Henson v. Gadsden, City of

Filing 30

MEMORANDUM OPINION AND ORDER DENYING 17 MOTION to Dismiss Amended and Restated Complaint, and Renewal of Motion to Dismiss as set out herein. Signed by Judge Virginia Emerson Hopkins on 6/27/2014. (JLC)

FILED
2014 Jun-27 AM 10:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
KEVIN LANDON HENSON,
Plaintiff,
v.
CITY OF GADSDEN, et al.,
Defendants.

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) Case No.: 4:14-CV-163-VEH
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MEMORANDUM OPINION AND ORDER
I.

Introduction
This employment dispute arises under the Americans with Disabilities Act of

1990 (the “ADA”) and the Americans with Disabilities Act Amendments Act of 2008
(the “ADA Amendments”) (collectively, the “ADAA”). (Doc. 1 at 1 ¶ 1). Plaintiff
Kevin Landon Henson (“Mr. Henson”) filed his initial complaint (Doc. 1) on January
30, 2014, and his amended and restated pleading (Doc. 14) on March 24, 2014. The
defendants named in Mr. Henson’s lawsuit are the City of Gadsden (the “COG”) and
the Gadsden Civil Service Board (the “GCSB”). (Doc. 14 at 1; id. at 2 ¶¶ 4, 5; id. at
4-11 ¶¶ 13-60); (see also Docs. 15, 16, (copies of executed summonses)).
Pending before the court is COG’s Motion To Dismiss Amended and Restated
Complaint, and Renewal of Motion To Dismiss (Doc. 17) (the “Motion”) filed on

April 17, 2014. The parties have briefed the Motion (Docs. 18, 20, 21), and it is ready
for disposition. For the reasons explained below, the Motion is DENIED.
II.

Rule 12(b)(6) Standard
A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See Fed.

R. Civ. P. 12(b)(6) (“[A] party may assert the following defenses by motion: (6)
failure to state a claim upon which relief can be granted[.]”). The Federal Rules of
Civil Procedure require only that the complaint provide “‘a short and plain statement
of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is
and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99,
103, 2 L. Ed. 2d 80 (1957) (footnote omitted) (quoting Fed. R. Civ. P. 8(a)(2)),
abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955,
1965, 167 L. Ed. 2d 929 (2007); see also Fed. R. Civ. P. 8(a) (setting forth general
pleading requirements for a complaint including providing “a short and plain
statement of the claim showing that the pleader is entitled to relief”).
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8
does not mandate the inclusion of “detailed factual allegations” within a complaint.
Twombly, 550 U.S. at 555, 127 S. Ct. at 1964 (quoting Conley, 355 U.S. at 47, 78 S.
Ct. at 103). However, at the same time, “it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
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678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). “[O]nce a claim has been
stated adequately, it may be supported by showing any set of facts consistent with the
allegations in the complaint.” Twombly, 550 U.S. at 563, 127 S. Ct. at 1969.
“[A] court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950. “While legal
conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Id. “When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id. (emphasis added). “Under Twombly’s construction of
Rule 8 . . . [a plaintiff’s] complaint [must] ‘nudge[] [any] claims’ . . . ‘across the line
from conceivable to plausible.’ Ibid.” Iqbal, 556 U.S. at 680, 129 S. Ct. at 1950-51.
A claim is plausible on its face “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, 129 S. Ct. at 1949. “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. (quoting Twombly, 550 U.S. at
556, 127 S. Ct. at 1965).

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III.

Analysis
Mr. Henson complains that, despite being qualified and applying for an open

municipal position with the COG, the GCSB recommended that the COG not hire him
on account of his Type I diabetic condition. His lawsuit contains three counts. Count
One is for disability discrimination under the ADAA against both defendants. (Doc.
14 at 5-6 ¶¶ 26-30). Count Two is for disability perception discrimination under the
ADAA against both defendants. (Id. at 6 ¶¶ 31-35). Finally, pursuant to 42 U.S.C. §
1985(3), Count Three asserts a conspiracy to violate the equal protection clause
against both defendants. (Doc. 1 at 6-7 ¶¶ 36-40).
The COG maintains that it is not a proper party to Mr. Henson’s lawsuit
because it merely followed the GCSB’s instructions in its treatment of Mr. Henson.
The COG also asserts that it is a separate legal entity from the GCSB and denies Mr.
Henson’s allegations that it and the GCSB are “inextricably intertwined.” (Doc. 14
at 3 ¶ 10). Finally, the COG contends that Mr. Henson’s conspiracy count is likely not
to be cognizable within the Eleventh Circuit based upon other decisions by that
appellate court, which have addressed the permissible scope of § 1985(3).
Turning first to the COG’s initial two related arguments, while its briefing
contains Alabama state court authorities that recognize its legal separateness from the
GCSB for the purposes of Alabama law, it neglects to reference any on-point federal
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cases that have embraced the proposition that it cannot plausibly be sued as Mr.
Henson’s prospective employer for violations of the ADAA. Thus, the court finds
these contentions to be underdeveloped and unpersuasive. Cf. Flanigan’s Enters., Inc.
v. Fulton County, Ga., 242 F.3d 976, 987 n.16 (11th Cir. 2001) (holding that a party
waives an argument if the party “fail[s] to elaborate or provide any citation of
authority in support” of the argument); Ordower v. Feldman, 826 F.2d 1569, 1576
(7th Cir. 1987) (stating that an argument made without citation to authority is
insufficient to raise an issue before the court).
Moreover, the COG’s position that only the GCSB may be plausibly liable to
Mr. Henson for violations of the ADAA is at odds with at least one binding Eleventh
Circuit decision. As the Eleventh Circuit specifically held under a comparable federal
employment statute, “two or more state or local governmental entities will be treated
as a single ‘employer’ under Title VII where one entity exerts or shares control over
the fundamental aspects of the employment relationships of another entity, to such a
substantial extent that it clearly outweighs the presumption that the entities are
distinct.” Lyes v. City of Riviera Beach, 166 F.3d 1332, 1345 (11th Cir. 1999)
(emphasis added). Therefore, the COG’s contention of implausibility tied to its
separateness from the GCSB is additionally rejected on the basis that Lyes recognizes
an exception to the presumption that a court should normally treat multiple municipal
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entities distinctly in employment-related matters.
As for Mr. Henson’s civil conspiracy count, in his amended complaint he
candidly observes:
The United States Court of Appeals for the Eleventh Circuit has
not specifically addressed whether the protected class of disability is
covered for the purposes of 42 U.S.C. § 1985(3). The Second and Eighth
Circuits have extended 42 U.S.C. § 1985(3)’s protection to disability
discrimination; however Plaintiff acknowledges a circuit split exists in
that Seventh and Tenth Circuits have not provided such coverage. See
Fitzpatrick v. City of Falmouth, 321 F. Supp. 2d 119, 124 (D. Me.
2004). The Eleventh Circuit has only grazed the issue of disability
discrimination in light of 42 U.S.C. § 1985(3) in Wilbourne v. Forsyth
Cty. Sch. Dist., 306 Fed. Appx. 473, 477-78 (11th Cir. 2009), wherein
the claim was dismissed on grounds not related to the issue of coverage.
(Doc. 14 at 6 n.1).
The COG does not dispute the still open question status of this type of claim
within the Eleventh Circuit. Under such circumstances, and because other viable
counts remain in the lawsuit, there is no reason for this court to “rush to judgment”
and attempt to predict what the Eleventh Circuit will ultimately decide about the
merits of a disability conspiracy claim, especially when that court may expressly
address the issue in a published opinion during the pendency of this case. Therefore,
the COG’s Motion is also DENIED as to Count Three.
IV.

Conclusion
Accordingly, COG’s Motion is DENIED.
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DONE and ORDERED this the 27th day of June 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

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