CALLOWAY v. DURHAM COUNTY PUBLIC SCHOOLS BOARD OF EDUCATION
Filing
22
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR on 02/17/2016; that Defendant's Motion to Dismiss (Doc. 17 ) is GRANTED IN PART, in dismissing Counts III, IV, and V, and DENIED IN PART, in keeping Plaintiff's racial discrimination claim in Count I and his failure to accommodate claim in Count II. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CURTIS CALLOWAY,
Plaintiff,
v.
DURHAM COUNTY PUBLIC SCHOOLS
BOARD OF EDUCATION
Defendant.
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1:15CV187
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
This matter comes before this court on the Motion to
Dismiss Amended Complaint filed by Defendant Durham County
Public Schools Board of Education (“Defendant”) pursuant to
Federal Rules of Civil Procedure 12(b)(1) and (6). (Doc. 17.) On
May 26, 2015, Defendant filed this motion to dismiss the Amended
Complaint filed by Plaintiff Curtis Calloway (“Plaintiff”) (Doc.
16). Plaintiff filed a response in opposition. (Doc. 19.)
Defendant never filed a reply and the deadline has passed. This
court finds that this matter is ripe for resolution, and for the
reasons stated herein, this court will grant in part and deny in
part Defendant’s motion.
I.
BACKGROUND
A.
Parties
Plaintiff is Defendant’s former employee. Plaintiff asserts
five causes of action, alleging racial discrimination in
violation of Title VII of the Civil Rights Act of 1964 (“Title
VII”), failure to accommodate his disability in violation of the
Americans with Disabilities Act of 1990 (“ADA”), retaliation
against him for his disability, wrongful discharge, and wrongful
termination. (See First Amended Complaint (“Am. Compl.”) (Doc.
16).)
B.
Factual Allegations
The facts are presented in the light most favorable to
Plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).1
At the time of his dismissal, Plaintiff was a crisis
manager technician/teacher assistant at Durham School of the
Arts (“DSA”), a school within Durham Public Schools (“DPS”).
(Am. Compl. (Doc. 16) ¶¶ 18, 63.) DPS reassigned Plaintiff from
Lakeview School to DSA so that he could provide assistance with
a problem child in the Autism/COPE program. (Id. ¶ 17.) The
1
The facts are drawn from the Amended Complaint. (Doc. 16.)
This court finds that Plaintiff properly amended his original
complaint and thus the Amended Complaint relates back to the
initial filing date, making the Amended Complaint the operative
pleading. See Young v. City of Mount Ranier, 238 F.3d 567, 572
(4th Cir. 2001) (“As a general rule, ‘an amended pleading
ordinarily supersedes the original and renders it of no legal
effect.’” (citation omitted)).
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grounds stated for Plaintiff’s dismissal, disputed by Plaintiff,
were failure to maintain the safety of assigned students and
provide adequate supervision.
DPS hired Plaintiff in 1999 and he worked there until his
dismissal in January 2014. (Id. ¶¶ 8, 63.) Prior to his March
2013 transfer to DSA, Plaintiff worked as a teacher assistant
and crisis manager technician at Carver Hill and Lakeview
School. (Id. ¶¶ 8-10.) Plaintiff alleges he performed his job
satisfactorily and was, at all times, qualified for his
position. (Id. ¶¶ 19, 80.)
During this time, Plaintiff was under the care of Dr.
Susan F. Isbey for hypertension, diabetes, hypercholesterolemia,
obstructive sleep apnea, general osteoarthritis, and chronic
pain. (Id. ¶ 11.) Dr. Isbey wrote a letter to DPS in November
2012, suggesting that Plaintiff be allowed to arrive to work at
9:00 a.m. because of his health conditions. (Id. ¶¶ 12, 15.) Her
recommendation stemmed from Plaintiff’s need for adequate time
in the morning to eat and take his medications before arriving
at work. (Id. ¶ 15.) He has to check his blood glucose three to
four times a day, check his blood pressure two to three times a
day, and is on fifteen scheduled medications per day. (Id.
¶ 13.) Additionally, he should not operate a motor vehicle if
his blood sugar falls below 70 or if his blood pressure is below
100 or higher than 170. (Id. ¶ 14.) Plaintiff alleges that DPS
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engaged in some correspondence with Dr. Isbey but ultimately
failed to accommodate him by altering his schedule. (Id. ¶ 16.)
After his transfer to DSA, Plaintiff remained the head
baseball coach at Chewning Middle School, located inside
Lakeview School. (Id. ¶ 21.) Due to his coaching duties, he
needed to leave DSA at 3:15 p.m. (Id.) Plaintiff alleges he
informed DSA’s principal, David Hawks, that he had received
approval to leave at 3:15 p.m. from the Department of Human
Resources and the Executive Director of EC Programs.2 (Id. ¶ 22.)
Despite Plaintiff’s contentions that he had received approval,
Mr. Hawks disagreed, stating that Plaintiff did not have
approval to leave early, (id. ¶ 22), and insisting that
Plaintiff be present from 8:15 a.m. until 3:45 p.m. each day.
(Id. ¶ 20.) This exchange also followed an incident when other
staff members attempted to put a child normally under
2
Plaintiff alleges that his doctor corresponded with the
Human Resources Services Administrator, Dorothy McGirt, who then
requested clarification about the accommodations requested and
potential alternative solutions. (Am. Compl. (Doc. 16) ¶ 16.) He
subsequently alleges that he told Mr. Hawks he had approval from
Ms. McGirt (Human Resources) and Kristin Bell (Executive
Director of EC Programs) to leave at 3:15 p.m. to carry out his
coaching duties. (Id. ¶ 22.) While Plaintiff does not
specifically allege that he in fact had approval to leave early,
(see id. ¶¶ 12-23, 26 (“Mr. Calloway sent a letter to the
Assistant Principal, which stated that Freddie McNeil had
informed him that upon receiving medical documentation he would
have Mr. Calloway’s schedule changed to better accommodate Mr.
Calloway’s medical condition.”)), at this stage, reasonable
inferences must be made in his favor and thus these allegations
are sufficient for the 12(b)(6) analysis.
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Plaintiff’s care on a bus on April 19, 2013. (Id.) Mr. Hawks
then sent Plaintiff a letter stating that he would be required
to sign in and out of the main office on a daily basis. (Id.
¶ 23.) Plaintiff alleges he was the only employee required to do
so. (Id. ¶ 24.) Plaintiff was tasked with ensuring students
boarded their designated buses in the afternoon and alleges that
this task prevented him from making it to the office in time to
sign out prior to the office closing. (Id. ¶ 43.) Plaintiff
further alleges that he expressed this timing issue to
Mr. Hawks. (Id. ¶ 42, 43.)
Plaintiff alleges two other miscellaneous incidents with
Principal Hawks. First, Plaintiff alleges that Principal Hawks
sent him a letter stating Plaintiff was absent from work on
September 19, 2013, and had not used proper notification
procedures, even though he had a doctor’s note. (Id. ¶¶ 28-29.)
Plaintiff alleges that the letter accused him of not using the
school system to secure a substitute Instructional Assistant,
(id. ¶ 29), and further alleges that he had not had to use this
procedure while working at Lakeview School. (Id. ¶ 30.) Second,
Plaintiff took leave on November 5, 2013, and alleges he
indicated and believed that the leave was for a worker’s
compensation doctor’s appointment. (Id. ¶¶ 46, 49.) Principal
Hawks sent a November 13, 2013 letter indicating that he had
been informed that the appointment was not related to worker’s
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compensation. (Id. ¶ 46.) Principal Hawks determined that the
leave form violated DPS policy, because it contained false
information, and he referred the matter to the Department of
Human Resources. (Id. ¶¶ 47-48.)
Plaintiff alleges he made repeated attempts to transfer
away from DSA. On November 12, 2013, he sent the Autism/Cope
Coordinator an email expressing his desire to be transferred and
requested a meeting because he believed he was being bullied and
harassed. (Id. ¶ 44.) On November 14, 2013, Plaintiff emailed
James F. Key II, requesting to be transferred from DSA as soon
as possible. (Id. ¶ 50.) He was not transferred from DSA.
1.
Events Leading to Plaintiff’s Termination
Plaintiff’s description of the incident that led to his
termination is somewhat confusing. Nevertheless, it will be
presented in the light most favorable to him. Plaintiff alleges
that he was suspended on November 26, 2013, pending
investigation into an incident that occurred on October 30,
2013. (Id. ¶ 62.) He was terminated on January 15, 2014, for
“failure to maintain the safety of assigned students and provide
adequate supervision.” (Id. ¶¶ 63-64.) Plaintiff’s allegations
of these events unfold as follows:
On October 30, 2013, Plaintiff and Behavior Support
Assistant James Lillie were supervising six students in the
track and field area of DSA. (Id. ¶ 31.) Plaintiff alleges
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Mr. Lillie had seniority over him and served in a supervisory
capacity. (Id. ¶ 32.) Mr. Lillie allegedly asked Plaintiff to
take six Autism/Cope students from the track and field area into
the school building to use the bathroom, get water, and prepare
the students for the next assignment. (Id. ¶ 31.) Once inside,
Plaintiff allegedly informed the supervising teacher, Monique
Bonner, that he was taking a student to the restroom to change
the student’s diaper. (Id. ¶ 33.) After returning, Plaintiff
gathered the students and escorted them to another classroom for
the Life Skills Class. (Id. ¶ 34.)
Shortly after escorting the students to the Life Skills
Class, Mr. Hawks approached Mr. Lillie and Plaintiff and
informed them that they left a child unattended in the track and
field area. (Id. ¶ 36.) Mr. Lillie allegedly took full
responsibility for the unattended student. (Id. ¶ 37.) Mr. Hawks
subsequently required Plaintiff, Mr. Lillie, and Ms. Bonner to
write statements about the incident. (Id. ¶ 41.) Plaintiff
alleges that DPS prompted Ms. Bonner to rewrite her statement,
(id. ¶¶ 57-59), and that she and Mr. Lillie were allowed to
resign while Plaintiff was terminated. (Id. ¶¶ 60, 62.)
Plaintiff appealed his termination to the Board of
Education. (Id. ¶ 65.) A three-person panel heard his appeal on
January 28, 2014. (Id. ¶ 66.) The panel failed to unanimously
uphold his termination and referred the appeal to the full
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board. (Id. ¶ 67.) On February 18, 2014, the board upheld his
dismissal. (Id. ¶ 68.)
Plaintiff filed a charge of discrimination with the United
States Equal Employment Opportunity Commission (“EEOC”) on
April 22, 2014. (Id. ¶ 73; Ex. A, EEOC Charge (Doc. 16-1) at 1.)
The EEOC Charge of Discrimination has some apparent
inconsistencies with the Amended Complaint. In the Charge,
Plaintiff checked the race and disability boxes and left the
retaliation box blank. (Ex. A, EEOC Charge (Doc. 16-1) at 1.) He
wrote: “In late May 2013, I informed David Hawks, Principal,
that I needed an accommodation for my medical condition.
However, Mr. Hawks denied my accommodation for a desk job but
did not give me a reason as to why.” (Id.) His description of a
desk accommodation differs from the late arrival accommodation
alleged in the Amended Complaint. (See Am. Compl. (Doc. 16) ¶
15.) The Charge briefly mentions Plaintiff allegedly leaving a
student unsupervised as the stated reason for his termination
and provides facts that suggest a racial motivation behind his
termination:
I am aware of a similarly situated employee, who is
Caucasian, and she was involved in the same type of
violation on two different occasions and she was not
suspended or discharged. I am also aware that I was
not involved in the incident that resulted in my
suspension and discharge[]. Also two other Black
employees were also suspended and discharged for this
incident.
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(Ex. A, EEOC Charge (Doc. 16-1) at 1-2.)
The EEOC issued Plaintiff a right to sue letter on
October 3, 2014. (Am. Compl. (Doc. 16) ¶ 75; Ex. B (Doc. 16-2).)
Plaintiff filed suit in North Carolina state court on January
19, 2015, (Ex. A (Doc. 1-1) at 1, 17 (noting that delayed
service was requested and the complaint was served on January
20, 2015)), and Defendant removed the action to federal court.
(Notice of Removal (“Removal Notice”) (Doc. 1).)
II.
SUBJECT MATTER JURISDICTION
A.
Legal Standard
In support of its 12(b)(1) motion to dismiss, Defendant
argues that “plaintiff bears the burden of showing that federal
jurisdiction is appropriate when challenged by the defendant.”
(Def.’s Mem. of Law in Supp. of Mot. to Dismiss (“Def.’s Mem.”)
Doc. 18 at 5.) Here, however, Defendant removed the action to
federal court, asserting subject matter jurisdiction. (Removal
Notice (Doc. 1) ¶¶ 3-6.) Thus, Defendant initially bears the
burden of establishing subject matter jurisdiction. See
Blockbuster, Inc. v. Galeno, 472 F.3d 53, 57 (2d Cir. 2006) (“It
is well-settled that the party asserting federal jurisdiction
bears the burden of establishing jurisdiction.”); McNutt v. Gen.
Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936) (“They
are conditions which must be met by the party who seeks the
exercise of jurisdiction in his favor.”). In all cases,
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jurisdiction must be “established as a threshold matter,” Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)
(citations omitted), and as a “question the court is bound to
ask and answer for itself.” Mansfield, C. & L.M. Ry. Co. v.
Swan, 111 U.S. 379, 382 (1884).
Defendant removed this case based upon federal claim
jurisdiction. See 28 U.S.C. § 1331; (Removal Notice (Doc. 1) at
1.) It is undisputed that Plaintiff has asserted federal claims
pursuant to Title VII and the Americans with Disabilities Act.
As a result, removal and this court’s subject matter
jurisdiction pursuant to 28 U.S.C. § 1331 are not in dispute.
However, Defendant charges additional jurisdictional issues
for which the burden to establish jurisdiction is on Plaintiff.
See Richmond, Fredericksburg & Potomac R.R. Co. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991) (“When a Rule 12(b)(1)
motion challenge is raised to the factual basis for subject
matter jurisdiction, the burden of proving subject matter
jurisdiction is on the plaintiff.”). Specifically, Defendant
contends that Plaintiff failed to exhaust administrative
remedies as to his state law wrongful termination claim. (See
Def.’s Mot. to Dismiss (“Def.’s Mot.”)(Doc. 17) at 1-2.)
B.
Analysis
In North Carolina, “where the legislature has provided by
statute an effective administrative remedy, that remedy is
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exclusive and its relief must be exhausted before recourse may
be had to the courts.” Presnell v. Pell, 298 N.C. 715, 721, 260
S.E.2d 611, 615 (1979).
A plaintiff may appeal to the local board of education to
challenge a decision about “[t]he terms or conditions of
employment or employment status of a school employee.” N.C. Gen.
Stat. § 115C-45(c)(3) (2013). Following an adverse decision by
the local board, a plaintiff may appeal to a North Carolina
superior court. N.C. Gen. Stat. § 115C-45 (2013).3 Here,
Plaintiff admits he “did not exercise his administrative right
to appeal his dismissal to Superior Court.” (Pl.’s Mem. of Law
in Opp’n of Def.’s Mot. to Dismiss (“Pl.’s Mem.”) (Doc. 19) at
7.) Further, he does not argue that the exhaustion requirement
3
In 2013, the North Carolina General Statutes provided:
An appeal of right brought before a local board of
education under subdivision (1), (2), (3) or (4) of
this subsection may be further appealed to the
superior court of the State on the grounds that the
local board’s decision is in violation of
constitutional provisions, is in excess of the
statutory authority or jurisdiction of the board, is
made upon unlawful procedure, is affected by other
error of law, is unsupported by substantial evidence
in view of the entire record as submitted, or is
arbitrary and capricious. However, the right of a
noncertified employee to appeal decisions of a local
board under subdivision (3) of this subsection shall
only apply to decisions concerning the dismissal,
demotion, or suspension without pay of the
noncertified employee. . . .
N.C. Gen. Stat. § 115C-45 (2013).
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should be excused because the administrative remedy is futile or
inadequate. See Justice for Animals, Inc. v. Robeson Cty., 164
N.C. App. 366, 372, 595 S.E.2d 773, 777 (2004).
Because Plaintiff failed to exhaust his state
administrative rights, neither a North Carolina state court nor
this court has subject matter jurisdiction over this claim.
Thus, his state wrongful termination claim (Count V) will be
dismissed.
Additionally, while Defendant did not raise the issue of
Plaintiff’s potential failure to exhaust administrative remedies
for his ADA claims, this court will address this concern. There
is a mismatch between the accommodation alleged in the Amended
Complaint — a late arrival time (Am. Compl. (Doc. 16) ¶ 15) —
and the accommodation in the EEOC charge — a desk job. (Ex. A,
EEOC Charge (Doc. 16-1) at 1.)
Sydnor v. Fairfax County, Virginia, 681 F.3d 591 (4th Cir.
2012), specifically addresses mismatched accommodation requests.
See id. at 593. At summary judgment, the plaintiff’s alleged
reasonable accommodation was working with a wheelchair. Id.
However, the defendant argued that this was not in her EEOC
charge, as she told the EEOC the “sole accommodation . . . she
had requested was light duty work.” Id.
The Fourth Circuit discussed the importance of balancing
the need for notice to employers with the need to prevent
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technicalities from derailing legitimate complaints. See id. at
594. It concluded that the accommodation mismatch alone did not
indicate a failure to exhaust administrative remedies because
“[t]he touchstone for exhaustion is whether plaintiff’s
administrative and judicial claims are ‘reasonably related,’ not
precisely the same, and there are sufficient similarities
between the two to find this requirement satisfied here.” Id. at
595.
The similarities included that both sets of allegations
“involved the same place of work and the same actor,” rather
than “shifting sets and a rotating cast of characters that would
have deprived her former employer of notice.” Id. (citation
omitted). Further, both sets of allegations “focused on the same
type of discrimination” — “fail[ure] to provide a reasonable
accommodation” — rather than adding new types of discrimination,
such as age, sex, or race. Id. Additionally, the plaintiff did
not change or add to her description of her disability. Id.
Differences between the two sets involved the type of work each
accommodation would entail. Id. at 595-96. On balance, however,
the court determined that
[the] different proposals are linked together by a
similarity — whatever the task, [plaintiff] faced the
same difficulties in walking . . . and needed some
form of accommodation. Because one logical
accommodation for this specific disability was the use
of a wheelchair, the [defendant] should not have been
caught off guard when it was eventually raised. We
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therefore believe that this particular distinction
does not overcome the significant similarities in this
case that support a finding of exhaustion.
Id. at 596.
In summary, key considerations include: (a) the actors and
work context, (b) the underlying type of discrimination, (c) the
underlying disability, and (d) any logical links between the
disability and the proposed accommodations or between the
accommodations and the facts themselves, such that the employer
would be afforded ample notice. See id. at 594-97; cf. Chacko v.
Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005) (“We hold that
a plaintiff fails to exhaust his administrative remedies where,
as here, his administrative charges reference different time
frames, actors, and discriminatory conduct than the central
factual allegations in his formal suit.”); Tavares v. United
Airlines, Civil Action No. 1:14-cv-1121, 2015 WL 5026197, at *5
(E.D. Va. Aug. 24, 2015) (district court identifying three
situations where EEOC charge allegations are insufficient: a
different basis of discrimination, a different type of
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discrimination, and different time frames, actors, and conduct),
appeal docketed, No. 15-2129 (4th Cir. Sept. 24, 2015).4
At this stage, it appears clear that the same actor is
involved (Principal Hawks) in the same context (Plaintiff’s work
at DSA). (Ex. A, EEOC Charge (Doc. 16-1) at 1.) While the EEOC
charge only states “my medical condition,” (id.), there is no
indication that a different medical condition exists,
particularly given that Plaintiff’s medical allegations rest on
a doctor’s letter from late 2012. (Am. Compl. (Doc. 16) ¶ 12.)
Some difficulty arises, however, in whether Plaintiff put his
employer on notice that a different accommodation from that
listed in the EEOC charge (desk job) would arise from reasonable
investigation. At this stage, taking all reasonable inferences
in Plaintiff’s favor, it appears that Defendant generally was on
4
Brown v. Huntington Ingalls, Inc., Civil Action No.
4:13cv26, 2013 WL 5591932 (E.D. Va. July 25, 2013), also
addressed the scope of an EEOC charge:
As our circuit’s decisions make clear, any test
to determine what is “reasonably related” must reflect
that the three methods for defining the scope of an
EEOC charge (explicitly stated, reasonably related,
and reasonable investigation) are intricately
connected. These phrases are not three independent
elements, but three separate ways to define the scope
of an EEOC charge.
Id. at *6 (citation omitted). Again, the focus is clear: the
EEOC charge and the complaint must be similar enough that an
employer would have been on notice and the administrative
process truly would have been exhausted, as required, with
respect to the claim the plaintiff seeks to bring.
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notice of the disability and of the reasonable accommodations
that could result. This court notes the differences between a
desk job accommodation and a late arrival accommodation but
determines that, because reasonable investigation of an alleged
denial of a medical accommodation would have revealed the letter
allegedly requesting a late arrival, Plaintiff meets the
exhaustion requirement and is properly before this court.
III. FAILURE TO STATE A CLAIM
A.
Legal Standard
Defendant also moves to dismiss Plaintiff’s claims pursuant
to Rule 12(b)(6). To survive a motion to dismiss, Plaintiff must
allege “sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’ ” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). To be facially plausible, a
claim must “plead[] factual content that allows the court to
draw the reasonable inference that the defendant is liable” and
must demonstrate “more than a sheer possibility that a defendant
has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). A
court must accept the complaint’s factual allegations as true
when ruling on a Rule 12(b)(6) motion. Id. Further, “the
complaint, including all reasonable inferences therefrom, [is]
liberally construed in the plaintiff's favor.” Estate of
Williams-Moore v. All. One Receivables Mgmt., Inc., 335 F. Supp.
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2d 636, 646 (M.D.N.C. 2004) (citing McNair v. Lend Lease Trucks,
Inc., 95 F.3d 325, 327 (4th Cir. 1996)). However, this “does not
mean that the court can ignore a clear failure in the pleadings
to allege any facts [that] set forth a claim.”
Id. at 646. A
court does not accept mere legal conclusions as true and
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678.
B.
Violation of Title VII of the Civil Rights Act of
1964 - Race Discrimination (Count I)
Defendant moves to dismiss Plaintiff’s Title VII race
discrimination claim for three reasons: (1) lack of subject
matter jurisdiction;5 (2) failure “to allege the required
elements of a prima facie case of either disparate treatment or
retaliation;” and (3) because “the allegations are vague and
conclusory and they fail to state facts sufficient to meet the
plausibility standard.” (Def.’s Mot. (Doc. 17) ¶¶ 3-4.)
Plaintiff counters that “Defendant’s argument is faulty at best
because it relies solely on a prima facie standard.” (Pl.’s Mem.
(Doc. 19) at 7.)
5
Defendant interpreted Plaintiff’s Amended Complaint as
including a race-based retaliation claim. However, in the
January 6, 2016 hearing, Plaintiff clarified that he only seeks
to include a race discrimination claim and thus any arguments
surrounding a supposed race retaliation claim are moot.
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In the Title VII context, although Plaintiff is not
required to meet the McDonnell Douglas evidentiary standard of a
prima facie case of discrimination, he nevertheless must “state
a plausible claim for relief under Title VII.” McCleary-Evans v.
Md. Dep’t of Transp., State Highway Admin., 780 F.3d 582,
584-85, 588 (4th Cir. 2015) (citations omitted), petition for
cert. filed, 84 U.S.L.W. 3260 (U.S. Aug. 26, 2015)(No. 15-573);
see also Wright v. North Carolina, 787 F.3d 256, 264 n.4 (4th
Cir. 2015); Craddock v. Lincoln Nat’l Life Ins. Co., 533 F.
App’x 333, 336 n.3 (4th Cir. 2013).
While Plaintiff cites Prince-Garrison v. Maryland
Department of Health and Mental Hygiene, 317 F. App’x 351 (4th
Cir. 2009), for the proposition that a prima facie standard is
not required, (Pl.’s Mem. (Doc. 19) at 7), the case states in
full that, while a “civil rights plaintiff need not plead facts
that constitute a prima facie case under the framework of
McDonnell Douglas Corp. v. Green, in order to survive a motion
to dismiss[,] . . . the plaintiff retains the burden to allege
facts sufficient to state all the elements of her claim.” 317 F.
App’x at 353 (emphasis added) (citations omitted); see also
Johnson v. Angels, No. 1:14-cv-1087, 2015 WL 5009276, at *3
(M.D.N.C. Aug. 21, 2015) (citing McCleary-Evans, 780 F.3d at
585).
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Thus, a complaint must “state[] a plausible claim for
relief” that “permit[s] the court to infer more than the mere
possibility of misconduct” based upon “its judicial experience
and common sense.” Iqbal, 556 U.S. at 679. Under this standard,
“[a] ‘sheer possibility’ of termination based on race . . . is
insufficient to withstand a Rule 12(b)(6) challenge.” Johnson,
2015 WL 5009276, at *3 (citation omitted). Rather, the specific
facts alleged should raise an inference of discrimination.
Jordan v. Alt. Res. Corp., 458 F.3d 332, 346 (4th Cir. 2006),
overruled on other grounds by Boyer-Liberto v. Fontainebleau
Corp., 786 F.3d 264 (4th Cir. 2015) (overruling holding on
isolated incidents of harassment in hostile work environment
claims).6
6
Covington v. Randolph Hosp., Inc., 1:15CV343, 2015 WL
7755445 (M.D.N.C. Dec. 1, 2015), summarizes the current standard
succinctly:
In Title VII cases, a plaintiff does not need to
plead a prima facie case of race discrimination in
order to survive a motion to dismiss. But a plaintiff
cannot simply plead facts that are “consistent with
discrimination.” Instead, the plaintiff must “allege
facts to satisfy the elements of a cause of action
created by that statute.” Thus, if an employee claims
to have suffered an adverse employment action, she
must plead facts to raise a plausible inference that
she suffered the adverse action “because of [her]
race.”
Id. at *3 (alterations in original) (citing McCleary-Evans, 780
F.3d at 585).
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“Absent direct evidence, the elements of a prima facie case
of discrimination under Title VII are: (1) membership in a
protected class; (2) satisfactory job performance; (3) adverse
employment action; and (4) different treatment from similarly
situated employees outside the protected class.” Coleman v. Md.
Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010).
Sufficient facts allow courts to infer that a plaintiff was
discriminated against on racial grounds. Cf. Johnson, 2015 WL
5009276, at *3 (“[A] plaintiff is ‘required to allege facts to
satisfy the elements of a cause of action created by [Title
VII].’ Here, to state a claim of racially discriminatory
discharge, [Plaintiff] is required to allege sufficient facts to
establish a plausible basis for believing that she was
discharged ‘because of [her] race.’” (citations omitted)).
Correspondingly, facts insufficient to reasonably infer
discrimination, suggesting instead only “[a] ‘sheer possibility’
of termination based on race, [are] insufficient to withstand a
Rule 12(b)(6) challenge.” Id. In those cases, plaintiffs fail to
allege sufficiently that race, instead of some other factor, was
the true reason for their termination. See Coleman, 626 F.3d at
191 (holding plaintiff insufficiently pled discrimination where
the complaint “fail[ed] to establish a plausible basis for
believing [another employee] and [plaintiff] were actually
similarly situated or that race was the true basis for
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[plaintiff’s] termination”). Thus, to survive, a claim must
allow the court to “discern” that the plaintiff’s “race factored
into his termination.” Jordan, 458 F.3d at 346-47; see Johnson,
2015 WL 5009276, at *3 (identifying as problematic a failure to
“allege[] the race of any other employee” discussed in the case
because, “[w]ithout this information, the Court is unable to
draw a reasonable inference that Defendants fired [her] because
of her race”).
Given the standard of review and reasonable inferences
allocated to nonmoving parties, Plaintiff’s allegations are
sufficient to survive Defendant’s 12(b)(6) motion. He indicates
that race factored into his termination, specifically alleging
that “students of the Autism/COPE program have left the premises
of DSA unattended on multiple occasions, and Caucasian employees
responsible for the supervision of said students were not
terminated” and that “a student under the care and supervision
of Ms. Weaver, a Caucasian teacher, ran away multiple times and
had to be pursued . . . . [and she] was not written-up or
terminated, but instead was allowed to transfer.” (Am. Compl.
(Doc. 16) ¶¶ 69-71.) Allegations of disparate racial treatment
are also in Plaintiff’s EEOC Charge of Discrimination. (Ex. A,
EEOC Charge (Doc. 16-1) at 2.) Whether these allegations are
true is a matter for a later determination. For purposes of this
Rule 12(b)(6) motion, however, the allegations move his
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complaint from merely showing the termination of an African
American employee, (Am. Compl. (Doc. 16) ¶ 1), to a plausible
claim that his race factored into his termination.
Plaintiff also sufficiently alleges satisfactory job
performance. All paragraphs referring to unsatisfactory job
performance are in dispute, (see Am. Compl. (Doc. 16)), and
reasonable inferences must be made in Plaintiff’s favor. See,
e.g., Dickinson v. Univ. of N.C., 91 F. Supp. 3d 755, 762
(M.D.N.C. 2015). As to claims not in dispute, Plaintiff alleges
he was originally hired in September 1999, promoted in February
2001, and served as head baseball coach at the middle school.
(Am. Compl. (Doc. 16) ¶¶ 8, 9, 21.) His reassignment to DSA
occurred not because of performance issues, but so “he could
provide assistance with a problem child in the Autism/COPE
program.” (Id. ¶ 17.) Acting in concert, the allegations that he
was employed by Defendant for over fourteen years and was
subsequently promoted, that his reassignment was based on his
skills rather than performance issues, and that he was trusted
to lead an extracurricular team, suggest it is plausible that
his prior performance is indicative of his performance at the
time of termination. Cf. Goode v. Cent. Va. Legal Aid Soc’y,
Inc., 807 F.3d 619, 626 (4th Cir. 2015) (finding that the
plaintiff “could have amended his complaint to add factual
allegations to satisfy the standards,” and listing potential
-22-
allegations he could have added to do so, such as, “that he had
‘always met or exceeded the performance expectations’” or
“referenced positive feedback or performance reviews that he had
received”). More importantly, when assessing his performance at
the time of termination, rather than in the past, allegations of
negative conduct are in dispute.
Further, there is no repeated pattern of negative behavior
for which Plaintiff was fired.7 The stated reason for termination
was “failure to maintain the safety of assigned students and
provide adequate supervision.” (Am. Compl. (Doc. 16) ¶ 64.) The
Amended Complaint only includes one situation satisfying these
criteria — the October 30, 2013 incident, (id. ¶¶ 31-39), and
the legitimacy of that situation is in dispute. Further, while
Plaintiff emphasizes his past work history and promotion, he
also specifically alleges that he cared for the children under
his supervision, that the child left behind at the track was
under another person’s supervision, and that he was in fact
fulfilling these expectations regarding care and supervision at
7
While Defendant contends that the corrective actions
regarding Plaintiff’s sign-in-and-out times shows repeated
failure to meet his employer’s legitimate expectation that he
arrive on time, the stated reason for termination was failure to
properly supervise students and is alleged to correlate to the
October 30th incident.
-23-
the time of his termination.8 Thus, for Rule 12(b)(6) purposes,
Plaintiff sufficiently alleged that he was fulfilling his
employer’s reasonable expectations at the time of termination.
Finally, there is no dispute that Plaintiff is a member of
a protected racial class and that he suffered an adverse
employment action. For these reasons, Plaintiff’s Title VII
racial discrimination claim will survive Defendant’s motion to
dismiss.
C.
Violation of the Americans with Disabilities Act of
1990 - Failure to Accommodate; Retaliation; and
Wrongful Discharge
Defendant argues that Plaintiff’s ADA claims should be
dismissed because his complaint “fail[s] to allege the required
elements of claims under the ADA for failure to accommodate,
retaliation, and wrongful discharge.” (Def.’s Mem. (Doc. 17)
¶ 5.) Plaintiff counters that Defendant cannot use a prima facie
standard since “a civil rights plaintiff need not plead facts
that constitute a prima facie case . . . to survive a motion to
dismiss.” (Pl.’s Mem. (Doc. 19) at 11.)
Both wrongful discharge and failure to accommodate “require
a showing that [the plaintiff] was ‘disabled’ within the meaning
8
Additionally, to the extent that the stated reason for
termination may have basis in fact, Plaintiff’s allegations
regarding other employees not being terminated for similar
conduct lends credence to the argument that a single incident
was not a sufficient break from expectations to result in
termination. However, as the incident is in dispute, this court
will focus on that argument.
-24-
of the ADA.” Rhoads v. F.D.I.C., 257 F.3d 373, 387 (4th Cir.
2001) (citations omitted); see 42 U.S.C. § 12112(a). Disability
includes “a physical or mental impairment that substantially
limits one or major life activities of such individual.” 42
U.S.C. § 12102(1)(A).9 Plaintiff alleges he is a qualified
individual with a disability due to his “hypertension, diabetes,
hypercholesterole[m]ia, obstructive sleep apnea, general
osteoarthritis, and chronic pain.” (Am. Compl. (Doc. 16) ¶¶ 85,
110.) Defendant does not contest these medical conditions. (See
Def.’s Mem. (Doc. 18) at 14, 16-17.) Thus, this court will
consider Plaintiff’s three ADA claims: failure to accommodate,
retaliation, and wrongful discharge.
1.
Failure to Accommodate (Count II)
The elements of a failure to accommodate claim require
Plaintiff to plausibly allege “(1) that he was an individual who
had a disability within the meaning of the statute; (2) that the
[employer] had notice of his disability; (3) that with
reasonable accommodation he could perform the essential
functions of the position . . . ; and (4) that the [employer]
refused to make such accommodations.” Wilson v. Dollar Gen.
Corp., 717 F.3d 337, 345 (4th Cir. 2013) (citations omitted). “A
job function is essential when ‘the reason the position exists
9
Section 12102 further defines “major life activities.”
§ 12102(2)(A).
-25-
is to perform that function,’ . . . or when the function is so
specialized that someone is hired specifically because of his or
her expertise in performing that function.” Jacobs v. N.C.
Admin. Office of the Courts, 780 F.3d 562, 579 (4th Cir. 2015)
(citation omitted).
Defendant was on notice from a doctor’s letter. (Am. Compl.
(Doc. 16) ¶ 86; Def.’s Mem. (Doc. 18) at 14 (arguing only that
Plaintiff failed to adequately plead that he could perform the
essential functions of the position and not challenging the
employer notice requirement).) If, however, Plaintiff “fails to
allege facts demonstrating that he could have performed his
job’s essential functions with reasonable accommodation,
dismissal of [his] claim under Rule 12(b)(6)” would be proper.
Cabrera Mejia v. Wal-Mart, No. 1:14CV237, 2014 WL 5531432, at *2
(M.D.N.C. Nov. 3, 2014), aff’d, 599 F. App’x 520 (4th Cir.
2015).
Cabrera Mejia v. Wal-Mart, No. 1:14CV237, 2014 WL 5531432
(M.D.N.C. Nov. 3, 2014), aff’d, 599 F. App’x 520 (4th Cir.
2015), emphasized the “specificity required” for failure to
accommodate claims. Id. at *3. Illustratively, it dismissed a
complaint that alleged “a request for some unknown
accommodation” without any “details as to whether the requested
accommodation was plausible or even what it was” and also
“fail[ed] to provide even the most basic details about his job,
-26-
let alone that he could have performed its essential functions.”
Id. at *3 (citations omitted).
As to the necessary accommodation, Plaintiff alleges the
doctor’s letter “explained that [Plaintiff] needed adequate time
in the morning to eat and take his medications before arriving
at work. . . . [and t]herefore . . . suggested that [Defendant]
make the accommodation to allow [his] work day to begin at 9:00
AM.” (Am. Compl. (Doc. 16) ¶ 15.) Although his EEOC charge
contains a request for a desk job accommodation, (Ex. A, EEOC
Charge (Doc. 16-1) at 1), the Sydnor analysis compels this court
to find that a mismatch alone does not necessitate dismissal at
this stage. See 681 F.3d at 594-97.
As a “Crisis Manager Technician,” Plaintiff “provide[d]
assistance with a problem child in the Autism/COPE program,”
cared for children, including supervision and helping change
diapers, and “ensur[ed] students boarded their designated buses
in the afternoon.” (Am. Compl. (Doc. 16) ¶¶ 9, 17, 20, 31, 33,
43.) He also specifically alleges that his purpose at DSA was to
“provide assistance with a problem child in the Autism/COPE
program.” (Id. ¶ 17.)
Based on these assertions, Plaintiff further alleges the
plausibility of his proposed accommodation: “The accommodation
sought was reasonable because Defendant had multiple staff with
the capacity to fill Plaintiff’s duties until his arrival at
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9:00 AM.” (Id. ¶ 88.) Because Plaintiff provides details about
the job and its essential functions, namely, supervising
children during the school day, Defendant’s claim that Plaintiff
does not allege additional information about his job function is
without merit. (See Def.’s Mem. (Doc. 18) at 15.)
At this stage, taking plausible inferences in his favor,
Plaintiff also sufficiently alleges Defendant’s refusal to make
the requested accommodation. (See id. at 14 (arguing only about
the sufficiency of Plaintiff’s allegations about essential
functions, not the employer’s refusal to make the
accommodation(s)); Am. Compl. (Doc. 16) ¶ 89.) Despite alleging
a request for a late arrival accommodation in November 2012, and
receiving a clarification request from Human Resources,10 as of
April 19, 2013, Plaintiff was expected to “be present [at work]
from 8:15 AM until 3:45 PM during the work day.” (Am. Compl.
10
This request appears to be an attempt to fulfill “[t]he
duty to engage in an interactive process to identify a
reasonable accommodation [that] is generally triggered when an
employee communicates to his employer his disability and his
desire for an accommodation for that disability.” Wilson v.
Dollar Gen. Corp., 717 F.3d 337, 346-47 (4th Cir. 2013)
(citation omitted); see also Haneke v. Mid-Atl. Capital Mgmt.,
131 F. App’x 399, 400 (4th Cir. 2005) (“Implicit in the fourth
element is the ADA requirement that the employer and employee
engage in an interactive process to identify a reasonable
accommodation.” (citation omitted)). Further, based on the
allegations, there is no indication that the employer’s duty to
engage in this process collapsed. Wilson, 717 F.3d at 347.
-28-
(Doc. 16) ¶ 20).11 If Plaintiff’s accommodation request had been
granted — to have his work day begin at 9:00 a.m., (id. ¶ 15) —
then he would not be required to be at work by 8:15 a.m. (See
id. ¶ 20.) Consequently, even without a formal denial from Human
Resources, Plaintiff’s accommodation request had been
effectively denied, as he was not permitted to arrive late.
Defendant further emphasizes that the stated grounds for
termination do not implicate the requested accommodation. (See
Def.’s Mem. (Doc. 18) at 15.) However, this causal connection is
not an element of a failure to accommodate claim. Thus,
11
Although, confusingly, Plaintiff’s EEOC Charge of
Discrimination details a completely different requested
accommodation, charging that his “accommodation for a desk job”
was denied by Principal Hawks without explanation, (Ex. A, EEOC
Charge (Doc. 16-1) at 1 (emphasis added)), the Sydnor analysis which applied specifically to a failure to accommodate claim at
the summary judgment stage — as applied supra, provides a broad
enough umbrella to allow some different accommodations to
proceed.
Further, although Plaintiff alleges that this expectation which would appear to be a denial of his request for an
accommodation — occurred on April 19, 2013, and he did not file
his EEOC charge of discrimination until April 22, 2014, over one
year later, the Supreme Court has held that “filing a timely
charge of discrimination with the EEOC is not a jurisdictional
prerequisite to suit in federal court, but a requirement that,
like a statute of limitations, is subject to waiver, estoppel,
and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455
U.S. 385, 393 (1982). But see Gilreath v. Cumberland Cty. Bd. of
Educ., No. 5:11-CV-627-BR, 2014 WL 3779090, at *4 (E.D.N.C.
July 31, 2014) (“Courts that have analyzed the [continuing
violation] doctrine in connection with failure to accommodate
claims have concluded that the doctrine does not apply.”
(citations omitted)).
-29-
Plaintiff’s failure to accommodate claim is sufficient to
survive this 12(b)(6) motion.
2.
Retaliation (Count III)
Plaintiff’s second ADA claim is retaliation. Under the ADA,
“[n]o person shall discriminate against any individual because
such individual has opposed any act or practice made unlawful by
this chapter . . . .” 42 U.S.C. § 12203(a) (2012). “A
retaliatory discharge claim under the ADA has three prima facie
elements: [the plaintiff] must show (1) that he engaged in
protected activity; (2) that his employer took an adverse action
against him; and (3) that a causal connection existed between
the adverse activity and the protected action.” Haulbrook v.
Michelin N. Am., Inc., 252 F.3d 696, 706 (4th Cir. 2001)
(emphasis removed) (citations omitted).
3.
Wrongful Discharge (Count IV)
Plaintiff’s third ADA claim is wrongful or discriminatory
discharge. A claim of ADA wrongful discharge is sufficiently
pled if the plaintiff plausibly “demonstrate[s] that (1) he ‘was
a qualified individual with a disability’; (2) he ‘was
discharged’; (3) he ‘was fulfilling h[is] employer’s legitimate
expectations at the time of discharge’; and (4) ‘the
circumstances of h[is] discharge raise a reasonable inference of
unlawful discrimination.’” Reynolds v. Am. Nat’l Red. Cross, 701
-30-
F.3d 143, 150 (4th Cir. 2012) (citation omitted); see Haulbrook,
252 F.3d at 702 (citations omitted).
This court will find that Plaintiff fails to allege
sufficiently either a causal link between his protected activity
— requesting an ADA accommodation12 — and his termination, or
that the circumstances of his discharge raise a reasonable
inference of unlawful discrimination, implicating both his
retaliation and his wrongful discharge claims.
This element is far from perfunctory: merely “a conclusory
statement that there was no other reason for [the plaintiff’s]
discharge” is insufficient. Adams v. Shipman, No. 1:13CV858,
2014 WL 4924299, at *7 (M.D.N.C. Sept. 30, 2014); see Rocha v.
Coastal Carolina Neuropsychiatric Crisis Servs., P.A., 979 F.
Supp. 2d 670, 679 (E.D.N.C. 2013).
Under this prong, employers remain free to take adverse
employment actions when the action and the disability are truly
unrelated. Cf. Williams v. Brunswick Cty. Bd. of Educ., 725 F.
Supp. 2d 538, 547 (E.D.N.C. 2010) (holding employer did not take
action against plaintiff because of her disease; instead, the
working relationship deteriorated over time for other reasons).
12
An allegation that the plaintiff requested an
accommodation can sufficiently allege protected conduct at the
12(b)(6) stage. Dickinson v. Univ. of N.C., 91 F. Supp. 3d 755,
769 (M.D.N.C. 2015); cf. Manson v. N.C. A&T State Univ., No.
1:07CV867, 2008 WL 2987071, at *8 (M.D.N.C. July 31, 2008).
-31-
Consequently, the plaintiff must allege facts suggesting a
reasonable inference of unlawful discrimination, rather than the
mere coincidence of an action against an employee who happens to
be disabled. Additionally, the inference is limited, as “[a]t
the pleading stage, there is no exchange of burdens of proof”
and “evidence tending to show an alternative to discrimination
is inappropriate at this posture.” George v. Roush & Yates
Racing Engines, No. 5:11CV00025-RLV, 2012 WL 3542633, at *5
(W.D.N.C. Aug. 16, 2012) (citation omitted).
When assessing causation,
the discharge of an employee soon after he engages in
a protected activity is “strongly suggestive of
retaliatory motive,” and “gives rise to a sufficient
inference of causation to satisfy the prima facie
requirement.” There is no precise formula as to when
an employer’s actions will trigger application of that
inference.
Coursey v. Univ. of Md. E. Shore, 577 F. App’x 167, 175-76 (4th
Cir. 2014) (citations omitted); see also Lamb v. Qualex, Inc.,
33 F. App’x 49, 60 (4th Cir. 2002) (“Indeed, ‘[a] close temporal
connection between the two events “is generally enough to
satisfy the third element.”’” (citations omitted)). Examples of
sufficiently close temporal proximity between engaging in a
protected activity and an adverse employment action include
seven months in Coursey v. University of Maryland Eastern Shore,
577 F. App’x 167, 175-76 (4th Cir. 2014) (finding defendant also
“present[ed] [plaintiff’s] EEOC complaint as evidence in his
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termination proceedings”), and three weeks in Jacobs v. North
Carolina Administrative Office of the Courts, 780 F.3d 562, 57879 (4th Cir. 2015). However, temporal proximity, by itself, is
not sufficient to allege causation. See Staley v. Gruenberg, 575
F. App’x 153, 156 (4th Cir. 2014); Williams v. Brunswick Cty.
Bd. of Educ., 440 F. App’x 169, 172 (4th Cir. 2011) (discussing
when “temporal proximity . . . [was] purely coincidence”).
A plaintiff may be unable to plead sufficiently where the
employer knew about a disease or disability for several years
before taking any adverse action. Feldman v. Law Enf’t Assocs.
Corp., 955 F. Supp. 2d 528, 546 (W.D.N.C. 2013) (citing
Brewington v. Getrag Corp., Civil No. 5:09CV31-V, 2011 WL
4829399, at *6 (W.D.N.C. Oct. 12, 2011) (on a 12(b)(6) motion to
dismiss, an inference of discrimination could not be established
where employer knew of plaintiff’s disability for approximately
three years before taking adverse action)); cf. Webb v. Med.
Facilities of Am., No. 7:05CV00409, 2005 WL 3547034, at *2 (W.D.
Va. Dec. 28, 2005).
Given these illustrations, Plaintiff fails to sufficiently
allege either that his termination occurred under circumstances
raising a reasonable inference of unlawful discrimination or
-33-
that a causal link exists between his protected activity and his
termination.13
His initial accommodation request occurred “[o]n or about
November 8, 2012,” (Am. Compl. (Doc. 16) ¶ 12), his initial
suspension occurred “[o]n or about November 26, 2013,” (id.
¶ 62), and his notice of termination was sent “[o]n or about
December 17, 2013.” (Id. ¶ 63.)14 Based on Plaintiff’s own
allegations, his suspension occurred a little over a year after
his initial accommodation request. Consequently, he does not
have the benefit of temporal proximity to suggest a causal
connection. Further, unlike Coursey, there is no specific
indication that Plaintiff’s ADA accommodation request played a
role in his termination.15
While plaintiffs need not establish an actual connection at
this stage, Plaintiff here lacks any allegations or inferences
of discriminatory comments, actions, or behavior toward him on
the basis of his ADA disabilities. While he alleges that
13
With respect to his ADA wrongful discharge claim, see
supra for analysis of Plaintiff’s claims with respect to his
Title VII race discrimination claims.
14
Plaintiff further alleges that his disagreements with
Principal Hawks regarding time expectations occurred months
earlier in April 2013. (Am. Compl. (Doc. 16) ¶¶ 20-27.)
15
While this court notes Plaintiff has alleged some
disparate treatment, the allegations at best indicate causation
based on racial discrimination and fail to, even with reasonable
inferences, sufficiently allege causation for ADA retaliation.
-34-
Defendant sought to require him to remain at school for the
entirety of the school day through a sign-in-and-out procedure,
this was in the context of Plaintiff’s afternoon coaching
duties, rather than his need for a late arrival accommodation.
Even when taking as true his claim that the stated reason for
termination is pretextual, the problem remains that Plaintiff
has not alleged sufficient facts to support a plausible
inference that his termination instead arose from a
discriminatory animus towards his disability or accommodation.
Twombly and Iqbal belie the sort of naked assertions Plaintiff
makes, namely: “Defendant’s termination of Plaintiff’s
employment was in temporal proximity to him availing himself of
protected activity under the ADA, seeking a reasonable
accommodation, and raises a reasonable inference of unlawful
discrimination.” (Am. Compl. (Doc. 16) ¶ 113.)
Further, Plaintiff alleges that: (1) his accommodation
request was sent in November 2012, (id. ¶¶ 12-15); (2) he was
reassigned for an unrelated reason, (id. ¶ 17); (3) the
disagreement regarding timeliness expectations began in April
2013, (id. ¶ 20); (4) there was an alleged incident in October
2013, on which Defendant justified termination and about which
Plaintiff disputes a number of facts, (id. ¶¶ 31-41, 52-64), and
(5) Plaintiff received notice of termination in December 2013,
(id. ¶ 63), over a year after his accommodation request. By only
-35-
alleging that an accommodation request occurred, pleading
various other factors in the interim, and then a final
termination decision over a year later, Plaintiff fails to
allege sufficient grounds to make any sort of plausible
inference suggesting unlawful discrimination. His bald
allegation of “temporal proximity” especially fails to withstand
muster.
Because Plaintiff fails to allege sufficiently either that
his discharge occurred under circumstances raising a reasonable
inference of unlawful discrimination or that there is a causal
connection between his accommodation request and his
termination, this court will grant Defendant’s motion with
respect to Plaintiff’s retaliation and wrongful discharge claims
under the ADA.
IV.
CONCLUSION
For the reasons set forth herein, IT IS HEREBY ORDERED that
Defendant’s Motion to Dismiss (Doc. 17) is GRANTED IN PART, in
dismissing Counts III, IV, and V, and DENIED IN PART, in keeping
Plaintiff’s racial discrimination claim in Count I and his
failure to accommodate claim in Count II.
This the 17th day of February, 2016.
______________________________________
United States District Judge
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