Milner v. The City of Montgomery, Alabama

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

ANTHONY M. MILNER, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:19cv799-MHT

) (WO)

THE CITY OF MONTGOMERY, )

ALABAMA, et al., )

)

Defendants. )

OPINION

Plaintiff Anthony M. Milner is a former lieutenant

of Montgomery Fire/Rescue service, a division of the City

of Montgomery, Alabama. He filed this lawsuit after he

was terminated when he became deaf in one ear. He names

as defendants the City of Montgomery, Montgomery

Fire/Rescue, and four city officials. He claims that

they violated the Americans with Disabilities Act (ADA),

42 U.S.C. §§ 12112, 12203, by failing to make reasonable

accommodations for his disability and by discharging him

in retaliation for requesting such accommodations. He

also brings a separate claim under 42 U.S.C. § 1983 for

the same alleged violations of the ADA.1 The court has

jurisdiction under 28 U.S.C. § 1331 (federal question)

and § 1343 (civil rights).

This case is now before the court on defendants’

motion to dismiss. Defendants have moved to dismiss (1)

all claims against Montgomery Fire/Rescue, arguing that

it is not a government entity distinct from the City of

Montgomery; (2) three of the four individual defendants,

on the ground that the individual employees are not

subject to liability under, presumably, the ADA;2 (3)

1. Milner also includes a separate count for

“injunctive relief.” The court understands this count

to seek injunctive remedies in addition to the damages

he requests on his ADA and § 1983 claims.

2. Defendants actually seek dismissal of these

three defendants on the ground that “individual employees

are not subject to liability under Title VII,” Motion to

Dismiss (doc. no. 12) at 2. This is, on its face, an odd

argument because no count of Milner’s complaint is

brought under Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. §§ 1981a and 2000e through

2000e-17. However, the court understands defendants’

position on this point to be directed at Milner’s ADA

claims, as the ADA borrows from Title VII the “powers,

remedies, and procedures” it employs. 42 U.S.C.

§ 12117(a).

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Milner’s ADA claims, for failure to file a timely charge

of discrimination with the Equal Employment Opportunity

Commission (EEOC) and failure to allege retaliation in

his EEOC charge; and (4) Milner’s § 1983 claims, as

foreclosed by the ADA. For the reasons that follow, the

motion will be granted, and Milner’s complaint will be

dismissed.

I. FACTUAL BACKGROUND

Based on the allegations of the complaint, during

the period at issue, Milner worked as a lieutenant in the

Montgomery Fire/Rescue service, a division of the City

of Montgomery. He was placed on sick leave in July 2017

for a tumor affecting his hearing. After surgery, he

lost hearing in his left ear entirely. He requested an

accommodation for this hearing loss and was refused.

When a doctor employed by Montgomery Fire/Rescue declined

to approve his return to work, the city’s mayor signed a

memorandum, indicating his “decision to dismiss Fire

Lieutenant A.M. Milner from employment with the

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Montgomery Fire Department,” effective July 2, 2018.

Termination Documents (doc. no. 12-2) at 5. Milner was

given notice of his dismissal on July 5, 2018. See id.

at 3. Milner appealed his dismissal to the city’s

personal department and lost, effective October 26, 2018.

He filed a charge of discrimination with the EEOC on

March 28, 2019. See Complaint (doc. no. 1) at ¶ 47.

After the EEOC denied his charge as untimely, see EEOC

Documents (doc. no. 12-1) at 1, he brought the present

suit.

II. STANDARD ON MOTION TO DISMISS

Defendants frame their motion as being brought

entirely under Federal Rule of Civil Procedure 12(b)(6)

for failure to state a claim upon which relief can be

granted. To survive a motion to dismiss under Rule

12(b)(6), a complaint “must contain 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,

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550 U.S. 544, 570, (2007)). “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.”

Id.

Defendants’ argument that Milner’s ADA claims should

be dismissed for failure to exhaust administrative

remedies, however, does not come under Rule 12(b)(6):

“[M]otions to dismiss for failure to exhaust are not

expressly mentioned in Rule 12(b).” Bryant v. Rich, 530

F.3d 1368, 1375 (11th Cir. 2008). Instead, failure to

exhaust is considered “a matter of judicial

administration.” Id. Although the Eleventh Circuit

Court of Appeals has held that exhaustion issues may be

raised in a motion to dismiss and decided at that stage

of the litigation, the court’s consideration of the

arguments regarding exhaustion are not subject to the

same limitations about what factual material may be

considered as apply to Rule 12(b)(6) motions. See id.

at 1375-76.

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Therefore, the documents related to Milner’s

dismissal and EEOC charge that are attached to

defendants’ motion to dismiss are proper for the court

to review at this juncture. When deciding a motion to

dismiss for failure to exhaust, “it is proper for a judge

to consider facts outside of the pleadings and to resolve

factual disputes so long as the factual disputes do not

decide the merits and the parties have sufficient

opportunity to develop a record.” Bryant, 530 F.3d at

1376. Milner had opportunities to bring forward facts

supporting his claim on the question of exhaustion both

in response to the motion to dismiss and in a separate

filing on the issue ordered by the court. See Order

(doc. no. 19).

III. DISCUSSION

As described above, defendants challenge the

inclusion of Montgomery Fire/Rescue and three of the city

officials as defendants in this suit, and they argue that

Milner’s ADA claims should be dismissed for failure to

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exhaust and his § 1983 claims should be dismissed as

precluded by the ADA. Because the court agrees with

defendants that Milner has failed to exhaust his ADA

claims and that his § 1983 claims are precluded, it need

not consider the arguments regarding the status of

Montgomery Fire/Rescue or the amenability of the

individual defendants to suit.

A. ADA Claims

Defendants argue that Milner failed to file his

charge of discrimination with the EEOC within the

timeframe allowed by the ADA; if this is true, it would

bar his suit. See Maynard v. Pneumatic Prods. Corp., 256

F.3d 1259, 1262 (11th Cir. 2001).3

3. They also argue that Milner’s ADA retaliation

claim should be dismissed because he failed to allege

retaliation in the charge he ultimately filed with the

EEOC. The court does not reach this argument because it

dismisses Milner’s ADA claims for failure to file a

timely EEOC charge.

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Milner counters that the deadline to file his EEOC

charge did not elapse until April 2019 because his

termination was not final until his appeal through the

City’s personnel department concluded in late October

2018. See Complaint (doc. no. 1) at ¶¶ 27, 29, & 31.

And he says that, even if the deadline did run before he

filed his charge in March 2019, he should be allowed

discovery before dismissal on whether the deadline should

be tolled “by either the City’s own administrative

procedure or by virtue of the EEOC being shut down for

the federal government shutdown.” Response to Motion to

Dismiss (doc. no. 18) at 5-9. Finally, he says that

tolling the deadline is appropriate because he “was

informed that termination of his employment was not

final” until the internal appeals process resolved.

Complaint (doc. no. 1) at ¶ 29. After the court requested

additional information on this issue, Milner explained

that he was “told by General Sams (Director of Public

Safety) in a conversation in his office that my

termination was not final until the appeal process was

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completed, and that if the appeal process was successful,

my employment could possibly be fully reinstated.”

Affidavit of Anthony Milner (doc. no. 20-1) at 2.

In general, in the absence of certain circumstances

not applicable here, plaintiffs suing under the ADA for

unlawful employment practices must file charges with the

EEOC within 180 days of the practice of which they

complain. See Maynard, 256 F.3d at 1262. “The 180-day

period is counted from the date the employee receives

notice of termination.” Wright v. AmSouth

Bancorporation, 320 F.3d 1198, 1201 (11th Cir. 2003).

The pursuit of internal appeals or grievance procedures

does not toll this time limit. See Stafford v. Muscogee

Cty. Bd. of Educ., 688 F.2d 1383, 1388 (11th Cir. 1982);

see also Jordan v. City of Montgomery, 283 F. App’x 766,

768 (11th Cir. 2008) (finding that appeal of city

employee through Montgomery personnel board did not toll

EEOC charge-filing deadline); Del. State Coll. v. Ricks,

449 U.S. 250, 261 (1980) (“[T]he pendency of a grievance,

or some other method of collateral review of an

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employment decision, does not toll the running of the

limitations periods.”).

Milner received notice of his termination in July

2018. He was told to return his equipment, and his

dismissal was reflected in payroll. See Termination

Documents (doc. no. 12-2) at 2-3. The 180-day clock to

file his charge with the EEOC began to run at that point.

His appeal through the city’s personnel department did

not toll the running of this limitations period. See

Jordan, 283 F. App’x at 768.

If no reason exists to extend this period, his

deadline for filing an EEOC charge came and went in late

December 2018 (180 days from July 2, 2018, the effective

date of his termination) or very early January 2019 (180

days from July 5, 2018, when he received notice of his

termination), several months before he filed his charge.

Milner asks the court to extend his filing window under

the doctrine of equitable tolling, which applies when a

claimant “untimely files because of extraordinary

circumstances that are both beyond his control and

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unavoidable even with diligence.” Motta ex rel. A.M. v.

United States, 717 F.3d 840, 846 (11th Cir. 2013)

(quoting Arce v. Garcia, 434 F.3d 1254, 1261 (11th Cir.

2006)). Equitable tolling “is an extraordinary remedy

which should be extended only sparingly.” Chang v.

Carnival Corp., 839 F.3d 993, 996 (11th Cir. 2016)

(quoting Justice v. United States, 6 F.3d 1474, 1479

(11th Cir. 1993)). “[I]t is the plaintiff’s burden to

show that equitable tolling is warranted.” Id.

Milner has not shown the extraordinary circumstances

necessary for equitable tolling to apply. Before his

deadline ran in late December 2018 or early January 2019,

the complaint alleges that his counsel did two things:

“began attempts to use the EEOC’s online portal in order

to file a charge of discrimination,” and “telephoned the

Birmingham, Alabama, office of the EEOC and held for 52

minutes before being instructed by an EEOC representative

in Birmingham to use the EEOC portal to schedule an

appointment for an in-person or telephone interview for

[Milner].” Complaint (doc. no. 1) at ¶¶ 33-34. It is

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undisputed that Milner or his counsel could have

submitted his EEOC charge by mail regardless of the

availability of the online portal. See 29 C.F.R.

§ 1601.8 (2018) (“A charge may be made in person or by

mail at any office of the Commission or with any

designated representative of the Commission.”). The

failure to do so does not meet Milner’s initial burden

to show that he exercised due diligence in pursuing his

claim, “a necessary, though not sufficient, prerequisite

that a plaintiff must satisfy.” Chang, 839 F.3d at 996.

Milner argues that his ability to timely file was

impacted by the shutdown of the federal government

between December 22, 2018, and January 25, 2019. See

Complaint (doc. no. 1) at ¶ 32. But the shutdown did not

prevent him from filing his charge: “The EEOC accepted

charges during this time to preserve individuals’ rights

under the law.” What You Should Know About the Impact

of the Lapse in Appropriations on EEOC Timelines, Equal

Emp. Opportunity Comm’n,

https://www.eeoc.gov/wysk/what-you-should-know-about-im

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pact-lapse-appropriations-eeoc-timelines.4 Even if

Milner’s ability to file his charge had been affected

during the shutdown, he still had sufficient time to file

his charge before the shutdown began, and the

approximately five-week shutdown through January 25,

2019, would in any event hardly excuse missing his filing

deadline by nearly three months, in late March 2019.

He also argues that equitable tolling should apply

because he “was informed that termination of his

employment was not final until October 26, 2018,” when

his appeal ended. Complaint (doc. no. 1) at ¶ 29. In

response to the court’s request for more information

4. The court may take judicial notice of the EEOC’s

statement regarding the functions it maintained during

the government shutdown under Federal Rule of Evidence

201(b)(2), because the EEOC’s explanation of its own

operations is “not subject to reasonable dispute” and

“can be accurately and readily determined from sources

whose accuracy cannot reasonably be questioned.” Fed.

R. Evid. 201(b); see also Wilding v. DNC Servs. Corp.,

941 F.3d 1116, 1123 (11th Cir. 2019) (courts may take

judicial notice of “undisputed historical and political

fact”); K.T. v. Royal Caribbean Cruises, Ltd., 931 F.3d

1041, 1047-48 (11th Cir. 2019) (Carnes, C.J., concurring)

(courts may take judicial notice of agency records and

reports).

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about this allegation, Milner clarified that he “was told

by General Sams (Director of Public Safety) in a

conversation in his office that my termination was not

final until the appeal process was completed, and that

if the appeal process was successful, my employment could

possibly be fully reinstated.” Affidavit of Anthony

Milner (doc. no. 20-1) at 2.

Equitable tolling is available “where the

complainant has been induced or tricked by his

adversary’s misconduct into allowing the filing deadline

to pass.” Irwin v. Dep’t of Veterans Affs., 498 U.S. 89,

96 (1990). But on the totality of the facts presented

here, Milner’s conversation with Sams is insufficient to

meet this standard. In particular, the evidence reflects

that Milner retained counsel (at least by early December

2018, if not earlier) long before the deadline for filing

his EEOC charge elapsed (in late December 2018 or early

January 2019). See Complaint (doc. no. 1) at ¶ 33.

Milner was not “tricked by his adversary’s misconduct”

into letting the deadline slip by. Sams’s statement that

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his firing was not “final” until the appeal concluded was

a misstatement of the applicable law. Milner’s counsel

should have known that Milner’s appeal did not toll the

deadline for his EEOC charge, and counsel had ample

opportunity to correct whatever misunderstanding of the

law Sams’s statement caused before the filing deadline

ran. See Jordan, 283 F. App’x at 767-68 (finding that

appeal of city employee did not toll EEOC charge-filing

deadline even though supervisor incorrectly told employee

that termination would not be effective until Montgomery

personnel board had reviewed action).

As such, the circumstances of this case do not permit

equitable tolling to rescue Milner’s claims from the

untimely filing of his charge with the EEOC. When

Milner’s counsel encountered difficulty with the EEOC’s

online portal in the weeks before the filing deadline,

he should have filed Milner’s charge through one of the

other filing methods available to him. By not doing so,

he failed to exercise diligence in prosecuting Milner’s

claim in at least one of two important ways: either by

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miscalculating when the limitations period began to run,

or by misunderstanding the possible ways of submitting

an EEOC charge. But while certain “serious instances of

attorney misconduct” may constitute the extraordinary

circumstances necessary for equitable tolling to apply,

the Supreme Court has held that an attorney’s

miscalculation of deadlines presents instead a “garden

variety claim of excusable neglect” and does not suffice.

Holland v. Florida, 560 U.S. 631, 651-52 (2010) (quoting

Irwin, 498 U.S. at 96). For these reasons, Milner’s

claims under the ADA will be dismissed.

B. Section 1983 Claims

Milner also brings suit for the alleged ADA

violations under 42 U.S.C. § 1983, which “generally

supplies a remedy for the vindication of rights secured

by federal statutes.” Gonzaga Univ. v. Doe, 536 U.S.

273, 284 (2002). But the Eleventh Circuit Court of

Appeals has specifically held that plaintiffs are

precluded from bringing suit under § 1983 “in lieu of--or

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in addition to--a[n] ... ADA cause of action if the only

alleged deprivation is of the ... rights created by ...

the ADA.” Shotz v. City of Plantation, 344 F.3d 1161,

1176-77 (11th Cir. 2003) (quoting Holbrook v. City of

Alpharetta, 112 F.3d 1522, 1531 (11th Cir. 1997))

(alterations in original). The “comprehensive

legislative scheme” of the ADA “foreclosed a remedy under

§ 1983.” Id. at 1176 (quoting Gonzaga, 536 U.S. at 284

n.4). Because Milner’s § 1983 claim simply reiterates

the ADA violations he alleges, see Complaint (doc. no.

1) at ¶ 56, it cannot proceed.

***

Accordingly, defendants’ motion to dismiss will be

granted as to all claims in Milner’s complaint, and this

suit will be dismissed with prejudice.

A separate judgment will be entered.

DONE, this the 21st day of January, 2021.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE

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