Hinkle v. Amtec Corporation
MEMORANDUM OPINION AND ORDER that the defendant's 6 MOTION to Dismiss is GRANTED and Plaintiff's termination claim is DISMISSED with prejduice; Plaintiff's failure to rehire claim remains pending as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 3/19/2013. (AHI )
2013 Mar-19 PM 12:24
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
Civil Action No. CV-13-S-123-NE
MEMORANDUM OPINION AND ORDER
This case is before the court on defendant’s motion to dismiss for failure to
state a claim upon which relief can be granted.1 Plaintiff, Shirley Hinkle, asserts two
claims under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621
et seq. (“ADEA”). She claims that defendant discriminated against her on the basis
of age by terminating her employment, and by subsequently refusing to rehire her.2
Defendant, AMTEC Corporation, argues that plaintiff’s termination claim should be
dismissed because plaintiff failed to exhaust administrative remedies.3
consideration of the parties’ arguments, the motion will be granted.
I. LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss a
Doc. no. 6 (Motion to Dismiss).
Doc. no. 1 (Complaint) ¶¶ 7, 17-19.
Doc. no. 6 (Motion to Dismiss), at 1-3.
complaint for, among other reasons, “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). This rule must be read together with Rule 8(a),
which requires that a pleading contain only a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While that
pleading standard does not require “detailed factual allegations,” Bell Atlantic Corp.
v. Twombly, 544 U.S. 544, 550 (2007), it does demand “more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citations omitted).
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.” [Bell Atlantic Corp., 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. Id., 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. Ibid. Where a
complaint pleads facts that are “merely consistent with” a defendant’s
liability, it “stops short of the line between possibility and plausibility
of ‘entitlement to relief.’” Id., at 557 (brackets omitted).
Iqbal, 556 U.S. at 678 (alteration supplied). Moreover, a court need not accept a
complaint’s legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
As always is the case in the context of ruling upon a motion to dismiss, the
district court is required to assume that
the facts set forth in the plaintiff’s complaint are true. See Anza [v. Ideal
Steel Supply Corp.], 547 U.S. 451, [453,] 126 S. Ct.[1991,] 1994
[(2006)] (stating that on a motion to dismiss, the court must “accept as
true the factual allegations in the amended complaint”); Marsh v. Butler
County, 268 F.3d 1014, 1023 (11th Cir. 2001) (en banc) (setting forth
the facts in the case by “[a]ccepting all well-pleaded factual allegations
(with reasonable inferences drawn favorably to Plaintiffs) in the
complaint as true”). Because we must accept the allegations of
plaintiff’s complaint as true, what we set out in this opinion as “the
facts” for Rule 12(b)(6) purposes may not be the actual facts.
Williams v. Mohawk Industries, Inc., 465 F.3d 1277, 1281 n.1 (11th Cir. 2006)
II. FACTS AS ALLEGED
Defendant hired plaintiff on July 3, 1995, as a Human Resources (“HR”)
Specialist.4 At the time of her termination in 2011, plaintiff was the company’s HR
Scott Albritton became defendant’s Director of Finance and
Administration in 2002.6 Albritton subsequently hired Ron Haralson to help oversee
the HR Office.7 Albritton and Haralson were engineers and had little experience in
human resources, so plaintiff provided initial training to both of them.8
At some undisclosed time, Albritton questioned plaintiff about how long she
Doc. no. 1 (Complaint) ¶ 8.
Id. ¶ 14.
Id. ¶ 9.
Id. ¶ 11.
Id. ¶¶ 10-11.
intended to remain at AMTEC.9 He suggested that, given her age, plaintiff might
want to spend more time with her family.10 Shortly thereafter, Haralson also inquired
how long plaintiff planned to remain with the company, as did the company’s
Defendant’s HR Office employed plaintiff and one other person, Danelle
Duskin.12 Plaintiff and Duskin repeatedly asked that their department be given better
technology, but Albritton rejected their requests.13 Duskin resigned on August 15,
2008.14 Plaintiff assumed Duskin’s duties for approximately two months, until
October 27, 2008, when defendant hired Tina Nave as Duskin’s replacement.15
As HR Manager, plaintiff usually participated in the hiring process.16
However, defendant excluded plaintiff from any involvement with the hiring of Tina
Nave.17 Moreover, Nave received new software and equipment when she began her
employment with defendant.18 Nave, Albritton, and Haralson received training on the
Id. ¶ 12.
Doc. no. 1 (Complaint) ¶ 12.
Id. ¶ 14.
Id. ¶¶ 14-15.
Doc. no. 1 (Complaint) ¶ 15.
Id. ¶ 16.
new software, but plaintiff did not.19 Nevertheless, plaintiff was expected to perform
Nave’s duties when she was absent on medical leave.20
Albritton notified plaintiff on June 9, 2011, that she was being laid off.21
Plaintiff possessed some unused vacation leave, and defendant permitted her to work
until July 1, 2011.22 Nave, who was younger than plaintiff, remained as an employee
in the HR Office.23 Defendant informed plaintiff when she was laid off that she would
be eligible to be rehired if a future need in the HR Office arose.24 In March of 2012,
plaintiff noticed that her former position was vacant.25 She applied for the position,
but never received a response from defendant.26 Defendant ultimately hired a younger
female to fill the opening.27
Plaintiff completed a charge of discrimination on July 9, 2012, which the
EEOC received on July 13, 2012.28 It noted that the earliest date of discrimination
Id. ¶ 8.
Doc. no. 1 (Complaint) ¶ 8.
Id. ¶ 17.
Id. ¶ 18.
Id. ¶ 19.
Doc. no. 10 (Ex. 1, EEOC Charge of Discrimination), at 1.
took place on March 1, 2012, and the latest date took place on June 26, 2012.29 The
EEOC issued a Dismissal and Notice of Right to Sue on October 23, 2012.30 Plaintiff
filed her complaint in this case on January 18, 2013.31
Defendant moves to dismiss plaintiff’s age discrimination claim related to her
layoff for failure to exhaust her administrative remedies.32 “The ADEA requires that
an individual exhaust available administrative remedies by filing a charge of unlawful
discrimination with the EEOC before filing a lawsuit.” Bost v. Federal Express
Corp., 372 F.3d 1233, 1238 (11th Cir. 2004).
The period in which a person must file a complaint with the EEOC
depends on whether a state is a “deferral state” under the ADEA.
Deferral states are those that have a state agency equivalent to the
EEOC. See 29 U.S.C. §§ 626(d), 633 (1999); see also American
Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111 (1st Cir. 1998);
Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876, 878 (5th Cir. 1991).
In these states, a person must file an age discrimination claim with the
EEOC within 300 days after the alleged unlawful practice occurred. 29
U.S.C. § 626(d)(2). In states without a state equivalent to the EEOC, the
ADEA requires a charge to be filed within 180 days. 29 U.S.C. §
626(d)(1). Alabama has a state discrimination statute, the AADEA, but
does not have an EEOC equivalent. Thus, the Court examines the
timeliness of [plaintiff’s] ADEA claim in the context of the 180-day
Doc. no. 1 (Complaint) ¶ 3.
See generally id.
Doc. no. 6 (Motion to Dismiss), at 1.
Jones v. Dillard’s, Inc., 331 F.3d 1259, 1263 (11th Cir. 2003) (alteration supplied);
see also Schweers v. Montgomery Public Schools, 511 F. Supp. 2d 1128, 1135 (M.D.
Ala. 2007). Plaintiff received notice of her layoff on June 9, 2011,33 over a year
before she submitted her EEOC charge on July 9, 2012, and eight months before the
date alleged in her EEOC charge as the onset date of discrimination. Thus, plaintiff
did not exhaust her administrative remedies relating to her termination claim, because
she did not file her EEOC charge within 180 days of being laid off. See 29 U.S.C. §
Plaintiff offers only two pages of argument why her termination claim should
survive. She asserts that the doctrine of equitable tolling should apply to excuse her
failure to file an EEOC charge within 180 days of her termination. She notes that
“equitable tolling is appropriate in situations where the defendant misleads the
plaintiff, allowing the statutory period to lapse; or when the plaintiff has no
reasonable way of discovering the wrong perpetrated against her.” Cabello v.
Fernandez-Larios, 402 F.3d 1148, 1155 (11th Cir. 2005).
“Equitable tolling is an extraordinary remedy which should be extended only
sparingly.” Bost, 372 F.3d at 1242. It is appropriate only when a plaintiff “untimely
A “final decision to terminate, rather than actual termination, constitutes the alleged
unlawful practice that triggers the filing period. Thus, the 180-day period is counted from the date
the employee receives notice of termination.” Wright v. AmSouth Bancorporation, 320 F.3d 1198,
1201 (11th Cir. 2003) (internal quotations omitted) (emphasis in original).
files because of extraordinary circumstances that are both beyond his control and
unavoidable even with diligence.” Sandvik v. United States, 177 F.3d 1269, 1271
(11th Cir. 1999). The burden is on plaintiff to show that equitable tolling is
warranted. See Bost, 372 F.3d at 1242. Plaintiff relies on the fact that she “was told
she would be eligible for rehire if there was an opening [for her former position]. In
fact, there was an opening and she applied [in March of 2012] but was not hired.
Instead, a younger female was hired.”34
Plaintiff has not carried her heavy burden of showing that those facts are
sufficiently extraordinary so as to justify the rare remedy of equitable tolling.
Plaintiff knew when she was laid off that a younger employee was assuming her
duties.35 She was also aware of her supervisors’ prior comments regarding her age.36
Having received “unequivocal communication of the adverse employment decision,”
the 180-day period began to run, and plaintiff let it expire without filing a charge of
discrimination. Wright v. AmSouth Bancorporation, 320 F.3d 1198, 1202 (11th Cir.
2003). This court must be “mindful that ‘procedural requirements established by
Congress for gaining access to the federal courts are not to be disregarded by courts
out of a vague sympathy for particular litigants.’” Wakfield v. Cordis Corp., 211 F.
Doc. no. 8 (Response to Motion to Dismiss), at 2 (alterations supplied).
Doc. no. 1 (Complaint) ¶ 17.
Id. ¶ 12.
App’x 834, 837 (11th Cir. 2006) (per curiam) (quoting Baldwin County Welcome
Center v. Brown, 466 U.S. 147, 152 (1984)). Accordingly, equitable tolling does not
apply in this case.
For all of the reasons stated above, the court GRANTS defendant’s motion to
dismiss. Plaintiff’s termination claim is DISMISSED with prejudice. Plaintiff’s
failure to rehire claim remains pending.
DONE and ORDERED this 19th day of March, 2013.
United States District Judge
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