Jones v. Bessemer Board of Education

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

ELEANOR M. JONES, )

)

Plaintiff, )

)

v. ) 2:20-cv-00044-LSC

)

BESSEMER BOARD OF )

EDUCATION & DR. KEITH A. )

STEWART, )

)

Defendants. )

MEMORANDUM OF OPINION

Plaintiff Eleanor M. Jones (“Jones”) brings this age discrimination claim

under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et

seq., against Defendants Bessemer Board of Education (the “Board”) and Dr. Keith

A. Stewart (“Dr. Stewart”), the Board Superintendent (collectively

“Defendants”). Before the Court is Defendants’ motion to dismiss pursuant to Fed.

R. Civ. P. 12(b)(6) for failure to state a viable claim for age discrimination. (See Doc.

7.) The motion is fully briefed and ripe for decision. For the reasons stated below,

Defendants’ motion to dismiss is due to be granted in part and denied in part.

I. BACKGROUND1

Jones, a 56-year-old female, has been employed by the Board since August

1998 in various capacities, including her current role as a business teacher. (Doc. 1 at

4.) In May 2018, she applied for the position of Work Force Coordinator, as did Reba

Caffee, a cosmetology teacher at the time of the vacancy who Jones believes to be

under the age of 40 with less than 8 years of experience. (Id.) After receiving a

complaint from Jones that she overheard the interviewing supervisor guaranteeing

the Work Force Coordinator job to Ms. Caffee, Dr. Stewart and the Board decided

to re-interview the applicants for the position, including Jones and Ms. Caffee. (Id.)

After the second round of interviews, Jones scored higher than Ms. Caffee, but Ms.

Caffee was hired. (Id.)

Jones timely filed written charges with the Equal Employment Opportunity

Commission (“EEOC”). (Doc. 1 at 3.) By notice dated June 25, 2019, Jones was

advised by the EEOC that she was entitled to institute a civil action in the appropriate

court within 90 days of receipt of said notice. (Id.) That 90-day period would have

lapsed on September 23, 2019. On November 22, 2019, Jones and the Board entered

1 In evaluating a motion to dismiss, this Court “accept[s] the allegations in the complaint as

true and construe[s] the facts in the light most favorable to the plaintiff.” Lanfear v. Home Depot,

Inc., 679 F.3d 1267, 1275 (11th Cir. 2012). Therefore, the following facts are taken from Jones’s

complaint, and the Court makes no ruling on their veracity.

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into the “Tolling Agreement for Statute of Limitations” that purports to

retroactively toll the 90-day statute of limitations for Jones to file suit from

September 23, 2019, until midnight on January 10, 2020. (Doc. 1-2 at 1.)

Jones filed this action on January 10, 2020, alleging that the Board and Dr.

Stewart discriminated against her on the basis of age when they failed to promote her

to the position of Work Force Coordinator in favor of a less qualified, younger

applicant. (See Doc. 1.) Jones sued Dr. Stewart in both his official and individual

capacities. The Board and Dr. Stewart moved to dismiss the complaint pursuant to

Fed. R. Civ. P. 12(b)(6). (Doc. 7 at 1.) Dr. Stewart claims there are no allegations that

support a viable claim against him. (Id. at 2.) The Board claims that all claims

contained in the complaint are time-barred because the Jones missed the statute of

limitations, notwithstanding the Tolling Agreement. (Id. at 3.)

On March 31, 2020, this Court directed the parties to submit briefs addressing

the impact of the Tolling Agreement’s conflicting language on the Defendants’

statute of limitations defense. (See Doc. 15.) Dr. Stewart and Jones each submitted

supplemental briefs (see docs. 18 & 19). The Board, however, did not submit a

supplemental brief.

II. STANDARD

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In general, a complaint must present “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To withstand

a motion to dismiss, the complaint “must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’” Lord Abbett Mun.

Income Fund, Inc. v. Tyson, 671 F.3d 1203, 1207 (11th Cir. 2012) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009)). The plaintiff need not put forth “detailed factual

allegations” in support of the claim, but there must be enough to “allow[] the court

to draw the reasonable inference that the Defendant is liable for the misconduct

alleged.” Iqbal, 555 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556

(2007)). “This necessarily requires that a plaintiff include factual allegations for each

essential element of his or her claim.” GeorgiaCarry.Org, Inc., v. Georgia, 687 F.3d

1244, 1254 (11th Cir. 2012).

In evaluating the sufficiency of a complaint, this Court “begin[s] by

identifying pleadings that, because they are no more than conclusions, are not

entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Next, this Court

“assume[s] the veracity” of well-pleaded, factual allegations to “determine whether

they plausibly give rise to an entitlement to relief.” Id. Mere “labels and

conclusions” or “a formulaic recitation of the elements of a cause of action” are

insufficient. Id. at 678. Finally, only the complaint itself and any attachments thereto

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may be considered, even when the parties attempt to present additional evidence.

See Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1168 (11th Cir. 2014); see also Fed.

R. Civ. P. 12(d).

III. DISCUSSION

A. Dr. Stewart

Jones sues Dr. Stewart in both his individual and official capacities. The

Eleventh Circuit has held there is no individual liability under either the ADEA or

Title VII. Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991); see also Smith

v. Lomax, 45 F.3d 402, 403 n.4 (11th Cir. 1995). Additionally, official capacity suits

represent “another way of pleading an action against an entity of which an [official]

is an agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell v. N.Y.

City Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). As the Eleventh Circuit has

explained, official capacity suits are the “functional equivalent” of claims against the

entity that employs the official and, therefore, no longer necessary because the entity

can be sued directly. Busby, 931 F.2d at 776. The Board is an agency of the State of

Alabama. See Enterprise City Bd. of Educ. v. Miller, 348 So. 2d 782, 783 (Ala. 1977)

(“[City boards of education and county school boards] are agencies of the

state . . . .”). “[W]hen a suit is filed against both a governmental entity and the

entity’s employees in their official capacity, a court may dismiss the individual

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defendants in their official capacities as ‘redundant and possibly confusing to the

jury.’” Underwood v. Boisot, 7:07-CV-01228-LSC, 2008 WL 11422055, at *4 (N.D.

Ala. Mar. 4, 2008) (quoting Busby, 931 F.2d at 776) (recognizing that having as

defendants both the city and its officers sued in their official capacities would be

redundant and therefore dismissing the officers).

The individual capacity claim against Dr. Stewart should be dismissed because

there is no individual liability under either the ADEA or Title VII. See Busby, 931

F.2d at 772. Additionally, the official capacity claim should be dismissed as

“redundant” of the claims against the Board and “possibly confusing to the jury.”

See Underwood, 2008 WL 11422055, at *4; see also Busby, 931 F.3d at 776. Finally, the

claims against Dr. Stewart appear to be time-barred, and it does not appear that the

Tolling Agreement would operate to toll the applicable statute of limitations with

respect to him. It is undisputed that the Agreement was entered into between Jones’s

counsel and then-counsel for the Board. (Doc. 18 at 2.) However, there is no

reference to Dr. Stewart in the Agreement, and Dr. Stewart did not sign or authorize

anyone to sign the Agreement on his behalf. (Id.) There is no allegation that Dr.

Stewart or his counsel were involved in any way in the execution of the Agreement.

(Id.)

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In sum, the Board is a Defendant; there is no individual liability under the

ADEA or Title VII; and Dr. Stewart is not named in, did not sign, and was not

involved in the execution of the Tolling Agreement. Therefore, the claims against

Dr. Stewart are due to be dismissed.

B. Bessemer Board of Education

The Board argues for dismissal on the grounds that Jones’s claim is barred by

the statute of limitations, and it insists that the Tolling Agreement did not waive or

toll the statute of limitations due to the conflicting language in the agreement. (See

Doc. 7.) Jones claims the limitations period was both equitably tolled and tolled by

the parties’ Agreement. The Supreme Court has held that “filing a timely charge of

discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal

court, but a requirement that, like a statute of limitations, is subject to waiver,

estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393

(1982). Therefore, this Court must address whether equitable tolling or waiver

apply.

Equitable tolling is an extraordinary remedy which is typically applied

sparingly. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990). Equitable tolling

is allowed “where the claimant . . . has been induced or tricked by his adversary’s

misconduct into allowing the filing deadline to pass.” Id. “Equitable tolling has also

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been followed where the court led the plaintiff to believe she had done all that was

required of her.” Browning v. AT&T Paradyne, 120 F.3d 222, 227 (11th Cir. 1997).

Further, equitable tolling is permitted “when a movant untimely files because of

extraordinary circumstances that are both beyond his control and unavoidable even

with diligence.” Sandvik v. United States, 177 F.3d 1269, 1270–71 (11th Cir. 1999).

The Supreme Court has “generally been much less forgiving in late filings where the

claimant failed to exercise due diligence in preserving his legal rights.” Irwin, 498

U.S. at 96. Finally, “the burden is on the plaintiff to show that equitable tolling is

warranted.” Justice v. United States, 6 F.3d 1474, 1479 (11th Cir. 1993).

Jones claims the statute of limitations should be equitably tolled because she

retained legal counsel, timely filed her EEOC charge, and obtained a tolling

agreement through her legal counsel, who engaged the Board in settlement

discussions. (Doc. 11 at 5.) While undisputed, these facts fail to show that Jones was

“induced or tricked” by the Board, and there is no allegation that the Court led Jones

to believe that she had done all that was required of her. Additionally, Jones has

raised no “extraordinary circumstances” that were “unavoidable.” Jones also has

not shown that she was unaware of the 90-day requirement for filing suit, and she

entered into the Tolling Agreement nearly 60 days after the deadline passed.

Therefore, the Court concludes that equitable tolling does not apply.

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Turning to waiver, the parties entered into the Tolling Agreement on

November 22, 2019, that purports to retroactively toll the statute of limitations from

September 23, 2019, until January 10, 2020. (Doc. 1-2 at 1.) The Tolling Agreement

states that it “toll[s] the running of the applicable limitations period . . . for any

potential claims and causes of action against . . . [the Board] which may be alleged by

[Jones] to arise out of her employment and could be asserted as of September 23,

2019. This agreement shall be in effect until January 10, 2020 . . . .” (Id.) It then says,

“The terms, conditions and subject matter of this Agreement shall not in any way

affect the applicability of any legal defenses which may be available to . . . [the Board]

as a result of Claimant not having filed suit prior to September 23, 2019.” (Id.) It

goes on to say, “The purpose . . . is to extend to the parties a grace period within

which they . . . may attempt pre-suit negotiations and/or mediation during pendency

of this Agreement.” (Id.) Finally, the Tolling Agreement says, “In the event that the

applicable limitations periods . . . have not already lapsed for filing suit in this matter,

such limitations period or periods shall only be tolled during the period during which

this Agreement shall be in effect . . . .” (Id.)

The parties disagree about the effect of the Tolling Agreement, and this Court

must determine if the Agreement in fact waives the Board’s statute of limitations

defense for the relevant time period. “In a contractual dispute, Alabama law . . . first

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look[s] to the contract to determine whether the parties have specified a particular

sovereign’s law to govern.” Stovall v. Universal Constr. Co., 893 So. 2d 1090, 1102

(Ala. 2004). Absent “such a contractual specification,” Alabama courts follow “the

principle of lex loci contractus, applying the law of the state where the contract was

formed.” Id. The contract did not specify a specific sovereign’s law to govern but

the contract was formed in Alabama; therefore, Alabama state law will apply.

Traditional principles make contract interpretation a question of law, decided

by reading the words of a contract in the context of the entire contract and construing

the contract to effectuate the parties’ intent. Faez v. Wells Fargo Bank, N.A., 745

F.3d 1098, 1004 (11th Cir. 2014). When interpreting a contract under Alabama law,

the court first looks to the plain language of the contract and determines whether

that language is ambiguous. Pate Flagship, LLC v. Cypress Equities Se., LLC, 88 F.

Supp. 3d 1271, 1276 (N.D. Ala. 2015). Whether a contract is ambiguous is a question

of law for the court to decide. FabArc Steel Supply, Inc. v. Composite Constr. Sys., Inc.,

914 So. 2d 344, 357 (Ala. 2005). “A contractual provision is ambiguous if it is

reasonably susceptible of more than one meaning.” Id. Further, a “patent

ambiguity” is one “that is apparent upon the face of the instrument, arising by reason

of inconsistency or uncertainty in the language employed in the contract.” Brown v.

Butts, 214 So.3d 1181, 1188 (Ala. Civ. App. 2016) (citation omitted).

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The Tolling Agreement here presents a patent ambiguity. It begins by stating

that it “toll[s] the running of the applicable limitations period” for any claims arising

out of Jones’s employment and providing the dates it is in effect—September 23,

2019, to January 10, 2020. But then it states that it does not “in any way affect the

applicability of any legal defenses” available to the Board as a result of Jones not filing

suit before September 23, 2019. (Doc. 1-2 at 1 (emphasis added).) A reasonable

interpretation of the latter provision is that “any legal defenses” includes a statute

of limitations defense that would be available to the Board after September 23, 2019.

However, the Agreement then says that its purpose is to provide a grace period for

“pre-suit negotiations,” which only makes sense if the limitations period were

tolled. Finally, the Agreement includes language that it would be in effect only if the

limitations period had not already expired. Accordingly, this Court must look to

additional contract interpretation principles to resolve the ambiguity.

When an agreement is ambiguous, the court “must employ established rules

of contract construction to resolve the ambiguity found in the inartfully drafted

document.” Voyager Life Ins. Co. v. Whitson, 703 So. 2d 944, 948 (Ala. 1997).

Alabama courts “have not favored the destruction of contracts on the grounds that

they are ambiguous, uncertain, or incomplete, and will, if feasible, so construe a

contract as to carry into effect the reasonable intention of the contracting parties if

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that can be ascertained.” Gardens at Glenlakes Prop. Owners Ass’n, Inc. v. Baldwin

Cty. Sewer Serv., LLC, 225 So. 3d 47, 54 (Ala. 2016) (internal quotation marks,

citations, and brackets omitted). Finally, when the examination is limited to the four

corners of the agreement itself, “the first of two conflicting provisions prevails over

the second provision,” and “[a]ny inconsistencies between clauses or conditions

that cannot be reconciled must be resolved in favor of the first clause.” Voyager, 703

So. 2d at 949.

The title of the Agreement, “Tolling Agreement for Statute of Limitations,”

and the language of the first full paragraph—that “this instrument . . . toll[s] the

running of the applicable limitations period” for any claims arising out of Jones’s

employment and such tolling is in effect from September 23, 2019, to January 10,

2020—suggests that the parties’ intended to retroactively toll the statute of

limitations for that period. Additionally, the language stating the purpose of the

Agreement—to provide a grace period for “pre-suit negotiations”—reinforces that

same intent. The Agreement becomes ambiguous when it says it does not apply to

“any legal defenses” that were available as a result of Jones not filing suit prior to

September 23, 2019. Further ambiguity is introduced by the language that the

Agreement will be in effect only if the limitations period had not already expired.

However, despite this conflicting language, the parties have provided no other

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reason for entering into the Agreement than to toll the limitations period to allow

Jones until January 10, 2020, to file suit, leading this Court to conclude that the

intent of the parties was to waive the Board’s statute of limitations defense until

January 10, 2020. Finally, the first provision, which contains the language Jones

relies upon to uphold the Agreement, controls and prevails over the conflicting

provisions that follow. See Voyager, 703 So. 2d at 949.

The Court has also reviewed case law interpreting tolling agreements. The

Eleventh Circuit has examined an agreement, like the present one, that purported to

toll the relevant statute of limitations. See Pac. Harbor Capital, Inc. v. Barnett Bank,

N.A., 252 F.3d 1246 (11th Cir. 2001). However, that agreement sought to toll the

statute of limitations from the time the agreement was entered, by which time the

limitations period had already expired. In Pacific Harbor, the parties entered into an

agreement on December 9, 1996, that stated, “if any applicable statute of limitations

had not expired by December 9, 1996, it would be tolled until March 31, 1997.” Id.

at 1250. The applicable statute of limitations barred a suit after October 1, 1994. Id.

at 1251. The court held that the tolling agreement executed by the parties was

ineffective because the relevant statute of limitations would have run by the time it

was made, and it only sought to toll the limitations period from the time the

agreement was entered. Id.

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Two district courts in other circuits, however, have examined agreements

that, like the Agreement here, contained language aiming to retroactively toll the

statute of limitations and directly distinguished them from the agreement in Pacific

Harbor. See SPPI-Somersville, Inc. v. TRC Companies, Inc., Nos. C 04-2648 SI, 07-

5824 SI, 2009 WL 2390347 (N.D. Cal. 2009); S.E.C. v. DiBella, 409 F. Supp. 2d 122

(D. Conn. 2006). In DiBella, the parties entered into an agreement on December 20,

2003, to retroactively toll the limitations period that had expired on November 30,

2003. DiBella, 409 F. Supp. 2d at 129. The language of the agreement made clear

that the parties intended to toll “any statute of limitations applicable to the

proceedings or any other action . . . brought by or on behalf of the Commission . . .

arising out of the investigation as of October 24, 2003.” Id. The court distinguished

the agreement before it from the agreement in Pacific Harbor, reasoning that in Pacific

Harbor, “the parties only agreed to toll the statute for claims that had not expired as

of December 9, 1996—the date they entered into the agreement—and the

underlying claims had in fact expired before December 9, 1996.” Id. at 128. The

DiBella court held that the agreement before it tolled the statute of limitations

because the claims had not expired as of the date specified in the agreement. Id. at

129. Further, the court could “find no reason not to accept its terms as broadly as it

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was written” and concluded that “the Defendants . . . waived their right to raise the

statute of limitations defense.” Id.

In SPPI-Somersville, the parties entered into an agreement on June 29, 2004,

that, instead of tolling all claims from the date the agreement was executed,

purported to “toll all claims from the date of discovery” until November 15, 2007.

SPPI-Somersville, 2009 WL 2390347, at *5. The date of discovery “was June 18,

2001, at the latest”; accordingly, the three-year limitations period would have

otherwise expired on June 18, 2004. Id. at *6. However, the court rejected the

argument that the agreement was ineffective because the limitations period had

already expired when the agreement was executed. Id. Instead, the court held that

the agreement tolled the statute of limitations on otherwise expired claims because

it specified that the limitations period was tolled as of an earlier date, not the date of

the agreement. See id.; see also Delano v. Abbott Labs., 908 F. Supp. 2d 888, 895 (W.D.

Tenn. 2012) (explaining and agreeing with the reasoning in SPPI-Somersville to

enforce the tolling agreement). The court also found there was no information in

Pacific Harbor about the beginning date of the tolling agreement, and thus that case

did not assist in its ruling. SPPI-Somersville, 2009 WL 2390347, at *11 n.14.

Jones received a right-to-sue letter on June 25, 2019, and was advised she had

90 days to file her complaint. (Doc. 1 at 3.) Thus, the 90-day deadline expired on

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September 23, 2019. The parties entered into the Tolling Agreement on November

22, 2019, which states in relevant part: “The tolling provision of this Agreement is

effective prospectively only, from the date of September 23, 2019. This Agreement

shall be in effect until January 10, 2020 . . . .” (Doc. 1-2 at 9.) Unlike in Pacific Harbor,

where the agreement attempted to toll the limitations period from the time it was

signed—when the limitations period had already expired—this Agreement attempts

to retroactively toll the limitations period from a time when it was active. Therefore,

because the present case presents a different type of agreement, the holding in Pacific

Harbor is not dispositive.

While not binding on this Court, the holdings in DiBella and SPPI-Somersville

are persuasive and applicable to the present case. Like the agreements in DiBella and

SPPI-Somersville that each specified a timely date on which tolling became effective,

the Agreement here set out to begin tolling the limitations period on September 23,

2019: the last date the limitations period was active. And even though the claims

were otherwise time-barred at the time the parties entered into the agreement, the

courts in DiBella and SPPI-Somersville found that the intent of the parties was to toll

the limitations period and upheld the agreement, suggesting this Agreement should

also be upheld. Like the agreements in Dibella and SPPI-Somersville, the Agreement

before this Court reflects an agreement between two parties to retroactively toll a

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limitations period that would otherwise have expired. Accordingly, the Court

concludes that the Tolling Agreement effectively waived the Board’s statute of

limitations defense for claims filed by Jones on or before January 10, 2020, and

therefore her claim is not time-barred.”

IV. CONCLUSION

For the reasons stated above, Defendants’ motion to dismiss is GRANTED

IN PART insofar as the claims against Dr. Stewart are DISMISSED WITH

PREJUDICE and DENIED IN PART insofar as the claims against the Board remain

pending. An Order consistent with this Opinion will be entered contemporaneously

herewith.

DONE and ORDERED on June 23, 2020.

L. Scott G

United States Distct Judge

199335

2 Finally, the Board states—without support—that it did not authorize their former counsel

to sign the Tolling Agreement, and it makes a cursory argument that the Agreement is invalid for

lack of such authorization. (Doc. 7 at 4.) However, the Board cites no authority in support of this

argument. “There is no burden upon the district court to distill every potential argument that

could be made based upon the materials before it... .” Resolution Tr. Corp. v. Dunmar Corp., 43

F.3d 587, 599 (11th Cir. 1995). Therefore, that point will not be considered by the Court.

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