in 2006, alleging he was discriminated
against on the basis of his disabilities. (Id. at ¶¶ 88, 103). In November 2010, Simpson sued
various Alabama DHR entities and individuals employed by those entities, alleging the
defendants failed to interview or hire him in retaliation for his earlier lawsuits. (Id. at ¶¶ 88,
104).4

In the following paragraphs, the undersigned supplements Simpson’s factual allegations regarding his
prior lawsuits against the defendants with information gleaned from the public records of those lawsuits,
all of which were litigated in this district court. See Nguyen v. United States, 556 F.3d 1244, 1259 n.7
(11th Cir. 2009) (federal court may take judicial notice of its own records).
2

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Simpson commenced an action against Marshall DHR on April 19, 2006, asserting vague claims related
to the termination of his employment with Marshall DHR in 2004 and his subsequent failure to be rehired. See Simpson v. Marshall County Department of Human Resources, State of Alabama, No. 06-0758
(N.D. Ala. filed Apr. 19, 2006). That action was dismissed without prejudice pursuant to Rule 12(b)(6)
for failure to state a claim upon which relief may be granted. See id. at Docs. 10 & 11. Simpson
commenced another action against Marshall DHR on November 21, 2006. See Simpson v. Alabama
Department of Human Resources, State of Alabama, et al., No. 06-4740 (N.D. Ala. filed Nov. 21, 2006).
In addition to Marshall DHR, that suit also named as defendants the State of Alabama DHR and the DHR
agencies of DeKalb, Etowah, Jackson, and Jefferson Counties. See id. Simpson claimed he was
constructively discharged from Marshall DHR in 2004 because of his disabilities and that the defendants
failed to re-hire him because of his disabilities. See id. at Doc. 1. After dismissing Simpson’s request for
punitive damages, see id. at Docs. 16 & 17, the court entered summary judgment in favor of the
defendants on all of Simpson’s claims, see id. at Docs. 49 & 50. The Eleventh Circuit affirmed the
district court’s grant of summary judgment. See Simpson v. Alabama Dep’t of Human Res., 311 Fed.
Appx. 264 (11th Cir. 2009).
4

See Simpson v. State of Alabama Department of Human Resources, et al., No. 10-3084 (N.D. Ala. filed
Nov. 15, 2010). This suit brought claims under the Fair Labor Standards Act against Alabama DHR, as
well as the county DHR agencies of Marshall, Jefferson, Mobile, and Baldwin Counties. The court
dismissed certain of Simpson’s claims, see id. at Docs. 26 & 27, and thereafter entered summary
judgment in favor of the defendants on the remaining claims, see id. at Docs. 60 & 61. The Eleventh

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Simpson has been on “the register”5 since October 7, 2011, and has remained on the
register at all times relevant to this suit. (Id. at ¶ 37). Simpson alleges he has “good faith” that in
the two years preceding his commencement of this action in August 2013, all of the defendants
were hiring. (Id. at ¶¶ 43-44). All of the defendants were aware of Simpson’s race and
disability. (Id. at ¶¶ 150, 153).
Of sixty-three applicants for a position with St. Clair DHR in June 2012, Simpson was
the only Native American. (Id. at ¶ 124). That position was filled by Amanda Johnson, who was
white and had two criminal convictions. (Id.). In July 2012, Simpson sued St. Clair DHR,
various other Alabama DHR entities, and individuals employed by the Alabama DHR entities for
disability discrimination and retaliation in connection with his failure to be hired for the St. Clair
County position or other social worker positions. (Id. at ¶¶ 92, 105, 116).6
DeKalb DHR interviewed Simpson for a social worker position on January 13, 2013. (Id.
at ¶ 50). Denise Raines, the director of DeKalb DHR, conducted the interview. (Id. at ¶¶ 52).
Three other people participated in the interview, including Jane Bonds, a DeKalb DHR
supervisor. (Id. at ¶¶ 138). Raines asked incomplete, fragmented, and personal questions for the
purpose of making them unintelligible to Simpson. (Id. at ¶ 54). Simpson asked Raines whether
she “ ‘[got] everything right the first time,’” and Raines responded, “ ‘I must[;] I am the one
Circuit affirmed the district court’s grant of summary judgment. See Simpson v. State of Alabama Dep’t
of Human Res., 501 Fed. Appx. 951 (11th Cir. 2012).
“Whenever a county department of human resources wants to hire a new social worker, it contacts the
Alabama State Personnel Department to obtain a list (commonly referred to as a ‘register’) of eligible
candidates . . . .” Simpson v. State of Alabama Department of Human Resources, et al., No. 12-2467 at
Doc. 39, p. 9, n.3 (N.D. Ala. filed July 16, 2012).
5

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See Simpson v. State of Alabama Department of Human Resources, et al., No. 12-2467 (N.D. Ala. filed
July 16, 2012). The court dismissed certain of Simpson’s claims, see id. at Docs. 17 & 18, and thereafter
entered summary judgment in favor of the defendants on the remaining claims, see id. at Docs. 39 & 40.
Although Simpson appealed the district court’s decision, the Eleventh Circuit dismissed the appeal for
Simpson’s failure to prosecute. See id. at Doc. 46.

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asking the questions here,’” which Simpson alleges was a reference to a December 2007
deposition Raines gave in connection with his November 2006 lawsuit. (Id. at ¶¶ 53, 55).
During the 2013 interview, Raines made “inappropriate, disruptive Indian howls” at Simpson.
(Id. at ¶ 56). At the close of the interview, Simpson gave Raines information regarding the
discriminatory action taken against him in 2004. (Id. at ¶ 59).
On January 30, 2013, Simpson received a letter from Raines informing him he was not
selected for the position. (Id. at ¶¶ 51). A liberal reading of the complaint suggests Simpson
believes the person selected for the position is white. (See id. at ¶ 71). In the letter, Raines
stated the decision was hard to make because all of the candidates were so qualified and asked
Simpson to interview again. (Id. at ¶ 57). According to Simpson, the word “qualified” is a legal
term associated with his prior lawsuits against the defendants, and Raines used the term to mock
him. (Id. at ¶ 58).
Simpson alleges that on February 4, 2013, he filed a charge of disability discrimination
and retaliation against DeKalb DHR with the Equal Employment Opportunity Commission. (Id.
at ¶ 60). He further alleges that on March 6, 2013, he filed race discrimination charges against
St. Clair DHR and DeKalb DHR with the EEOC. (Id. at ¶¶ 117, 140).7 Finally, he alleges that
on March 22, 2013, when his disability-related EEOC charge against DeKalb DHR had been
pending for almost two months, Bonds cut in front of him, tried to run him off the road, and
cursed at him from her vehicle. (Id. at ¶ 142, 143).

Attached to Simpson’s complaint are three EEOC charges. The first is dated March 6, 2013, and names
DeKalb DHR as the employer that discriminated against Simpson based on his disabilities and retaliated
against him. (Doc. 32 at 27). The second is dated February 4, 2013, and names Alabama DHR as the
employer that discriminated against Simpson based on race. (Id. at 29). Based on the dates of the
interview and rejection letter alleged, it is apparent this charge concerns the same interview at DeKalb
DHR which Simpson complained about in his March 6, 2013 claim discussed above. The third is also
dated March 6, 2013, and names St. Clair County DHR as the employer that discriminated against
Simpson based on race. (Id. at 31).
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6

Simpson commenced this action in August 2013, while his 2012 lawsuit remained
pending. He asserts the following claims against each of the DHR entity defendants, as well as
the individual defendants in their official and individual capacities: (1) race discrimination under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., (2) race discrimination
under 42 U.S.C. § 1983, (3) a violation of the Fourteenth Amendment’s Equal Protection Clause
under § 1983, (4) disability discrimination and retaliation under the Rehabilitation Act of 1973,
29 U.S.C. §§ 701, et seq., and (5) “breach of written agreement.” (Id. at ¶¶ 10 – 32; 148-175).
He seeks a position with DHR as a social worker through a permanent injunction, back pay, and
benefits. (Id. at 26).
III.

DISCUSSION
A. Procedural Bars To Claims
1. Res Judicata
In their motion to dismiss the amended complaint, the defendants argue Simpson’s

present case is not his first action filed against DHR entities and individuals. (Doc. 35). They
suggest this suit relies on the same set of facts as his 2012 case and urge dismissal based on res
judicata and collateral estoppel. (Id. at 27-30). In his 2012 lawsuit, Simpson brought claims
against the State of Alabama DHR, Marshall DHR, Jefferson DHR, and St. Clair DHR; he also
sued individual defendants Nancy Buckner, William King, Vera Warrant, and Terri Coley.
Simpson v. Ala. Dep’t Human Resources, et al., No. 7:12-cv-02467-RDP (N.D. Ala. filed July
16, 2012), Doc. 1.

Simpson alleged retaliation and discrimination in violation of the

Rehabilitation Act and the Fourteenth Amendment. (Id. at ¶¶ 6-15). The court dismissed all
individual defendants (Id. at Doc. 18) and granted summary judgment in favor of the remaining
defendants (Id. at Doc. 39).

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The doctrine of res judicata “bars the filing of claims which were raised or could have
been raised in an earlier proceeding.” Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th
Cir. 1999). Res judicata bars not just the precise legal theory argued in the earlier litigation but
“all legal theories and claims arising out of the same nucleus of operative fact.” Manning v. City
of Auburn, 953 F.2d 1355, 1358 (11th Cir. 1992). Claims cannot be brought twice, and to the
extent Simpson’s latest suit involves the same causes of action decided in his 2012 suit, those
causes cannot be heard now. This includes claims he could have included in the 2012 complaint,
whether he actually brought them at that time or not.
On the other hand, res judicata does not bar claims which accrued after the earlier
complaint was filed. This is true even if Simpson could have added them to the earlier complaint
by supplemental pleadings. See Pleming v. Universal-Rundle Corp., 142 F.3d 1354 (11th Cir.
1998). In Pleming, the Eleventh Circuit addressed whether res judicata barred claims in a
plaintiff’s second lawsuit. The facts were similar to the present case in that the causes of action
were employment discrimination and retaliation over a series of interactions and hiring events.
While the first suit was pending, Pleming brought a second suit over an alleged incident that
occurred during the pendency of the earlier case. Once the first suit was disposed of in favor of
the defendants, they moved to dismiss the second suit as barred by res judicata, arguing that
Pleming could have supplemented his pleadings to include the “after-acquired” cause of action.
The defendants pointed out that he had referred to the later round of alleged
discrimination/retaliation in briefs filed in the first suit. The district court agreed and dismissed
the second suit, but the circuit court reversed the dismissal, stating:
[W]e do not believe that the res judicata preclusion of claims that
“could have been brought” in the earlier litigation includes claims
which arise after the original pleading is filed in the earlier
litigation. Instead, we believe that, for res judicata purposes, claims
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that “could have been brought” are claims in existence at the time
the original complaint is filed or claims actually asserted by
supplemental pleadings or otherwise in the earlier action.
Pleming, 142 F.3d at 1357 (quoting Manning at 1359).
The Pleming court looked to the Manning decision’s observation that “Federal Rule of
Civil Procedure 15(d), which governs supplemental pleadings, makes such a pleading optional”
and held that “the doctrine of res judicata does not punish a plaintiff for exercising the option not
to supplement the pleadings with an after-acquired claim.” 142 F.3d at 1357.
By contrast, the Eleventh Circuit in Ragsdale distinguished Pleming in reviewing a suit
by a relator who lost his qui tam suit and then attempted to bring a retaliation claim against his
employer – after his False Claims Act suit was entirely disposed of. Ragsdale, 193 F.3d at 1237.
The retaliation he complained of was based on exactly the same “common nucleus of operative
fact” as the qui tam suit. Specifically, he was fired, and then ten months later he filed the qui
tam action. Id. His termination was the retaliatory action alleged in his employment suit, so it
was clear that claim had to have accrued by the time he filed the qui tam complaint. The
Ragsdale court held the relator/plaintiff was obliged to include all then-available claims in his
first complaint. Id. at 1240. The court reasoned that if he were not required to do so, it would
encourage exactly the behavior res judicata is designed to prevent: the reservation of claims that
could be brought later if the initial action was unsuccessful.
Simpson’s earlier suit was filed on July 16, 2012.

Simpson now alleges he was

interviewed by Denise Raines and Jane Bonds at DeKalb DHR in January of 2013, and his
application was rejected shortly after. (Doc. 32 at ¶¶ 50-79; 138-47). He filed an EEOC charge
in February 2013, and claims he was run off the road by Bonds in March 2013. (Id. at ¶¶ 14142).

Simpson also seeks relief under the Rehabilitation Act, alleging he was on the

9

employment register for all of the defendant entities and that although they were hiring and were
aware of him as a candidate, the defendant entities engaged in discrimination and retaliation by
refusing to make him aware when they were hiring or to consider him for open positions. (Doc.
32 at ¶¶ 43-45; 49; 61-65; 81-82; 93; 98; 106-09; 151-56; 168; 169). A reasonable reading of the
complaint construes these allegations, leveled against all DHR entity defendants, to include the
period after the filing of Simpson’s 2012 complaint. These facts could have been, but were not,
added to the earlier suit while it was pending.
Pleming makes clear that it was within Simpson’s discretion to decline to add his 2013
claims to the pending 2012 lawsuit. Having declined to do so, he has the right to bring a
subsequent action based on claims that accrued after the filing of his earlier suit. Therefore,
Simpson’s claims accruing after July 16, 2012 – i.e., his claims stemming from any retaliation or
discrimination which occurred after that date against the DHR entity defendants, as well as his
claims against Denise Raines and Jane Bonds – are not due to be dismissed on res judicata
grounds and are subjected to further analysis below.
Any claims which had accrued by the time Simpson filed his July 16, 2012 complaint
should have been included in it, and to the extent Simpson declined to include them, they were
waived. In the present suit, he alleges he was discriminated against by St. Clair DHR in 2012 –
again referring to his 2012 interview for a position with that agency. His amended complaint has
included more specific allegations against Cherri Pilkington in her individual capacity, but they
all pertain to her role in the hiring process leading up to the July 2012 rejection letter Simpson
received. As explained above, those claims against St. Clair DHR and Cherri Pilkington are due
to be dismissed. There are no allegations against defendant Pilkington except those which
existed at the time of Simpson’s 2012 complaint. Accordingly, defendant Pilkington is due to be

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dismissed. For the reasons that follow, St. Clair DHR will be dismissed as well. Going forward,
Simpson is limited to seeking relief only upon a showing of retaliation or discrimination which
occurred after July 16, 2012.
2. Collateral Estoppel
The defendants argue that, as an alternative to res judicata, collateral estoppel should also
bar Simpson’s claims. (Doc. 35 at 29-30). They cite the Pleming case and correctly point out
that it is proper for a court to grant collateral estoppel when: (1) the issue at stake is identical to
the issue raised in prior proceedings; (2) the issue was actually litigated in the prior proceedings;
(3) the determination of the issue in the prior proceeding was “critical and necessary” for the
judgment in the prior action; and (4) the party against whom collateral estoppel is asserted had a
full and fair opportunity to litigate the issue in the prior litigation. 142 F.3d at 1359. However,
in discussing the second prerequisite for collateral estoppel (actual litigation), the defendants
refer only to the claims that were dismissed on summary judgment in a previous lawsuit. They
do not specify which lawsuit they are pointing to, although it makes no difference.

The

defendants make no assertion that Simpson’s current claims were – or even could have been –
raised in his 2012 lawsuit or elsewhere. Seeing no reason why collateral estoppel should be
available to the defendants as a shield against claims which accrued after Simpson’s 2012
lawsuit was filed, the court declines to apply it in this case.
B. Race Discrimination Claims
Title VII prohibits employers from discriminating “against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such individual’s
race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Section 1981 provides
that “[a]ll persons within the jurisdiction of the United States shall have the same right . . . to
make and enforce contracts . . . as is enjoyed by white citizens . . . .” § 1981(a). It prohibits
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“intentional race discrimination in the making and enforcement of public and private contracts,
including employment contracts.” Ferrill v. Parker Grp., Inc., 168 F.3d 468, 471 (11th Cir.
1999). Section 1983, which prohibits the deprivation of a federal right by a “person acting under
color of state law,” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001), provides
the sole cause of action against state actors for violations of § 1981, Butts v. County of Volusia,
222 F.3d 891, 892 (11th Cir. 2000). Finally, the Fourteenth Amendment’s Equal Protection
Clause prohibits intentional race discrimination in public employment. Bush v. Houston Cty.
Comm’n, 414 Fed. Appx. 264, 266 (11th Cir. 2011) (citing Williams v. Consol. City of
Jacksonville, 341 F.3d 1261, 1269 (11th Cir. 2003); Cross v. State of Alabama, State Dep’t of
Mental Health & Mental Retardation, 49 F.3d 1490, 1507 (11th Cir. 1995)). Section 1983
provides a cause of action for a Fourteenth Amendment violation. See Albright v. Oliver, 510
U.S. 266, 271 (1994) (noting § 1983 provides method for vindicating infringement of
constitutional right). In the employment context, race discrimination claims under Title VII, §
1981, and § 1983 require the same elements of proof. Bush, 414 Fed. Appx. at 266 (citing RiceLamar v. City of Ft. Lauderdale, Florida, 232 F.3d 836, 843 n.11 (11th Cir. 2000)). However,
Title VII, § 1981, and § 1983 do not have the same administrative prerequisites, provide relief
against the same individuals and entities, or implicate the same immunities.
1. Title VII Claims
a. Individual Defendants
“ ‘The relief granted under Title VII is against the employer, not individual employees
whose actions would constitute a violation of the [Civil Rights Act of 1964].’” Hinson v. Clinch
County, Georgia Bd. of Educ., 231 F.3d 821, 827 (11th Cir. 2000) (quoting Busby v. City of
Orlando, 931 F.2d 764, 772 (11th Cir. 1991)); see also Dearth v. Collins, 441 F.3d 931, 933

12

(11th Cir. 2006). “Individual capacity suits under Title VII are [] inappropriate.” Busby, 931
F.2d at 772. Accordingly, Simpson’s remaining claims against Raines and Bonds in their
individual capacities are due to be dismissed.
Title VII claims may be asserted against individual employees in their official capacities.
Cross, 49 F.3d at 1504. However, when those claims are also asserted against the employer, the
claims against the individual employees in their official capacities, which essentially are claims
against the employer, are redundant. See Kentucky v. Graham, 473 U.S. 159, 166-67 (1985)
(holding “[o]fficial-capacity suits represent [] only another way of pleading an action against an
entity of which an officer is an agent” (internal quotation marks omitted)); see also Strickland v.
Bd. of Tr. of Univ. of Alabama, 2014 WL 6749019, at *3 (N.D. Ala. Dec. 1, 2014). Because
Simpson asserts Title VII race discrimination and retaliation claims against the individual
defendants in their official capacities and against the DHR entities that employ them (i.e.,
Alabama DHR and DeKalb DHR), the Title VII claims against Raines and Bonds are due to be
dismissed.
b. DHR Entity Defendants
The discriminatory conduct of which Simpson complains is the DHR entity defendants’
failure to hire him for a social worker position.
In a traditional failure-to-hire case, the plaintiff establishes a prima facie case by
demonstrating that: (1) [he] was a member of a protected class; (2) [he] applied
and was qualified for a position for which the employer was accepting
applications; (3) despite [his] qualifications, [he] was not hired; and (4) the
position remained open or was filled by another person outside of [his] protected
class.
E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1273 (11th Cir. 2002). Simpson alleges he
is Native American and, therefore, a member of a protected class. (Doc. 32 at ¶ 8). He further

13

alleges he has been on the register of persons eligible to be hired by the defendants since October
7, 2011, and believes the defendants were hiring during the two years preceding his
commencement of this action. (Id. at ¶¶ 37-38, 44).
i.

DeKalb DHR and Alabama DHR

Simpson alleges he applied and interviewed for a social worker position with DeKalb
DHR in January 2013, but was not hired. (Id. at ¶¶ 50-51). Based upon this conduct, Simpson
filed timely EEOC charges against these defendants on February 4, 2013, and March 6, 2013.
(Doc. 32 at 27-30). He was issued right-to-sue letters on May 9, 2013, and therefore, these
claims have been timely filed after Simpson exhausted his administrative remedies. (Id.).
A liberal reading of the complaint suggests Simpson believes the person selected for the
position is white and that the defendants have interviewed and hired other white social workers
in the two years prior to the commencement of this action. (See id. at ¶¶ 71, 75). Although the
defendants argue Simpson fails to allege how he was treated differently than a person outside his
protected class (Doc. 35 at 21), the allegation that the defendants hired white social workers
rather than Simpson, a Native American, clearly identifies how Simpson believes the defendants
treated him differently. The defendants also argue Simpson fails to identify a valid comparator.
(Id. at 23).

However, “a failure to identify specific comparators in a[n] [employment

discrimination] complaint does not necessarily mean it should be dismissed.” Baker v. Hafez
Corp., 2014 WL 1760976, at *9 n.13 (S.D. Ala. May 2, 2014) (collecting authority). At this
stage of the litigation, Simpson’s allegation the defendants have hired white social workers,
rather than him, is sufficient.

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ii.

St. Clair DHR

Simpson attempts to state a claim under Title VII against St. Clair DHR. (Doc. 32 at ¶¶
26, 116-37; 149-50; 157; 161-65). As noted above, many of Simpson’s claims against St. Clair
DHR are barred by res judicata. Beyond that, St. Clair DHR’s employment of a white social
worker rather that Simpson in June or July of 2012 is not actionable under Title VII as a discrete
act of racial discrimination because it is time-barred. Before bringing suit under Title VII, a
potential plaintiff must exhaust his administrative remedies. Wilkerson v. Grinnell Corp., 270
F.3d 1314 (11th Cir. 2001).

A potential plaintiff begins the process of exhausting his

administrative remedies by timely filing a charge of discrimination with the EEOC. Id. He must
file the EEOC charge within 180 days of the alleged discrimination. 42 U.S.C. § 2000e-5(e)(1).
Failure to file a timely EEOC charge results in a bar of the claims contained in the untimely
charge. Jordan v. City of Montgomery, 283 Fed. Appx. 766, 767 (11th Cir. 2008) (citing
Alexander v. Fulton County, Georgia, 207 F.3d 1303, 1332 (11th Cir. 2003)). Simpson filed an
EEOC charge in March 2013, regarding alleged discrimination that occurred more than 180 days
earlier, in June or July of 2012. Therefore, the EEOC charge was untimely.
The undersigned notes that, in fact, the untimeliness of the charge was the reason the
EEOC dismissed it. Attached to the defendants’ motion to dismiss is the EEOC’s notice to
Simpson it was dismissing the charge as untimely. (Doc. 35-1 at 4). Simpson does not dispute
the authenticity of the dismissal notice. See Chesnut v. Ethan Allen Retail, Inc., 971 F. Supp. 2d
1223, 1228 (N.D. Ga. 2013) (“In ruling on a motion to dismiss, the district court may consider an
extrinsic document if (1) it is central to the plaintiff’s claim, and (2) its authenticity is not
challenged. Further, a document central to the complaint that the defense appends to its motion
to dismiss is also properly considered, provided its contents are not in dispute. In discrimination

15

cases, the EEOC charge is a document courts routinely consider when ruling on motions to
dismiss, even if it was not attached to a pleading.” (internal quotation marks and citations
omitted)).
Accordingly, St. Clair DHR’s employment of a white social worker in June or July of
2012 is not actionable under Title VII as a discrete act of racial discrimination. No other EEOC
charge, beyond the one discussed above, has been offered by Simpson to show he has exhausted
his administrative remedies with respect to St. Clair DHR. Therefore, to the extent he may have
claims against that entity defendant, he has failed to exhaust them and may not bring them via
this action. This does not require dismissal of St. Clair DHR as a defendant because it appears,
as set forth below, that Simpson successfully states a Rehabilitation Act claim against St. Clair
DHR.
iii.

Jefferson DHR, Marshall DHR, and Etowah DHR

Simpson attempts to state a claim under Title VII against Jefferson DHR, Marshall DHR,
and Etowah DHR. (Doc. 32 at ¶¶ 17, 20, 23, 37-38, 83-85, 95-97, 98-100, 106-07, 115).
However, Simpson offers no evidence whatsoever that he has exhausted his administrative
remedies as to these defendants. Nor does he state in his pleadings that he has ever made an
EEOC complaint regarding any alleged violations of Title VII. Although Simpson has attached
three EEOC charges to his complaint, (Id. at pp. 27-31), none of them concern these entity
defendants. Thus, Simpson has failed to establish administrative exhaustion with respect to these
claims. Therefore, they are due to be dismissed.

16

2. § 1981 & Fourteenth Amendment Claims Asserted Through § 1983
a. DHR Entity Defendants & Individual Defendants Sued in Official
Capacities
Although § 1983 provides the cause of action for a violation of § 1981 by a “person
acting under color of state law,” state agencies and state officials sued in their official capacity
for damages are not “person[s]” subject to suit under § 1983. Will v. Mich. Dep’t of State Police,
491 U.S. 58, 64, 71 (1989).

Alabama DHR is a state agency, as is each of its county

departments. See Ala. Code §§ 38-2-1 (creating state department of human resources); 38-2-8
(creating county departments of human resources). Therefore, the DHR entity defendants are not
“person[s]” subject to suit under § 1983. See A.D. ex rel. McGhee v. Alabama Dep’t of Human
Res., 995 F. Supp. 2d 1253, 1269 (N.D. Ala. 2014) (holding Alabama DHR and Jefferson DHR
are state agencies and, thus, not “person[s]” subject to suit under § 1983). Raines and Bonds,
who direct or supervise DeKalb DHR, are not “person[s]” subject to suit under § 1983 either, to
the extent they are sued in their official capacities for money damages.
Moreover, the Eleventh Amendment bars suits for money damages against state agencies
and state officials sued in their official capacities unless the state has waived its Eleventh
Amendment immunity or Congress has abrogated it. U.S. Const. Amend. XI; Seminole Tribe of
Florida v. State of Florida, 11 F.3d 1016, 1021 (11th Cir. 1994) (noting exceptions to Eleventh
Amendment immunity); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101, 101
n.11 (1984) (Eleventh Amendment immunity extends to state officials sued in official capacities,
provided state is real, substantial party in interest, which is the case where award of damages
would be paid by state). The State of Alabama has not waived its Eleventh Amendment
immunity. Ala. Const. Art. I, § 14 (“[T]he State of Alabama shall never be made a defendant in
any court of law or equity.”); Carr v. City of Florence, Alabama, 916 F.2d 1521, 1525 (11th Cir.
17

1990). Nor has Congress abrogated Eleventh Amendment immunity in actions brought pursuant
to § 1983.

Carr, 916 F.2d at 1525 (citing Quern v. Jordan, 440 U.S. 332, 345 (1979)).

Therefore, the Eleventh Amendment bars Simpson’s § 1981 and Fourteenth Amendment claims
asserted through § 1983 against the DHR entity defendants and against Raines and Bonds, to the
extent those individual defendants are sued in their official capacities for money damages.8
Another exception to Eleventh Amendment immunity exists under the doctrine
announced by the United States Supreme Court in Ex parte Young, 209 U.S. 123 (1908). Florida
Ass’n of Rehab. Facilities, Inc., v. State of Florida Dep’t of Health and Rehab. Servs., 225 F.3d
1208, 1219 (11th Cir. 2000). Under that doctrine, a citizen may sue a state official in her official
capacity for prospective injunctive relief to end a continuing violation of federal law. Id. In this
case, not only does the Eleventh Amendment not bar suit, id., but also the state official is
considered a “person” for purposes of § 1983, Will, 491 U.S. at 71 n.10.
The Eleventh Circuit has held a request for re-instatement constitutes a request for
prospective injunctive relief and, therefore, is not barred by the Eleventh Amendment. See
Cross, 49 F.3d at 1503 (holding Eleventh Amendment did not bar request for re-instatement)
(citing Lassiter v. Alabama A&M Univ., Bd. of Trs., 3 F.3d 1482, 1485 (11th Cir. 1993), reh’g en
banc granted and opinion vacated, 19 F.3d 1370 (11th Cir. 1994), on reh’g, 28 F.3d 1146 (11th
Cir. 1994)); see also Poindexter v. Dep’t of Human Res., 946 F. Supp. 2d 1278, 1290 (M.D. Ala.
2013) (holding plaintiff’s request for re-instatement was prospective and equitable and,
therefore, not barred by Eleventh Amendment). Simpson’s request is for instatement rather than
re-instatement.

(Doc. 32 at 26).

A request for re-instatement implies a challenge to the

termination of employment. In this action, Simpson does not challenge the termination of his

8

By contrast, “[it] is undisputed that the Eleventh Amendment does not bar [] Title VII suit[s].” Cross, 49 F.3d at
1502.

18

employment with Marshall DHR in 2004. He challenges his failure to be hired for new positions
that have become available in various county departments of human resources and asks for an
injunction placing him in one of those positions.
There is little authority addressing whether a request for instatement comes within the Ex
parte Young exception to Eleventh Amendment immunity. See Smith v. Sec’y of Dep’t of Envtl.
Prot. of Pennsylvania, 540 Fed. Appx. 80, 82 (3rd Cir. 2013) (noting that while there does
appear to be agreement that injunctive relief returning a former employee to employment is
permissible, whether injunctive relief requiring a plaintiff to be newly hired is a close question to
which neither the Supreme Court nor any circuit court has provided a clear answer). The
defendants argue generally and with little elaboration that Ex parte Young relief is not available
against Raines and Bonds because no continuing violation of federal law exists. (Doc. 35 at 1416). The Eastern District of Pennsylvania rejected a similar argument in Smith v. Sec’y of Dep’t
of Envtl. Prot. of Pennsylvania, reasoning the defendant failed to explain how a failure to hire is
any different than the termination of an employee for purposes of determining whether a
continuing violation of federal law exists. 2013 WL 6388555, at *3-4 (E.D. Penn. Dec. 5, 2013),
cert. denied, 134 S. Ct. 1053 (Jan. 27, 2014). The argument presented by the defendants in this
case suffers from the same shortcoming. They do not explain how a request for re-instatement
comes within the Ex parte Young exception, while a request for instatement may not.
Ultimately, in Smith the Pennsylvania district court held the plaintiff’s failure-to-hire
claim could proceed. 2013 WL 6388555, at *5. Because Simpson states plausible Title VII
claims against DeKalb DHR and Alabama DHR, he also states plausible § 1981 and Fourteenth
Amendment race discrimination claims against the individual defendants in their official
capacities through § 1983. See Bush, 414 Fed. Appx. at 266 (race discrimination claims under

19

Title VII, § 1981, and § 1983 require same elements of proof); Kentucky, 473 U.S. at 166-67
(official-capacity suits are effectively suits against entity of which official is an agent). The
undersigned finds the reasoning of Smith persuasive and, accordingly, concludes Simpson’s §
1981 and Fourteenth Amendment claims asserted through § 1983 against Raines and Bonds in
their official capacities seeking an order of instatement may proceed to the extent Simpson states
a plausible race discrimination claim against these defendants.
b. Individual Defendants Sued in Individual Capacity
The individual defendants sued in their individual capacities are “person[s]” subject to
suit under § 1983, and the Eleventh Amendment does not shield them from suit in this capacity.
Hafer v. Melo, 502 U.S. 21, 31 (1991). Furthermore, individuals may be sued in their individual
capacities and held liable for discrimination under §§ 1981 and 1983, unlike under Title VII.
Hicks v. City of Alabaster, Alabama, 2013 WL 979070, at *7 (N.D. Ala. Mar. 12, 2013) (citing
Shotz v. City of Plantation, Florida, 344 F.3d 1161, 1176 (11th Cir. 2003)). However, “[a] claim
for individual liability under Section 1981 requires an affirmative showing linking the individual
defendant with the discriminatory action.” Perkins v. Kushla Water Dist., 21 F. Supp. 3d 1250,
1261 (S.D. Ala. 2014) (internal quotation marks omitted), aff’d, 598 Fed. Appx. 899 (11th Cir.
2015). “[T]o establish personal liability in a § 1983 action, it is enough to show that the official,
acting under color of state law, caused the deprivation of a federal right.” Hafer, 502 U.S. at 25
(internal quotation marks omitted) (emphasis in original).
In their motion to dismiss, the defendants argue Simpson failed to allege how Raines and
Bonds personally participated in the discrimination. (Doc. 35 at 16). This seemingly ignores
Simpson’s allegations that Raines conducted his interview for a social worker position with
DeKalb DHR in January 2013, Bonds participated in the interview, and Raines sent a letter

20

informing him he had not been selected for the position. These allegations give rise to the
reasonable inference Raines and Bonds participated in the decision whether to hire Simpson,
which connects them to the alleged discrimination. Accordingly, Simpson states plausible race
discrimination claims against Raines and Bonds in their individual capacities through § 1983.
C. Rehabilitation Act Claims
The Rehabilitation Act prohibits programs that receive federal funds from discriminating
in employment against individuals with disabilities. Ellis v. England, 432 F.3d 1321, 1326 (11th
Cir. 2005) (citing 29 U.S.C. § 794(a)). It also prohibits retaliation against an employee who has
opposed disability discrimination. Burgos-Stefanelli v. Sec’y, U.S. Dep’t of Homeland Sec., 410
Fed. Appx. 243, 245 (11th Cir. 2011) (citing 29 U.S.C. § 794(d)). The Eleventh Amendment
does not immunize state agencies and officials from suit under the Rehabilitation Act. Garrett v.
Univ. of Alabama at Birmingham, 344 F.3d 1288, 1293 (11th Cir. 2003).
1. Individual Defendants
Because Simpson’s Rehabilitation Act claims against Raines and Bonds in their official
capacities are, in effect, claims against the DHR entities of which they are agents, see Kentucky,
473 U.S. at 167-68, and because Simpson also has asserted Rehabilitation Act claims against
those entities (i.e., Alabama DHR and DeKalb DHR), his claims against the individuals in their
official capacities are duplicative and due to be dismissed, see Ginwright v. Dep’t of Revenue for
Alabama, 2013 WL 1187943, at *3-4 (M.D. Ala. Mar. 21, 2013) (dismissing official capacity
Rehabilitation Act claims against individual defendants because plaintiff also asserted
Rehabilitation Act claims against entity of which those defendants were agents). Moreover,
Simpson’s Rehabilitation Act claims against Raines and Bonds in their individual capacities are
due to be dismissed because the Rehabilitation Act does not provide a cause of action against

21

persons sued in their individual capacities. See Berkery v. Kaplan, 518 Fed. Appx. 813, 814-15
(11th Cir. 2013) (Rehabilitation Act does not provide for individual liability); Pritchard v.
Southern Co. Servs., 102 F.3d 1118, 1119 n.7 (11th Cir. 1996) (remedy for any discrimination
plaintiff may have suffered because of disability lies against employer, not individual officers of
employer); Simpson v. Alabama Dep’t of Human Res., 2012 WL 5873553, at *3, (N.D. Ala. Nov.
16, 2012) (dismissing Simpson’s individual capacity Rehabilitation Act claims).
2. DHR Entity Defendants
a. Disability Discrimination
“The elements of a Rehabilitation Act [disability discrimination] claim are that: (1) ‘an
individual has a disability;’ (2) ‘the individual is otherwise qualified for the position;’ and (3)
‘the individual was subjected to unlawful discrimination as the result of his disability.’” Curry v.
Sec’y, Dep’t of Veterans Affairs, 518 Fed. Appx. 957, 963 (11th Cir. 2013) (quoting Mullins v.
Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000)). Simpson alleges has bi-polar and attention
deficit disorders and a learning disability (Doc. 32 at ¶ 8), thereby sufficiently pleading the first
element of a disability discrimination claim under the Rehabilitation Act. He further alleges his
degree and training qualified him for a social worker position with the DHR entity defendants
(Doc. 32 at ¶¶ 34, 40) and, thus, sufficiently pleads the second element. Finally, he alleges the
DHR entity defendants have knowledge of his disabilities and have not hired him because of his
disabilities. (Doc. 32 at ¶¶ 151-56). Construing Simpson’s pleadings liberally, as the court must,
the undersigned finds Simpson has sufficiently plead causation with respect to Alabama DHR
and DeKalb DHR. Simpson alleges he interviewed with Denise Raines for a job at DeKalb DHR
in January 2013. (Id. at ¶¶ 50, 52). Raines was aware of an earlier lawsuit Simpson filed in
which he alleged disability discrimination; during that lawsuit she gave a deposition. (Id. at ¶

22

53). During his interview, Raines mocked Simpson by making a reference to that deposition,
and at the end of his interview, Simpson pointed out to Raines that he was disqualified from
being able to do a field placement because of his disability. (Id. at ¶ 55). Simpson’s having
failed to do a field placement has been used as a strike against him in hiring decisions, and
indeed when his rejection letter came, it contained what Simpson alleges were mocking
references to his disability and his earlier attempts to assert his right to be treated equally in spite
of them. (Id. at ¶¶ 57-59). Thus, Simpson’s pleading of discrimination is adequate to give
Alabama DHR, DeKalb DHR, and Raines notice of the accusations against them under the
Rehabilitation Act. In other words, Simpson “pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556).
As to the remaining entity defendants, the undersigned concludes Simpson has failed to
sufficiently plead causation. Simpson fails to offer any facts whatsoever which would support
an inference that the remaining defendants’ actions were causally connected to Simpson’s
disabilities. In fact, Simpson has only very generally pleaded that the remaining defendants were
hiring at all during the relevant time period or that Simpson applied for an open position and was
denied. Aside from his application with DeKalb DHR in January 2013 and his application with
St. Clair DHR (which, as discussed above, is procedurally barred), Simpson offers no details at
all about any open positions he applied for, dates during which the defendants were hiring for
open positions, or any information which would establish a causal connection between
Simpson’s disability and any action taken by the remaining defendants. Thus, Simpson fails to
state a Rehabilitation Act claim against Marshall DHR, Jefferson DHR, Etowah DHR, and St.

23

Clair DHR. Accordingly, the undersigned recommends Simpson’s Rehabilitation Act claims be
dismissed as to all entity defendants except Alabama DHR and DeKalb DHR.
b. Retaliation
To establish a prima facie case of retaliation under the Rehabilitation Act, a plaintiff must
show that: “(1) [he] engaged in statutorily protected expression; (2) [he] suffered a materially
adverse employment action; and (3) there was some causal relationship between the two events.”
Burgos-Stefanelli, 410 Fed. Appx. at 246 (citing Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d
1261, 1277 (11th Cir. 2008)). “Statutorily protected expression includes . . . participating in
discrimination-based lawsuits.” Laosebikan v. Coca-Cola Co., 167 Fed. Appx. 758, 764 (11th
Cir. 2006) (citing Pipkins v. City of Temple Terrance, Florida, 267 F.3d 1197, 1201 (11th Cir.
2001)). By alleging he previously has sued Alabama DHR and various of its county departments
for disability discrimination and retaliation (Doc. 32 at ¶ 8), Simpson sufficiently pleads the first
element of a retaliation claim.
“A materially adverse action is one that ‘well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.’” Shannon v. Postmaster Gen. of U.S.
Postal Serv., 335 Fed. Appx. 21, 26 (11th Cir. 2009) (quoting Burlington N. and Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006)). The defendants argue Simpson has failed to identify a
materially adverse action Etowah DHR took against him because he does not allege he
interviewed for a social worker position with Etowah DHR during the time period in question or
that Etowah DHR even had an open social worker position during that time period. (Doc. 35 at
24-27). The defendants also note Simpson does not allege he received a notice from Etowah
DHR that he was not selected for an open position or that Etowah DHR hired someone other

24

than himself. (Id. at 27). This argument extends to the DHR entities whose hiring in 2013 and
beyond is lacking in the same level of detail in Simpson’s complaint.
Even so, Simpson alleges he has been on a register of persons eligible to be hired as a
social worker by all of the county departments of Alabama DHR since October 7, 2011, and
believes all of the DHR entity defendants were hiring during the two years preceding his
commencement of this action. (Doc. 32 at ¶¶ 153-156). At this stage of the litigation, these
allegations are sufficient to give rise to the inferences that the DHR entity defendants hired
individuals other than Simpson for social worker positions during the time period in question and
that Simpson was not hired because of his disability and in retaliation for his lawsuits. In two of
Simpson’s prior lawsuits, this court has held that knowing he would not be interviewed or hired
for a position because he brought a lawsuit alleging disability discrimination might dissuade a
reasonable employee from pursuing the lawsuit. See Simpson, No. 10-3084 at Doc. 26, p. 13
(permitting Simpson’s Rehabilitation Act retaliation claim to proceed past Rule 12(b)(6) stage as
to certain DHR entity defendants); Simpson, No. 12-2467 at Doc. 17, pp. 6-7 (permitting
Simpson’s Rehabilitation Act retaliation claim to proceed past Rule 12(b)(6) stage as to all DHR
entity defendants). Accordingly, Simpson sufficiently pleads the second element of a retaliation
claim.
Finally, “[t]o establish a causal connection, a plaintiff must show that the decisionmakers were aware of the protected conduct and that the protected activity and the adverse action
were not wholly unrelated.” Burgos v. Chertoff, 274 Fed. Appx. 839, 843 (11th Cir. 2008)
(quoting Gupta v. Florida Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000)). Simpson alleges
the decision-makers for the DHR entity defendants knew of his prior lawsuits. (Doc. 32 at ¶ 8,
153-56).

25

Even if the decision-makers for DeKalb DHR knew of Simpson’s November 2006
lawsuit against DeKalb DHR, and even if the decision-makers for Etowah DHR knew of
Simpson’s 2010 lawsuit against the director of Etowah DHR, those lawsuits are too remote in
time to establish a causal connection between the lawsuits and any adverse action taken against
Simpson during the time period in question. To establish a causal connection between protected
activity and an adverse employment action, the temporal proximity between the two must be
very close. See Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004). Courts have held a
three-to-four month disparity is insufficient to establish a causal connection. See id. (citing
Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). But with respect to DeKalb DHR
and Alabama DHR, Simpson alleges more than just a temporal connection because he describes
conversations and interactions which, if true, would tend to show a causal link between
Simpson’s previous lawsuits and DHR’s adverse hiring decisions.

Accordingly, Simpson

sufficiently pleads the third element of a retaliation claim with respect to Alabama DHR and
DeKalb DHR on the basis of his interview with Denise Raines and Jane Bonds.9
Simpson also alleges his 2012 lawsuit constitutes protected activity of which the
decision-makers for each of the DHR entity defendants were aware. (Doc. 32 at ¶¶ 27, 52).
Thus, Simpson’s complaint could reasonably be construed to complain of materially adverse
action taken by DHR within three or four months of his commencement of a lawsuit in July
2012. If Simpson offered enough to permit an inference he was referring to a materially adverse
The defendants assert, with little analysis or argument, that Simpson’s Rehabilitation Act retaliation
claim against Etowah County is time-barred. “For Rehabilitation Act claims originating in Alabama, that
state’s two-year period for personal injury actions, found in Ala. Code § 6-2-38(l), supplies the applicable
statute of limitations.” Simpson, 501 Fed. Appx. at 953-54 (citing Jones v. Preuit & Mauldin, 876 F.2d
1480, 1483 (11th Cir. 1989)). As to Etowah County DHR, the discriminatory conduct of which Simpson
complains is that entity’s failure to interview him for a social worker position in the two years preceding
his commencement of this action. Accordingly, it is not time-barred.
9

26

action taken in the three to four months following the filing of his July 2012 lawsuit, then
temporal proximity could establish the causation element for those claims. But the undersigned
does not find Simpson’s pleading sufficient in this regard. Simply put, the court would have to
speculate that Simpson is complaining of some alleged (but not specifically pleaded) hiring
decision which took place in the narrow time period following his July 2012 lawsuit. The court
would also have to speculate that, if it happened, such a decision was causally connected to
Simpson’s protected activity based on temporal proximity alone.

There is not enough

information in the complaint to satisfy the Iqbal standard with respect to the remaining entity
defendants and, as such, the undersigned recommends Simpson’s Rehabilitation Act claims
against Marshall DHR, Jefferson DHR, and Etowah DHR be dismissed for failure to state a
claim upon which relief can be granted. With respect to St. Clair DHR, Simpson states only
those allegations which, as explained above, are procedurally barred. Because he offers no
allegations beyond those, the undersigned recommends Simpson’s Rehabilitation Act claims
against St. Clair DHR be dismissed as well.
D. Breach Of Written Agreement
Finally, Simpson asserts a claim for “breach of written agreement.” (Doc. 32 at 25). His
entire statement in support of this claim is that he is protected by the Rehabilitation Act, “has
correspond[ence] from the defendants that those conditions would be met,” and his claims, if
true, “would show a breach” in that correspondence. (Id. at ¶¶ 173-75). This count does not
state a claim. To the extent Simpson asserts a Rehabilitation Act claim through this count, it is
addressed above. To the extent he seeks to assert a claim for breach of contract or some other
promise, the allegations do not support anything more than “a sheer possibility that a defendant
has acted unlawfully.” Iqbal, 556 U.S. at 678. There are no allegations of the traditional
27

contractual elements (offer, acceptance, agreement, consideration) nor is there any reference to
specific conduct of the defendants which, if proven, would evidence the breach of an enforceable
promise. Accordingly, this claim is due to be dismissed.
IV.

CONCLUSION
For the foregoing reasons, the defendants’ motion to dismiss (Doc. 35) is GRANTED in

part and DENIED in part:
The motion is DENIED as to Simpson’s Title VII race discrimination claims against
Alabama DHR and DeKalb DHR; Rehabilitation Act claims for discrimination and relation
against Alabama DHR and DeKalb DHR; race discrimination claims asserted through § 1983
against Raines and Bonds in their official capacities for prospective injunctive relief; and race
discrimination claims asserted through § 1983 against Raines and Bonds in their individual
capacities. Simpson is permitted to proceed on those claims.
The motion is GRANTED to the extent that any claims which had accrued as of July 16,
2012, are DISMISSED as procedurally barred, including all claims against defendant Pilkington.
The motion is GRANTED with respect to all Rehabilitation Act claims and Title VII claims
against Jefferson DHR, Marshall DHR, Etowah DHR, and St. Clair DHR. Simpson’s Title VII
race discrimination claims and Rehabilitation Act disability discrimination and retaliation claims
against Raines and Bonds in their official capacities are DISMISSED as redundant; and
Simpson’s Title VII race discrimination claims and Rehabilitation Act disability discrimination
and retaliation claims against those individuals in their individual capacities are DISMISSED as
non-cognizable, all pursuant to Rule 12(b)(6).

The motion is GRANTED to the extent

Simpson’s race discrimination claims asserted through § 1983 against the DHR entity defendants
and against Raines and Bonds in their official capacities for money damages are DISMISSED

28

pursuant to Rule 12(b)(6) because those defendants are not “person[s]” subject to suit under §
1983 and pursuant to Rule 12(b)(1) as barred by the Eleventh Amendment. The motion is
GRANTED to the extent Simpson’s race discrimination claims asserted through § 1983 against
Pilkington in her individual capacity are DISMISSED pursuant to Rule 12(b)(6). Finally, the
the motion is GRANTED to the extent Simpson’s claim for breach of written agreement are
DISMISSED pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be
granted.
DONE this 8th day of February, 2017.

______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

29