Oliver

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

CHERRYL OLIVER, )

)

Plaintiff, )

)

v. ) Civil Action No: 2:24-cv-275-ECM-SMD

)

ERIC MACKEY and JAMES WARD, )

)

Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

On May 7, 2024, pro se Plaintiff Cherryl Oliver (“Oliver”) filed a complaint against

Defendants Eric Mackey (“Mackey”), superintendent of the Alabama Department of

Education (“ALSDE”), and James Ward (“Ward”), Associate General Counsel for the

ALSDE,1 alleging claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42

U.S.C. § 2000e et seq. Compl. (Doc. 1) p. 1. She amended her complaint one week later.

Am. Compl. (Doc. 5). Oliver also moved to proceed in forma pauperis, and the undersigned

granted her request. Mots. (Docs. 3, 8); Order (Doc. 9).

Pursuant to 28 U.S.C. § 1915(e),2 the undersigned reviewed Oliver’s amended

complaint, found that it failed to meet federal pleading standards, and ordered her to amend.

Order (Doc. 10). Oliver then filed a second amended complaint, which the undersigned

1 Oliver did not allege Ward’s specific employment relationship with the ALSDE in her complaint or in

subsequent documents. However, in Ward’s motion to dismiss, he identifies himself as Associate General

Counsel for the ALSDE. Mot. (Doc. 24) p. 1.

2 When a plaintiff files an application or motion to proceed in forma pauperis, the court must review the

complaint under 28 U.S.C. § 1915. See Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 (11th Cir.

2004).

construed as an attempt to state Title VII and due process claims. 2d Am. Compl. (Doc.

11), Rec. (Doc. 16). Because the second amended complaint once again failed to comply

with federal pleading standards, the undersigned recommended that it be dismissed without

further opportunity to amend. Rec. (Doc. 16) pp. 5-7. Additionally, the undersigned found

that the second amended complaint should be dismissed because it failed to state a Title

VII claim and because the due process claim was time barred. Id. at 5-10.

Oliver objected to the recommendation, Obj. (Doc. 17), asserting that it was

factually flawed because Ward and Mackey wrongfully revoked her teaching certificate

twice: the first time in 2020 and the second time in July 2022. Obj. (Doc. 17). The

undersigned then withdrew the recommendation, noting that if Oliver was attempting to

assert a due process claim on the second revocation, it would not necessarily be time barred.

Rec. (Doc. 19) p. 3. After withdrawing the recommendation, the undersigned lifted the stay

of service previously imposed. Id.

Ward and Mackey now move to dismiss the second amended complaint. Mot. (Doc.

24). In their motion, Ward and Mackey construe the second amended complaint as an

attempt to state a Title VII claim, a Fourteenth Amendment equal protection claim, and

various state-law claims. Id. at 2. They do not construe the second amended complaint to

state a due process claim. Id. However, as explained below, the undersigned recommends

that the second amended complaint be construed as an attempt to state Title VII, due

process, and equal protection claims; that Ward and Mackey’s motion to dismiss the Title

VII and equal protection claims be granted; that Ward and Mackey’s motion to dismiss any

state-law claims be denied as moot; and that Oliver’s due process claim, as construed,

remain pending.

I. FACTUAL ALLEGATIONS3

Oliver is a 55-year-old, African American teacher who held teaching certificates in

Alabama and Georgia. 2d Am. Compl. (Doc. 11) p. 2. In April 2020, Oliver began the

process of renewing her Alabama teacher’s certificate. Id. She completed her application

packet and expected to receive her renewal certificate by the end of September 2020. Id.

However, in December 2020, Oliver discovered that her teaching certificate had been

revoked. Id. at 3. She speculates that the revocation occurred because Mackey retaliated

against her for complaining about the ALSDE in a letter to Governor Kay Ivey. Id.

Oliver appealed the revocation to the Montgomery County Circuit Court on April

9, 2021. Defs.’ Ex. 2 (Doc. 24-2) pp. 1-6. Because the state court found that resolution of

the dispute turned on “disputed facts,” it vacated the final decision revoking Oliver’s

teaching certificate and remanded the proceeding pursuant to Ala. Code § 41-22-20(k).4

Id.

3 The factual allegations in this section are derived from Oliver’s second amended complaint along with

documents attached to Ward and Mackey’s motion to dismiss. The Court may consider certain documents

attached to the motion to dismiss pursuant to the incorporation-by-reference doctrine or may take judicial

notice of the adjudicative facts contained therein. See Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir.

2002) (holding that a court may consider a document attached to a motion to dismiss without converting

the motion into one for summary judgment if the attached document is (1) central to the plaintiff’s claim

and (2) undisputed); Grayson v. Warden, Comm’r, Ala. DOC, 869 F.3d 1204, 1224-25 (11th Cir. 2017)

(stating that a district court may take judicial notice of an adjudicative fact that is not subject to reasonable

dispute and is either generally known within the trial court’s territorial jurisdiction or can be accurately and

readily determined from sources whose accuracy cannot be reasonably questioned).

4 Alabama Code 41-22-20 sets forth the process for judicial review of an agency decision after all

administrative remedies have been exhausted, which must be initiated within thirty days of receipt of the

notice of the agency’s final decision. Ala. Code § 41-22-20(a), (d). If there was not a hearing prior to agency

On September 22, 2021, an Administrative Law Judge (“ALJ”) held a hearing

pursuant to the state court’s order. Defs.’ Ex. 1 (Doc. 24-1) p. 2. Oliver did not participate

in the hearing or submit any evidence.5 Id. On October 14, 2021, the ALJ issued a

recommendation to uphold Mackey’s decision to revoke Oliver’s teaching certificate. Id.

at 12-13.

Oliver emailed Mackey on July 13, 2022, telling him to “remove a statement” from

her teaching certificate. 2d Am. Compl. (Doc. 11) p. 5. Within the hour, Mackey “instantly

and wrongfully put ‘Revoked’ Status” back on Oliver’s teaching certificate. Id. Oliver

emailed Mackey and told him he was a racist. Id.

Oliver filed a charge of discrimination with the Equal Employment Opportunity

Commission (“EEOC”) on December 11, 2023, claiming that the ALSDE discriminated

and retaliated against her because of her race, gender, and age. 2d Am. Compl. Ex. 1 (Doc.

11-1) p. 4. She was issued a right-to-sue letter on December 29, 2023, which indicated that

the EEOC closed Oliver’s charge because Oliver was “not in an employment relationship”

with the ALSDE. Id. at 1. Oliver alleges she received the right-to-sue letter on January 31,

2024. 2d Am. Compl. (Doc. 11) p. 2.

On May 7, 2024, Oliver filed suit in this Court. Compl. (Doc. 1).

action and the reviewing court finds that the validity of the action depends upon disputed facts, the

reviewing court shall order the agency to conduct a prompt fact-finding proceeding. § 41-22-20(e). The

reviewing court may also reverse or modify the agency’s decision and remand for further proceedings. §

41-22-20(k).

5 Notably, the ALJ’s decision states that Oliver failed to appear at the hearing “[a]fter being properly served

with the date, time and hearing location.” Defs.’ Ex. 1 (Doc. 24-1) p. 2. It is not necessary for purposes of

this recommendation to accept this statement as factually accurate. Therefore, the undersigned provides the

statement for the purpose of context alone.

II. CLAIMS

Although Oliver does not explicitly set forth any claims in the second amended

complaint, she repeatedly alleges violations of Title VII. See generally 2d Am. Compl.

(Doc. 11) (noting that Oliver references Title VII on each page of the second amended

complaint). She also attaches her EEOC Charge of Discrimination wherein she alleges

discrimination and retaliation based on race, age, and sex. 2d Am. Compl. Ex. 1 (Doc. 11-

1) pp. 4-5. Based on these allegations and attachments, the undersigned construes Oliver’s

second amended complaint to bring Title VII discrimination and retaliation claims.

Additionally, the undersigned liberally construes the second amended complaint to

assert a due process claim against Mackey and Ward for failing to follow state-law

procedure for renewing her teaching certificate and for failing to provide her with notice

prior to its revocation. See 2d Am. Compl. (Doc. 11) pp. 4, 5 (referencing several portions

of Alabama code pertaining to renewing teaching certificates and setting forth allegations

that Mackey and Ward did not provide her with notification before revoking her teaching

certificate). Further, it appears that Oliver may be attempting to assert an equal protection

claim based on her statement that “[t]he Equal Protection Clause of the Fourteenth

Amendment of the Constitution protects teachers at public schools from discrimination

based on race, religion, sex, national origin, age or disability.” Id. at 6.

While the undersigned recommends that the second amended complaint be liberally

construed to state the aforementioned claims, this Court should decline to construe any

state-law claims from Oliver’s allegations. The second amended complaint references Ala.

Code § 16-23-5, which provides the circumstances under which a superintendent may

revoke a teaching certificate. 2d Am. Compl. (Doc. 11) p. 6 (citing repeatedly Ala. Code §

16-23-5). After referencing this statute, Oliver contends that Mackey has not proven that

she was “guilty of immoral or unbecoming or indecent behavior.” Id. However, any

challenge to Mackey’s determination under § 16-23-5 is subject to the administrative

review process provided in Alabama Code § 41-22-20, which sets forth the process for

judicial review of an agency decision after all administrative remedies have been

exhausted. As such, § 16-23-5 does not create a private right of action and therefore cannot

be construed, even liberally, as an attempt to assert a claim under state law.6

III. JURISDICTION

Oliver’s Title VII, due process, and equal protection claims present federal and

constitutional questions and thus afford this Court with subject matter jurisdiction over the

dispute. See 28 U.S.C. § 1331.

IV. LEGAL STANDARDS

A. Pro Se Litigants

Federal courts must “show a leniency to pro se litigants not enjoyed by those with

the benefit of a legal education.” GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359,

1369 (11th Cir. 1998) (italics removed). A document filed pro se is “to be liberally

construed,” and a pro se complaint, “however inartfully pleaded, must be held to less

6 Notably, the second amended complaint does not reference any other state law that Ward and Mackey

allegedly violated. 2d Am. Compl. (Doc. 11).

stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551

U.S. 89, 94 (2007) (internal quotations omitted). Despite this leniency, however, a pro se

plaintiff must still comply with the threshold requirements of the Federal Rules of Civil

Procedure. Beckwith v. Bellsouth Telecomms. Inc., 146 F. App’x 368, 371 (11th Cir. 2005).

Importantly, a district court does not have license to rewrite a deficient pleading or serve

as de facto counsel for a pro se litigant. Alford v. Consol. Gov’t of Columbus, Ga., 438 F.

App’x 837, 839 (11th Cir. 2011).

B. Federal Rule of Civil Procedure 12(b)(6)

To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain factual

allegations sufficient “to raise a right to relief beyond the speculative level.” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements,” are insufficient to state a claim. Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To determine

whether a plaintiff has stated a claim, the court should first “eliminate any allegations in

the complaint that are merely legal conclusions” and then determine whether the well-

pleaded factual allegations of the complaint—assuming their veracity—“plausibly give

rise to an entitlement to relief.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290

(11th Cir. 2010). “The plausibility standard is met only where the facts alleged enable ‘the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.’” Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013) (quoting Iqbal, 556

U.S. at 678).

V. ANALYSIS

Ward and Mackey move to dismiss Oliver’s Title VII claims as time barred. Mot.

(Doc. 24) pp. 8-9. They also move to dismiss what they construe as equal protection and

state-law claims because Ward and Mackey enjoy qualified and state-agent immunity and

because her allegations are insufficient to state such claims. Id. at 10-15, 22-24. As

explained below, Ward and Mackey’s motion to dismiss the Title VII and equal protection

claims should be granted and their motion to dismiss the state-law claims should be denied

as moot, with Oliver’s due process claim to remain pending.

A. Ward and Mackey’s Motion to Dismiss Oliver’s Title VII Claims Should Be

Granted Because the Claims Are Time Barred.

Prior to filing a Title VII claim in federal court, a plaintiff must exhaust her

administrative remedies with the EEOC and receive a right-to-sue notice. Brown v. John

Deere Prod., Inc., 460 F. App’x 908, 909 (11th Cir. 2002). The plaintiff must then file suit

within 90 days after receipt of the notice. Green v. Union Foundry Co., 281 F.3d 1229,

1233 (11th Cir. 2002). Once a defendant contests the issue of whether the Title VII claim

was timely filed, the plaintiff bears the burden of proving that she met the deadline for

filing. Kerr v. McDonald’s Corp., 427 F.3d 947, 951 (11th Cir. 2005).

Here, Oliver filed a charge with the EEOC and received her right-to-sue notice on

January 31, 2024. 2d Am. Compl. (Doc. 11) p. 2 (“Ms. Oliver filed a complaint with EEOC

and received her Right-To-Sue Letter on January 31, 2024.”). Oliver filed her complaint in

this Court on May 7, 2024,7 see Compl. (Doc. 2), which is 97 days after she received the

EEOC’s right-to-sue letter. Because Oliver filed her complaint outside of the 90-day filing

window, her Title VII claims are untimely and should be dismissed. Oliver does not dispute

this conclusion. See Resp. (Doc. 30) (noting that Oliver does not argue that her Title VII

claims are timely in response to Ward and Mackey’s motion to dismiss).8

B. Ward and Mackey’s Motion to Dismiss Oliver’s Equal Protection Claim

Should Be Granted.

A “class of one” plaintiff asserting an equal protection claim must allege that she

has been intentionally treated differently from other similarly-situated individuals and that

there is no rational basis for the difference in treatment. Village of Willowbrook v. Olech,

528 U.S. 562, 564 (2000). This can be established through allegations showing that (1) the

plaintiff was treated differently from other similarly-situated individuals, and (2) the

7 Oliver alleges that she filed her complaint with this Court on April 30, 2024. 2d Am. Compl. (Doc. 11) p.

2. However, that date is when her pleading was postmarked. Compl. (Doc. 2) p. 3. A complaint is filed for

statute of limitations purposes when it is “in the actual or constructive possession of the clerk.” Rodgers ex

rel. Jones v. Bowen, 790 F.2d 1550, 1552 (11th Cir. 1986). Therefore, Oliver’s allegation that she filed her

complaint on a day falling within the 90-day statute of limitations does not alter the undersigned’s

conclusion regarding the timeliness of her Title VII claims. See Tucker v. United States, 724 F. App’x 754,

757 (11th Cir. 2018) (“Mailing alone is not enough.”).

8 Additionally, Oliver’s Title VII claims should be dismissed because Ward, Mackey, and the ALSDE are

not her employers. Title VII limits relief to employees against their employers. Llampallas v. Mini-Circuits,

Lab, Inc., 163 F.3d 1236, 1242-43 (11th Cir. 1998). Oliver does not allege that she was employed by the

ALSDE, Mackey, or Ward, and her EEOC right-to-sue letter indicates she was not. See 2d Am. Compl. Ex.

1 (Doc. 11-1) pp. 1, 3 (noting that “[t]he EEOC is closing this charge because you were not in an

employment relationship with [the ALSDE]”). Further, Oliver does not oppose Ward and Mackey’s

argument that she was not in an employment relationship with them or the ALSDE. Resp. (Doc. 30). Absent

an employment relationship, Oliver cannot bring Title VII claims against Mackey and Ward. Thus, Oliver’s

Title VII claims fail as a matter of law and should be dismissed. See Alloway v. White, 2010 WL 4025065,

at *2 (M.D. Ala. Aug. 24, 2010) (recommendation that Title VII claims against the ALSDE and its

individual employees be dismissed because the plaintiff, who was suing the defendants for their failure to

renew her teaching certificate, was not in an employment relationship with the ALSDE).

defendant unequally applied a facially neutral ordinance for the purpose of discriminating

against the plaintiff. Young Apartments, Inc. v. Town of Jupiter, Fla., 529 F.3d 1027, 1045

(11th Cir. 2008). A plaintiff is not permitted to simply rely on broad generalities in

identifying a comparator. Leib v. Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d

1301, 1307 (11th Cir. 2009).

Here, Oliver repeatedly alleges that Ward and Mackey are racist and biased towards

her. 2d Am. Compl. (Doc. 11) p. 4, 5. However, she does not allege—even in conclusory

fashion—that she was treated differently than any other similarly-situated comparator. As

such, Oliver has not alleged sufficient facts to state an equal protection claim and Ward

and Mackey’s motion to dismiss the claim should be granted.9

C. Ward and Mackey’s Motion to Dismiss Oliver’s State-Law Claims Should

Be Denied as Moot.

As explained in the Claims section of this Recommendation, see infra II., Oliver’s

second amended complaint should not be construed as an attempt to assert any state-law

claims. Should this Court agree, Ward and Mackey’s motion to dismiss these claims should

be denied as moot.10

9 The undersigned notes that Oliver does not respond in opposition to Ward and Mackey’s motion to dismiss

the equal protection claim, indicating that she either is not intending to assert such a claim or that she does

not oppose its dismissal. Resp. (Doc. 30).

10 Should the Court disagree, Ward and Mackey’s arguments for the application of qualified and state-agent

immunity are persuasive, and Oliver has not opposed these arguments. See Resp. (Doc. 30). It is clear that

Ward and Mackey acted within their discretionary authority when they revoked (or did not renew) Oliver’s

teaching certificate. See Mot. (Doc. 24) pp. 10-12. Therefore, it is Oliver’s burden to show that state-agent

immunity does not apply. See Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006). Because Oliver

wholly fails to oppose Ward and Mackey’s immunity arguments, the undersigned alternatively recommends

that the Court dismiss any state-law claims because Ward and Mackey are entitled to state-agent immunity.

V. CONCLUSION

For these reasons, the undersigned Chief United States Magistrate Judge

RECOMMENDS that Ward and Mackey’s Motion to Dismiss (Doc. 24) be

GRANTED to the extent that it seeks to dismiss Oliver’s Title VII and equal protection

claims and that it be DENIED as MOOT to the extent it seeks to dismiss any state-law

claims, as construed. The undersigned further

RECOMMENDS that Oliver’s due process claim, as construed, remains pending. It

is further

ORDERED that the parties shall file any objections to this Recommendation on or

before December 4, 2025. A party must specifically identify the factual findings and legal

conclusions in the Recommendation to which objection is made; frivolous, conclusive, or

general objections will not be considered. Failure to file written objections to the

Magistrate Judge’s findings and recommendations in accordance with the provisions of 28

U.S.C. § 636(b)(1) shall bar a party from a de novo determination by the District Court of

legal and factual issues covered in the Recommendation and waives the right of the party

to challenge on appeal the district court’s order based on unobjected-to factual and legal

conclusions accepted or adopted by the District Court except upon grounds of plain error

or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); 11TH CIR. R. 3-

1; see Stein v. Lanning Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v.

City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).

Done this 20th day of November, 2025.

Stephen M. Doyle

CHIEF U.S. MAGISTRATE JUDGE

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