# Milner v. The City of Montgomery, Alabama

> District Court, M.D. Alabama · January 21, 2021

URL: https://www.frixlaw.com/law-library/cases/9977110

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** January 21, 2021
- **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/9977110

## How later opinions describe it (automated extraction)

- finding that appeal of city employee through Montgomery personnel board did not toll EEOC charge-filing deadline
- 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

## Opinion text

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).
2
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

3
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,

4
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.

5
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

6
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.
7
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

8
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

9
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

10
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

11
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).
13
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

14
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

15
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

16
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9977110. Public record. Not legal advice.