McElroy v. Savannah Technical College et al

Filing 3

ORDERED that within 21 days of the service of this Order, McElroy must file an Amended Complaint. (Compliance due by 9/6/2016.) Signed by Magistrate Judge G. R. Smith on 8/16/16. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
TODD MCELROY,
Plaintiff,
v.
SAVANNAH TECHNICAL
COLLEGE and THE EQUAL
EMPLOYMENT OPPORTUNITY
COMMISSION,

Case No. CV416-206

Defendants.

ORDER
Proceeding pro se, Todd McElroy has filed an employment
discrimination case against Savannah Technical College (STC) and The
Equal Employment Opportunity Commission (EEOC). Doc. 1. The
Court now preliminarily screens his case.

See Cuyler v. Aurora Loan

Services, LLC , 2012 WL 10488184 at * 2 (11th Cir. 2012)
(notwithstanding filing fee payment, “a district court has the inherent
authority to dismiss a patently frivolous complaint”);

Wilkerson v.

Georgia, 2014 WL 3644179 at * 1 (S.D. Ga. July 21, 2014) (dismissing pro
se complaint on frivolity grounds even though plaintiff paid full filing fee),

rev’d on other grounds by 618 F. App’x 610 (11th Cir. 2015) . 1
From a previous attempt to litigate his claim: 2
McElroy alleges that STC refused to hire him because he is deaf.
He attached the job description for an Admissions Coordinator
position which states that “[t]he ability to hear and understand at a
normal conversational level is [a] required” physical demand of the
job. The Court presumes (McElroy never says) that he either
applied for the position and was denied or was denied an application
in the first place (he at one point states that “deaf people can't get
the applications for new jobs because of required hearing for all
jobs”). Beyond that, McElroy pleads no factual allegations.

McElroy , 2016 WL 3509488 at * 1 (cites omitted). His current Complaint
adds no new facts. See doc. 1.
As a preliminary matter, McElroy’s claim against the EEOC fails.
He alleges only that the “[r]ight to [s]ue letter is a fraud,” and that the
“EEOC broke the law,” and “fixed [the] job advertisement” in collusion

1

District courts have the inherent power to dismiss sua sponte frivolous lawsuits,
even those where the plaintiff pays the full filing fee. See Jefferson Fourteenth Assocs.
v. Wometco de Puerto Rico, Inc. , 695 F.2d 524, 526 n. 3 (11th Cir. 1983) (noting that
courts may sua sponte dismiss actions for lacking merit “if the proper procedural steps
are taken and if the determination is correct on the merits”); Roberts v. Memorial
Medical Center , 2012 WL 5350366 at * 1 (S.D. Ga. Oct. 29, 2012) (dismissing pro se
employment discrimination case despite payment of full filing fee in part because
complaint failed to allege exhaustion of administrative remedies).
2

The Court dismissed his first case because McElroy failed to exhaust administrative
remedies with the EEOC. McElroy v. Savannah Technical College , 2016 WL 3509488
at * 1 (S.D. Ga. May 25, 2016). He’s done that now. See doc. 1-1 (EEOC right-to-sue
letter).
2

with STC. Doc. 1 at 6. His right to sue letter and other attached
documentation, however, belie those statements, only one of which (the
STC-collusion allegation) qualifies as factual. McElroy may not like the
EEOC’s conclusion (that it “is unable to conclude that the information
obtained establishes violations of the [ADA],” doc. 1-1 at 1), but that alone
isn’t grounds to sue the agency. His claim thus fails.
His ADA claim against STC fairs only slightly better. Doc. 1 at 3.
“In general, an employer may not ‘discriminate against a qualified
individual with a disability in regard to the job application procedures, the
hiring, advancement, or discharge or employees, employee compensation,
job training, and other terms, conditions, and privileges of employment.’
42 U.S.C. § 12112(a).” Beatty v. Hudco Indus. Prods., Inc ., 881 F. Supp.
2d 1344, 1353-54 (N.D. Ala. 2012).
To state an ADA claim for relief, 3 McElroy must allege:

3

Preliminary review of pro se complaints uses the same standard of review as for
motions to dismiss. See Bailey v. Deutsche Bank Trust Co. Americas , 2013 WL
820411 at * 2 (M.D. Ga. Mar. 5, 2013). Consequently, courts must accept:
‘the allegations in the complaint as true and constru[e] them in the light most
favorable to the plaintiff.’ Hill v. White , 321 F.3d 1334, 1335 (11th Cir. 2003).
However, ‘conclusory allegations . . . are not entitled to an assumption of truth
-- legal conclusions must be supported by factual allegations.’ Randall v. Scott ,
3

that he has a disability recognized by the ADA, is qualified, with or
without reasonable accommodation, to perform the essential
functions of [her] job, and suffered an adverse employment action
due to [her] disability. See 42 U.S.C. 12112(a); Doe v. Dekalb Cnty.
School Dist ., 145 F.3d 1441, 1445 (11th Cir.1998). Under the ADA,
“[t]he term ‘disability’ means . . . (A) a physical or mental
impairment that substantially limits one or more major life
activities of such individual; (B) a record of such impairment; or (C)
being regarded as having such an impairment.” 42 U.S.C. §
12102(1).
A person is “‘regarded as having . . . an impairment [protected by
the ADA]’ if the individual establishes that he or she has been
subjected to an action prohibited [by the ADA] because of an actual
or perceived physical or mental impairment[, that is not transitory
or minor,] whether or not the impairment limits or is perceived to
limit a major life activity.” 42 U.S.C. § 12102(3). “[I]n order to
constitute a disability under the ADA, the impairment . . . must
substantially limit a major life activity.” Pritchard v. S. Co. Servs .,
92 F.3d 1130, 1132 (11th Cir.1996). To “substantially limit the
ability to work, [the disability] must ‘significantly restrict[ ] . . . the
ability to perform either a class of jobs or a broad range of jobs in
various classes as compared to the average person having
comparable training, skills and abilities.” Id . at 1133 (citing 29
C.F.R. § 1630.2(j)(3) (I)).

Benton v. Crane Merchandising Systems, Inc ., 2013 WL 6081767 at * 2
610 F.3d 701, 709–10 (11th Cir. 2010). To survive a motion to dismiss, a
complaint must ‘state a claim to relief that is plausible on its face,’ meaning it
must contain ‘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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell
Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007)).

Bishop v. Ross Earle & Bonan, P.A. , 817 F.3d 1268 (11th Cir. 2016).
4

(M.D. Ga. Nov. 19, 2013).
McElroy’s Complaint, in its current form, fails to state a viable ADA
claim. For instance, he pleads nothing to show that the Admissions
Coordinator position is one that can reasonably accommodate deafness.
Nor does he include anything beyond his own conclusions suggesting that
STC’s job advertisement misrepresented the position’s duties. Indeed,
many positions, particularly those like Admissions Coordinator that
necessitate regular telephonic and verbal communication with the public
(see CV416-046, doc. 1-1 at 6), require the ability to speak and hear
clearly, neither of which McElroy possesses.

See doc. 1 at 5 (listing his

disability as “deaf”). Absent more, his ADA claim fails.
Nevertheless, the Court will give McElroy a second chance.

Jenkins v. Walker , 620 F. App’x 709, 711 (11th Cir. 2015) (“[W]hen a more
carefully drafted complaint might state a claim, a district court should
give a pro se plaintiff at least one chance to amend the complaint before
the court dismisses the action.”). He need not “present every last detail”
of his case, Swain v. Col. Tech. Univ. , 2014 WL 3012693 at * 2 (S.D. Ga.
June 12, 2014), but he must give “fair notice of what the . . . claim is and
5

the grounds upon which it rests .” Erickson v. Pardus , 551 U.S. 89, 93
(2007) (emphasis added). Those grounds must include the pleading
elements illuminated above.
Within 21 days of the date this Order is served, then, McElroy must
file an Amended Complaint that pleads all of the material elements
required to support his claims.

See Marsh v. Ga. Dep’t of Behavioral &

Health Developmental Disabilities , 2011 WL 806423 at *1 (S.D. Ga. Feb.
14, 2011) (“[P]laintiff must plead more than threadbare recitals, legal
conclusions and the mere possibility of misconduct. . . . [I]t is not
sufficient to simply cite to various health problems and an adverse
employment result.”), quoted in Brown v. Mobile Cnty. Comm'rs , 2015 WL
1444965 at * 6 (S.D. Ala. Mar. 31, 2015). Should McElroy fail to timely
amend his Complaint, it will face dismissal for his failure to follow a Court
order and to state a claim.

See L.R. 41(b); see Betty K Agencies, Ltd. v.

M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005) (district courts may
sua sponte dismiss an action pursuant to Fed. R. Civ. P. 41(b) if the
plaintiff fails to comply with court rules or a court order). 4

4

He is reminded that he cannot present here any claims that he failed to present to
6

SO ORDERED this 16th day of August, 2016.

UMIED STATES MAGISTRATE JUDGE

SOUThIEIT DISTRICT OF GEORGLA.

the EEOC. See, e.g. , Richardson v. JM Smith Corp. , 473 F. Supp. 2d 1317, 1331 (M.D.
Ga. 2007) (declining to permit plaintiff to bring unexhausted claim of religious
discrimination that was never presented to the EEOC); s ee also Enwonwu v.
Fulton-DeKalb Hosp. Auth ., 286 F. App’x 586, 600 (11th Cir. 2008) (claim of racial and
national origin discrimination could not have been reasonably expected to grow out of
an EEOC disability charge); Scott v. Kindred Hosps. Ltd. , 2006 WL 2523093 at *2-3
(N.D. Ga. Aug. 28, 2006) (dismissing claim for racial discrimination as unexhausted
where plaintiff had only alleged age and disability discrimination in her EEOC
charge).
7