TOBAR v. FEDERAL DEFENDERS OF THE MIDDLE DISTRICT OF GEORGIA INC et al
Filing
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ORDER GRANTING IN PART and DENYING IN PART 5 Motion to Dismiss for Failure to State a Claim and GRANTING 5 Motion for More Definite Statement. Plaintiff has not and cannot state a claim against Defendant Cynthia Roseberry, and any claims agai nst her are DISMISSED with prejudice. Plaintiff has failed to state a claim pursuant to the ADA against the Defendants, and any such claims are DISMISSED without prejudice. The Plaintiff shall, within 14 days, file an Amended Complaint that complie s with this Order. Failure to do so within this time period may result in dismissal of the Plaintiff's Complaint with prejudice. Upon the Plaintiff's filing of his Amended Complaint, Defendant Federal Defenders must, within 14 days of that date, file an Amended Motion to Dismiss or an Answer to the Amended Complaint. Ordered by Judge Marc Thomas Treadwell on 2/5/2013. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JOHN C. TOBAR,
Plaintiff,
v.
FEDERAL DEFENDERS OF THE
MIDDLE DISTRICT OF GEORGIA, INC.,
and CYNTHIA ROSEBERRY,
Defendants.
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CIVIL ACTION NO. 5:12-CV-416 (MTT)
ORDER
Before the Court is the Defendants’ Motion to Dismiss or, in the alternative,
Motion for a More Definite Statement. (Doc. 5). For the following reasons, the Motion
to Dismiss is GRANTED in part and DENIED in part. The Motion for a More Definite
Statement is GRANTED.
I. BACKGROUND
This is an employment discrimination case. The Plaintiff was an investigator
employed with the Federal Defenders of the Middle District of Georgia. He was,
according to an “Affidavit” appended to his Complaint, terminated from his position
October 30, 2011. (Doc. 1-2). Proceeding pro se, the Plaintiff filed this lawsuit,
contending his termination was unlawful discrimination based on his age and disability
pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. The Defendants have
moved to dismiss the Plaintiff’s Complaint for failure to state a claim. In the alternative,
the Defendants ask that the Plaintiff be ordered to file an amended Complaint that
complies with the pleading requirements of the Federal Rules of Civil Procedure.
II. DISCUSSION
The Federal Rules of Civil Procedure require a pleading contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). To avoid dismissal pursuant to Fed. R. Civ. P. 12(b)(6), a complaint must
contain specific factual matter to “‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “At the motion to dismiss stage, all well-pleaded
facts are accepted as true, and the reasonable inferences therefrom are construed in
the light most favorable to the plaintiff.” Garfield v. NDC Health Corp., 466 F.3d 1255,
1261 (11th Cir. 2006) (internal quotations and citation omitted).
“[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ –
that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 (internal quotations and
citation omitted). “[C]onclusory allegations, unwarranted deductions of facts or legal
conclusions masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt.,
Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002). However, when a plaintiff is
proceeding pro se, his pleadings may be held to a less stringent standard than
pleadings drafted by attorneys and will be liberally construed. Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998).
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A. DEFENDANT ROSEBERRY
The Plaintiff names Cynthia Roseberry, the Executive Director of the Federal
Defenders office, as a Defendant in his Complaint. However, she is not a proper
defendant for either disability- or age-based claims. “Individual liability is precluded for
violations of the ADA employment discrimination provision.” Albra v. Advan, Inc., 490
F.3d 826, 830 (11th Cir. 2007). Similarly, individuals cannot be held liable under the
ADEA. See Smith v. Lomax, 45 F.3d 402, 403 n.4 (11th Cir. 1995). Further, the
Plaintiff appears to now concede Roseberry is not a proper Defendant: “The Director’s
name is added because she was responsible for the unlawful actions. No intent of
personal liability was intended.” (Doc. 6 at 4). Accordingly, the Plaintiff has not and
cannot state a claim against Defendant Cynthia Roseberry, and any claims against her
are DISMISSED with prejudice.
B. ADA CLAIMS
The Plaintiff states that he is a disabled Vietnam veteran, and alludes to an
allegation that the Federal Defenders office discriminated against him based on this
disability. However, to bring an action pursuant to the ADA, he “must first exhaust his
administrative remedies, beginning with the filing of a charge of discrimination with the
EEOC.” Rizo v. Alabama Dept. of Human Resources, 228 Fed. Appx. 832, 835 (11th
Cir. 2007) (citing Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001)).
Here, the Plaintiff’s only EEOC charge relates to allegations of age discrimination.
(Docs. 1-1, 1-3, 5-3). He did not complain of disability-based discrimination in his
EEOC filing, and he has presented no evidence that he ever officially reported an ADA
violation to the EEOC or that the agency investigated such a claim. The Plaintiff cannot
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maintain an ADA claim in federal court without first seeking administrative relief.
Accordingly, the Plaintiff has failed to state a claim pursuant to the ADA against the
Defendants, and any such claims are DISMISSED without prejudice.
C. ADEA CLAIMS
“To make out a prima facie case of age discrimination, the plaintiff must show
four things: (1) that [he] was a member of the protected group of persons between the
ages of forty and seventy; (2) that [he] was subject to adverse employment action; (3)
that a substantially younger person filled the position that [he] sought or from which [he]
was discharged; and (4) that [he] was qualified to do the job for which [he] was
rejected.” Kragor v. Takeda Pharmaceuticals America, Inc., 702 F.3d 1304, 1308 (11th
Cir. 2012) (citations and quotation marks removed). If the Plaintiff establishes a prima
facie case, the employer may rebut with evidence of legitimate, nondiscriminatory
reasons for the action taken. Id. To prevail, the Plaintiff would ultimately need to show
the employer’s offered reasons are pretext for discrimination. Id.
Thus far, the Plaintiff’s allegations of age discrimination appear thin. It is not
clear whether this is because of the manner in which the allegations have been pled or
whether they simply lack substance. However, given the Plaintiff’s pro se status, the
Court will afford him an opportunity to amend his Complaint to state viable ADEA claims
against Defendant Federal Defenders. His amended Complaint must comply with the
Federal Rules of Civil Procedure. For each claim the Plaintiff states, he shall lay out the
elements of those claims and state with specificity the facts that satisfy each element.
Mere conclusory statements will not suffice. Further, he should state each allegation in
separately numbered paragraphs. See Fed. R. Civ. P. 10. Only facts supporting his
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claims for age discrimination should be included – discussion of other job-related
problems or complaints that do not address age discrimination should be omitted.
III. CONCLUSION
Accordingly, the Defendant’s Motion for a More Definite Statement is GRANTED
as to the Plaintiff’s age discrimination claims. The Plaintiff shall, within 14 days, file an
Amended Complaint that complies with this Order. Failure to do so within this time
period may result in dismissal of the Plaintiff’s Complaint with prejudice. Upon the
Plaintiff’s filing of his Amended Complaint, Defendant Federal Defenders must, within
14 days of that date, file an Amended Motion to Dismiss or an Answer to the Amended
Complaint.
SO ORDERED, this 5th day of February, 2013.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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