The opinion
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
IVONNE ROSADO and )
MICHELLE L. ORTIZ, )
)
Plaintiffs, )
) CIVIL ACTION NO.
v. ) 3:14cv33-MHT
) (WO)
CHATTAHOOCHEE VALLEY )
COMMUNITY COLLEGE, et al., )
)
Defendants. )
OPINION AND ORDER
Plaintiffs Ivonne Rosado and Michelle L. Ortiz
bring this employment-discrimination lawsuit against
defendants Chattahoochee Valley Community College; its
president, Dr. Glen Cannon; its vice president, Dr.
David Hodge; and the Chancellor of the Alabama
Department of Postsecondary Education, Dr. Mark A.
Heinrich. Rosado and Ortiz assert that the defendants
subjected them to unlawful discrimination and
retaliation.
Rosado and Ortiz bring disparate-treatment and
retaliation claims against the College under Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§§ 1981a and 2000e through 2000e-17 (counts one, two,
five, and ten). They further contend that Cannon,
Hodge, and Heinrich violated the Equal Protection
Clause of the Fourteenth Amendment, as enforced through
42 U.S.C. § 1983 (counts three, four, seven, eight, and
nine). While both plaintiffs’ equal-protection claims
allege discrimination based on ethnicity, color, race,
and national origin, Rosado also claims age
discrimination. She brings another age-discrimination
claim against the College under the Alabama Age
Discrimination in Employment Act (AADEA), Ala. Code
§§ 25-1-20 through 25-1-29 (count six).
Rosado and Ortiz seek damages, declaratory
judgments, and injunctive relief. The court has
jurisdiction over their federal claims under 28 U.S.C.
§ 1331 (federal question), 28 U.S.C. § 1343 (civil
2
rights), and 42 U.S.C. § 2000e-5(f)(3) (Title VII).
The court discusses later whether it can exercise
supplemental jurisdiction over Rosado’s state-law AADEA
claim.
Pending before the court are three motions: a
renewed partial motion to dismiss filed by Cannon,
Hodge, and the College, a motion to dismiss filed by
Heinrich, and a motion to substitute parties filed by
Rosado and Ortiz. The College argues that it is immune
from suit under the AADEA and that portions of Ortiz’s
Title VII discrimination claim are procedurally barred.
Cannon, Hodge, and Heinrich argue that they are immune
from the plaintiffs’ equal-protection claims and that,
in any event, Rosado’s age-discrimination claims are
not cognizable under § 1983.
For the reasons set forth below, the motions to
dismiss will be granted in part and denied in part.
The motion to substitute parties will be denied as
moot.
3
I. MOTION-TO-DISMISS STANDARD
The defendants do not specify whether they bring
their motions to dismiss pursuant to Federal Rule of
Civil Procedure Rule 12(b)(6), for failure to state a
claim upon which relief can be granted, or Rule
12(b)(1), for lack of subject-matter jurisdiction.
Unless a defendant disputes the factual contentions
relevant to subject-matter jurisdiction, Rule 12(b)(1)
“employs standards similar to those governing Rule
12(b)(6) review.” Willett v. United States, 24 F.
Supp. 3d 1167, 1173 (M.D. Ala. 2014) (Watkins, J.).
Here, the defendants are not attempting to
introduce competing jurisdictional facts into the
record. Although they invite the court to consult
evidence extrinsic to the pleadings, they do not
purport to contradict any of the jurisdictional facts
asserted in the complaint. Because the defendants are
not mounting a factual attack on the court’s
4
subject-matter jurisdiction, any distinction between
Rule 12(b)(6) and Rule 12(b)(1) is immaterial to the
instant motions.
Accordingly, the court will evaluate the
defendants’ motions using the standards applicable to
Rule 12(b)(6). The court must accept Rosado’s and
Ortiz’s allegations as true, see Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984), and construe the
complaint in their favor, see Duke v. Cleland, 5 F.3d
1399, 1402 (11th Cir. 1993). The court may also draw
“reasonable inferences” from the facts alleged in the
complaint. Chesser v. Sparks, 248 F.3d 1117, 1121
(11th Cir. 2001).
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,
550 U.S. 544, 570, (2007)). “A claim has facial
5
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.
II. BACKGROUND
The allegations in the complaint, taken in the
light most favorable to Rosado and Ortiz, establish the
following facts.
Rosado and Ortiz were the only Hispanic employees
who worked full time at the College. During the time
in question, Rosado was the administrative assistant to
the associate dean for workforce and technical
education. Ortiz worked as an admissions clerk.
a. Rosado
In 2012 or early 2013, Rosado applied for two
promotions: one to work as the assistant to Cannon, the
College’s president, and another to work as the
6
assistant to Hodge, the College’s vice-president.
Cannon, who made the College’s hiring decisions,
rejected Rosado’s candidacy. He hired a white woman as
his assistant and, for Hodge, an African-American woman
whom Hodge had recommended. Both women were around 20
years younger than Rosado, who was in her late fifties,
and had less professional experience.
Rosado filed a charge of discrimination with the
Equal Employment Opportunity Commission (EEOC) in March
2013. Subsequently, the College phased out a
non-credit phlebotomy program that Rosado ran and that
provided her supplemental income. She later received a
disciplinary write-up for proctoring a national
certification exam in phlebotomy without first seeking
her supervisor’s approval. Her supervisor knew that
she had proctored the test on several prior occasions
but had never raised an issue.
7
Rosado filed a retaliation charge with the EEOC in
August 2013 and received a right-to-sue letter in
October of that year.
b. Ortiz
Ortiz started working for the College in 2007 as an
admissions clerk. In 2011, she assumed the additional
role of military liaison and moved from the College’s
main campus in Phenix City to the Fort Benning campus.
As military liaison, she recruited military personnel
to take classes at the College and prepared semesterly
reports on her efforts. While at Fort Benning, she
continued her work in admissions for the Phenix City
campus. She did not receive a pay raise to accompany
her new duties.
The College allowed employees who developed new
skills to seek ‘reclassification’ of their jobs for
payment purposes. At least twice, the College denied
Ortiz’s requests for reclassification so that her
8
salary would reflect the skills she had honed and the
additional responsibilities her title as military
liaison entailed.
Hodge informed her in March 2012 that the College
had denied her first reclassification request. Earlier
that month, Ortiz had filed a complaint with the State
Ethics Commission after she was asked to pick up food
for an event that she had thought was a campus-wide
diversity celebration, but was actually a College
employee’s private birthday party. Ortiz was later
denied a promotion to a recruiter position, reassigned
to the Phenix City campus, and stripped of her title as
military liaison, though she remained an admissions
clerk for the College.
In late 2012, Ortiz filed an internal grievance
alleging a hostile work environment, which triggered a
grievance proceeding in January 2013. After the
proceeding, Ortiz’s second request for a job
reclassification was denied.
9
Ortiz filed a formal charge of discrimination with
the EEOC in March 2013. Her charge discussed only the
denial of reclassification (and a corresponding salary
increase) and the additional job responsibilities for
which she was not adequately compensated. The charge
did not state that the College had denied her a
recruiter position, subjected her to a hostile work
environment, or removed her title as military liaison.
After she filed the EEOC charge, her supervisors
ordered her to appear for a meeting, during which a
verbal altercation ensued. In August 2013, she amended
her EEOC charge to add a retaliation claim.
In January 2014, Rosado and Ortiz filed this
lawsuit. At the time, Rosado had received a
right-to-sue notice from the EEOC, but Ortiz had not.
After the defendants filed a motion to dismiss, Ortiz,
with the assistance of counsel, filed an amendment to
her EEOC charge in February 2014. The amended charge
mirrored the allegations in her complaint. She
10
received a right-to-sue letter from the EEOC in March
2014, and she and Rosado filed an amended complaint two
weeks later.
III. DISCUSSION
The defendants raise three sets of arguments in
their motions to dismiss: first, that the Eleventh
Amendment forbids Rosado’s and Ortiz’s § 1983 claims
and Rosado’s AADEA claim; second, that portions of
Ortiz’s Title VII discrimination claim are barred by
the limitations period and the
administrative-exhaustion requirement; and, finally,
that Rosado’s age-discrimination claims are not
cognizable under § 1983.1 The court agrees that
1. Cannon, Hodge, and the College also note that
the complaint alludes to a “pattern and practice” of
discrimination at the College and ask the court to
dismiss any pattern-or-practice claim. Cannon et al.’s
Mot. to Dismiss (Doc. 21) at 2 (quoting Compl.
(Doc. 19) at 3). Title VII authorizes the Attorney
General to bring a civil action for equitable relief
against “any person or group of persons ... engaged in
a pattern or practice” of employment discrimination.
(continued...)
11
Rosado’s age-discrimination claims must be dismissed in
their entirety. Rosado and Ortiz may proceed on their
claims for damages and declaratory relief against
Cannon and Hodge in their individual capacities; their
equitable claims for promotions and pay raises against
Cannon, Hodge, and Heinrich in their official
capacities; and their Title VII claims against the
College, except that Ortiz may not assert the College’s
decision not to hire her for a recruiter position as an
independent ground for relief. The court will dismiss
any claims for monetary damages against Cannon and
Hodge in their official capacities; the claims for
declaratory relief against Cannon, Hodge, and Heinrich
in their official capacities; and Rosado’s and Ortiz’s
42 U.S.C. § 2000e-6(a). Although the authority to
bring a lawsuit under § 2000e-6(a) has been extended to
class actions, it does not reach individual litigants.
See Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d
955, 967 (11th Cir. 2008), abrogated on other grounds
by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). No
class has been certified here, so to the extent Rosado
and Ortiz are asserting a pattern-or-practice claim, it
must be dismissed.
12
claims against the individual defendants for other
forms of equitable relief.
a. Jurisdiction over Rosado’s State-Law Claim
The court lacks supplemental jurisdiction over
Rosado’s state-law AADEA claim. The federal
supplemental jurisdiction statute, 28 U.S.C. § 1367,
“does not extend to claims against nonconsenting state
defendants.” Raygor v. Regents of Univ. of Minn., 534
U.S. 533, 542 (2002). The parties do not dispute that
“Alabama’s state law sovereign immunity extends to
community colleges.” Morris v. Wallace Cmty.
Coll.-Selma, 125 F. Supp. 2d 1315, 1335 (S.D. Ala.
2001) (Vollmer, J.). Article I, Section 14 of the
Alabama Constitution forbids lawsuits against the
State, and “Alabama has not expressly waived its
immunity from AADEA claims.” Stroud v. McIntosh, 722
F.3d 1294, 1299 n.2 (11th Cir. 2013). The court cannot
exercise supplemental jurisdiction over Rosado’s AADEA
13
claim without the College’s consent to be sued, which
the College has not given. The court will therefore
dismiss Rosado’s AADEA claim.
b. Section 1983 Claims Against Cannon and Hodge
Pursuant to 42 U.S.C. § 1983, Rosado brings
equal-protection claims against Cannon and Hodge for
rejecting her applications to serve as their
administrative assistants. She attributes both
decisions to her ethnicity, color, race, national
origin, and age. Ortiz brings a § 1983
equal-protection claim against Cannon for
discriminating against her based on ethnicity, color,
race, and national origin.
Cannon and Hodge are sued in both their official
and individual capacities. Rosado and Ortiz seek
damages, equitable relief, declarations that Cannon and
Hodge violated their constitutional rights, and “other,
14
different relief to which the plaintiffs are entitled.”
Compl. (Doc. 19) at 34.
Cannon and Hodge argue that the Eleventh Amendment
bars Rosado’s and Ortiz’s § 1983 claims. The Eleventh
Amendment gives the States sovereign immunity against
most lawsuits. See Hans v. Louisiana, 134 U.S. 1, 21
(1890). Under some circumstances, this immunity
extends to state officials. See Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984).
However, sovereign immunity does not bar all claims
against a State or its employees, and, as discussed
below, Rosado’s and Ortiz’s § 1983 claims against
Cannon and Hodge may proceed with respect to certain
requests for relief.
1. Damages
Insofar as Rosado and Ortiz seek damages against
Cannon and Hodge in their official capacities, the
defendants are immune. “[T]he Eleventh Amendment bars
15
a damages action against a State in federal court,”
including “when State officials are sued for damages in
their official capacity.” Kentucky v. Graham, 473 U.S.
159, 169 (1985).
However, Cannon and Hodge are not immune to suit
for damages under § 1983 in their individual
capacities. In an individual-capacity suit, the
plaintiff is “seeking to recover from the individual
defendant, who is personally liable for the judgment.”
Jackson v. Ga. Dep’t of Transp., 16 F.3d 1573, 1577
(11th Cir. 1994). Sovereign immunity does not extend
to individual-capacity suits against state officials
under § 1983 for monetary damages. See Hafer v. Melo,
502 U.S. 21, 30-31 (1991). Cannon and Hodge argue that
the plaintiffs’ § 1983 claims are individual-capacity
suits in name only and that the College--and, by
extension, the State--is the real party in interest.
The court is unpersuaded.
16
“The general test for determining whether the state
is the real party in interest, even though it is not a
named defendant, is whether the relief sought against
the nominal defendant would in fact operate against the
state, especially by imposing liability damages that
must be paid out of the public fisc.” Jackson, 16 F.3d
at 1577. “Eleventh Amendment immunity applies only if
the judgment must, under all circumstances, be paid out
of state funds.” Id. (emphasis in original).
Cannon and Hodge do not contend that the State
would be obligated to cover the costs of a judgment
against them in their individual capacities. Instead,
they argue that the College is the real party in
interest because they were “acting ... pursuant to
their authority as president and dean when they
allegedly made the employment decisions” in dispute.
Cannon et al.’s Mot. to Dismiss (Doc. 21) at 5-6. This
argument misses the mark because the distinction
between official-capacity and individual-capacity suits
17
turns primarily on the nature of the relief sought, not
the source of the alleged injury. See Graham, 473 U.S.
at 165-68. Rosado’s and Ortiz’s § 1983 claims seek
damages from the defendants themselves, and so
sovereign immunity is no bar to relief. It makes no
difference that the complaint concerns actions that
Cannon and Hodge allegedly undertook in their roles as
state officials.
Rosado and Ortiz may therefore proceed on their
individual-capacity claims for damages without
offending sovereign immunity.2
2. Equitable Relief
Rosado and Ortiz request several forms of equitable
relief, including backpay, front pay, retroactive
benefits, and two types of injunctions: first,
2. The court need not address whether the doctrine
of qualified immunity forecloses Rosado’s and Ortiz’s
claims for damages under § 1983, as Cannon and Hodge
“did not raise qualified immunity, but, rather,
sovereign immunity in their motion to dismiss.” Cannon
et al.’s Reply (Doc. 29) at 5.
18
injunctions prohibiting Cannon and Hodge “from
violating [federal law] with regard to plaintiffs’
employment,” Compl. (Doc. 19) at 34; and, second,
“injunctions requiring defendants to increase
plaintiffs’ compensation and job status to pay grades
and rank commensurate with their education and
experience,” id. at 3. Cannon and Hodge respond that
the Eleventh Amendment bars these claims.
Each of the equitable remedies Rosado and Ortiz
request, aside from injunctions ordering Cannon and
Hodge to conform their conduct to the law, pertains to
compensation, benefits, and wages allegedly withheld by
or that would be furnished by the College. The court
will therefore construe those claims as asserted
against Cannon and Hodge in their official capacities.
Before reaching the parties’ arguments under the
Eleventh Amendment, the court must dispense with
Rosado’s and Ortiz’s requests to enjoin Cannon and
Hodge from violating their federal rights. An
19
“injunction [that] would do no more than instruct the
[defendant] to ‘obey the law’” does not satisfy the
specificity requirement of Federal Rule of Civil
Procedure 65(d). Burton v. City of Belle Glade, 178
F.3d 1175, 1201 (11th Cir. 1999).
Whether the Eleventh Amendment bars the remaining
claims depends on the type of equitable relief sought.
Ex parte Young, 209 U.S. 123 (1908), carves out an
exception to sovereign immunity for “suits against
state officers seeking prospective equitable relief to
end continuing violations of federal law.” Summit Med.
Assocs., P.C. v. Pryor, 180 F.3d 1326, 1336 (11th Cir.
1999) (emphases in original). Prospective relief may
be awarded even if compliance will have “an ancillary
effect on the state treasury.” Edelman v. Jordan, 415
U.S. 651, 667-68 (1974).
Rosado’s and Ortiz’s requests for backpay and
retroactive benefits are, by definition, not
prospective and do not fall within the Ex parte Young
20
exception. The Eleventh Amendment also bars their
requests for front pay. Front pay is technically a
form of equitable prospective relief that is meant to
serve as an alternative to reinstatement when lingering
hostility prevents an employee from returning to the
workplace. See Goldstein v. Manhattan Indus., Inc.,
758 F.2d 1435, 1448-49 (11th Cir. 1985). However,
courts have held consistently that front pay does not
fall within the Ex parte Young exception because it
“provide[s] nothing more than compensatory damages
which would have to be paid from the [State’s]
coffers.” Blanciak v. Allegheny Ludlum Corp., 77 F.3d
690, 698 (3d Cir. 1996); see also Campbell v. Arkansas
Dep’t of Correction, 155 F.3d 950, 962 (8th Cir. 1998);
Freeman v. Michigan Dep’t of State, 808 F.2d 1174, 1179
(6th Cir. 1987). The court sees Rosado’s and Ortiz’s
claims for front pay against Cannon and Hodge no
differently.
21
On the other hand, the requested orders for
promotions and pay raises are equitable prospective
remedies within the meaning of Ex parte Young. Taking
the allegations in the complaint as true, Cannon’s and
Hodge’s unlawful discrimination has resulted in the
plaintiffs’ ongoing exclusion from positions and pay on
discriminatory grounds. The injunctions Rosado and
Ortiz now request would remedy the ongoing effects of
the alleged constitutional violations, not merely, as
Cannon and Hodge suggest, “discrete acts of past
discrimination.” Cannon et al.’s Reply (Doc. 29) at 4.
Indeed, courts have held in the context of wrongful
termination that reinstatement is an available remedy
under Ex parte Young because it addresses a continuing
denial of employment. See Lane v. Cent. Ala. Cmty.
Coll., 772 F.3d 1349, 1351 (11th Cir. 2014) (per
curiam); see also Nelson v. Univ. of Tex. at Dall., 535
F.3d 318, 322 (5th Cir. 2008) (collecting cases). The
same logic applies here.
22
In sum, the court will dismiss Rosado’s and Ortiz’s
claims for backpay, retroactive benefits, front pay,
and injunctions ordering Cannon and Hodge to obey the
law.3 The claims for promotions and pay raises may
proceed.
3. Declaratory Relief
Finally, Rosado and Ortiz request declaratory
judgments that Cannon and Hodge violated the Fourteenth
Amendment by discriminating against them. See Compl.
(Doc. 19) at 33-34. These claims are properly asserted
against Cannon and Hodge in only their individual
capacities.
Under the Declaratory Judgment Act, 28 U.S.C.
§ 2201(a), the court “may declare the rights and other
legal relations of any interested party seeking such
declaration, whether or not further relief is or could
3. The parties have not asked the court to evaluate
whether Rosado and Ortiz may recover any of these
remedies from the College.
23
be sought.” The Eleventh Amendment prohibits federal
courts from issuing declaratory judgments against the
State and its officials unless, under Ex parte Young,
the plaintiff seeks prospective relief to prevent
ongoing violations of federal law. Because Ex parte
Young requires that the remedy requested be
prospective, “a plaintiff may not use the doctrine to
adjudicate the legality of past conduct.” Summit, 180
F.3d at 1337.
Rosado and Ortiz attempt to do precisely that with
their requests for declaratory relief. They ask this
court to issue declaratory judgments that Cannon and
Hodge “violated the 14th Amendment to the United States
Constitution, as enforced through 42 U.S.C. § 1983, in
subjecting [Rosado and Ortiz] to disparate and illegal
conduct in [their] employment.” Compl. (Doc. 19) at
33-34. These requests for declaratory judgments
concern the legality of actions undertaken by Cannon
and Hodge in 2012 and 2013. Given the retroactive
24
character of the remedies sought, Ex parte Young does
not authorize Rosado and Ortiz to obtain declaratory
relief against Cannon and Hodge in their official
capacities. The court will dismiss those claims.
However, the Eleventh Amendment has no bearing on
the individual-capacity claims, and Cannon and Hodge
have presented no other reason besides sovereign
immunity to dismiss the requests for declaratory
judgments. Insofar as Rosado and Ortiz seek
declaratory relief against Cannon and Hodge in their
individual capacities, their claims may proceed.
c. Section 1983 Claims Against Heinrich
Rosado and Ortiz each bring a § 1983 claim against
Heinrich “in [his] official capacity only for the
purposes of injunctive relief and approval of any
settlement.” Compl. (Doc. 19) at 3. They do not seek
monetary damages. They further request a declaratory
25
judgment that he violated their equal-protection
rights.4
Like Cannon and Hodge, Heinrich invokes sovereign
immunity. He also contends that he is an unnecessary
party, as he was not personally involved in the conduct
underlying the complaint. On his telling, Rosado and
Ortiz need not name him to secure a remedy.
Insofar as Heinrich’s arguments overlap with those
of Cannon and Hodge, the result is no different. For
4. The complaint also sounds in the language of
supervisory liability when it alleges that Heinrich
“acted with indifference to statutes and constitutional
authority.” Compl. (Doc. 19) at 20; id. at 29.
“Supervisory liability occurs either when the
supervisor personally participates in the alleged
constitutional violation or when there is a causal
connection between actions of the supervising official
and the alleged constitutional deprivation.” Brown v.
Crawford, 906 F.2d 667, 671 (11th Cir. 1990). Rosado
and Ortiz acknowledge that Heinrich did “not ...
approve[] the illegal action[s]” they allege and was
not otherwise personally involved in the events
underlying the complaint. Compl. (Doc. 19) at 20; id.
at 29. They have pled no facts to support any causal
connection between Heinrich’s actions or inaction and
the alleged discrimination either. Any attempt to hold
him accountable on a theory of supervisory liability
must be dismissed.
26
the reasons discussed above, sovereign immunity does
not bar Rosado’s and Ortiz’s claims for promotions and
pay raises, but the court will dismiss their requests
for non-prospective equitable relief and declaratory
judgments.
Turning to Heinrich’s remaining arguments, his lack
of personal involvement in the alleged discrimination
does not warrant dismissing him as a defendant.
“Personal action by defendants individually is not a
necessary condition of injunctive relief against state
officers in their official capacity.” Luckey v.
Harris, 860 F.2d 1012, 1015 (11th Cir. 1988). Rather,
“it is sufficient that the state officer sued must, ‘by
virtue of his office, ha[ve] some connection’ with the
unconstitutional act or conduct complained of.” Id. at
1015-16 (quoting Ex parte Young, 209 U.S. at 157).
Additionally, multiple circuit courts have observed
that a state official “who can appropriately respond to
injunctive relief” is a proper defendant in an
27
official-capacity suit. Parkell v. Danberg, 833 F.3d
313, 332 (3d Cir. 2016) (quoting Hartmann v. California
Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir.
2013)); see also Gonzalez v. Feinerman, 663 F.3d 311,
315 (7th Cir. 2011) (per curiam).
Heinrich satisfies those criteria. As Chancellor
of the Department of Postsecondary Education, he
supervises community-college presidents, manages the
operation of Alabama’s community colleges, and is
responsible for ensuring that they comply with state
policy, including policies forbidding discrimination
based on race and age. Although Heinrich protests that
his presence in this lawsuit is not strictly necessary
to enforce a judgment, he does not dispute that he has
authority over College officials like Cannon and Hodge
or that his oversight over the community-college system
would enable him to “appropriately respond” to an
injunction. Hartmann, 707 F.3d at 1127. The nexus
between Heinrich’s responsibilities as chancellor and
28
the subject matter of the instant litigation is
sufficient to make him a proper defendant.
Accordingly, Rosado and Ortiz may proceed against
Heinrich on their claims for promotions and pay raises.
Their claims for declaratory judgments and other forms
of equitable relief are denied.
d. Ortiz’s Title VII Discrimination Claim
Ortiz brings two Title VII claims against the
College: one for discrimination, and another for
retaliation. The retaliation claim is not at issue in
the College’s motion to dismiss.
Ortiz contends that the College discriminated
against her in violation of Title VII by demoting her,
assigning her two jobs’ worth of work without adjusting
her pay, denying her requests for reclassification,
rejecting her candidacy for a job as a recruiter, and
fostering a hostile work environment.
29
The College makes a twofold argument that parts of
her Title VII discrimination claim should be dismissed:
first, that the administrative-exhaustion requirement
limits Ortiz to seeking relief based on the pay
discrimination alleged in her March 2013 EEOC charge;
and, second, that any claim for relief based on the
decision not to hire her as a recruiter is time-barred.
The court will deny the College’s motion to dismiss
with leave to renew at summary judgment on the first
ground and grant the motion on the second ground to the
extent that Ortiz may not assert a stand-alone claim
for relief based on her rejection from the recruiter
position.
1. Administrative Exhaustion
The College submits that the
administrative-exhaustion requirement limits Ortiz’s
Title VII discrimination claim to the allegations
contained in her March 2013 EEOC charge, which
30
mentioned only her concerns about her pay and requests
for reclassification. The College argues that any
other alleged acts of discrimination cited in Ortiz’s
amended charge and complaint are not within the scope
of the March 2013 EEOC charge and, for that reason, are
not actionable under Title VII. The court will deny
the College’s motion with leave to renew at summary
judgment given the gaps in the parties’ briefing and
the factual record.
“[A] ‘plaintiff’s judicial complaint is limited by
the scope of the EEOC investigation which can
reasonably be expected to grow out of the charge of
discrimination.’” Gregory v. Georgia Dep’t of Hum.
Res., 355 F.3d 1277, 1280 (11th Cir. 2004) (per curiam)
(quoting Alexander v. Fulton Cty., 207 F.3d 1303, 1332
(11th Cir. 2000)). “The facts alleged in the charge
matter most for determining what can reasonably be
expected to grow out of an EEOC charge; the legal
theory the charging party articulates is far less
31
important.” Patterson v. Georgia Pac., LLC, 38 F.4th
1336, 1345 (11th Cir. 2022). Although judicial claims
may “amplify, clarify, or more clearly focus” the
original charge, “[a]llegations of new acts of
discrimination ... are not appropriate.” Wu v. Thomas,
863 F.2d 1543, 1547 (11th Cir. 1989) (quoting Ray v.
Freeman, 626 F.2d 439, 443 (5th Cir. 1980)).5
The College is adamant that Ortiz’s complaint and
her 2014 amended charge allege new acts of
discrimination beyond the scope of the March 2013 EEOC
charge. Perplexingly, the College omits any mention of
the retaliation charge she filed with the EEOC in
August 2013. The College appears to concede that her
retaliation charge was timely, as even if the court
were to grant the motions to dismiss in full, the
College acknowledges that Ortiz’s Title VII retaliation
5. In Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
Court of Appeals adopted as binding precedent all of
the decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.
32
claim would go forward. See Cannon et al.’s Reply
(Doc. 29) at 9. Neither party has submitted a copy of
the EEOC retaliation charge or divulged what factual
allegations it contained. Without further evidence in
the record and argument from the parties, the court
cannot discount the possibility that the retaliation
charge alleged facts related to the acts of
discrimination for which Ortiz now seeks to recover.
The court will therefore deny the College’s motion to
dismiss based on administrative exhaustion with leave
to renew at summary judgment.
2. Limitations Period
The College insists that Ortiz cannot bring her
Title VII discrimination claim based on the decision
not to hire her as a recruiter. For a claim to be
actionable under Title VII, an employee must file an
EEOC charge within 180 days “after the alleged unlawful
employment practice occurred.” 42 U.S.C.
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§ 2000e-5(e)(1). An employee may not recover under
Title VII for discrete acts of discrimination outside
the 180-day limitations period. See Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
Ortiz learned that the College had rejected her
application for the recruiter position in May 2012,
more than 180 days before she filed the March 2013 EEOC
charge. To the extent Ortiz asserts the rejection as
an independent ground for relief under Title VII, her
claim that the rejection was discriminatory is
time-barred.6
6. Ortiz counters that the court may nonetheless
consider her rejection insofar as it constitutes part
of her hostile-work-environment claim. “Provided that
an act contributing to the claim occurs within the
filing period, the entire time period of the hostile
environment may be considered by a court for the
purposes of determining liability.” Morgan, 536 U.S.
at 117. Ortiz did not allege a hostile work
environment explicitly in her March 2013 EEOC charge.
Her argument that the rejection from the recruiter
position contributed to a hostile work environment
assumes that her hostile-work-environment claim is not
barred by the administrative-exhaustion requirement.
As stated above, the court cannot yet rule on whether
Ortiz has exhausted her administrative remedies.
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e. Rosado’s § 1983 Age-Discrimination Claims
Rosado brings § 1983 claims for age discrimination
against Cannon, Hodge, and Heinrich. The defendants
respond that § 1983 does not provide a cause of action
for age discrimination. The Eleventh Circuit Court of
Appeals has not yet determined whether stand-alone
age-discrimination claims under § 1983 are cognizable.
See Duva v. Bd. of Regents of the Univ. Sys. Of Ga.,
654 F. App’x 451, 454 (11th Cir. 2016) (per curiam).
Most of its sister circuits have held that Congress
intended for the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. §§ 621 through 634, to be the
exclusive remedy for age-discrimination claims in
employment. See id. (collecting cases).
Rosado does not attempt to argue that she can bring
an age-discrimination claim independent of the ADEA.7
7. Her brief in opposition--which notes that Rosado
“does not sue College officers Cannon and Hodge, nor
Postsecondary Chancellor Heinrich, for age
(continued...)
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Under similar circumstances, this court ruled that the
ADEA precluded an age-discrimination claim where the
plaintiff did not offer any substantial argument to the
contrary. See Kilpatrick v. Crenshaw Cty. Comm’n, No.
2:13-cv-953-MHT, 2016 WL 3251605, at *2-4 (M.D. Ala.
June 8, 2016) (Thompson, J.). The court will do the
same here and, following the majority approach of the
courts of appeal, dismiss Rosado’s age-discrimination
claims under § 1983.
f. Motion to Substitute
Apart from the motions to dismiss, the parties have
noted that substitution of several official-capacity
defendants is appropriate pursuant to Federal Rule of
Civil Procedure 25(d). Rosado and Ortiz moved to
substitute Valerie Richardson, in her official capacity
as interim president of the College, for Cannon in his
discrimination,” Br. in Opp. to Cannon et al.’s Mot. to
Dismiss (Doc. 25) at 9--suggests that she may have
abandoned her federal age-discrimination claims
altogether.
36
official capacity. See Mot. for Order of Substitution
(Doc. 37) at 1. However, the defendants represent that
Richardson is no longer the interim president of the
College. See Mot. to Set Status Conference (Doc. 46)
at 2. The defendants add that substitution may be
appropriate as to at least one other official-capacity
defendant, given Heinrich’s retirement as chancellor.
See id. Based on these representations, the pending
motion to substitute will be denied as moot. The court
will take up any new motions to substitute that the
parties may file in light of the court’s resolution of
the motions to dismiss.
IV. CONCLUSION
Rosado’s state-law AADEA claim against the College
is dismissed. To the extent indicated above, the
defendants’ motions to dismiss are granted in part and
denied in part. The motion to substitute parties is
denied as moot.
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* * *
Accordingly, it is ORDERED that:
(1) The renewed partial motion to dismiss filed by
defendants Chattahoochee Valley Community College, Dr.
Glen Cannon, and Dr. David Hodge (Doc. 21) and the
motion to dismiss filed by defendant Dr. Mark A.
Heinrich (Doc. 26) are granted in part and denied in
part as follows:
(a) Plaintiff Ivonne Rosado’s AADEA claim
against defendant Chattahoochee Valley Community
College is dismissed.
(b) Plaintiff Rosado’s § 1983 claims for age
discrimination against defendants Cannon, Hodge, and
Heinrich are dismissed.
(c) Plaintiffs Rosado’s and Michelle L. Ortiz’s
§ 1983 claims for monetary damages against defendants
Cannon and Hodge in their official capacities are
dismissed.
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(d) Plaintiffs Rosado’s and Ortiz’s § 1983
claims for backpay, front pay, retroactive benefits,
and injunctions to obey the law against defendants
Cannon, Hodge, and Heinrich in their official
capacities are dismissed.
(e) Plaintiffs Rosado’s and Ortiz’s § 1983
claims for declaratory relief against defendants
Cannon, Hodge, and Heinrich in their official
capacities are dismissed.
(f) Plaintiff Ortiz’s Title VII discrimination
claim against defendant Chattahoochee Valley Community
College based on her rejection from a recruiter
position is dismissed insofar as she asserts it as an
independent ground for relief.
(g) Plaintiffs Rosado and Ortiz may proceed on
their § 1983 claims for monetary damages and
declaratory relief against defendants Cannon and Hodge
in their individual capacities; their § 1983 claims for
promotions and pay raises against defendants Cannon,
39
Hodge, and Heinrich in their official capacities; and
their Title VII discrimination and retaliation claims
against defendant Chattahoochee Valley Community
College (subject to the limitation on Ortiz’s claim
described above).
(2) The motion for order of substitution filed by
plaintiffs Rosado and Ortiz (Doc. 37) is denied as
moot.
This case is not closed.
DONE, this the 29th day of March, 2024.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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