Jackson v. The Board of Commissioners of the Housing Authority of The City of Prichard et al

Filing 33

Order granting in part denying in part the 26 MOTION to Dismiss filed by the defendants. Answer due from defendants by 9/1/2017. Signed by District Judge William H. Steele on 8/21/2017. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DONALD JACKSON,
Plaintiff,
v.
THE BOARD OF COMMISSIONERS
OF THE HOUSING AUTHORITY OF
THE CITY OF PRICHARD, et al.,
Defendants.

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CIVIL ACTION 17-0149-WS-M

ORDER
This matter comes before the Court on Defendants’ Motion to Dismiss (doc. 26). The
Motion has been briefed and is now ripe for disposition.
I.

Background.
A.

Well-Pleaded Factual Allegations.

Plaintiff, Donald Jackson, is a former employee of defendant Housing Authority of the
City of Prichard (the “Housing Authority”). In his Second Amended Complaint (doc. 25), filed
by and through counsel, Jackson asserts various statutory claims alleging civil-rights violations
by defendants, the Housing Authority, the Board of Commissioners of the Housing Authority
(the “Board”), Reginald Crenshaw (a Board member), Felicia Snow (executive director of the
Housing Authority), Charles Pharr (consultant for the Housing Authority), and Greg Harris
(attorney for the Housing Authority).1

1

Since filing his original Complaint (doc. 1) on April 12, 2017, Jackson has
amended it on two occasions. First, on May 9, 2017, Jackson filed an Amended Complaint (doc.
5) as of right, prior to the filing of an answer or other responsive pleading by any defendant.
Second, after defendants filed Motions to Dismiss (docs. 8-10) in response to the Amended
Complaint, Jackson requested and received leave of court to amend his pleading again for the
stated purpose of “plead[ing] facts that cure the facial deficiencies … identified by Defendants’
motion to Dismiss.” (Doc. 19, at 4.) The Second Amended Complaint (doc. 25) filed on July 7,
2017 makes wholesale changes, in terms of both substance and formatting, to its predecessor, by
(Continued)

The well-pleaded factual allegations of the Second Amended Complaint include the
following: Jackson worked for the Housing Authority for nine years, predominantly as Director
of Housing Management. (Doc. 25, ¶¶ 12-13.) Throughout this time, his job performance was
excellent and he received various awards and recognition for his fine work. (Id., ¶¶ 14-17.) In
June 2014, however, Jackson was involved in a minor accident while on personal business
driving a company vehicle in Biloxi, Mississippi, and was charged with DUI. (Id., ¶¶ 18-19.)
Jackson reported the matter to the Housing Authority’s then-executive director, defendant
Charles Pharr, the following day. (Id., ¶ 20.) Pharr assured Jackson that his employment would
not be terminated over the incident; however, Jackson received a reprimand and other discipline,
including temporary loss of travel privileges and a four-week unpaid suspension. (Id., ¶¶ 22-24.)
Ultimately, Jackson’s rights and privileges, including use of a company car, were reinstated, the
criminal charges were dismissed by a court of law, and the matter was resolved. (Id., ¶¶ 25, 45.)
Shortly thereafter, on or about February 4, 2015,2 Jackson terminated the employment of
a Housing Authority employee named Sherry Brookins. (Id., ¶ 29.) The new executive director,
defendant Felicia Snow, had directed an internal reconciliation of the Housing Authority’s
financial accounts. (Id., ¶¶ 33, 36.) In performing that reconciliation, Jackson discovered that
Brookins had stolen federal funds, and reported those findings to Snow and the Housing
Authority’s counsel, defendant Greg Harris. Both Snow and Harris approved and authorized the
decision to terminate Brookins’ employment on that basis. (Id., ¶ 38.) Several years earlier,
Jackson had terminated the employment of another employee named Georgette Nicholson for a
similar offense. (Id., ¶ 30.)
According to the well-pleaded allegations of the Second Amended Complaint, Brookins
had previously been involved in an automobile accident in October 2014, when she totaled a
company car by rear-ending another vehicle. (Id., ¶ 32.) Jackson alleges that Brookins was
“having a discreet relationship with one of the staff employers,” as a result of which she was

deleting certain claims, modifying other claims, and significantly expanding the recitation of
facts.
2

The Second Amended Complaint fixes the date as February 4, 2014 (doc. 25, ¶
19); however, the Court assumes that the year is a typographical error because otherwise
plaintiff’s time line would not make sense.

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never disciplined for her car accident. (Id.) According to Jackson, “Brookins was in a car
accident and because she was a female she was not reprimanded.” (Id., ¶ 41.)
The Second Amended Complaint reflects that after Jackson fired Brookins, “he was
harassed retaliated against.” (Id., ¶ 40.) In particular, Harris, Pharr and Board member
defendant Reginald Crenshaw warned Jackson that unless he re-hired Brookins “his job would
be in jeopardy” and his June 2014 accident “would be revisited.” (Id., ¶¶ 43-44, 46.) Jackson
complained to Snow that the Housing Authority was giving Brookins preferential treatment
because of her gender, to which Snow responded, “They want me to fire you for firing Sherry
Brookins.” (Id., ¶ 48.) Jackson complained to the chairman of the Board that Harris, Pharr and
Crenshaw were harassing him for terminating Brookins’ employment. (Id., ¶¶ 49-50.) Jackson
states this harassment “was in the form of long working hours” and “almost constant reminders
of revisiting the accident of June 2014.” (Id., ¶ 51.) As to the former, Jackson’s working hours
were increased, he received more assignments and new deadlines, and his company car
privileges were revoked. (Id., ¶ 61.) As to the latter, Jackson was questioned and contacted
repeatedly for information and documentation about the previously-resolved June 2014 auto
accident. (Id., ¶¶ 59, 60.) A short time later, Jackson was notified that the Board “intended to
begin the process of removing Mr. Jackson by reopening the accident of June 2014.” (Id., ¶ 52.)
Jackson then complained to Crenshaw, Harris and Pharr that he was being discriminated against
for firing Brookins because she was female and he was male. (Id., ¶ 56.)
In October 2015, a body identified only as “the OIG” investigated misappropriation of
funds and discreet relationships between Brookins and a male staff member. (Id., ¶ 62.) In light
of this development, Crenshaw instructed Snow to discontinue adverse actions against Jackson.
(Id., ¶ 63.) Jackson testified in the OIG’s investigation, revealing that Brookins had admitted to
the theft and that he (Jackson) had been subjected to discrimination and retaliation after firing
Brookins. (Id., ¶ 64.) At the conclusion of its investigation, the OIG stated that no further action
should be taken against Jackson for Brookins’ firing or the June 2014 accident. (Id., ¶ 67.)
Nonetheless, defendants promptly resumed their actions against Jackson, with Jackson
complaining on numerous occasions to Harris, Pharr, Snow and Crenshaw that their treatment of
him was unfair, discriminatory (based on Jackson’s gender) and retaliatory (based on Jackson’s
participation in the OIG investigation). (Id.)

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Ultimately, Jackson was given a “letter of termination” or a “notice of termination” by
the Housing Authority. (Id., ¶¶ 69-70.) Plaintiff has deliberately scrubbed all reference to the
date of that “notice of termination” from his Second Amended Complaint; however, the letter is
dated February 12, 2016, with delivery by hand. (Doc. 26, Exh. 1.) The two-page letter, signed
by defendant Felicia Snow as Executive Director, states in relevant part as follows:
“This letter is to inform you that your employment with the Housing Authority of
the City of Prichard, Alabama has been terminated, effective as of 9:00 a.m.,
Friday, February 12, 2016. Your employment was terminated in accordance with
Section 4.1.1 of the approved Personnel Policy of the Housing Authority ….
“In accordance with the Personnel Policy, you may request a hearing before the
Board of Commissioners if you request such a hearing, in writing, within five (5)
working days after you receive this notice of termination. Such a hearing will be
held within 30 days after receipt of your request.
“Upon your receipt of this notice of termination, you must immediately surrender
all property of the Authority, including but not limited to keys, locks and cell
phones.”
(Doc. 26, Exh. 1.)3 The February 12 letter also reflected that the termination decision had been
made by reference to Personnel Policy sections relating to misuse of Authority property or
vehicles, violation of departmental rules, drinking alcoholic beverages in a manner to adversely
affect work performance, acts incompatible with public service, acts endangering the safety of
others, and use of Authority property off the job site without proper authority. (Id.) Plaintiff’s
pleading characterizes the February 12 letter as “an immediate act of discharge with a right to
appeal to the board of commissioners.” (Doc. 25, ¶ 70.)
Jackson availed himself of said right to appeal, and testified at the ensuing hearing “that
he was a victim of sex discrimination and retaliation.” (Id., ¶ 71.) After so testifying, Jackson
“has interviewed at a number of jobs and have [sic] been denied by all.” (Id.) On September 12,
3

The date and contents of the February 12 letter of termination (a copy of which is
appended to defendants’ Motion to Dismiss) are properly considered for purposes of this Rule
12(b)(6) analysis, notwithstanding plaintiff’s efforts to evade them in pleading his Second
Amended Complaint. This is because the February 12 letter is central to Jackson’s claims and its
authenticity is unchallenged. See, e.g., Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (“the
court may consider a document attached to a motion to dismiss without converting the motion
into one for summary judgment if the attached document is (1) central to the plaintiff’s claim and
(2) undisputed,” in the sense that “the authenticity of the document is not challenged”); see also
Bickley v. Caremark RX, Inc., 461 F.3d 1325, 1329 n.7 (11th Cir. 2006) (similar).

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2016, the Housing Authority sent Jackson a letter, signed by defendant Crenshaw as chairman of
the Board, stating as follows:
“This letter is to inform you of the decision of the Board of Commissioners
concerning the appeal of your termination of employment with the Housing
Authority of the City of Prichard.
“After consideration of all the evidence, it is the decision of the board that the
termination of your employment is due to be, and is upheld.”
(Doc. 25, Exh. 1.) Jackson completed a U.S. Equal Employment Opportunity Commission
Intake Questionnaire on February 23, 2017. (Doc. 25, Exh. 2.)4 In that Questionnaire, Jackson
alleged that the Housing Authority had discriminated against him on the basis of sex (because he
was disciplined for having an accident in a company car, whereas Sherry Brookins was not) and
retaliation (because he was fired for recommending termination of Brookins for stealing federal
funds in 2014).
B.

Jackson’s Claims for Relief.

On the strength of these factual allegations, Jackson presents four enumerated causes of
action against defendants in the Second Amended Complaint. Count I is labeled a Title VII
claim, with Jackson alleging that the Housing Authority and the Board “violated Title VII base
[sic] on sex discrimination, harassing plaintiff and creating a hostile environment and retaliating
against plaintiff.” (Doc. 25, ¶ 77.) The pleading elaborates that these defendants discriminated
against Jackson by “treating him differently than Ms. Brookins,” “revisiting the accident almost
every day after they found out about Ms. Brookins’ termination,” and “creating harsh working
conditions” for him. (Id., ¶¶ 78-81.) According to the Second Amended Complaint, defendants
“retaliated against him for complaining about sex discrimination harassment and terminate his
employment.” (Id., ¶ 82.) Plaintiff alleges that he engaged in protected activity “when he
opposed the board [sic] discriminatory practice of termination” and “spoke to OIG officials
during its investigation.” (Id., ¶ 83.) Count I also includes Title VII claims against the
individual defendants for hostile work environment on the ground that they were “[a]cting under

4

Not only is Jackson’s signature on the Questionnaire dated February 23, 2017, but
the multipage document is repeatedly stamped “RECEIVED” by the EEOC Mobile Local Office
on February 23, 2017. (Id.)

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color of state law” by increasing his workload, threatening to fire him if he did not rescind
Brookins’ termination, and taking away his company car. (Id., ¶ 83(f).)
Count II is couched in terms of a “violation of First Amendment Rights.” Plaintiff
alleges that “Defendants discriminated against Plaintiffs [sic] under the First Amendment of the
Constitution by terminating Plaintiff with regards to speaking with OIG about Title VII violation.
Plaintiff’s First Amendment Rights of protected free speech and expression were violated.” (Id.,
¶ 87.)
Count III of the Second Amended Complaint is identified as a claim for “Violation of
Fourteenth Amendment Rights,” pursuant to 42 U.S.C. § 1983. Plaintiff explains that this claim
proceeds on a theory of denial of due process and equal protection via defendants’ alleged
actions of retaliating against him for firing Brookins, engaging in sex discrimination and
harassment against him for firing Brookins, and terminating his employment for speaking about
Title VII violations with the OIG. (Id., ¶ 89.) It appears that Jackson is limiting Count III to the
Board, and is not asserting it against the other defendants. (Id., ¶ 91.)
Finally, Count IV is styled “Section 1983,” with a subheading of “Violation of First
Amendment,” and purports to be asserted against all defendants. Count IV specifically alleges
that Jackson had numerous conversations with the individual defendants in which he “would
openly express speech that spoke to the unfairness and discrimination displayed against him,”
and in which he would “complain[] about administrative unfair treatment and discrimination and
harassment he was receiving.” (Id., ¶¶ 93-94.) Plaintiff maintains that such conduct “fell within
the first [sic] Amendment protection and involved a matter of public concern,” and that such
“protected conduct was a substantial factor” in defendants’ decision to fire him. (Id., ¶¶ 95-96.)
II.

Analysis.
A.

Legal Standard.

Defendants’ Motion posits that the Second Amended Complaint fails to state claims upon
which relief can be granted, and therefore is properly analyzed under Rule 12(b)(6), Fed.R.Civ.P.
To withstand Rule 12(b)(6) scrutiny and comply with the minimum pleading requirements of
Rule 8(a), a plaintiff must plead “enough facts to state a claim to relief that is plausible on its
face,” so as to “nudge[ ][his] claims across the line from conceivable to plausible.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). “This necessarily
requires that a plaintiff include factual allegations for each essential element of his or her claim.”
GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1254 (11th Cir. 2012). Thus, minimum
pleading standards “require[ ] more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555. As the Eleventh Circuit
has explained, Twombly / Iqbal principles require that a complaint’s allegations be “enough to
raise a right to relief above the speculative level.” Speaker v. U.S. Dep't of Health and Human
Services Centers for Disease Control and Prevention, 623 F.3d 1371, 1380 (11th Cir. 2010)
(citations omitted). “To survive a 12(b)(6) motion to dismiss, the complaint does not need
detailed factual allegations, ... but must give the defendant fair notice of what the plaintiff's claim
is and the grounds upon which it rests.” Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010)
(citations and internal quotation marks omitted).
For purposes of this analysis, the Court accepts as true all well–pleaded factual
allegations of the Second Amended Complaint, and draws all reasonable inferences in the
plaintiff’s favor. See, e.g., Miyahira v. Vitacost.com, Inc., 715 F.3d 1257, 1265 (11th Cir. 2013)
(on Rule 12(b)(6) review, “[w]e construe the second amended complaint in the light most
favorable to [plaintiffs], accepting all well-pleaded facts that are alleged therein to be true”);
Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010) (in reviewing Rule 12(b)(6) motion,
court must “accept[ ] the facts alleged in the complaint as true,” “draw[ ] all reasonable
inferences in the plaintiff's favor,” and “limit[ ] our review to the four corners of the complaint”).
Notwithstanding this deference to plaintiff’s pleading at the Rule 12(b)(6) stage, it is also true
that “[l]egal conclusions without adequate factual support are entitled to no assumption of truth.”
Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011).
B.

Title VII Cause of Action.

As noted, Count I of the Second Amended Complaint is a Title VII claim rooted in
allegations that defendants engaged in sex discrimination, harassment, and retaliation against
Jackson. Defendants move for dismissal of Count I on timeliness grounds.5

5

As a separate ground for their Motion to Dismiss, defendants argue that the Title
VII claims against the individual defendants fail to state a claim because individual-capacity
(Continued)
-7-

It is black-letter law that a plaintiff may not sue under Title VII without first exhausting
administrative remedies by filing a timely charge of discrimination with the appropriate agency,
which is the EEOC in this case. See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir.
2001) (“Before a potential plaintiff may sue for discrimination under Title VII, she must first
exhaust her administrative remedies” by “filing a timely charge of discrimination with the
EEOC”); Shi v. Montgomery, 679 Fed.Appx. 828, 831 (11th Cir. Feb. 10, 2017) (“For starters, a
person seeking to file a Title VII lawsuit must first file a timely charge with the EEOC alleging a
Title VII violation and exhaust all remedies provided by the EEOC.”). “In a non-deferral state
such as Alabama, the deadline for filing is 180 days after the alleged discriminatory act.” King v.
ST Aerospace Mobile, Inc., 2013 WL 2635926, *6 (S.D. Ala. June 11, 2013) (citations omitted);
see also Shi, 679 Fed.Appx. at 831 (“Alabama is a non-deferral state. … For a charge to be
timely in non-deferral states, it must be filed within 180 days of the last discriminatory act.”). If
the plaintiff does not file a timely charge with the EEOC, claims for acts occurring outside of
that 180-day period are barred. See, e.g., Ledbetter v. Goodyear Tire and Rubber Co., 421 F.3d
1169, 1178 (11th Cir. 2005) (“only those practices that occurred within 180 days of the operative
EEOC charge can form the basis for Title VII liability”) (internal marks omitted).
Jackson’s U.S. Equal Employment Opportunity Commission Intake Questionnaire was
stamped “RECEIVED” on February 23, 2017. If the date of his termination is properly viewed
as September 12, 2016, as Jackson alleges, then his EEOC charge may satisfy the 180-day filing

relief is unavailable under Title VII, as a matter of law. Defendants are correct. See, e.g., Rioux
v. City of Atlanta, Ga., 520 F.3d 1269, 1275 n.5 (11th Cir. 2008) (“[t]he relief granted under Title
VII is against the employer, not individual employees whose actions would constitute a violation
of the Act”) (citations omitted); Shi v. Montgomery, 679 Fed.Appx. 828, 831 (11th Cir. Feb. 10,
2017) (“because Title VII does not provide relief against individual employees, summary
judgment was properly granted on the Title VII claims against Wims and Montgomery in their
individual capacities”); Hopkins v. JPMorgan Chase and Co., 620 Fed.Appx. 880 (11th Cir. Oct.
2, 2015) (“the district court correctly determined that Hopkins’s claims against Enz and Logsdon
failed to state a claim … because employers, not individual employees, are liable for violations
of Title VII”). Accordingly, Count I of the Second Amended Complaint (which is plaintiff’s
Title VII cause of action) is properly dismissed as to defendants Crenshaw, Snow, Pharr and
Harris because individual employees are not subject to liability under Title VII. Plaintiff has
conceded as much. (Doc. 31, at 8 (“Plaintiff agree [sic] that the Title VII claims against
Defendants in their individual capacity is [sic] due to be dismiss [sic].”).)

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deadline. If, however, the date of his termination is properly viewed as February 12, 2016, as
defendants allege, then Jackson’s EEOC charge is untimely on its face and his Title VII claim
presented as Count I of the Second Amended Complaint fails to state a claim upon which relief
can be granted.
It is well-settled that the 180-day period for filing an EEOC charge begins running when
the employee receives unequivocal notice of the adverse decision, in this case the Housing
Authority’s termination of Jackson’s employment. See, e.g., Stewart v. Booker T. Washington
Ins., 232 F.3d 844, 849 (11th Cir. 2000) (“[q]uite simply, the 180-day charge filing period does
not run until the plaintiff is told that she is actually being terminated”); Shi, 679 Fed.Appx. at
831 (“The applicable period for filing an EEOC charge of discrimination does not begin to run
until the employee receives unequivocal notice of an adverse employment decision.”); Wen Liu
v. University of Miami School of Medicine, -- Fed.Appx. ----, 2017 WL 2210867, *3 (11th Cir.
May 19, 2017) (“Liu received a letter … on October 7, 2011, that gave written, unequivocal
notice that Liu’s employment was terminated …. Thus, the applicable period for filing an EEOC
charge began to run on October 7, 2011.”).6 Internal appeals or collateral review of an adverse
employment decision do not toll the period for filing an EEOC charge. See Delaware State
College v. Ricks, 449 U.S. 250, 261, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) (“we have already
held that the pendency of a grievance, or some other method of collateral review of an
employment decision, does not toll the running of the limitations periods. … The existence of
careful procedures to assure fairness in the tenure decision should not obscure the principle that
limitations periods normally commence when the employer’s decision is made.”) (citation
omitted).7
6

Last year, the Supreme Court reaffirmed that in the Title VII context where the
adverse employment action is discharge, “[t]he claim accrues when the employee is fired. At
that point – and not before – he has a ‘complete and present cause of action.’ So at that point –
and not before – the limitations period begins to run.” Green v. Brennan, --- U.S. ----, 136 S.Ct.
1769, 1777, 195 L.Ed.2d 44 (2016).
7

See also Stafford v. Muscogee County Bd. of Educ., 688 F.2d 1383, 1388 (11th
Cir. 1982) (“The Supreme Court has squarely rejected the argument that Title VII time
limitations should be tolled during the pendency of contractual grievance proceedings. … Thus,
Stafford’s claim that his resort to the grievance procedure established by the Board would delay
the running of the limitations period is clearly foreclosed.”); Williams v. Gwinnett County Public
Schools, 425 Fed.Appx. 787, 790 (11th Cir. Apr. 25, 2011) (“collateral review of an employment
(Continued)
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Under any reasonable application of these well-settled legal principles to the facts alleged
in Jackson’s Second Amended Complaint (including the February 12, 2016 letter that is central
to his claims and whose authenticity is unchallenged),8 the 180-day period for filing an EEOC
charge commenced running on February 12, 2016. On that date, the Housing Authority notified
Jackson in writing “that [his] employment with the Housing Authority has been terminated,
effective as of 9:00 a.m., Friday, February 12, 2016. … Your employment was terminated ….”
(Doc. 26, Exh. 1 (emphasis added).) The February 12 letter constitutes unequivocal notice to
Jackson that the Housing Authority had terminated his employment. Jackson did not even
arguably file an EEOC charge until February 23, 2017, more than a year later and well outside
the 180-day period prescribed by law for a non-deferral state such as Alabama. Therefore, Count
I (Title VII) is untimely and is properly dismissed on that basis.
In arguing otherwise, Jackson insists that he “was not aware of the reason for the letter of
termination” and that such letter did not “unequivocally lead plaintiff to believe it was final.”
(Doc. 31, at 5.) As to the first point, the February 12 letter identifies no fewer than a half dozen
Personnel Policies animating that decision, including misuse of Authority vehicles, consuming
alcoholic beverages in a manner to adversely affect work performance, acts endangering the

decision[] does not toll the running of the limitations period[]” under Title VII) (citation
omitted); Jordan v. City of Montgomery, 283 Fed.Appx. 766, 768 (11th Cir. June 26, 2008) (“An
employee’s pursuit of an internal appeal, or some other method of collateral review of an
employment decision, does not toll the running of the limitations period[].”) (citation and
internal quotation marks omitted); Lucas v. Chicago Transit Authority, 367 F.3d 714, 723 (7th
Cir. 2004) (“[a]n employer’s refusal to undo a discriminatory decision is not a fresh act of
discrimination”) (citation omitted); Ramirez v. City of San Antonio, 312 F.3d 178, 184 n.6 (5th
Cir. 2002) (“An employer’s promise to review – and potentially rectify – an earlier employment
decision does not toll the limitations period.”); Morse v. University of Vermont, 973 F.2d 122,
125 (2nd Cir. 1992) (“The fact that UVM … undertook an internal administrative review of its
allegedly discriminatory decision has no effect on when the statute of limitations period begins to
run.”); Mezu v. Morgan State University, 367 Fed.Appx. 385, 388 (4th Cir. Feb. 19, 2010) (“The
time the initial employment decision was made and communicated triggered the commencement
of the limitations period despite the pendency of the internal appeal and the possibility of a
reversal of the initial decision.”).
8

Notably, in briefing the Motion to Dismiss, Jackson advances no argument that
consideration of the February 12 letter on Rule 12(b)(6) review would be improper or otherwise
unwarranted under applicable law.

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safety of others, and use of Authority property off the job site without proper authority. Given
the contents of that letter and the factual history set forth in the Second Amended Complaint
(particularly as it relates to ongoing discussions by defendants about his automobile accident), it
is disingenuous for Jackson to assert that he had no inkling what the Housing Authority’s
proffered reasons for firing him might be.9 Jackson’s second argument – that the February 12
letter was not unequivocal – fares no better. It is frankly difficult to imagine a more unequivocal
notice of firing than the one he received, which stated (i) his employment had already been
terminated at 9:00 a.m. that day, and (ii) he “must immediately surrender all property of the
Authority.” (Doc. 26, Exh. 1.) Given the clear statements set forth in the February 12 letter, the
Court rejects as devoid of any factual basis plaintiff’s attempts to characterize such letter as
merely giving him “reason to suspect that she [sic] might be terminated” at some future time.
(Doc. 31, at 6.)
The crux of Jackson’s timeliness argument is his insistence “that he only received
sufficient notice of the facts necessary to file his case on September 12, 2016 upon receipt of
final notice of termination.” (Doc 31, at 7.) The September 12 letter cannot rationally be read as
a “final notice of termination.” It says nothing more and nothing less that “it is the decision of
the board that the termination of your employment is due to be, and is upheld.” (Doc. 25, Exh.
1.) The Board’s decision not to undo Jackson’s firing is neither an act of termination itself nor a
separate act of discrimination. What’s more, nothing in the barebones September 12 letter
offered any insights into the reasons for the Housing Authority’s termination decision. As such,
Jackson’s insistence that he “was not aware that his termination was due to any discrimination”
until receipt of the September 12 letter (doc. 31, at 7) lacks any plausible factual basis because
the Second Amended Complaint identifies no new facts – and the September 12 letter contained
no new facts – that conceivably could have furnished such notice of purportedly discriminatory
intent to him for the first time on September 12. Whatever “notice” Jackson says he was given

9

Plaintiff’s argument on this point is that the February 12 letter gave him no reason
to believe that he was being terminated “for an infraction that occurred two years earlier” (doc.
31, at 6), meaning the car accident / DUI in Biloxi. Under any fair reading of the February 12
letter, coupled with the facts alleged in the Second Amended Complaint, Jackson was squarely
placed on notice that the car accident / DUI was the stated basis for the termination decision.

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of alleged discrimination did not happen on September 12, so that date cannot plausibly be the
starting point of the 180-day period for filing an EEOC charge.
For all of the foregoing reasons, the Court agrees with defendants that Count I of the
Second Amended Complaint is, on its face, time-barred. Jackson received unequivocal notice of
defendants’ termination decision on February 12, 2016, yet he did not file an EEOC charge until
more than one year later. Moreover, to the extent Jackson is attempting to invoke equitable
tolling based on the well-worn proposition that “the statute does not begin to run until the facts
which would support a cause of action are apparent or should be apparent to a person with a
reasonably prudent regard for his rights,” Villareal v. R.J. Reynolds Tobacco Company, 839 F.3d
958, 972 (11th Cir. 2016) (citation omitted), that argument fails because (i) the facts pleaded in
the Second Amended Complaint reveal that Jackson was or reasonably should have been well
aware of the facts supporting his Title VII claims as of February 12, 2016; and (ii) he has failed
to identify any new facts learned on September 12, 2016 (the date he identifies as the proper time
to commence the running of the 180-day period) that might have made the factual predicate of
his Title VII claim any more apparent to him. Accordingly, the Motion to Dismiss is granted as
to Count I, and that cause of action will be dismissed.
C.

The Purported “Section 1981 Claims.”

Next, defendants maintain that Jackson’s “claims under Section 1981 are due to be
dismissed” because that section relates only to race discrimination, whereas Jackson’s
discrimination claims sound exclusively in sex discrimination. (Doc. 26, at 11-13.) It is correct
that the Second Amended Complaint alleges sex discrimination, not race discrimination. It is
also correct that 42 U.S.C. § 1981 has been construed not to reach claims of sex discrimination.
See, e.g., Givens v. Chambers, 548 F. Supp.2d 1259, 1268-69 (M.D. Ala. 2008) (“Plaintiffs seek
redress for sexual discrimination and sexual harassment under § 1981 …, but these claims fail
because § 1981 provides rights and remedies only with respect to racial discrimination.”).10

10

See also Anderson v. Dunbar Armored, Inc., 678 F. Supp.2d 1280, 1316 n.23
(N.D. Ga. 2009) (“To the extent that Ms. Anderson seeks to recover for a hostile work
environment based on gender and pregnancy discrimination under § 1981, Defendants are
entitled to summary judgment on this claim as § 1981 only applies to harassment claims based
on race.”).

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Nonetheless, this aspect of the Motion to Dismiss is perplexing. Careful review of the
Second Amended Complaint does not reveal that Jackson is asserting any claims pursuant to 42
U.S.C. § 1981. Indeed, that statute is cited nowhere in his pleading. To be sure, the Second
Amended Complaint does repeatedly cite 42 U.S.C. § 1981a. But that section is not part of the
Civil Rights Act of 1866. Citing § 1981a is not tantamount to pleading a § 1981 cause of action;
rather, § 1981a merely delineates certain damages remedies and procedures for Title VII and
certain other statutory claims. See, e.g., Wilson v. U.S. Dep’t of Transp., 759 F. Supp.2d 55
(D.D.C. 2011) (“Section 1981a addresses remedies and procedures in Title VII actions. … It
does not provide any independent cause of action for which suit can be brought.”); Bennett v.
Calabrian Chemicals Corp., 324 F. Supp.2d 815, 839 (E.D. Tex. 2004) (“The Civil Rights Act
of 1991, 42 U.S.C. § 1981a, provides a prevailing plaintiff in an intentional employment
discrimination case the ability to recover compensatory and punitive damages …. This statute
does not create a new substantive right or an independent cause of action ….”) (citations
omitted).
Thus, defendants’ premise that Jackson is bringing a § 1981 cause of action against them
for sex discrimination is not supported by the text of the Second Amended Complaint. To the
extent that defendants seek dismissal of § 1981 claims that Jackson has not asserted and that are
nowhere stated on the face of the operative pleading, the Motion to Dismiss is denied.
D.

Section 1983 Causes of Action.

Defendants also move for dismissal of the Section 1983 causes of action set forth in
Counts II, III and IV of the Second Amended Complaint. Defendants’ sole challenge to these
causes of action pursuant to Rule 12(b)(6) is that plaintiff’s pleading flunks the Twombly / Iqbal
plausibility standard. To recap, what is required for a federal pleading to withstand a motion to
dismiss for failure to state a claim is that the “complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Miyahira, 715 F.3d at
1265 (citations and internal quotation marks omitted). “The plausibility standard calls for
enough fact to raise a reasonable expectation that discovery will reveal evidence of the
defendant’s liability.” Id. (citation and internal quotation marks omitted). Defendants articulate
specific plausibility objections to each of Jackson’s § 1983 claims.
With respect to Jackson’s § 1983 claims predicated on equal protection / due process
violations, defendants insist that the plausibility standard is not satisfied because the Second

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Amended Complaint lacks “specific allegations of similarly situated individuals who were
treated differently than the plaintiff.” (Doc. 26, at 14 (citation and emphasis omitted).) As a
threshold matter, it is not certain that this legal proposition – for which defendants cite a single
unpublished district court opinion from another jurisdiction – holds in the Eleventh Circuit.11
Besides, the Second Amended Complaint does identify a purportedly similarly situated
individual who was treated differently than Jackson, to-wit: Sherry Brookins. Defendants
suggest that Brookins is not a suitable comparator because “it is undisputed that her employment
was also terminated.” (Doc. 26, at 15.) This contention misses the point. The Second Amended
Complaint clearly and unambiguously alleges that defendants treated Jackson differently from
Brookins on the basis of gender because (i) Jackson was reprimanded and fired for having a
“minor accident” in a Housing Authority vehicle; (ii) Brookins was neither reprimanded nor
fired for having a “motor vehicle accident in which she totaled the company’s car while running
into the back of a vehicle” just a few months later; and (iii) Brookins was treated differently
because she is female. That Brookins’ employment was terminated some time later at Jackson’s
behest for reasons completely unrelated to her automobile accident does not logically negate the
plausibility of Jackson’s specific equal protection claim (i.e., disparate discipline for company
car accidents based on gender).
As to Jackson’s § 1983 claims asserting First Amendment violations, defendants balk that
the Second Amended Complaint “does not explain how the Defendants acted under color of law
to deprive him of his First Amendment Rights.” (Doc. 26, at 15.) This contention does not
withstand scrutiny. Jackson’s pleading alleges that the Housing Authority is a “municipal
11

To be sure, the Eleventh Circuit has required that comparators be identified in the
pleading in cases involving class-of-one equal protection claims. See, e.g., Tims v. Golden, 2016
WL 4259118, *4 (S.D. Ala. Aug. 10, 2016) (“In a class-of-one case, … a complaint must
identify sufficient facts about a comparator to determine whether the comparator is similarly
situated.”) (citations omitted). But Jackson’s equal protection claim does not proceed on a classof-one theory; rather, his is a garden-variety equal protection claim alleging discrimination based
on his status in a protected class (male). See generally Griffin Industries, Inc.v . Irvin, 496 F.3d
1189, 1200 (11th Cir. 2007) (contrasting “the normal equal protection case” in which a plaintiff
claims “it was discriminated against because it belongs to a protected class such as race or
gender” with a class-of-one equal protection claim). Defendants identify no authority for the
proposition that similarly situated comparators must be specifically pleaded in the complaint for
normal equal protection claims, as opposed to class-of-one claims.

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organization” that “exists pursuant to the laws of the State of Alabama and is acting under the
color of state law.” (Doc. 25, ¶ 5.)12 It further alleges that he engaged in protected free speech
by having discussions with the OIG about Title VII violations and by voicing complaints to
defendants Harris, Pharr, Snow and Crenshaw about unfair, discriminatory and retaliatory
actions taken against him. (Id., ¶¶ 87, 93-95.) And it alleges that the defendants (a public body,
as well as the Board, board members, executive director and counsel of such public body) fired
Jackson for engaging in such protected speech. In light of these well-pleaded allegations,
defendants’ bare conclusory assertion that the Second Amended Complaint “does not explain
how the Defendants acted under color of law to deprive him of his First Amendment Rights” is
unavailing.
Finally, defendants attack Jackson’s First Amendment claims by positing that the
Housing Authority’s Personnel Policy “did not create a binding contract” and that “his
allegations are conclusory at best.” (Doc. 26, at 15.) As to the former point, defendants do not
explain how the purportedly at-will nature of the Housing Authority’s Personnel Policy confers
license on defendants to fire an employee for engaging in protected speech under the First
Amendment. Jackson does not bring a breach of contract claim against defendants; therefore,
defendants’ assertion that there was no binding contract has no apparent bearing on the
plausibility vel non of his § 1983 claims for Twombly / Iqbal purposes. As to the latter point, the
Second Amended Complaint offers substantial detail as to the nature and content of Jackson’s
purportedly protected speech and links such speech to his dismissal. The Court is left to guess
why defendants brand such detailed allegations “conclusory at best.” While Jackson has not
pleaded his § 1983 claims in the clearest possible manner, that is not the test for Rule 12(b)(6)
purposes. See, e.g., Brown v. Endo Pharmaceuticals, Inc., 38 F. Supp.3d 1312, 1323 (S.D. Ala.
2014) (“For better or worse, the Federal Rules of Civil Procedure do not permit district courts to
impose upon plaintiffs the burden to plead with the greatest specificity they can.”) (citation
omitted). Defendants have made no showing either that Jackson’s § 1983 claims flunk the

12

As a matter of Alabama statute, a housing authority “shall constitute a public
body and a body corporate and politic exercising public powers, and having all the powers
necessary or convenient to carry out and effectuate the purposes and provisions of this article.”
Ala. Code § 24-1-27(a).

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plausibility standard, or that a more definite statement is required under Rule 12(e),
Fed.R.Civ.P.13
III.

Conclusion.
For all of the foregoing reasons, it is ordered as follows:
1.

Defendants’ Motion to Dismiss (doc. 26) is granted in part, and denied in part;

2.

The Motion to Dismiss is granted as to Count I (Title VII), which is dismissed
for failure to state a claim upon which relief can be granted;

3.

In all other respects, the Motion to Dismiss is denied; and

4.

Defendants’ answer must be filed on or before September 1, 2017.

DONE and ORDERED this 21st day of August, 2017.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

13

As a throw-in at the end of their principal brief, defendants maintain that if Rule
12(b)(6) dismissal of Jackson’s § 1983 claims is not granted, then the Court should “require
Plaintiff to plead them with particularity pursuant to Rule 12(e).” (Doc. 26, at 16.) Defendants
do not elaborate on this aspect of their Motion or address the applicable legal standard for relief.
Rule 12(e) does not impose a particularity requirement for civil pleadings. As a matter of wellsettled law, Rule 12(e) authorizes a defendant to move for a more definite statement only if a
pleading to which response is allowed “is so vague or ambiguous that the party cannot
reasonably prepare a response.” Rule 12(e), Fed.R.Civ.P. This standard erects a high bar,
indicative of the disfavored status of the Rule 12(e) remedy. See, e.g., Fathom Exploration, LLC
v. Unidentified Shipwrecked Vessel or Vessels, 352 F. Supp.2d 1218, 1221-22 (S.D. Ala. 2005)
(motions for more definite statement “are viewed with disfavor and are rarely granted,” and are
“not a substitute for discovery”); Austin v. Auto Owners Ins. Co., 2012 WL 3101693, *5 (S.D.
Ala. July 30, 2012) (“Under clearly established law, motions for more definite statement are
disfavored and are confined to such narrow circumstances as ‘shotgun pleadings’ or
unintelligible pleadings, not pleadings that are merely less detailed than a defendant might like.”)
(collecting cases). Under settled law, “[a] motion for a more definite statement will only be
required when the pleading is so vague or ambiguous that the opposing party cannot respond,
even with a simple denial, in good faith or without prejudice to himself.” Fathom, 352 F.
Supp.2d at 1221 (citation omitted). Whatever its faults, the Second Amended Complaint is not
so unintelligible that defendants are unable to respond in good faith or without prejudice to
themselves. Thus, defendants’ request for more definite statement pursuant to Rule 12(e) is
denied.

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