# James v. Baldwin County Board of Education

> District Court, S.D. Alabama · May 18, 2022

URL: https://www.frixlaw.com/law-library/cases/10631473

## Case

- **Court:** District Court, S.D. Alabama
- **Decided:** May 18, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10631473

## How later opinions describe it (automated extraction)

- explaining means of proving age discrimination to survive summary judgment
- 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.’ ”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10631473. Public record. Not legal advice.