Hamner v. Tuscaloosa County School System

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SHANNON HAMNER )

)

Plaintiff, )

) Civil Action Number

vs. ) 2:18-cv-01838-AKK

)

TUSCALOOSA COUNTY SCHOOL

)

SYSTEM, WALTER DAVIE,

)

ALLISON MAYS AND CLIFTON

)

HENSON

)

)

Defendants.

MEMORANDUM OPINION AND ORDER

Shannon Hamner initiated this action against her former employer, the

Tuscaloosa County School System (“TCSS”), and three of its employees, Walter

Davie (Superintendent), Allison Mays (Human Resources Director), and Clifton

Henson (a middle school principal). Hamner asserts claims under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., Section 1981 of the Civil

Rights Act of 1866 as amended, 42 U.S.C. § 1981, and Alabama state law, for

alleged sexual harassment. Doc. 1. Before the court are the Defendants’ motions to

dismiss, docs. 5, and 8, which Chief Magistrate Judge John E. Ott converted to

motions for summary judgment, doc. 10. The motions are fully briefed and ripe for

review, docs. 6, 8, 14, 15, 18, and 19, and are due to be granted in part.

I. STANDARD OF REVIEW1

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a

short and plain statement of the claim showing that the pleader is entitled to relief.”

“[T]he pleading standard Rule 8 announces does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere “‘labels and conclusions’” or

“‘a formulaic recitation of the elements of a cause of action’” are insufficient. Id.

(quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders

‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting

Twombly, 550 U.S. at 557).

Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a complaint

fails to state a claim upon which relief can be granted. When evaluating a motion

brought under Rule 12(b)(6), the court accepts “the allegations in the complaint as

true and construe[s] them in the light most favorable to the plaintiff.” Hunt v. Aimco

Props., L.P., 814 F.3d 1213, 1221 (11th Cir. 2016). However, “[t]o survive a motion

to dismiss, a complaint must . . . ‘state a claim to relief that is plausible on its face.’”

1 Judge Ott converted TCSS’s motion to dismiss into a motion for summary judgment

because TCSS attached a host of exhibits to its motion. Doc. 10. However, the extrinsic evidence

the parties filed addresses the timeliness of Hamner’s Title VII claims and the sufficiency of

service. See docs. 5 at 4-25; 15-1; 15-2; 15-3. As such, the court will apply the summary judgment

standard to these two issues only, and the Rule 12(b)(6) standard to the remainder of the motions.

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A complaint states a

facially plausible claim for relief “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. In other words, the complaint must establish “more than

a sheer possibility that a defendant has acted unlawfully.” Id. See also Twombly,

550 U.S. at 555.

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment

is proper “if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” The moving party

bears the initial burden of proving the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the

non-moving party, who is required to “go beyond the pleadings” to establish that

there is a “genuine issue for trial.” Id. at 324 (citation and internal quotation marks

omitted). A dispute about a material fact is genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

The court must construe the evidence and all reasonable inferences arising

from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress

& Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all justifiable

inferences must be drawn in the non-moving party’s favor). However, “mere

conclusions and unsupported factual allegations are legally insufficient to defeat a

summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005)

(per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th

Cir. 1989)). Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing

party’s position will not suffice; there must be enough of a showing that the jury

could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th

Cir. 1990) (citing Anderson, 477 U.S. at 252).

II. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

Hamner worked for TCSS from 1988 until her discharge in 2017. Docs. 1 at

4; 1-1. This is Hamner’s second lawsuit against TCSS for alleged sexual

harassment. Doc. 1 at 5-6. Hamner contends that TCSS began retaliating against

her during her first lawsuit, Hamner I, and that the retaliation continued thereafter.

Id. at 6-7. After resolving Hamner I, Hamner transferred to a different school, and

she alleges that Henson, the school’s principal, sexually harassed her by stalking her,

engaging in sexually inappropriate conduct, denigrating women, and “put[ting] his

hand on her without her consent and with a suggestive look on his face.” Id. at 9-

12. After Hamner reported the conduct to Mays, the Defendants launched a

purported pretextual investigation, placed Hamner on administrative leave, and then

discharged her in retaliation. Id. at 17-21.

After her discharge, Hamner filed an EEOC charge, alleging sex

discrimination and retaliation. Doc. 1-1. The EEOC dismissed the charge and issued

a right-to-sue letter dated August 1, 2018, informing Hamner that she had ninety

days to file a lawsuit. Doc. 1-2. In pre-litigation correspondence with counsel for

TCSS, Hamner’s counsel represented that the ninety-day limitation period expired

on November 2, 2018, and asked that TCSS agree to toll the statute to allow Hamner

thirty additional days to file suit. Doc. 5 at 19-20. When TCSS declined to do so,

Hamner’s counsel stated that he had mistakenly calculated the date, that the deadline

to file was actually three days later, and filed this lawsuit accordingly. Id. at 22-24;

doc. 1.

Apparently, after filing her lawsuit, Hamner waited until three days before the

expiration of the time limit for service set forth in Rule 4(m) to serve TCSS, Davie,

and Mays. That day, Ronald White, a process server for Hamner, visited TCSS’s

central office to deliver the summons and complaint to these three defendants. Doc.

15-3 at 2. Allegedly, after White explained to the receptionist, Billie Davidson, that

he needed to see Davie and Mays, Davidson referred White to Davie and Mays’

assistant, Dana Fisher. Id. For her part, Davidson attests that White approached her

initially about becoming a teacher, and then explained that he actually had a

subpoena to deliver. Doc. 5 at 10. Davidson adds that White informed her that he

did not know the individuals to whom he needed to deliver the subpoenas, and that

she directed White to Fisher in the Human Resources office after White informed

her that the subpoenas were for employee records. Id. at 10-11. Davidson claims

that White never mentioned Davie or Mays specifically. Id. at 11.

Thereafter, when White arrived at Fisher’s office, White asked to see Davie

and Mays, and Fisher explained that White could not see Davie and Mays and then

offered to take the documents to them. Doc. 15-3 at 2. White gave the documents

to Fisher, who was purportedly in a position to see and read the summons addressed

to TCSS via Davie and to both Davie and Mays individually. Id. For her part, Fisher

claims that White entered her office and asked her to help him become a teacher.

Doc. 5 at 14. When she explained that her office did not do academic advising,

White explained he was joking and handed her a stack of papers, saying that they

were for Davie and Mays. Id. Allegedly, White never asked to see Davie and Mays

or inquired about their availability. Id. In any event, later that afternoon, Fisher

gave Davie the papers from White, and informed Mays, who was out of the office,

by email about the summons. Id. at 8, 17. Mays received the summons when she

returned to the office a day after the expiration of the ninety-day period to perfect

service. Id. at 17.

III. ANALYSIS

The Defendants have moved to dismiss, arguing that (1) the Title VII claim is

time-barred,2 (2) this Court lacks jurisdiction over TCSS, Davie, and Mays due to

improper service of process, (3) Hamner cannot state a claim under § 1981, (4)

Hamner’s battery claim is barred by sovereign immunity, and (5) venue is not proper

in this division. Docs. 6 and 8. The court addresses each contention in turn.

A. Title VII Claims—Counts I, II, and III

TCSS argues that Hamner’s Title VII claims are barred by the statute of

limitations. When, as here, “the EEOC issues the employee a right-to-sue letter, the

employee must file a complaint within 90 days of the receipt of the . . . letter.” Bost

v. Fed. Express Corp., 372 F.3d 1233, 1238 (11th Cir. 2004) (citation omitted). If

the date of receipt is in dispute, the court applies “a presumption of three days for

receipt by mail, akin to the time period established in Fed. R. Civ. P. 6(e).” Kerr v.

McDonald's Corp., 427 F.3d 947, 953 n.9 (11th Cir. 2005) (citation omitted).

Absent any evidence to the contrary, the court presumes the EEOC mailed the right-

to-sue letter on the date shown in the letter. Lamar v. Wells Fargo Bank & Co., 2 F.

Supp. 3d 1202, 1209 (N.D. Ala. 2014), reversed on other grounds, 597 F. App’x 555

2 The Individual Defendants also challenge the Title VII claim, doc. 8 at 4, contending

correctly that “relief under Title VII is available against only the employer and not against

individual employees whose actions would constitute a violation of the Act . . . .” Dearth v. Collins,

441 F.3d 931, 933 (11th Cir. 2006). The Title VII claims against the Individual Defendants, if

any, are due to be dismissed.

(11th Cir. 2014). A plaintiff, however, can rebut this presumption by offering the

envelope with the return address of the EEOC and a postmark showing a later

mailing date. See Martinez v. City of Birmingham, No. 2:18-CV-0465-JEO, 2018

WL 5013861, at *2 (N.D. Ala. Oct. 16, 2018).

At issue here is TCSS’s contention that the ninety-day period expired on

November 2, 2018—a deadline determined by presuming notice of receipt three days

after the mailing date listed in the right-to-sue letter. Doc. 6 at 3. Hamner counters

that the postmark on the right-to-sue letter’s envelope (August 3, 2018) indicates the

correct mailing date, and that the court should presume she received notice three

days later. Doc. 15 at 4-5. Based on the postmark, this circuit’s presumption of

three days for receipt by mail, and Rule 6(a)(3)(A)’s automatic next-day extension

for deadlines that fall on a weekend, Hamner is correct, and the court finds that she

timely filed her Title VII claim.3

B. Whether Hamner Properly Served the Defendants

The Defendants argue next that Hamner failed to properly serve TCSS, Davie,

and Mays when her process server delivered the documents to a person who was not

3 TCSS challenges this straightforward finding by contending that Hamner failed to offer

proof that she received the right-to-sue letter after August 4, 2018, the date the envelope indicates

the letter was processed, and that Hamner’s attorney’s statements indicating an earlier date of

receipt undermine her contentions. Doc. 18 at 2-3. TCSS’s speculation, however, does not prevail

over the concrete evidence of the envelope’s postmark and the presumption of receipt three days

after the mailing date. Moreover, statements made by Hamner’s attorney in a pre-litigation email

have limited persuasive weight in light of counsel’s attempts to correct the alleged misstatement.

authorized to receive process on their behalf. Docs. 6 at 5-10; 8 at 1–4. In general,

“the rules [regarding service of process] are to be applied in a manner that will best

effectuate their purpose of giving the defendant adequate notice,” and the court looks

at various factors to ensure that the service is fair in light of all the surrounding

circumstances. Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840

F.2d 685, 688 (9th Cir. 1988). Those factors include whether the individual served

“‘stands in such a position as to render it fair, reasonable and just to imply the

authority on h[er] part to receive service,’” actual receipt of process by the correct

person, and the timing of that receipt. See id. But, “before a court may exercise

personal jurisdiction over a defendant, there must be more than notice to the

defendant . . . ; [t]here also must be a basis for the defendant’s amenability to service

of summons. Absent consent, this means there must be authorization for service of

summons on the defendant.” Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484

U.S. 97, 104 (1987). In other words, a defendant’s actual notice is “not sufficient to

cure defectively executed service.” Albra v. Advan, Inc., 490 F.3d 826, 829 (11th

Cir. 2007) (citations omitted). And, when a defendant contests the sufficiency of

service, the plaintiff bears the burden of proving proper service. Davis v. Country

Cas. Ins. Co., 2013 WL 3874709, at *3 (N.D. Ala. July 25, 2013).

1. Service on TCSS

Service for TCSS, a local agency of the State of Alabama, is governed by Rule

4(j)(2) of the Federal Rules of Civil Procedure, which states that service is proper

when either (1) a copy of the summons and complaint is delivered to a state-created

governmental organization’s chief executive officer or (2) a copy is served in a

manner prescribed by state law. Fed. R. Civ. P. 4(j)(2). Alabama law allows service

on governmental entities by serving (1) the CEO, (2) the clerk, or (3) another person

designated by appointment or by statute to receive service of process. Ala. R. Civ.

P. 4(c)(8). Based on these rules, service on Fisher and her subsequent delivery of

the summons to Davie, while providing actual notice, does not satisfy Rule 4(j) or

Alabama Rule 4(c)(8)’s requirement of personal service on TCSS’s CEO. Id. And,

Hamner has not furnished any evidence to suggest that Fisher qualified as “the clerk”

for purposes of receiving service or was designated by appointment or statute to

receive service on behalf of TCSS. See Ala. R. Civ. P. 4(c)(8). Accordingly,

Hamner has not met her burden of proving proper service on TCSS.

2. Service on the Individual Defendants

Service on an individual may be effected by delivering a copy of the summons

and complaint to the individual personally, to “an agent authorized by appointment

or by law to receive service of process,” or, under prescribed conditions, by leaving

copies at the individual’s usual place of abode. Fed. R. Civ. P. 4(e)(2). Based on

this record, Hamner failed to properly serve Davie and Mays within the time

allowed, as there is no evidence that Fisher had authorization to act as an agent for

either defendant, a point Hamner concedes as it relates to Mays.4 Doc. 15 at 15.

3. The court’s authority to extend the time for service

Although Hamner failed to properly serve the defendants within ninety days,

the court “must extend the time for service for an appropriate period” if Hamner

shows good cause. Fed. R. Civ. P. 4(m). In addition, the court may extend the time

for perfecting service even in the absence of good cause, and the Advisory Note to

Rule 4(m) provides guidance as to what factors may justify the grant of an extension

of time absent a showing of good cause: “‘Relief may be justified, for example, if

the applicable statute of limitations would bar the refiled action, or if the defendant

is evading service or conceals a defect in attempted service.’” Horenkamp v. Van

Winkle and Co., 402 F.3d 1129, 1132-33 (11th Cir. 2005) (quoting Fed. R. Civ. P.

4(m), Advisory Committee Note, 1993 Amendments). Other relevant

considerations include whether the defendant had notice of the suit or received

proper service after the deadline. Id. at 1133.

Hamner attributes her failure to perfect service in part on Fisher’s allegedly

deceptive assurances that she would deliver the documents directly to Davie and

4 Hamner notes correctly that she eventually properly served Mays. Doc. 15 at 15.

Consistent with the court’s authority to extend the time for service, see section(III)(B)(3), infra,

the court finds that Hamner has properly served Mays.

Mays for White, and on Fisher’s failure to inform White that Mays was out of the

office. At best, Fisher’s conduct may explain Hamner’s failure to serve those

defendants on the last three days of the deadline. However, it does not explain the

failure to serve them previously or why the process server Hamner used is unfamiliar

with the proper service procedures. But, while the facts here fall short of establishing

good cause, an extension of time to perfect service under Rule 4(m) is warranted as

it is “incumbent upon the district court to at least consider” the impact of the statute

of limitations before dismissing a case without prejudice under Rule 4(m). Lepone-

Dempsey v. Carroll Cnty. Comm’rs, 476 F.3d 1277, 1282 (11th Cir. 2007). In that

respect, in light of the statute of limitations, an order dismissing Hamner’s claims

would effectively bar her Title VII claim. Therefore, in lieu of dismissal, the court

will give Hamner instead until July 19, 2019 to perfect service on TCSS and Davie.

C. Section 1981 Retaliation Claims—Count IV

TCSS argues also that Hamner cannot sue the school board, an arm of the

state, under § 1981. Doc. 6 at 11. Indeed, plaintiffs must bring claims for § 1981

violations against a school board pursuant to § 1983. Baker v. Birmingham Bd. of

Educ., 531 F.3d 1336, 1337 (11th Cir. 2008); Butts v. County of Volusia, 222 F.3d

891, 892-94 (11th Cir. 2000). As such, Hamner improperly framed the statutory

basis for her retaliation claim against TCSS. Still, in lieu of outright dismissal, the

court generally must grant Hamner leave to amend to plead her § 1981 retaliation

claims against TCSS under § 1983,5 unless the amendment would be futile, see

Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). The court must therefore

consider whether Hamner has alleged plausible retaliation claims.

1. Retaliation Claim Against TCSS

To state a plausible retaliation claim, Hamner must allege facts demonstrating

that she engaged in statutorily protected activity, she suffered an adverse action, and

show a causal connection. See Trask v. Sec’y, Dep’t of Veterans Affairs, 822 F.3d

1179, 1193–94 (11th Cir. 2016). For purposes of § 1981, an employee engages in

statutorily protected activity when she opposes race discrimination. Tucker v.

Talladega City Sch., 171 F. App’x 289, 294 (11th Cir. 2006) (citing Pinkard v.

Pullman–Standard, 678 F.2d 1211, 1229 (5th Cir. Unit B 1982). An employee’s

complaint of race discrimination constitutes protected activity if the employee could

“reasonably form a good faith belief that the alleged discrimination existed,” Taylor

v. Runyon, 175 F.3d 861, 869 (11th Cir. 1999), which requires “evidence showing

that her belief that she suffered race discrimination was objectively reasonable,”

McQueen v. Wells Fargo, 573 F. App’x 836, 840 (11th Cir. 2014).

5 See Smith v. Vestavia Hills Bd. of Educ., 218 F. Supp. 3d 1285, 1290 (N.D. Ala. 2016).

See also King v. Butts Cnty. Ga., 576 F. App’x 923, 931 (11th Cir. Aug. 13, 2014) (finding grant

of summary judgment was error when improperly pled § 1981 claim gave defendant sufficient

notice of plaintiff's underlying § 1983 claim); Brown v. Huntsville City Bd. of Educ., 324 F.R.D.

239, 252 (N.D. Ala. 2018).

At issue here is whether Hamner’s race discrimination claims in Hamner I

triggered the adverse employment actions in this case, and, consequently, her

gender-based retaliation claim in this case is cognizable under § 1981. Doc. 15 at

21. Thus, to determine if Hamner engaged in statutorily protected activity, the court

must determine whether it was objectively reasonable for Hamner to believe that

§ 1981 embraces race-based sexual harassment and disparate treatment claims

similar to the claims she brought in Hamner I. See Hamner v. Pruitt, TCSS, et al.,

No. 7:15-cv-00925-JHE, Doc. 1 ¶¶ 96-104.

In the context of public employment, the constitutional right to be free from

employment discrimination on the basis of race is clearly established. See, e.g.,

Rioux v. City of Atlanta, 520 F.3d 1269, 1283 (11th Cir. 2008). This includes the

“reverse discrimination” claims pleaded by Hamner. Thus, based on the allegations

in Hamner I that TCSS treated a similarly situated employee of another race more

favorably, Hamner could have had a good faith, reasonable belief that TCSS

discriminated against her on the basis of race. See Hamner I, No. 7:15-cv-00925-

JHE, doc. 1 at ¶ 101. See also Maynard v. Bd. of Regents of the Div. of Univs. of the

Fla. Dep't of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003) (listing the elements of a

discrimination claim). Consequently, Hamner plausibly alleges that she engaged in

statutorily protected activity.

Next, while Hamner’s discharge is a materially adverse action, see Goldsmith

v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008), Hamner still must

provide proof that “‘the protected activity was a but-for cause of the alleged adverse

action by the employer,’” Trask, 822 F.3d at 1194 (quoting Univ. of Tex. Sw. Med.

Ctr. v. Nassar, 570 U.S. 338, 362 (2013)). Put differently, to state a retaliation claim,

Hamner must plausibly allege that had she not complained of racial discrimination

in Hamner I, TCSS would not have discharged her. Hamner can meet the causation

requirement if she shows that TCSS knew of the protected expression and “‘that

there was a close temporal proximity between this awareness and the adverse . . .

action.’” Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (quotation

omitted). While, the temporal proximity must be very close, and a two-month gap

between the statutorily-protected expression and the adverse employment action

may not be close enough, see Williams v. Waste Mgmt., Inc., 411 F. App’x 226, 229

(11th Cir. 2011), “‘courts have routinely found a causal connection even as to

retaliatory acts occurring long after the protected activity, where those events are

linked by a chain of intervening retaliatory acts,’” Tyler v. Kia Motors Mfg. Ga.,

Inc., Civil Action No. 3:14–cv–00147–TCB–RGV, 2016 WL 9663168, at *19 (N.D.

Ga. Aug. 1, 2016) (quoting Pears v. Mobile County, 645 F. Supp. 2d 1062, 1096

(S.D. Ala. 2009)).

Here, Hamner alleges that the Defendants set a retaliatory trap in motion

during Hamner I, which culminated in her discharge over a year later. Specifically,

Hamner asserts that (1) during Hamner I, Davie excluded terms from the settlement

agreement that could have restricted TCSS’s ability to retaliate against her, doc. 1 at

7, ¶ 28; (2) Davie transferred Hamner to a new school in violation of TCSS policy,

id. at 8, ¶ 30; (3) after that transfer, Henson prevented Hamner from fulfilling her

responsibilities as “building test coordinator,” id. at 13, ¶ 37; and (4) TCSS launched

a pretextual investigation into Hamner’s Section 504 plans that resulted in her

suspension and ultimate termination, id. at 21, ¶¶ 59-64. Those allegations, when

viewed in the light most favorable to Hamner, are sufficient to give rise to a plausible

inference of causation. As a result, although TCSS’s motion to dismiss the § 1981

claim against it is due to be granted, Hamner may re-plead, by July 19, 2019, her

§ 1981 retaliation claim pursuant to § 1983.

2. Retaliation Claims Against the Individual Defendants

The Individual Defendants separately contend that § 1981 does not provide

an independent cause of action again them as state actors. Doc. 8 at 5. Indeed,

“[w]hen individual school administrators are sued in their official capacities, they

are considered officers of the board of education, . . . [and claims] against officers

in their official capacity are ‘functionally equivalent’ to claims against the entity that

they represent.” Katherine S. v. Umbach, 2002 WL 226697, *18 (M.D. Ala. Feb. 1,

2002) (quotation omitted). Therefore, the retaliation claims against the Individual

Defendants in their official capacities are due to be dismissed. The retaliation claims

against the Individual Defendants in their individual capacities, if any, also fail

because the only materially adverse actions Hamner alleges are her suspension and

subsequent termination. See doc. 1 at 28, ¶ 88. However, the Board—not the

Individual Defendants—is exclusively empowered to “suspend or dismiss . . .

superintendents, principals, teachers, or any other employees or appointees of the

board.” Ala. Code 1975 § 16-8-23. As such, Hamner fails to allege any materially

adverse action taken against her by the Individual Defendants. Therefore, the § 1981

claims against the Individual Defendants are due to be dismissed.

D. Battery Claims—Count V

Hamner asserts battery claims against TCSS and Henson under Alabama law.

Doc. 1 at 29, ¶¶ 94-98. TCSS and Henson in his official capacity are immune from

common-law tort suits under the Alabama Constitution. See Art. 1, § 14, Ala. Const.

of 1901; Ex parte Hale County Board of Education, 14 So. 3d 844, 848 (Ala. 2009).

Therefore, the battery claims against TCSS and Henson in his official capacity are

due to be dismissed. However, a “State agent shall not be immune from civil liability

in his or her personal capacity . . . when the State agent acts willfully, maliciously,

fraudulently, in bad faith, beyond his or her authority, or under a mistaken

interpretation of the law.” Ex parte Cranman, 792 So.2d 392, 405 (Ala. 2000)

(emphasis in original omitted). The allegations against Henson that he willfully

touched Hamner without her consent in a sexually suggestive manner, doc. 1 at 12,

¶ 35, are sufficient at this juncture for the individual capacity claim against Henson

to proceed.6 Indeed, contrary to the Defendants’ contention that Hamner must allege

facts of a harmful or offensive touching, doc. 8 at 9, the Supreme Court of Alabama

has allowed an assault and battery claim to proceed where the defendant

intentionally touched the plaintiff in a sexually suggestive manner, and where the

touching was unwelcome. See Ex Parte Atmore Community Hosp., 719 So. 2d 1190,

1194 (Ala. 1998) (citation omitted). Therefore, Hamner may pursue a battery claim

only against Henson in his individual capacity.

E. Whether Venue is Proper

Finally, the Defendants ask the court to transfer this matter to the Western

Division, citing the lawsuit’s relationship to Tuscaloosa County. Section 1404(a)

provides that “for the convenience of parties and witnesses, in the interest of justice,

6 As for Henson’s contention that “there is no independent basis for Federal jurisdiction

over Mr. Henson . . . [and] the Court lacks jurisdiction to hear a pendant state claim against him,”

doc. 8 at 11, “[t]he decision to exercise supplemental jurisdiction over pendant state claims rests

within the discretion of the district court,” Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088-89 (11th

Cir. 2004). And, “in any civil action of which the district courts have original jurisdiction, the

district courts shall have supplemental jurisdiction over all other claims that are so related to claims

in the action within such original jurisdiction that they form part of the same case or controversy

under Article III of the United States Constitution.” § 28 U.S.C. § 1367(a). Here, the federal and

state claims clearly derive from “a common nucleus of operative facts” pertaining to the allegedly

sexually-hostile environment at a middle school. See PTA-FLA, Inc. v. ZTE USA, Inc., 844 F.3d

1299, 1310 (11th Cir. 2016). As a result, the court can exercise jurisdiction over the battery claims

against Henson.

a district court may transfer any civil action to any other district or division where it

might have been brought.” 28 U.S.C. § 1404(a). Transfer hinges upon several

convenience factors: (1) plaintiff’s choice of forum, (2) convenience of parties and

witnesses, (3) place of alleged wrong, (4) location of counsel, (5) cost of obtaining

the attendance of witnesses, (6) accessibility and location of sources of proof, and

(7) possibility of delay and prejudice in the event of transfer. See Terrell v. Tyson

Foods, Inc., No. 2:05-CV-1069-RDP, 2008 WL 11375378, at *1 (N.D. Ala. Jan. 3,

2008) (citing Hanby v. Shell Oil Co., 144 F. Supp. 2d 673, 676 (E.D. Tex. 2001)).

Hamner readily concedes that the acts or omissions giving rise to her claims took

place in the Western Division, the relevant evidence is located in that Division, the

parties reside in that Division, and this action is related to the prior civil action she

filed in that Division. She contends instead that the Southern Division is more

convenient for her, “her counsel, and her witnesses that live in the Southern Division,

. . . including a potential expert witness,” and that it would cause her a financial

hardship to pay for the transportation of potential witnesses to Tuscaloosa. Doc. 15

at 22. Weighing these contentions and the other factors, however, the court finds

that the site of the material events in this case, the relative convenience of party

witnesses, and the relative ease of access to sources of proof weigh in favor of

transfer. Accordingly, the Defendants’ motion to transfer divisional venue is due to

be granted.

IV. CONCLUSION AND ORDER

The Defendants’ motions to dismiss, docs. 5 and 8, are GRANTED as to

(1) the Title VII and § 1981 claims against the Individual Defendants, (2) the § 1981

claims against TCSS, (3) the state law battery claim against TCSS and Henson in his

official capacity, and these claims are DISMISSED WITHOUT PREJUDICE. In

all other respects, the Defendants’ motions, docs. 5 and 8, are DENIED. Hamner is

ORDERED to amend her complaint by July 19, 2019 to plead her § 1981 retaliation

claim against TCSS pursuant to § 1983, and to perfect service on TCSS and Davie

in accordance with the Federal Rules of Civil Procedure on or before July 19, 2019.

Finally, the Defendants’ motion to transfer venue to the Western Division of the

Northern District of Alabama is GRANTED, and the Clerk is DIRECTED to

randomly reassign this case to a Judge in the Western Division.

DONE the 10th day of July, 2019.

— Apap bho te

ABDUL K. KALLON

UNITED STATES DISTRICT JUDGE

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