Forsyth v. University of Alabama Board of Trustees et al

Filing 30

MEMORANDUM OPINION. Signed by Judge R David Proctor on 2/23/2018. (KAM)

FILED
2018 Feb-23 PM 12:28
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
MARTIN FORSYTH,
Plaintiff,
v.
UNIVERSITY OF ALABAMA BOARD
OF TRUSTEES, et al.,
Defendants.

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Case No.: 7:17-cv-00854-RDP

MEMORANDUM OPINION
This case is before the court on Defendants’ Motion to Dismiss the Complaint. (Doc. #
5).

This employment discrimination action includes claims under Section 504 of the

Rehabilitation Act, the First and Fourteenth Amendments to the United States Constitution, the
Asbestos School Hazard Abatement Reauthorization Act of 1990 (“ASHARA”), the Asbestos
School Hazard Detection and Control Act (“ASHDCA”), the State Employee Protection Act, and
42 U.S.C. § 1983. (See generally Doc. # 1). The parties have fully briefed the Motion to
Dismiss (Docs. # 11, 12), and it is under submission.
I.

Background
Plaintiff worked as a carpenter in the facilities and grounds department at the University

of Alabama at Tuscaloosa (the “University”), which is governed by Defendant University of
Alabama Board of Trustees (the “Board”). (Doc. # 1 at ¶ 4). The Board hired Plaintiff in
October 2005. (Id. at ¶ 14). According to Plaintiff, he received positive performance reviews in
2007, 2008, and 2009. (Id. at ¶ 16).

In 2010, Plaintiff was assigned work in the University’s health department building,
which was partially occupied by the University’s women’s resource center. (Id. at ¶ 18).
“Plaintiff became aware that asbestos was present in the Health Department Building in the floor
tile in the Tuberculosis Clinic and that [the University] had failed to properly abate the asbestos.”
(Id.). Plaintiff alleges that the University should have removed all personnel from the building,
but it continued to require building maintenance and women’s resource center employees to
work in the building. (Id. at ¶ 20). On September 2, 2010, Plaintiff left the health department
building and reported “concerns that students, [University] personnel, and workers may be
exposed to friable asbestos” to the University’s environmental health and safety department. (Id.
at ¶ 21). Thereafter, Plaintiff and two other workers expressed concerns about retaliation to a
human resources employee. (Id at ¶ 22).
On September 21, 2010, Plaintiff received a verbal warning from Michael Hubbard, an
associate manager of building maintenance, for leaving his assigned work site on September 2,
2010 without proper authorization. (Id. at ¶¶ 15, 23). The other employees who reported
concerns about retaliation also received written warnings from Defendant Neal DiChiara, the
manager of building maintenance. (Id. at ¶¶ 17, 23). Plaintiff disputed the verbal warning and
explained that the warning was retaliation for his asbestos-related report.

(Id. at ¶ 24).

Moreover, Plaintiff recounts in the Complaint that his crew completed the renovations in the
health department building on time, despite leaving the job site on September 2. (Id. at ¶¶ 2425).
In June 2011, DiChiara suspended Plaintiff for three and a half days without pay for
insubordination. (Id. at ¶ 26). According to the Complaint, DiChiara scheduled “a ‘mandatory’
meeting on ethics” at the last minute to occur after Plaintiff’s work shift had ended. (Id.).

2

Plaintiff asked Hubbard and DiChiara for leave to miss the meeting, but DiChiara aggressively
responded that Plaintiff could “just see what happens.” (Id. at ¶ 27). DiChiara used profanity
towards Plaintiff and suspended him for insubordination, a suspension Plaintiff alleges was
based on his question about missing the meeting.

(Id.).

Plaintiff formally disputed the

suspension. (Id. at ¶ 28).
In July 2013, Plaintiff was assigned to a renovation of the Sigma Chi fraternity house.
(Id. at ¶ 29). Plaintiff learned that the environmental health and safety department had not tested
the house for asbestos, and he reported his suspicions of asbestos in a ceiling to an employee of
the University’s environmental health and safety department. (Id.). That University employee
notified Plaintiff’s supervisor of the asbestos report, and the environmental health department
discovered asbestos in the fraternity house. (Id.). On July 12, 2013, DiChiara placed Plaintiff on
a performance improvement plan that allegedly “questioned Plaintiff’s ethics and integrity and
cited seven unidentified incidents of Plaintiff’s attitude or working relationships that allegedly
needed improvement.”

(Id. at ¶ 30).

Plaintiff alleges that the issues identified in his

performance plan did not relate to his job and that the plan lacked specific measures of
improvement. (Id. at ¶¶ 30-31). Plaintiff formally disputed the performance plan and submitted
a formal complaint to the human resources department.

(Id. at ¶ 33).

Ultimately, the

University’s management upheld the performance plan. (Id. at ¶¶ 34-35). Moreover, Defendant
Duane Lamb, an assistant vice president at the University, told Plaintiff during a September 2013
meeting that (1) he could have been terminated for leaving his job in 2010, (2) he made
management look bad by reporting improper asbestos abatement activity, and (3) he had
triggered an investigation that cut the supervisors’ legs “out from under [them].” (Id. at ¶ 36).

3

In September 2013, DiChiara issued Plaintiff a written warning for allegedly telling
another University employee that “you haven’t learned yet that the University is going to do
what benefits the University.” (Id. at ¶ 37). On October 8, 2013, Plaintiff formally disputed the
written warning, but the reviewing supervisor found no misconduct. (Id. at ¶ 39). On October
24, 2013, DiChiara issued Plaintiff a revised performance plan. (Id. at ¶ 40). In July 2014,
DiChiara discontinued monthly meetings that were part of the performance plan when Plaintiff
volunteered for an unpopular work assignment. (Id. at ¶ 41).
In March 2015, DiChiara issued Plaintiff a “final counseling” premised on “allegedly
displaying an unprofessional manner when asked to take on assignments by not following the
chain of command, questioning the actions of his supervisors, asking more than one supervisor
the same question, and referring an employee to another supervisor to address the employee’s
concern about a potential issue.” (Id. at ¶ 42). Plaintiff formally disputed the counseling, but the
University vice president he called to complain about the discipline would not return his calls.
(Id. at ¶ 43). In the summer of 2015, Plaintiff sought counseling and treatment for depression
and anxiety. (Id. at ¶ 44). He informed his supervisors about the counseling when he requested
time off in order to attend counseling sessions. (Id.).
In July 2015, managers in the building maintenance department discovered a “makeshift
break room” in a residence hall. (Id. at ¶ 45). The room also functioned as a storage area. (Id.).
Plaintiff occasionally worked in the residence hall, but merely “entered the storage room on
occasion to retrieve supplies.” (Id.). On July 27, 2015, DiChiara terminated Plaintiff for taking
unauthorized breaks. (Id. at ¶ 46). Plaintiff denies that he took unauthorized breaks, and
explains that he occasionally had to wait on site for another employee to finish work. (Id. at ¶

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47). He also contends that other employees received no discipline for taking breaks on site when
delayed by other maintenance employees finishing their work. (Id. at ¶ 48).
II.

Standard of Review
The Federal Rules of Civil Procedure require that a complaint provide “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
However, the complaint must include enough facts “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain
nothing more than “a formulaic recitation of the elements of a cause of action” do not meet Rule
8 standards, nor do pleadings suffice that are based merely upon “labels and conclusions” or
“naked assertion[s]” without supporting factual allegations. Id. at 555, 557. In deciding a Rule
12(b)(6) motion to dismiss, courts view the allegations in the complaint in the light most
favorable to the non-moving party. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir.
2007).
To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible
on its face.” 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although “[t]he
plausibility standard is not akin to a ‘probability requirement,’” the complaint must demonstrate
“more than a sheer possibility that a defendant has acted unlawfully.” Id. A plausible claim for
relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal
evidence” to support the claim. Twombly, 550 U.S. at 556.
In considering a motion to dismiss, a court should “1) eliminate any allegations in the
complaint that are merely legal conclusions; and 2) where there are well-pleaded factual

5

allegations, ‘assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.’” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App’x 136,
138 (11th Cir. 2011) (quoting Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir.
2010)). That task is context specific and, to survive the motion, the allegations must permit the
court based on its “judicial experience and common sense . . . to infer more than the mere
possibility of misconduct.” Iqbal, 556 U.S. at 679. If the court determines that all of the wellpleaded facts, accepted as true, do not state a claim that is plausible, the claims are due to be
dismissed. Twombly, 550 U.S. at 570.
Defendants have attached several exhibits to their Motion to Dismiss. In almost all
circumstances, a court cannot consider evidence that is not attached to the complaint in deciding
whether to dismiss a claim under Rule 12(b)(6). See SFM Holdings, Ltd. v. Banc of Am. Sec.,
LLC, 600 F.3d 1334, 1337 (11th Cir. 2010) (explaining that an extrinsic document can only be
considered in deciding a motion to dismiss if it is central to a plaintiff’s claim and its authenticity
is not challenged). The court finds that the attached documents do not meet this circuit’s
standard for considering extrinsic evidence at the motion to dismiss stage. Therefore, the court
has not considered them in ruling upon Defendants’ Rule 12(b)(6) arguments for dismissal.
III.

Analysis
After careful review, the court concludes that all of Plaintiff’s claims are subject to

dismissal for failure to state a claim. Nevertheless, the court will grant Plaintiff leave to amend
his Rehabilitation Act count.
A.

Plaintiff’s Rehabilitation Act Count Fails to State a Plausible Claim

Defendants first argue that a Rehabilitation Act claim cannot be asserted against
Defendants DiChiara and Lamb in their individual or official capacities. (Doc. # 5 at 10).

6

Plaintiff responds that he does not intend to pursuant a Rehabilitation Act claim against the
individual Defendants. (Doc. # 11 at 5). Accordingly, by agreement, all Rehabilitation Act
claims against Defendants DiChiara and Lamb are due to be dismissed.
Second, Defendants argue that Plaintiff’s Rehabilitation Act count should be dismissed
because Plaintiff has not alleged that his disabilities were the sole reason for his termination.
(Doc. # 5 at 11-12). Plaintiff responds that he is permitted to raise alternative and inconsistent
claims in his Complaint. (Doc. # 11 at 5-6). The court agrees. Federal Rule of Civil Procedure
8(d)(3) allows a party to “state as many separate claims or defenses as it has, regardless of
consistency.” Thus, a plaintiff is not obligated to choose between a Rehabilitation Act claim and
other retaliation claims at the pleading stage if he or she can -- consistent with Federal Rule of
Civil Procedure 11 -- present plausible allegations in support of each claim, even if the claims
are ultimately inconsistent because of the causation standard for a Rehabilitation Act claim.
Defendants’ request to dismiss the Rehabilitation Act count on this ground is due to be denied.
Third, Defendants argue that the Complaint merely presents a conclusory allegation of
Plaintiff’s disability. (Doc. # 5 at 12-13). On this issue, the court agrees. The Rehabilitation
Act defines the term “disability” to include: “(A) a physical or mental impairment that
substantially limits one or more major life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1); see
also 29 C.F.R. § 1630.2(g). “[M]ajor life activities include, but are not limited to, caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and
working.” 42 U.S.C. § 12102(2)(A). Major life activities also include the functioning of the
neurological and brain systems. Id. § 12102(2)(B). Plaintiff’s Complaint alleges that he suffered

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from depression, sleep loss, and anxiety (Doc. # 1 at ¶¶ 44, 54), but it fails to explain how any of
these conditions substantially limited a major life activity. Indeed, while Plaintiff summarily
alleges that University employees perceived him to have a mental disability that altered major
life functions, including working (id. at ¶¶ 59-60), he has not alleged anywhere in the Complaint
that his medical conditions actually limited his ability to work or his neurological functioning.
(See id. at ¶¶ 44, 53-71). Therefore, Plaintiff has not plausibly alleged that he suffered a
disability that substantially limited a major life activity.
Moreover, Plaintiff has not plausibly alleged that any Defendant or any University
employee perceived him to be disabled. As an initial matter, Plaintiff has not alleged that he
informed his supervisors about his mental conditions; rather, he has alleged that he informed
them about his need to attend counseling sessions. (See id. at ¶¶ 44, 56). An allegation that a
defendant knew of counseling, standing alone, is not enough to plausibly indicate that the
defendant regarded the plaintiff as having the condition being treated through counseling or that
the defendant regarded the plaintiff as having a condition that altered a major life function. Cf.
Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1183 (11th Cir. 2005) (explaining that a
decisionmaker must have actual knowledge of a disability in order to discriminate against a
disabled individual “because of” such disability).

Plaintiff’s allegations that Defendants

perceived him “as a person with a disability” and perceived that disability to alter the major life
functions of working and the operation of his neurological and brain systems are wholly
conclusory allegations and are entitled to no weight. (See Doc. # 1 at ¶¶ 58-60). Similarly,
Plaintiff’s allegation that Defendants possessed a record of his disabilities is conclusory because
Plaintiff offers no indication of what record(s) caused Defendants to discriminate against him.
(See id. at ¶¶ 58, 67).

Because Plaintiff has failed to plausibly plead that a University

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decisionmaker discriminated against him because of a disability, a record of a disability, or
because they regarded him as having a disability, Plaintiff’s Rehabilitation Act discrimination
claim is due to be dismissed without prejudice.
Finally, Defendants ask the court to dismiss all Rehabilitation Act claims based on
harassment, failure to accommodate, and retaliation.

(Doc. # 5 at 14).

Plaintiff has not

specifically argued in support of these claims in his response brief. (See Doc. # 11 at 5-6). In
any event, the court agrees with Defendants that the Rehabilitation Act harassment, failure to
accommodate, and retaliation claims in Count One of the Complaint are nothing more than
conclusory allegations outlining the elements of such claims. Therefore, these Rehabilitation Act
claims are also due to be dismissed without prejudice.
B.

Plaintiff Cannot Maintain an ASHARA or ASHDCA Claim Against the
Board Because It Governs Post-Secondary Educational Institutions

Defendants argue that Plaintiff’s asbestos-related retaliation claims fail because the
University is not subject to the ASHARA or the ASHDCA. (Doc. # 5 at 19-20). Plaintiff
responds that Congress intended to protect school children and school employees when it passed
these anti-retaliation statutes. (Doc. # 11 at 9). Moreover, Plaintiff argues that the “applicable
program[s]” covered by the ASHARA and the ASHDCA include all schools for which the
Department of Education has administrative responsibility under the Department of Education
Organization Act. (Id. at 10) (quoting 20 U.S.C. § 3601).
These claims appear to present an issue of first impression in this circuit – whether the
ASHARA and the ASHDCA apply to the Board, an entity that governs post-secondary
educational institutions. It is axiomatic that “[t]he starting point in statutory interpretation is the
language of the statute itself.” Ardestani v. I.N.S., 502 U.S. 129, 135 (1991) (internal quotation
marks and alterations omitted). “If the ‘language at issue has a plain and unambiguous meaning
9

with regard to the particular dispute in the case,’ and ‘the statutory scheme is coherent and
consistent,’ the inquiry is over.” Warshauer v. Solis, 577 F.3d 1330, 1335 (11th Cir. 2009)
(quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (internal quotation marks
omitted)). “In determining whether a statute is plain or ambiguous, [the court considers] ‘the
language itself, the specific context in which that language is used, and the broader context of the
statute as a whole.’” Id. (quoting Robinson, 519 U.S. at 341).
The ASHARA and the ASHDCA both provide that:
No State or local educational agency receiving assistance under this subchapter
may discharge any employee or otherwise discriminate against any employee with
respect to the employee’s compensation, terms, conditions, or privileges of
employment because the employee has brought to the attention of the public
information concerning any asbestos problem in the school buildings within the
jurisdiction of such agency.
20 U.S.C. § 4018.1 The ASHARA defines a “local educational agency” as: “(A) any local
educational agency as defined in [20 U.S.C. § 7801]; and (B) the governing authority of any
nonprofit elementary or secondary school.” 20 U.S.C. § 4020(4). In turn, § 7801 explains that a
“local educational agency” is:
a public board of education or other public authority legally constituted within a
State for either administrative control or direction of, or to perform a public
service function for, public elementary schools or secondary schools in a city,
county, township, school district, or other political subdivision of a State, or of or
for a combination of school districts or counties that is recognized in a State as an
administrative agency for its public elementary schools or secondary schools.
20 U.S.C. § 7801(30)(A). This definition of “local educational agency” also applies to the
ASHDCA’s anti-retaliation provision.2 The ASHARA and the ASHDCA define “State” in a

1

Section 3608 of Title 20 is essentially identical, except it refers to a “chapter” of the U.S. Code, rather
than a “subchapter.”
2

The ASHDCA defines a “local educational agency” to include “any local educational agency as defined
in section 198(a)(10) of the Elementary and Secondary Education Act of 1965.” 20 U.S.C. § 3610(4)(A). That
definition actually cross-references a 1978 amendment to the Elementary and Secondary Education Act, which

10

manner that includes the state of Alabama, see 20 U.S.C. §§ 3610(8), 4020(8), but neither statute
includes a definition for a “State educational agency.”
After careful review, the court agrees with Defendants that the Board is not an
“educational agency” subject to the ASHARA and the ASHDCA. Both statutes regulate the
conduct of state and local educational agencies, and they define an “educational agency” as an
institution that controls, directs, or provides services for “public elementary or secondary
schools.” See 20 U.S.C. §§ 3610(4), 4020(4), 7801(30)(A); Act of Nov. 1, 1978, Pub. L. No. 95561, § 198(a)(10), 92 Stat. 2143, 2199 (1978). Elementary schools generally provide “the first
four to eight years of a child’s formal education,” and secondary schools are “intermediate in
level between elementary school and college.”

Elementary School & Secondary School,

AMERICAN HERITAGE COLLEGE DICTIONARY 452, 1253 (4th ed. 2002).

Accordingly, the

ASHARA and the ASHDCA plainly regulate the conduct of agencies that control, direct, or
provide pre-collegiate primary and secondary education.3 The Board -- properly designated as
the “Board of Trustees of the University of Alabama” -- is an Alabama state agency responsible
for administering the “state university.” Ala. Code §§ 16-47-1, 16-47-30. Because the Board
administers post-secondary education for the “state university,” it is not a state “educational
agency” governed by the anti-retaliation provisions of the ASHARA and the ASHDCA, and
Counts Four and Five against the Board are due to be dismissed.
contains essentially the same definition for “local educational agency” as that used in 20 U.S.C. § 7801. See Act of
Nov. 1, 1978, Pub. L. No. 95-561, § 198(a)(10), 92 Stat. 2143, 2199 (1978).
3
Plaintiff relies on the Congressional findings included in 20 U.S.C. § 3601 to argue that “Congress did
not deem young children in elementary schools as the only individuals worthy of protection from asbestos.” (Doc. #
11 at 9-10). This argument misconstrues the findings in § 3601. Although the statutory provision states that
asbestos is a hazard to school employees, as well as school children, 20 U.S.C. § 3601(a)(6), the relevant statutory
purpose provision also explains that Congress intended to “assure that no employee of any local educational agency
suffers any disciplinary action as a result of calling attention to potential asbestos hazards.” Id. § 3601(b)(5)
(emphasis added). This provision of the ASHDCA was enacted in 1980, after the 1978 amendments to the
Elementary and Secondary Education Act defined “local educational agency” to refer to agencies responsible for
elementary and secondary education. See Act of Nov. 1, 1978, Pub. L. No. 95-561, § 198(a)(10), 92 Stat. 2143,
2199 (1978). By referencing local educational agencies, Congress expressed an intent to protect employees at
elementary and secondary schools, not post-secondary educational institutions like the University.

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C.

Plaintiff’s State Employee Protection Act Claim is Due to be Dismissed

Defendants argue that Plaintiff cannot maintain a claim under the State Employee
Protection Act because that law is not applicable to employees at institutions of higher learning.
(Doc. # 5 at 20). Plaintiff has agreed to voluntarily dismiss this claim. (Doc. # 11 at 11). In
light of Plaintiff’s consent to dismissal, Count Six of the Complaint is due to be dismissed.
D.

Analysis of Plaintiff’s § 1983 Claims

Defendants present three arguments against Plaintiff’s § 1983 claims. First, Defendants
argue that the claims fail to present any constitutional or statutory violation. (Doc. # 5 at 15-19,
21-22). Second, they argue that DiChiara and Lamb are entitled to qualified immunity at this
stage because DiChiara acted within his discretionary authority, and neither DiChiara nor Lamb
violated any clearly established right. (Id. at 23-26). Third, Defendants argue that the § 1983
claims are barred by the applicable two-year statute of limitations. (Id. at 26-27).
1.

Plaintiff Made His Alleged Reports in His Role of University
Employee

In challenging Counts Two and Seven of the Complaint, Defendants first argue that the
asbestos-related complains are not protected speech because Plaintiff made them to other
University employees in his role as a University employee. (Doc. # 5 at 15-16).
A state employee may not be terminated in retaliation for speech protected under the First
Amendment. Vila v. Padron, 484 F.3d 1334, 1339 (11th Cir. 2007). In addressing a First
Amendment retaliation claim, the court first considers “(1) if the government employee spoke as
an employee or citizen and (2) if the speech addressed an issue relating to the mission of the
government employer or a matter of public concern.” Boyce v. Andrew, 510 F.3d 1333, 1342
(11th Cir. 2007). Here, Defendants only argue for dismissal of the First Amendment retaliation
claim under the first prong of Garcetti. “[W]hen public employees make statements pursuant to
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their official duties, the employees are not speaking as citizens for First Amendment purposes,
and the Constitution does not insulate their communications from employer discipline.” Garcetti
v. Ceballos, 547 U.S. 410, 421 (2006). The “controlling factor” in determining whether an
employee spoke as an employee or a citizen is whether the statement was made pursuant to the
employee’s official duties. Alves v. Bd. of Regents of Univ. Sys. of Ga., 804 F.3d 1149, 1161
(11th Cir. 2015). Factors that may be considered in this analysis include “the employee’s job
description, whether the speech occurred at the workplace, and whether the speech concerned the
subject matter of the employee’s job.” Id. The court must carefully apply Garcetti’s “exception
to First Amendment protection” to only exempt “speech that an employee made in accordance
with or in furtherance of the ordinary responsibilities of her employment, not merely speech that
concerns the ordinary responsibilities of her employment.” Id. at 1162 (discussing the limiting
principles on Garcetti established in Lane v. Franks, 134 S. Ct. 2369 (2014)).
In Alves, the Eleventh Circuit addressed a First Amendment retaliation claim filed by five
employees of a university counseling center.

Id. at 1153.

The employees submitted a

memorandum to university officials about the “poor leadership and mismanagement” of the
counseling center’s director.

Id.

The Eleventh Circuit held that the employees spoke as

employees, not citizens, when submitting the memorandum. Id. at 1165. In support, the Alves
opinion recounted that the memorandum addressed how the director’s conduct harmed the
employees’ abilities to supervise subordinates, recruit interns and candidates, and provide
counseling services. Id. at 1164. Thus, the complaints in the memorandum related to the
employees’ ordinary duties. Id. The Eleventh Circuit concluded that the employees wrote the
memorandum to correct the mismanagement that “interfered” with their job performance. Id. at
1164-65. Therefore, because the employees submitted the memorandum “in the course of

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carrying out their daily activities,” the memorandum was submitted pursuant to the employees’
duties and constituted employee speech. See id.
Here, it is evident that Plaintiff’s verbal reports of inadequate asbestos remediation owed
their existence to Plaintiff’s professional responsibilities. Plaintiff’s reports were directed toward
other University employees and made on the University’s campus. (See Doc. # 1 at ¶¶ 21, 29).
And, it is also apparent from the Complaint that Plaintiff’s asbestos reports concerned hazards
that prevented him from performing his routine job duties. Indeed, supervisors assigned Plaintiff
to work at the two buildings where he reported the possible presence of asbestos and inadequate
remediation. (See id. at ¶¶ 18, 29). Plaintiff’s asbestos-related reports concerned a subject
matter of his job because he made them in an attempt to force University officials to properly
remediate asbestos present at the worksites where he performed his job duties. Cf. Boyce, 510
F.3d at 1346 (mentioning that the plaintiffs complained “about their workloads for a work
reason: they wanted to have their caseloads reduced or to receive help with their work”). Thus,
as in Alves, Plaintiff presented his complaints -- at least in part -- to resolve issues that interfered
with his job performance. See Alves, 804 F.3d at 1164. “[T]he Eleventh Circuit has repeatedly
found [that] an employee who makes internal reports regarding mismanagement and fraud
generally speaks pursuant to her professional duties rather than as a citizen.” Boglin v. Bd. of
Trustees of Ala. Agric. & Mech. Univ., 2018 WL 723168, at *8 (N.D. Ala. Feb. 6, 2018) (citing
Alves, 804 F.3d at 1164-65; Abdur-Rahman v. Walker, 567 F.3d 1278, 1285 (11th Cir. 2009);
Phillips v. City of Dawsonville, 499 F.3d 1239, 1242-43 (11th Cir. 2007)). Consistent with these
cases, the court concludes that Plaintiff was speaking as an employee when he made the

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asbestos-related reports described in the Complaint and, as such, his speech was not protected by
the First Amendment.4
Because Plaintiff has not plausibly pled that he made the speech at issue as a citizen, all
First Amendment retaliation claims in his Complaint are due to be dismissed for failure to state a
claim. In addition and alternatively, because Plaintiff has not disputed DiChiara’s assertion that
he acted within his discretionary authority when disciplining and terminating Plaintiff. (See Doc.
# 5 at 24-25). Therefore, for this separate reason, Defendant DiChiara is entitled to qualified
immunity from any First Amendment retaliation claim against him in his individual capacity
because Plaintiff has not plausibly pled a violation of his First Amendment rights.5
2.

Plaintiff Has Not Alleged a Plausible Property Interest in Continued
Employment

Defendants assert that Plaintiff’s procedural due process claim in Count Three fails as a
matter of law because Plaintiff lacked a property interest in his continued employment. (Doc. #
5 at 18-19). Plaintiff disagrees. He argues he has pled such a protected property interest, and
that Defendants improperly rely on extrinsic evidence at the motion to dismiss stage. (Doc. # 11
at 8-9). Defendants reply that Plaintiff’s conclusory assertion of a property interest in continued
employment is insufficient to defeat their motion to dismiss. (Doc. # 12 at 6). After careful
review, the court agrees with Defendants.
4

The court need not decide -- and does not decide -- whether Plaintiff’s speech involved a matter of public
concern. Speech relating to public safety issues generally is held to involve matters of public concern, rather than
merely matters of private interest. See Cook v. Gwinnett Cty. Sch. Dist., 414 F.3d 1313, 1319 (11th Cir. 2005)
(holding that an employee’s speech on behalf of a union-like organization with co-workers and supervisors involved
a matter of public concern because the organization sought to improve safety for children, and “speech relating to
the safety of the public involves a matter of public concern”). The court expresses no opinion on the more difficult
question of whether Plaintiff’s speech to other University employees about a safety issue addressed a matter of
public or private concern.
5

Defendants argue that Plaintiff fails to state a § 1983 claim against Defendant Lamb because the
allegations in Count VII only relate to DiChiara. (See Doc. # 1 at ¶¶ 101-09). The court observes that the
Complaint describes actions taken by Defendant Lamb that might conceivably be characterized as retaliatory
conduct. (See Doc. # 1 at ¶¶ 34, 36) (discussing Lamb’s alleged affirmance of a performance plan and Lamb’s
alleged negative statements about Plaintiff’s earlier asbestos-related reports).

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“The Fourteenth Amendment protects against the government’s deprivation of liberty or
property without procedural due process.” Warren v. Crawford, 927 F.2d 559, 562 (11th Cir.
1991). Where an individual has a “property right” in continued employment, a state cannot
deprive that individual of that property without due process.

Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 538 (1985) (citing Memphis Light, Gas & Water Div. v. Craft, 436
U.S. 1, 11-12 (1978); Goss v. Lopez, 419 U.S. 565, 573-74 (1975)). However, “[p]roperty
interests are not created by the Constitution.” Id. Instead, they are created from “existing rules
or understandings that stem from an independent source such as state law.” Id. (quoting Bd. of
Regents v. Roth, 408 U.S. 564, 577 (1972)).
“For purposes of establishing a property right in continued employment under Alabama
law, the crucial question is whether the employment is terminable by the employer ‘at will’ or
whether the employer’s discretion to discharge the employee is somehow fettered.” Green v.
City of Hamilton, Hous. Auth., 937 F.2d 1561, 1564 (11th Cir. 1991). Indeed, a public employee
who may be discharged at will has no property interest in continued employment and no
entitlement to due process. Davis v. Mobile Consortium of CETA, 857 F.2d 737, 741 (11th Cir.
1988).
It has long been the law in Alabama that employment is terminable at will by
either party for any reason unless there is an express and specific contract for
lifetime employment or employment for a specific duration. “[A]bsent an
agreement on a definite term, any employment is considered to be ‘at-will,’ and
may be terminated by either party, with or without cause or justification.” Clark
v. America’s First Credit Union, 585 So. 2d 1367, 1369 (Ala. 1991).
Furthermore, employees in Alabama bear a heavy burden of proof to establish
that an employment relationship is other than “at will.” The law considers
lifetime or permanent employment contracts to be extraordinary and not lightly to
be implied. Alabama Mills, Inc. v. Smith, 237 Ala. 296, 301, 186 So. 699, 704
(1939).
Howard v. Wolff Broad. Corp., 611 So. 2d 307, 310-11 (Ala. 1992).

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Here, Plaintiff’s allegation that he held a property interest in continued employment is
wholly conclusory. Plaintiff alleges in Count Three that Defendants deprived him of a “property
interest in his employment” (Doc. # 1 at ¶ 79), but he has not alleged that he worked under a
contract for lifetime employment or an employment contract for a specific duration.

See

Howard, 611 So. 2d at 310. Nor has Plaintiff alleged in his Complaint (or argued in his
opposition brief) that he received a property interest in continued employment through any form
of de facto tenure. Cf. Gray v. Bd. of Regents of Univ. Sys. of Ga., 150 F.3d 1347, 1352 (11th
Cir. 1998) (describing such property interests). Plaintiff has not plausibly pled a property
interest protected by the Fourteenth Amendment’s procedural due process requirements, and,
thus, he fails to plead a right to relief under the due process clause of the Fourteenth
Amendment. For this reason, all procedural due process claims in the Complaint are due to be
dismissed for failure to state a claim.
3.

Plaintiff’s First Amendment Retaliation and Fourteenth Amendment
Due Process Claims Against the Board and the Individual Defendants
in their Official Capacities are Due to Be Dismissed

In Counts Two and Three of the Complaint, Plaintiff brings a First Amendment
retaliation and a Fourteenth Amendment due process claim against the Board and the individual
Defendants in their official capacities. (Doc. # 1 at ¶¶ 72-82). Defendants respond, in part, that
they are entitled to Eleventh Amendment immunity from Counts Two and Three. (Doc. # 5 at 22
& n. 87). The court agrees.
Notably, Counts Two and Three of the Complaint are brought under the First and
Fourteenth Amendments to the Constitution and do not directly reference § 1983. Yet, § 1983
“provides a remedy when a person acting under color of state law deprives a plaintiff of a right,
privilege, or immunity secured by the Constitution.” Smiley v. Ala. Dep’t of Transp., 778 F.

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Supp. 2d 1283, 1297 (M.D. Ala. 2011). Section 1983 is a vehicle for redressing violations of
federal rights; it does not itself create any substantive rights. Doe v. Sch. Bd. of Broward Cty.,
Fla., 604 F.3d 1248, 1265 (11th Cir. 2010). Moreover, § 1983 does not abrogate a state’s
Eleventh Amendment immunity, and “neither a State nor its officials acting in their official
capacities are ‘persons’ under § 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989).
The Eleventh Amendment precludes private individuals from suing non-consenting states
in federal court. McClendon v. Ga. Dep’t of Cmty. Health, 261 F.3d 1252, 1256 (11th Cir.
2001). In addition to protecting states from suit by private individuals in federal court, Eleventh
Amendment immunity has been extended to state agencies and instrumentalities and state
officials. Harden v. Adams, 760 F.2d 1158, 1163 (11th Cir. 1985). Both the Alabama Supreme
Court and the Eleventh Circuit have held that an Alabama public university’s board of trustees is
considered an agent or instrumentality of the state. See id; Rigby v. Auburn Univ., 448 So. 2d
345, 347 (Ala. 1984). See also Cox v. Bd. of Trustees of Univ. of Ala., 49 So. 814, 817 (Ala.
1909) (describing the Board as “mere agents of the state”); Eubank v. Leslie, 210 F. App’x 837,
844 (11th Cir. 2006) (holding that the Board is a state agency for Eleventh Amendment
purposes); Harris v. Bd. of Trustees of Univ. of Ala., 846 F. Supp. 2d 1223, 1233 (N.D. Ala.
2012) (same). Additionally, “a suit against a state official in his or her official capacity is not a
suit against the official but rather is a suit against the official’s office. As such, it is no different
from a suit against the State itself.” Will, 491 U.S. at 71 (citations omitted).
Because Plaintiff’s constitutional claims in Counts Two and Three must be construed as
§ 1983 claims, and the Board is a state agency entitled to Eleventh Amendment immunity against
§ 1983 claims, it follows that Counts Two and Three are due to be dismissed with prejudice

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against the Board.6 See Harden, 760 F.2d at 1163; Eubank, 210 F. App’x at 844; Harris, 846 F.
Supp. 2d at 1233. Further, Plaintiff’s § 1983 claims against the individual Defendants in their
official capacities as state officials are due to be dismissed. See Will, 491 U.S. at 71. Plaintiff
invokes the Ex Parte Young exception to Eleventh Amendment immunity in his opposition brief,
and the Complaint seeks some equitable relief that Plaintiff might be able to obtain under Ex
Parte Young. (See Doc. # 1 at ¶¶ 76, 81). See also Lane v. Cent. Ala. Cmty. Coll., 772 F.3d
1349, 1351 (11th Cir. 2014) (“[R]equests for reinstatement constitute prospective injunctive
relief that fall within the scope of the Ex parte Young exception and, thus, are not barred by the
Eleventh Amendment.”). But, Plaintiff cannot obtain such prospective injunctive relief because
the Complaint alleges no plausible constitutional violation that can be remedied by Defendants
DiChiara or Lamb.
IV.

Conclusion
For the reasons explained above, all of the claims in Plaintiff’s Complaint are due to be

dismissed. Counts Two and Three, to the extent they are raised against the University, are due to
be dismissed with prejudice. Counts Four and Five of the Complaint are due to be dismissed
because Plaintiff cannot plausibly assert a violation of the ASHARA or the ASHDCA against the
Board. In all other respects, the claims are due to be dismissed without prejudice for failure to
state a claim. The court will grant Plaintiff leave to amend his complaint if he can plausibly
allege factual allegations that state a claim upon which relief may be granted.

An Order

consistent with this Memorandum Opinion will be entered.

6

In addition, and in any event, the Board is not a suable entity under § 1983. Will, 491 U.S. at 71; Lapides
v. Bd. of Regents of Univ. of Ga., 535 U.S. 613, 617 (2002).

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DONE and ORDERED this February 23, 2018.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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