James v. Baldwin County Board of Education

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MICHAEL R. JAMES, )

Plaintiff, )

)

v. ) CIVIL ACTION NO. 1:22-00031-CG-N

)

BALDWIN COUNTY BOARD OF )

EDUCATION, )

Defendant. )

REPORT AND RECOMMENDATION

This action is before the Court on Defendant Baldwin County Board of

Education’s motion to dismiss pro se Plaintiff Michael R. James’s complaint under

Federal Rule of Civil Procedure 12(b)(6). (Doc. 5). The assigned District Judge

referred this motion to the undersigned Magistrate Judge for appropriate action

under 28 U.S.C. § 636(a)–(b), Federal Rule of Civil Procedure 72, and S.D. Ala. GenLR

72(a). See (Doc. 7); S.D. Ala. GenLR 72(b). James filed a response (Doc. 8), to which

the Board filed a reply (Doc. 11). Upon consideration, the undersigned

RECOMMENDS that the Board’s motion to dismiss (Doc. 5) be GRANTED.

I. Background

Construing James’s pleading liberally in light of his pro se status, the

complaint raises the following grounds for relief: (1) sexual harassment in violation

of Title VII of the Civil Rights Act of 1964 (codified at 42 U.S.C. § 2000e et seq.); (2)

sexual harassment in violation of Title IX (codified at 20 U.S.C. § 1681 et seq.); (3) age

discrimination in violation of the ADEA (codified at 29 U.S.C. §§ 621–634); and (4) 42

U.S.C. § 1983.1 James alleges the following facts (see Doc. 1, PageID.2–5), which are

presented in the light most favorable to him, see Speaker v. U.S. Dep’t of Health &

Hum. Servs. Centers for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir.

2010).

On June 23, 2021, Coach John Hardman of Fairhope Middle School contacted

James to arrange an interview for a special education teacher position. James agreed

and came in for an interview the same day. The first phase of the interview consisted

of James discussing his credentials with Coach Hardman, Assistant Principal Tonya

Harrelson, and Kandis Lightsey.2 James explained his work history and experience

to the panel, at one point mentioning that he was sixty years old. At the conclusion

of the discussion with the panel, Assistant Principal Harrelson escorted James to the

next phase of the interview with Principal Angie Hall. Assistant Principal Harrelson

told James that he should be impressed at his selection to continue the interview with

Principal Hall, as they had already interviewed twenty-five other candidates for the

job.

1 James also mentions missing “several days [of work] . . . in the last few years” due

to various medical conditions in concluding that the Board discriminated against him

on this basis. (See Doc. 1, PageID.5). To the extent this allegation serves as an

attempt to invoke another ground for relief, James’s complaint is insufficient. James

fails to offer (1) any allegation that the Board was aware of his medical conditions

before it made its hiring decision; and (2) any reference to a relevant cause of action

for discrimination based on his potential disability. Further, James’s conclusory

statement must be disregarded in evaluating whether his complaint states a claim

upon which relief may be granted. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

2 James does not specify Lightsey’s job title.

When James arrived at Principal Hall’s office for the second phase of the

interview, she mentioned that James must have really impressed the panel to be

brought directly to her. Principal Hall then stated that she heard some of the

conversation from the initial interview. James chronicled his experience to Principal

Hall, again mentioning that he was sixty years old. Principal Hall then looked to

Assistant Principal Harrelson and asked if she wanted to hire James for the special

education teacher position. Assistant Principal Harrelson indicated her approval.

Principal Hall then directly offered the position to James—without mentioning any

contingency based on reference checks—which he accepted. Principal Hall then

informed James that he would need to resign from his current position with Mobile

County Public Schools by the next day so she could submit his name to the Baldwin

County Board of Education for approval. Lightsey then rejoined James and gave him

a tour of the school.

As James extended his hand to Principal Hall before leaving, she hugged him.

James appeared startled by the encounter, prompting Principal Hall to apologize and

explain that “she was just a hugger.”3

After the interview ended, James resigned from his position with Mobile

County Public Schools. Seven minutes after James submitted his resignation,

Assistant Principal Harrelson called James to rescind the offer to serve as a special

education teacher with Fairview Middle School due to a reference response. James

3 The complaint does not clearly specify when this interaction occurred during the

interview.

asked for additional explanation, but Assistant Principal Harrelson refused. The

position was eventually filled by two of Principal Hall’s sons: Josh and Phillip Hall.

James filed a charge with the EEOC. (See Doc. 1, PageID.7). However, the

EEOC declined to pursue the matter, instead issuing James a right-to-sue letter on

December 2, 2021. (Doc. 1, PageID.7). Fifty-four days later, James filed the present

suit.

II. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a

complaint for “failure to state a claim upon which relief can be granted.” To survive

a motion to dismiss, a complaint must contain “enough facts to state a claim to relief

that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’ ” (citation omitted)). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged . . . .

[This standard] asks for more than a sheer possibility that a defendant has acted

unlawfully.” Id. at 678.

That is, “[f]actual allegations must be enough to raise a right to relief above

the speculative level,” and must be a “ ‘plain statement’ possess[ing] enough heft to

‘sho[w] that the pleader is entitled to relief.’ ” Twombly, 550 U.S. at 555, 557 (second

brackets in original). “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “In

ruling on a 12(b)(6) motion, the Court accepts the factual allegations in the complaint

as true and construes them in the light most favorable to the plaintiff.” Speaker, 623

F.3d at 1379 (citing Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003)).

III. Analysis

a. Title VII Claim

The Board argues that James’s Title VII sexual harassment claim4 fails to

state a claim upon which relief may be granted. Citing the various means of pleading

a viable employment discrimination claim, the Board insists that James “fails to

allege or cite direct evidence of discrimination, disparate treatment based on

meaningful circumstantial and/or comparative data, or other facts creating a

‘convincing mosaic’ of evidence that point to unlawful discrimination . . . .” (Doc. 5,

PageID.54). James being hugged by Principal Hall, in the Board’s view, is not

actionable sexual harassment under Title VII. (Doc. 5, PageID.56). James insists that

4 In his complaint, James alleges that Principal Hall sexually harassed him by

hugging him after his interview. James does not allege or imply that the Board failed

to hire him as a result of his sex or any other classification protected by Title VII or

Title IX. Accordingly, the undersigned construes James’s Title VII and IX claims as

sexual harassment claims rather than more general claims of discrimination based

on sex.

To the extent James alleges the Board retaliated against him for his reaction

to Principal Hall’s alleged sexual harassment, James fails to allege any facts

indicating he engaged in statutorily protected expression or that the Board knew of

his reaction to Principal Hall’s hug before declining to hire him. Cf. Thomas v. Cooper

Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007) (“To establish a prima facie case

of retaliation under Title VII, the plaintiff must show (1) that [he] engaged in

statutorily protected expression; (2) that [he] suffered an adverse employment action;

and (3) that there is some causal relation between the two events.” (internal citation

and quotation marks omitted)).

“[h]ugging, without a doubt, can be construed/interpreted as a type of sexual

harassment, which is easily defined by the EEOC as unwanted and/or an unwelcome

sexual advance, or physical harassment of a sexual nature.” (Doc. 8, PageID.65). “The

person being hugged could see it as sexual and it could cause an intimidating, hostile,

degrading or offensive environment for the person being hugged and trigger a

violation of federal employment law.” (Doc. 8, PageID.64).

To establish a prima facie case of sexual harassment under Title VII, James

would need to demonstrate that (1) he belongs to a protected group; (2) he was subject

to unwelcome sexual harassment; (3) the harassment complained of was based upon

sex; (4) the harassment complained of was “sufficiently severe or pervasive to alter

the terms and conditions of employment”; and (5) there is a basis for holding the

Board liable. See Wilcox v. Corr. Corp. of Am., 892 F.3d 1283, 1286 (11th Cir. 2018)

(quoting Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th Cir.

2010)).5 At the pleading stage, James is only required to allege “enough facts to state

a claim” of sexual harassment “that is plausible on its face.” Twombly, 550 U.S. at

570; Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1246 (11th Cir. 2015).

James’s complaint passes muster on the first two prongs. As a male, James

belongs to a protected class under Title VII. Oncale v. Sundowner Offshore Servs.,

5 The Eleventh Circuit has disclaimed use of the familiar McDonnell-Douglas

framework in non-retaliation sexual harassment cases. See Johnson v. Booker T.

Washington Broad. Serv., Inc., 234 F.3d 501, 511 (11th Cir. 2000) (“We are unwilling

to read the McDonnell Douglas–Burdine framework into non-retaliation sexual

harassment cases at this point. These types of cases have evolved quite separately

from other Title VII cases, and applying a burden-shifting analysis to them would be

a departure from precedent.”).

Inc., 523 U.S. 75, 78 (1998). James also alleges facts sufficient to show that the hug

from Principal Hall was unwelcome, as evidenced by his startled reaction and her

immediate apology. See Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982)

(“In order to constitute harassment, this conduct must be unwelcome in the sense

that the employee did not solicit or incite it, and in the sense that the employee

regarded the conduct as undesirable or offensive.”).

James falls short, however, in alleging facts to establish the third and fourth

prongs for a sexual harassment claim.6 The third prong requires James to plausibly

allege that the harassment complained of was based on his sex. See Wilcox, 892 F.3d

at 1286. More specifically, James must allege facts that prove “but for [his] sex, [he]

would not have been subject to sexual harassment.” Furcron v. Mail Centers Plus,

LLC, 843 F.3d 1295, 1305 (11th Cir. 2016) (citing Henson, 682 F.2d at 904). While

James claims that he viewed the hug as sexual harassment, he does not allege any

facts indicating that Principal Hall subjected him to a hug due to his sex. Without

more, James cannot meet the third element of a sexual harassment claim. See

Henson, 682 F.2d at 904 (noting that in cases “where the conduct complained of is

6 The undersigned need not address whether James alleged a plausible basis for

holding the Board liable (the fifth prong) because, in the absence of any factual

allegations of direct liability, he must first establish an actionable hostile

environment. See Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1278 (11th Cir.

2002) (“An employer ‘is subject to vicarious liability to a victimized employee for an

actionable hostile environment created by a supervisor with immediate (or

successively higher) authority over the employee.’ ” (emphasis added) (quoting

Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998)).

equally offensive to male and female workers . . . sexual harassment would not be

based upon sex . . . .”).

To satisfy the fourth prong of a sexual harassment claim, James must allege

facts showing that he suffered sexual harassment that was severe and pervasive

enough to alter the terms and conditions of employment. See Wilcox, 892 F.3d at 1286.

“The employee must ‘subjectively perceive’ the harassment as sufficiently severe and

pervasive to alter the terms or conditions of employment, and this subjective

perception must be objectively reasonable.” Mendoza v. Borden, Inc., 195 F.3d 1238,

1246 (11th Cir. 1999).

[T]he following four factors . . . should be considered in determining

whether harassment objectively altered an employee’s terms or

conditions of employment: (1) the frequency of the conduct; (2) the

severity of the conduct; (3) whether the conduct is physically threatening

or humiliating, or a mere offensive utterance; and (4) whether the

conduct unreasonably interferes with the employee’s job performance.

Id.

In an unpublished opinion addressing a situation similar to the one James

experienced, the Eleventh Circuit explained that allegations of a “single incident of

misconduct” that was “unaccompanied by sexual suggestiveness or aggression” does

not create an objectively reasonable perception of severe and pervasive harassment.

Arafat v. Sch. Bd. of Broward Cty., 549 F. App’x 872, 874 (11th Cir. 2013) (per curiam)

(unpublished). Here, James alleges only that Principal Hall hugged him and

immediately apologized. Even viewing the facts in the light most favorable to James,

the complaint does not contain any allegation that the hug was accompanied by

sexual suggestiveness or aggression. While James may have subjectively believed

that he suffered sexual harassment, this single incident is insufficient to create an

objectively reasonable perception of sexual harassment. See Faragher v. City of Boca

Raton, 524 U.S. 775, 788 (1998) (noting that “ ‘simple teasing,’ offhand comments,

and isolated incidents (unless extremely serious) will not amount to discriminatory

changes in the ‘terms and conditions of employment.’ ”). Because his factual

allegations fall short of establishing the third and fourth prongs of a viable sexual

harassment claim, James’s Title VII claim is due to be dismissed.

b. Title IX Claim

The Board’s argument against James’s Title IX claim of sexual harassment

largely mirrors their argument against James’s Title VII claim (see Doc. 5,

PageID.53)—as does James’s response in opposition to dismissal (see Doc. 8,

PageID.64–65). Courts generally use the same framework to analyze Title VII and

Title IX sexual harassment claims, see Wolfe v. Fayetteville, Ark. Sch. Dist., 648 F.3d

860, 865 n.4 (8th Cir. 2011) (collecting cases), albeit with the latter statute’s

limitation to educational institutions, see 20 U.S.C. § 1681(a).7 Like a Title VII claim

for sexual harassment, James’s Title IX claim must contain factual allegations

7 Most Eleventh Circuit district courts—including this Court—have held that when

Title VII provides a parallel remedy, a Title IX claim is precluded. See, e.g., Morris v.

Wallace Cmty. College-Selma, 125 F. Supp. 2d 1315, 1343 (S.D. Ala. 2001). But see

Nurradin v. Tuskegee Univ., No. 3:21-CV-00155-SRW, 2022 WL 808693, at *15 (M.D.

Ala. Mar. 16, 2022)(holding that Title IX claim is not precluded by Title VII where

the plaintiff is both an employee and a student of the federally funded educational

institution). Neither the Eleventh Circuit nor the Supreme Court has addressed this

issue. See Sadeghian v. Univ. of S. Alabama, No. CV 18-00009-JB-B, 2018 WL

7106981, at *6 (S.D. Ala. Dec. 4, 2018), report and recommendation adopted, No. CV

18-00009-JB-B, 2019 WL 289818 (S.D. Ala. Jan. 22, 2019). However, Defendant does

not raise that argument here, so the Court need not address it.

showing that (1) he belongs to a protected group; (2) he was subject to unwelcome

sexual harassment; (3) the harassment complained of was based upon sex; (4) the

harassment complained of was “sufficiently severe or pervasive to alter the terms and

conditions of employment”; and (5) there is a basis for holding the Board liable. Cf.

Wilcox, 892 F.3d at 1286 (quoting Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d

798, 808 (11th Cir. 2010)). James must also allege that the Board is “a Title IX

funding recipient.” See Williams v. Bd. of Regents of Univ. Sys. of Georgia, 477 F.3d

1282, 1293 (11th Cir. 2007).8

James’s Title IX sexual harassment claim fails for the same reasons as his Title

VII claim. See supra Section III.a. Further, James does not allege that the Board is

an educational program that receives Title IX funds. Accordingly, James’s claim of

sexual harassment in violation of Title IX is due to be dismissed.

c. Age Discrimination Claim

The Board contends that James failed to plausibly allege that it discriminated

against him due to his age. Specifically, the Board notes that James voluntarily

mentioned his age in passing during both phases of the interview and none of the

interviewers responded negatively. “To the contrary,” the Board argues, James’s

8 The Eleventh Circuit set out this requirement in explaining the elements of an

educational program’s liability for student-on-student sexual harassment. See

Williams, 477 F.3d at 1293. Neither the Eleventh Circuit nor the Supreme Court have

set out the precise elements of a Title IX sexual harassment claim in the employment

context. However, 20 U.S.C. § 1681(a)’s limitation to “any education program or

activity receiving Federal financial assistance” makes clear that a plaintiff must

allege that an educational facility is a recipient of federal funds to establish a

plausible claim of Title IX liability.

allegations indicate that “the screening team enjoyed the interview and

recommended him to the school principal for a second interview”—which James also

claims went well. (Doc. 5, PageID.54–55) (citations omitted). The Board insists that

these are the only facts alleged by James relating to his age, and that his later

“attempts to link his medical history to his age discrimination claim is wholly

conclusory and speculative . . . .” (Doc. 5, PageID.55). In his response, James repeats

this conclusion and predicts that it “will be proven in the discovery process even

though [he] is the one that brought up his age in the interview process.” (Doc. 8,

PageID.66). James also emphasizes that discrimination based on his age—among

other things—is likely because “what other reason could there be for the job offer to

be rescinded in such a short amount of time” after the Board’s employees claimed

there were no issues with his references. (Doc. 8, PageID.66).

The ADEA prohibits employers from refusing “to hire or to discharge any

individual or otherwise discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual’s age . . . .” 29 U.S.C. § 623(a)(1). At the pleading stage, James does not

need to establish a prima facie case. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510

(2002). James is only required to allege “enough facts to state a claim” of age

discrimination “that is plausible on its face.” Twombly, 550 U.S. at 570; Surtain v.

Hamlin Terrace Found., 789 F.3d 1239, 1246 (11th Cir. 2015). James can do this by

plausibly alleging either direct or circumstantial evidence of age discrimination. Cf.

Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir. 2013) (explaining means of proving

age discrimination to survive summary judgment). Nowhere in James’s complaint

does he allege any direct evidence of age discrimination by either a decisionmaker for

the Board or its employees. “[O]nly the most blatant remarks, whose intent could be

nothing other than to discriminate on the basis of age . . . constitute direct evidence

of discrimination.” Van Voorhis v. Hillsborough Cty. Bd. of Cty. Comm’rs, 512 F.3d

1296, 1300 (11th Cir. 2008). James does allege that he mentioned his age at several

points during the interview, but he does not claim that the Board’s employees made

any express remarks indicating age discrimination. Without any allegations of direct

evidence of age discrimination, James must rely on circumstantial evidence.

James’s attempt to plausibly allege circumstantial evidence of age

discrimination fares no better. For James to establish a claim of age discrimination

based on circumstantial evidence, he must allege facts showing either (1) a prima

facie case under McDonnell-Douglas, or (2) a “convincing mosaic” of age

discrimination. Sims, 704 F.3d at 1333. The elements of a prima facie case of age

discrimination under McDonnell-Douglas are “(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.” Turlington v. Atlanta Gas Light Co.,

135 F.3d 1428, 1432 (11th Cir. 1998).

James’s allegations satisfy the first two prongs of a McDonnell-Douglas age

discrimination claim, as he asserts that he was sixty years old at the time he applied

for the position with the Board (see Doc. 1, PageID.2) and that he suffered an adverse

employment action when the Board refused to hire him (see Doc. 1, PageID.3). James

also satisfies the fourth prong by plausibly alleging that he was qualified for the

special education position with Fairhope Middle School, as evidenced by his fifteen

years of teaching experience and background in educating at-risk youth. (See Doc. 1,

PageID.2). However, he fails to plausibly allege that a younger person was hired

instead of him. While James does allege that Principal Hall’s sons were hired to fill

the special teacher job, he does not mention how old they were. See Morris v. Emory

Clinic, Inc., 402 F.3d 1076, 1083 (11th Cir. 2005) (per curiam) (affirming dismissal of

an ADEA claim where the plaintiff failed to identify a younger individual hired to

replace him). Accordingly, James’s ADEA claim fails under McDonnell-Douglas.

Aside from the McDonnell-Douglas framework, James’s ADEA claim can

survive a motion to dismiss if he establishes a “convincing mosaic” of age

discrimination with plausible allegations of “(1) ‘suspicious timing, ambiguous

statements . . . . and other bits and pieces from which an inference of discriminatory

intent might be drawn,’ (2) systematically better treatment of similarly situated

employees, and (3) that the employer’s justification is pretextual.” See Lewis, 934 F.3d

at 1185 (11th Cir. 2019) (quoting Silverman v. Bd. of Educ. of City of Chi., 637 F.3d

729, 734 (7th Cir. 2011)).

James fails to plead a viable ADEA claim under this theory as well. While

James’s claim that Assistant Principal Harrelson called to rescind the job offer

shortly after an allegedly positive interview is suspicious, the complaint contains no

other allegations linking this failure to hire to James’s age. By James’s own account,

he mentioned his age twice during the interview and received no negative reaction

from any employee of the Board. Further, the complaint fails to identify the age of

Josh and Phillip Hall, eliminating another means to raise an inference of age

discrimination. Cf. Tsavaris v. Savannah L. Sch., LLC, 847 F. App’x 634, 640 (11th

Cir. 2021) (affirming dismissal of ADEA claim where, among other things, employee

failed to identify relevant comparator). Even viewing these allegations in the light

most favorable to James, he fails to plausibly allege any facts allowing for a

reasonable inference of age discrimination. Accordingly, James’s ADEA claim should

be dismissed.

d. § 1983 Claim

The Board argues James’s § 1983 claim is due to be dismissed because it never

“knew of or had any opportunity to act on [James’s] application . . . .” (Doc. 5,

PageID.57). Only the Board has authority to fire or hire employees, and the actions

of a “subordinate, non-policymaking employee” cannot sustain a § 1983 action for

illegal actions during a hiring process. (Doc. 5, PageID.58). James acknowledges that

“[w]ith the job offer being rescinded the same day the job was offered . . . [his] name

was never put before the Baldwin County Board of Education.” (Doc. 8, PageID.65).

However, James emphasizes that the Board has a pattern of “tyrannical actions” and

demonstrated nepotism in hiring Principal Hall’s sons for the special education

teacher position. (Doc. 8, PageID.65–66).

To plead a viable § 1983 claim, James must allege facts showing “(1) that the

act or omission deprived [him] of a right, privilege or immunity secured by the

Constitution or laws of the United States, and (2) that the act or omission was done

by a person acting under color of law.” Bannum, Inc. v. City of Fort Lauderdale, 901

F.2d 989, 996–97 (11th Cir. 1990). However, in targeting a local government entity

like the Board, James “cannot rely upon the theory of respondeat superior . . . .”

McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004) (citing Monell v. Dept. of

Soc. Servs., 436 U.S. 658, 692 (1978)). In other words, the Board “does not incur §

1983 liability for injuries caused solely by its employees.” Id. The Eleventh Circuit

explained that a local government entity can be held liable for an “employment

decision, such as a termination, provided that the decisionmaker ‘possesses final

authority to establish municipal policy with respect to the action ordered.’ ” Quinn v.

Monroe Cty., 330 F.3d 1320, 1325 (11th Cir. 2003) (quoting Pembaur v. City of

Cincinnati, 475 U.S. 469, 481 (1986)).

James’s allegations fall short of § 1983’s requirements. As for the first element

of a § 1983 claim, James does not specify which federal law or constitutional provision

the Board violated. James cites several federal laws—Title VII, Title IX, and the

ADEA—at the beginning of his complaint, but he does not identify which statute

forms the basis for his § 1983 complaint. Further, James fails to plausibly allege that

a decisionmaker for the Board took any action in failing to hire him. James’s

allegations focus on the actions of Principal Hall and other employees of the Board—

none of which he alleges have the final decision-making authority of the Board to hire

employees. James concedes as much in his response, admitting that given the short

period of time between his interview and Assistant Principal Harrelson’s call

informing him that he did not get the job, his ”name/resume was never put before”

the Board. (Doc. 8, PageID.65). Without any allegations rising beyond a respondeat

superior theory of liability for the Board, James cannot maintain a § 1983 claim

against it. See McDowell, 392 F.3d at 1289. Accordingly, James’s § 1983 claim should

be dismissed.

IV. Conclusion

Because James failed to allege facts demonstrating plausible claims under

Title VII, Title IX, the ADEA, and § 1983, the undersigned RECOMMENDS that the

Board’s motion to dismiss under Rule 12(b)(6) (Doc. 5) be GRANTED. However,

“[w]hen it appears that a pro se plaintiff’s complaint, if more carefully drafted, might

state a claim, the district court should give the pro se plaintiff an opportunity to

amend his complaint instead of dismissing it with prejudice.” Jemison v. Mitchell,

380 F. App’x 904, 907 (11th Cir. 2010) (per curiam) (unpublished) (emphasis added)

(citing Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991) (per curiam) (“Where a more

carefully drafted complaint might state a claim, a plaintiff must be given at least one

chance to amend the complaint before the district court dismisses the action with

prejudice.”), overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d

541, 542 (11th Cir. 2002) (en banc) (overruling Bank as to counseled parties)). Here,

the undersigned RECOMMENDS that James be given an opportunity to amend his

complaint to cure the deficiencies noted above.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the

manner provided by law. Any party who objects to this recommendation or anything

in it must, within fourteen (14) days of the date of service of this document, file

specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed.

R. Civ. P. 72(b); S.D. Ala. GenLR 72(c). The parties should note that under Eleventh

Circuit Rule 3-1, “[a] party failing to object to a magistrate judge’s findings or

recommendations contained in a report and recommendation in accordance with the

provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district

court’s order based on unobjected-to factual and legal conclusions if the party was

informed of the time period for objecting and the consequences on appeal for failing

to object. In the absence of a proper objection, however, the court may review on

appeal for plain error if necessary in the interests of justice.” 11th Cir. R. 3-1. In order

to be specific, an objection must identify the specific finding or recommendation to

which objection is made, state the basis for the objection, and specify the place in the

Magistrate Judge’s report and recommendation where the disputed determination is

found. An objection that merely incorporates by reference or refers to the briefing

before the Magistrate Judge is not specific.

DONE this 18th day of May 2022.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE