STEPHENS v. UNIVERSITY OF FLORIDA et al

Filing 4

ORDER: Clerk directed to send Plaintiff a blank Title VII form and instructions. Plaintiff shall fully complete form and file along with a service copy for each Defendant. 2 MOTION for Leave to Proceed in forma pauperis is GRANTED. (Amended Pleadings due by 5/25/2012.). Signed by MAGISTRATE JUDGE GARY R JONES on 5/10/2012. (Form to Plaintiff as directed.) (jws)

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
CYRIL MARCUS STEPHENS,
Plaintiff,
v.

CASE NO. 1:12-cv-94-MP-GRJ

UNIVERSITY OF FLORIDA, et al.,
Defendants.
_____________________________/
ORDER
This matter is before the Court on Plaintiff’s pro se Complaint. (Doc. 1.) From a
review of the Complaint, it is evident that the facts as presented fail to state a claim
upon which relief can be granted. Accordingly, Plaintiff will be given an opportunity to
amend his Complaint. Plaintiff also filed a motion to proceed in forma pauperis along
with the required financial affidavit. (Doc. 2.) The Court also has reviewed the financial
affidavit and finds the Plaintiff is unable to pay the costs of this action pursuant to 28
U.S.C. § 1915(a) and therefore leave to proceed in forma pauperis is due to be granted.
I. BACKGROUND
Plaintiff filed his complaint on the Court’s Employment Discrimination Complaint
Form to be used by pro se litigants in actions filed under Title VII of the Civil Rights Act
of 1964 (“Title VII”), the Age Discrimination in Employment Act and the Americans with
Disabilities Act (“ADA”). (Doc. 1.) A fair reading of the Complaint reveals that Plaintiff
is attempting to pursue a failure to hire claim under Title VII and a failure to
accommodate a disability claim under the ADA.
According to the factual allegations in the Complaint, Plaintiff is employed by

Page 2 of 5

Defendant the University of Florida (“UF”) as a maintenance mechanic. Plaintiff has
been employed at UF since 1990. Plaintiff has autism and contends the Defendants
violated his rights under the ADA and Title VII by failing to hire/transfer Plaintiff and
failing to accommodate Plaintiff’s disability.
Plaintiff apparently worked at the UF wastewater treatment plant from 2003 to
2004. Plaintiff alleges he was transferred to UF’s water distribution staff in late 2004 by
Defendant Superintendent Steve Middleton on account of Plaintiff’s disability. In
September 2008, UF posted an opening for an apprentice at the wastewater treatment
plant. Plaintiff was urged by several of the individual Defendants to apply for the
position and he did so. Despite Plaintiff’s qualifications, the position was offered to
another individual who had no experience or familiarity in either working with
machinery/electronics or in working at a wastewater treatment plan. Concerned as to
why he was not hired for the apprentice position, Plaintiff filed a charge of discrimination
with the Equal Employment Opportunity Commission (“EEOC”). Plaintiff also
apparently visited the UF President’s office numerous times in an attempt to ask the
President an unspecified question presumably related to the apprentice position. Each
time Plaintiff visited the President’s office, he was informed the President could not see
Plaintiff. Plaintiff was eventually informed he was not permitted to enter the building
containing the President’s office and the UF police department issued a public bulletin
stating Plaintiff had caused a disturbance at that building.
II. DISCUSSION
To assist Plaintiff in amending his complaint, the Court will discuss each of
Plaintiff’s claims below and then examine whether Plaintiff has named the proper
Case No: 1:12-cv-94-MP-GRJ

Page 3 of 5

Defendants in this action.
A.

ADA Failure to Accommodate Claim

The ADA prohibits an employer from discriminating against “a qualified individual
with a disability because of the disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.”
42 U.S.C. § 12112(a). If establishing discrimination by failure to make reasonable
accommodation, a plaintiff must merely show that (1) he was disabled, (2) he was
otherwise qualified, and (3) a reasonable accommodation was not provided. Lucas v.
W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001). “The plaintiff bears the
burden of identifying an accommodation, and of demonstrating that the accommodation
allows him to perform the job's essential functions.” Id. at 1255-56.
In his Complaint, Plaintiff alleges he has an autism spectrum disorder. Although
autism can constitute a disability for ADA purposes, see Jacques v. DiMarzio, Inc., 386
F.3d 192, 203-04 (2d Cir. 2004), Plaintiff does not allege he asked his employer for any
reasonable accommodation Plaintiff needed to perform his job as a maintenance
mechanic. Accordingly, in amending his complaint, Plaintiff should discuss exactly
which accommodation(s), if any, he requested from UF that were necessary for Plaintiff
to be able to perform his job.
B.

Failure to Hire Claim under Title VII

In order to state a prima facie claim for failure to hire under Title VII, a plaintiff
must show that: “(1) he was a member of a protected class; (2) he applied and was
qualified for a position for which the employer was accepting applications; (3) despite
Case No: 1:12-cv-94-MP-GRJ

Page 4 of 5

his qualifications, he was not hired; and (4) the position remained open or was filled by
another person outside of his protected class.” E.E.O.C. v. Joe's Stone Crabs, Inc., 296
F.3d 1265, 1273 (11th Cir. 2002).
Plaintiff alleges in the Complaint the Defendants hired another individual without
any relevant experience or qualifications for the wastewater plan apprentice position,
but Plaintiff has not alleged the gender of the person who was actually hired for the
wastewater apprentice position. In the Complaint Plaintiff alleges he was not hired for
the wastewater treatment plant apprentice positions because he is male. Accordingly,
in amending his Complaint, Plaintiff should identify the gender of the person who was
hired for the apprentice position instead of Plaintiff.
C.

Individual Defendants

Plaintiff has named five private individuals as defendants in his Complaint: Steve
Middleton, Kenneth W. Wainwright, Rafael A. Giro, Kevin Lee Clarke, and Kimberly M.
Czaplewski. The Eleventh Circuit has specifically held that “relief under Title VII is
available against only the employer and not against individual employees whose
actions would constitute a violation of the Act, regardless of whether the employer is a
public company or a private company.” Dearth v. Collins, 441 F.3d 931, 933 (11th Cir.
2006). Similarly, a plaintiff cannot maintain a suit under the ADA against a person in
his or her individual capacity, but instead must maintain such a suit against the
plaintiff’s employer. Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir.1996)(“We hold
that the [Americans with] Disabilities Act does not provide for individual liability, only
employer liability.”). Individual employees like Defendants Steve Middleton, Kenneth
W. Wainwright, Rafael A. Giro, Kevin Lee Clarke, and Kimberly M. Czaplewski simply
Case No: 1:12-cv-94-MP-GRJ

Page 5 of 5

cannot be held liable for violating either Title VII or the ADA even if their actions as
alleged in the Complaint would constitute violations of either Title VII or the ADA.
Accordingly, Plaintiff should not include in his amended complaint any claims for
violations of either the ADA or Title VII against individual Defendants.
III. CONCLUSION
If Plaintiff wants to proceed with this case he must file an amended complaint to
include further factual details as discussed in this Order. To amend his complaint,
Plaintiff must fill out the Title VII form, marking it “First Amended Complaint.” Plaintiff is
advised the amended complaint must contain all of Plaintiff’s factual allegations set
forth in separately numbered paragraphs and should not in any way refer to the original
Complaint.
Accordingly, it is ORDERED that:
1.

The Clerk is directed to send Plaintiff a blank Title VII form and
instructions.

2.

Plaintiff shall fully complete the Title VII complaint form. In amending his
Complaint, Plaintiff shall not refer back to the original Complaint or
incorporate any part of the original Complaint by reference. Plaintiff shall
file the First Amended Complaint, along with a service copy for each
Defendant, by May 25, 2012.

3.

Leave to proceed in forma pauperis is hereby GRANTED.

4.

Failure to comply with this order within the allotted time, or to show cause
why Plaintiff is unable to comply, will result in a recommendation to the
district judge that the case be dismissed without further notice for failure to
prosecute or for failure to state a claim.

DONE AND ORDERED this 10th day of May, 2012.

s/ Gary R. Jones s/GaryR.Jone
s/GaryR.Jo

GARY R. JONES
United States Magistrate Judge
Case No: 1:12-cv-94-MP-GRJ