Hamner v. Tuscaloosa County School System

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

SHARON HAMNER, )

)

Plaintiff,

)

v. )

7:18-cv-01838-LSC

TU SCALOOSA COUNTY )

)

SCHOOL SYSTEM, et al.,

)

Defendants. )

MEMORANDUM OF OPINION

Plaintiff Sharon Hamner (“Hamner” or “Plaintiff”) brings this action against

her former employer, Defendant Tuscaloosa County School System (“TCSS”), and

three of TCSS’s employees, Defendants Walter Davie (“Davie”), Allison Mays

(“Mays”), and Clifton Henson (“Henson”) (collectively, the “Individual

Defendants”). Hamner asserts claims against TCSS and the Individual Defendants

(collectively, the “Defendants”) for sexual harassment and retaliation in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”);

42 U.S.C. § 1981; and 42 U.S.C. § 1983. Hamner also asserts a state law battery

claim against TCSS and Henson. Before the Court are Defendants’ motions to

dismiss Plaintiff’s Second Amended Complaint. (Docs. 51, 54.) The motions are

fully briefed and ripe for review. For the reasons stated below, the motions are due

to be granted in part and denied in part.

I. BACKGROUND1

Hamner, a Caucasian female, had been employed by TCSS for over twenty

years. She worked as a school counselor at Hillcrest Middle School (“HMS”) and

later at Collins-Riverside Middle School (“CRMS”), both operated by TCSS. While

at HMS, Hamner alleges she was subjected to what she calls “sexual harassment that

was race-based and racially discriminatory” by an African American male identified

as “Pruitt.” (See doc. 45 ¶¶ 17, 31.) Hamner spoke with a human resources director

about incidents of discrimination and filed an Equal Employment Opportunity

Commission (“EEOC”) charge. Hamner proceeded to file a complaint (“Hamner

I”) alleging claims under Title VII and 42 U.S.C. § 1981. See generally Complaint,

Hamner v. Pruitt, No. 7:15-cv-00925-LSC (N.D. Ala. June 2, 2015). Hamner I was

settled in 2016.

During the settlement of Hamner I, Davie, TCSS’s superintendent, insisted

that Hamner transfer from HMS to CRMS. Hamner alleges that Davie set a

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

and constru[es] them in the light most favorable to the plaintiff.” Lanfear v. Home Depot, Inc., 679

F.3d 1267, 1275 (11th Cir. 2012) (quoting Ironworkers Loc. Union 68 v. AstraZeneca Pharm., LP, 634

F.3d 1352, 1359 (11th Cir. 2011)). The following facts are, therefore, taken from the allegations

contained in Plaintiff’s Second Amended Complaint, and the Court makes no ruling on their

veracity.

“retaliatory trap” by failing to include her transfer as part of her settlement

agreement, and by telling Hamner that when she transferred, “her job at CRMS

would ‘be safe’ until [she] retired.” (Doc. 45 ¶ 46.) Hamner states that she was

transferred by Davie in a manner that conflicted with TCSS’s policies and

procedures. She believes Davie intended to create a situation in which TCSS would

be able to easily terminate her employment, contrary to his assurances that her job

would be safe after her transfer.

In addition to her allegations against Davie, Hamner alleges that Mays, the

senior human resources director at TCSS, and Henson, the principal at CRMS, took

retaliatory actions against her. Hamner states that Henson prevented her from

performing aspects of her job, including responsibilities as a “building test

coordinator.” (Doc. 45 ¶ 57.) She also alleges that Davie, Mays, and Henson singled

her out for an investigation into the “504 plans,” which she oversaw as part of her

job responsibilities at HMS and CRMS. Hamner asserts that she was the only

individual who was subjected to an investigation, and she believes that but for

Hamner I, she would not have been targeted in this manner.

Furthermore, Hamner alleges that while she was at CRMS, Henson engaged

in sexually inappropriate behavior, including following Hamner on and off school

property, and placing “his hand on her without her consent and with a suggestive

look on his face.” (Doc. 45 ¶ 86(f).) Hamner reported Henson’s conduct to Mays,

who did not investigate her claims.

Hamner insists that collectively, the Individual Defendants’ actions led TCSS

to place her on administrative leave and terminate her employment. Hamner also

alleges that the Individual Defendants continued to retaliate against her after her

termination by seeking the revocation of her counseling license with the Alabama

Board of Education.

After Hamner was discharged, she filed a timely charge with the EEOC

alleging sex discrimination and retaliation concerning the incidents at CRMS, and

retaliation stemming from Hamner I. After receiving her right to sue letter from the

EEOC, Hamner filed this complaint in November 2018.

This case was previously before Judge Abdul Kallon. On July 10, 2019, Judge

Kallon entered a Memorandum Opinion and Order granting in part and denying in

part Defendants’ motions to dismiss Plaintiff’s original Complaint. (See doc. 22.)

Judge Kallon dismissed without prejudice the Title VII and § 1981 claims against the

Individual Defendants, the battery claim against TCSS, and allowed Hamner leave

to amend her complaint to replead her § 1981 retaliation claim against TCSS

pursuant to § 1983. This case was then reassigned to the undersigned in July 2019.

Hamner then filed an Amended Complaint, repleading only the § 1981 claim

against TCSS pursuant to § 1983 and omitting all other claims from her original

Complaint. (See doc. 28.) More than eight months after Hamner filed her Amended

Complaint, the Individual Defendants filed a Motion for Judgment on the Pleadings

as the Amended Complaint contained no allegations against them. (See doc. 32.)

Hamner responded to the motion, stating that she intended for her Amended

Complaint to be an “amendment” to her original Complaint, and did not intend to

abandon all claims against the Individual Defendants. (See doc. 36.) Then, Hamner

filed a Second Amended Complaint, again stating that her Amended Complaint was

intended to supplement her original complaint, not supersede it. (See doc. 45.) This

Court construed Hamner’s Second Amended Complaint as an implied motion for

leave to amend, which was granted. (See doc. 48.) This Court thereafter denied the

Individual Defendants’ Motion for Judgment on the Pleadings. (See id.)

Hamner’s Second Amended Complaint includes claims previously dismissed

by Judge Kallon. (See generally doc. 45.) Defendants now seek to dismiss all claims in

Hamner’s Second Amended Complaint. (Docs. 51, 54.) This Court denied in part

TCSS’s Motion to Dismiss Plaintiff’s Second Amended Complaint. (See doc. 53.)

The remaining arguments presented by Defendants will be addressed below.

II. STANDARD OF REVIEW

In general, a pleading must include “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). However, in

order to withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a

complaint “must plead enough facts to state a claim to relief that is plausible on its

face.” Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1347–48 (11th Cir. 2016) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (internal quotation marks

omitted). “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Stated another

way, the factual allegations in the complaint must be sufficient to “raise a right to

relief above the speculative level.” Edwards v. Prime, Inc., 602 F.3d 1276, 1296 (11th

Cir. 2010) (quoting Rivell v. Priv. Health Care Sys., Inc., 520 F.3d 1308, 1309 (11th

Cir. 2008) (internal quotation marks omitted). A complaint that “succeeds in

identifying facts that are suggestive enough to render [the necessary elements of a

claim] plausible” will survive a motion to dismiss. Watts v. Fla. Int’l Univ., 495 F.3d

1289, 1296 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 556) (internal quotation

marks omitted).

In evaluating the sufficiency of a complaint, this Court first “identif[ies]

pleadings that, because they are no more than conclusions, are not entitled to the

assumption of truth.” Iqbal, 556 U.S. at 679. This Court then “assume[s] the[]

veracity” of the complaint’s “well-pleaded factual allegations” and “determine[s]

whether they plausibly give rise to an entitlement to relief.” Id. Review of the

complaint is “a context-specific task that requires [this Court] to draw on its judicial

experience and common sense.” Id. If the pleading “contain[s] enough information

regarding the material elements of a cause of action to support recovery under some

‘viable legal theory,’” it satisfies the notice pleading standard. Am. Fed’n of Lab. &

Cong. of Indus. Orgs. v. City of Miami, 637 F.3d 1178, 1186 (11th Cir. 2011) (quoting

Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683–84 (11th Cir. 2001)).

“In general, if it considers materials outside of the complaint, a district court

must convert the motion to dismiss into a summary judgment motion.” SFM

Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010).

However, a “district court may consider an extrinsic document if it is (1) central to

the plaintiff’s claim, and (2) its authenticity is not challenged.” See id. (citing Day v.

Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005)). In her Second Amended Complaint,

Hamner included her EEOC charge and notice of right to sue letter. The EEOC

charge is also referred to in Defendants’ motions to dismiss. As the Court finds the

EEOC charge central to Hamner’s claims and its authenticity is not in dispute, the

Court will take it into consideration in this Opinion.

III. DISCUSSION

TCSS and the Individual Defendants seek to dismiss Counts I through VII of

Hamner’s Second Amended Complaint. TCSS argues that (1) claims of retaliation

in violation of § 1981 and the state law claim for battery were properly dismissed by

Judge Kallon; and (2) Hamner failed to exhaust administrative remedies for her race-

based retaliation claims.2 The Individual Defendants argue that (1) claims against

them in their individual capacities of retaliation in violation of § 1981 and all claims

against them under Title VII were properly dismissed by Judge Kallon; (2) Plaintiff

did not show good cause to add new claims, and to allow these claims to move

forward would be prejudicial to the Individual Defendants;3 and (3) Hamner cannot

state a claim under 42 U.S.C. § 1983.

A. 42 U.S.C. §§ 1981, 1983

Under 42 U.S.C. § 1981, “[a]ll persons within the jurisdiction of the United

States shall have the same right in every State . . . to make and enforce contracts, to

2 This Court already addressed TCSS’s third argument for dismissal, that Hamner abandoned all

original claims when she filed her Amended Complaint, and that repleading claims from her

original Complaint was untimely, prejudicial, and thus barred. This Court disagreed, finding that

“‘justice . . . requires’ the allowance of the Second Amended Complaint [and that] Plaintiff has

demonstrated good cause to amend the Scheduling Order and allow the Amendment.” (Doc. 53 at

2–3.)

3 This Court already addressed this argument when denying in part TCSS’s Motion to Dismiss

Plaintiff’s Second Amended Complaint. (See doc. 53.) For the same reasons previously stated, the

Court finds this argument to be without merit.

sue, be parties, give evidence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as is enjoyed by white

citizens . . . .” 42 U.S.C. § 1981. Section 1981 “encompasses claims of retaliation.”

Bryant v. Jones, 575 F.3d 1281, 1301 (11th Cir. 2009) (quoting CBOCS West, Inc. v.

Humphries, 553 U.S. 442, 457 (2008)). To establish a claim for race-based retaliation

under § 1981, a plaintiff must show that (1) she engaged in statutorily protected

activity; (2) she suffered an adverse employment action; and (3) a causal link exists

between the protected activity and the adverse employment action. See id. at 1307–

08. Unlike Title VII claims, a plaintiff does not need to exhaust administrative

remedies prior to filing a claim under § 1981. See Caldwell v. Nat’l Brewing Co., 443

F.2d 1044, 1046 (5th Cir. 1971).4

Although a plaintiff may bring an action for race-based retaliation, Ҥ 1981

does not provide an implicit cause of action against state actors; therefore § 1983

constitutes the exclusive federal remedy for violation[s] by state actors of the rights

guaranteed under § 1981.” Bryant, 575 F.3d at 1288 n.1 (citing Butts v. County of

Volusia, 222 F.3d 891, 894–95 (11th Cir. 2000)).

4 The Eleventh Circuit has adopted as precedent decisions of the former Fifth Circuit rendered

prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

When a plaintiff brings an action against a state actor in his official capacity,

this represents “another way of pleading an action against an entity of which [the

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

v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 690 n.55 (1978)). Official capacity

suits are the “functional equivalent” of claims against the entity that employs the

official, and therefore are no longer necessary because the entity can be sued directly.

Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991).

1. § 1981—Count II

Hamner cannot state a claim of retaliation against TCSS under § 1981.

“County boards of education are . . . local agencies of the state.” Ex parte Hale Cnty.

Bd. of Educ., 14 So. 3d 844, 848 (Ala. 2009) (quoting Bd. of Sch. Comm’rs of Mobile

Cnty. v. Architects Grp., 752 So. 2d 489, 491 (Ala. 1999)). TCSS is a local agency of

the state and therefore is a “state actor.” Hamner must pursue her claim of

retaliation against TCSS under § 1983. Hamner attempts to avoid this result by

arguing that TCSS is an entity that has a “right to sue,” thus it should have an

implied “right to be sued” under § 1981. The Eleventh Circuit’s precedent set forth

above is clear on this matter; therefore, Hamner’s argument fails. Accordingly,

Hamner’s § 1981 claim of retaliation against TCSS is due to be dismissed.

Hamner also cannot state a claim of retaliation under § 1981 against the

Individual Defendants in their individual capacities. Hamner must enforce her

§ 1981 claim against the Individual Defendants pursuant to § 1983. See Bryant, 575

F.3d at 1288 n.1; Ebrahimi v. City of Huntsville Bd. of Educ., 905 F. Supp. 993, 995–

96 (N.D. Ala. 1995) (determining that § 1981 claims against school officials in their

individual capacities “must be redressed pursuant to the explicit remedial provisions

of § 1983”). Accordingly, Hamner’s § 1981 claim of retaliation against the Individual

Defendants is due to be dismissed.

2. § 1983—Count I

In Count I, Hamner asserts claims for retaliation pursuant to § 1983 against

TCSS and the Individual Defendants in their official and individual capacities.

TCSS does not challenge this claim other than to state generally in its Motion to

Dismiss Plaintiff’s Second Amended Complaint that “each count is due to be

dismissed.” (Doc. 52 at 1.) The only argument TCSS provides as justification for

dismissing Hamner’s race-based retaliation claims is that she failed to exhaust

administrative remedies. That requirement is inapplicable to § 1981 retaliation

claims brought pursuant to § 1983. See Patsy v. Bd. of Regents, 457 U.S. 496, 501

(1982). Accordingly, TCSS’s Motion to Dismiss Count I is due to be denied.

The Court notes that the Individual Defendants did not challenge the

sufficiency of Hamner’s § 1983 claim in their Motion to Dismiss Plaintiff’s Second

Amended Complaint. They only raised a ground for dismissal of Count I in their

Reply to Plaintiff’s Response to the Individual Defendants’ Motion to Dismiss

Plaintiff’s Second Amended Complaint. (See doc. 72.) The Individual Defendants

argue in their Reply that because they lacked the authority to suspend and terminate,

Hamner cannot demonstrate she suffered a materially adverse employment outcome

because of the Individual Defendants’ actions.5

Not only did the Individual Defendants improperly raise this defense by failing

to include it in their Motion to Dismiss, they apply an incorrect standard for the

adverse employment action element. An adverse employment action need not be as

serious as outright termination, but it may include “adverse actions which fall short

of ultimate employment decisions,” such as written reprimands. Wideman v. Wal-

Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998). Generally, “[a]n action is

materially adverse if it might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.” Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d

5 Under Alabama law, the County Board of Education has the power to “suspend or

dismiss . . . superintendents, principals, teachers or any other employees.” ALA. CODE. § 16-8-23.

1249, 1259 (11th Cir. 2012) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 68 (2006)) (internal quotation marks omitted).

In Count I, Hamner alleges that in addition to her suspension and termination,

she was subjected to a retaliatory investigation regarding her “504 plans.” Hamner

claims that she was the only individual who was investigated, and that the Individual

Defendants pursued this investigation because of her participation in Hamner I. At

this stage, this allegation is sufficient to support an adverse employment action, thus

Hamner states a claim of retaliation against the Individual Defendants in their

individual capacities under § 1983. Accordingly, the Individual Defendants’ Motion

to Dismiss Count I in their individual capacities is due to be denied.6

B. Title VII—Counts III, IV, V, VI

Title VII prohibits employment discrimination based on race and sex.

42 U.S.C. § 2000e-2. “[A] Title VII claim may be brought against only the employer

and not against an individual employee.” Dearth v. Collins, 441 F.3d 931, 933 (11th

Cir. 2006); see also Busby, 931 F.2d at 772.

6 The Individual Defendants do not address the allegations in Count I against them in their official

capacities. Regardless, the Court notes that as a matter of law, this claim cannot move forward. See

Busby, 931 F.2d at 776 (stating that official capacity suits are the “functional equivalent” of claims

against the entity therefore the entity is the proper party to sue). As such, only the § 1983 claims

against the Individual Defendants in their individual capacities can proceed at this time.

In addition, a plaintiff may bring a Title VII action in district court against an

employer that discriminates against her based on race and sex but only after

exhausting administrative remedies. See Wilkerson v. Grinnell Corp., 270 F.3d 1314,

1317 (11th Cir. 2001). Typically, exhaustion requires a plaintiff to file a charge with

the EEOC. See id. The EEOC charge limits the scope of the plaintiff’s allegations.

See Gregory v. Ga. Dep’t of Hum. Res., 355 F.3d 1277, 1280 (11th Cir. 2004). However,

“the scope of an EEOC complaint should not be strictly interpreted.” Sanchez v.

Standard Brands, Inc., 431 F.2d 455, 465 (5th Cir. 1970).7 Rather, a plaintiff’s district

court complaint “is limited by the scope of the EEOC investigation which can

reasonably be expected to grow out of the charge of discrimination.” Gregory, 355

F.3d at 1280 (quoting Sanchez, 431 F.2d at 465). Thus, claims that “amplify, clarify,

or more clearly focus” the allegations in the EEOC charge are permissible, but those

that make allegations of new acts of discrimination are disallowed. See id. at 1279

(quoting Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989)).

1. Retaliation—Counts III, VI

TCSS does not argue that Hamner failed to comply with the exhaustion

requirements for her claims of retaliation in Count VI but insists that Hamner failed

to exhaust administrative remedies relative to Count III: Title VII retaliation for

7 See n.4.

“race based racially discriminatory sexual harassment.” (Doc. 45 ¶ 98.) TCSS

interprets Hamner’s EEOC charge too narrowly. TCSS argues that nothing in the

EEOC charge refers to Hamner I, race or race-based retaliation. However, in

Hamner’s narrative in her EEOC charge, she states that the “most recent

retaliation . . . is the latest and the culmination of a long line of retaliation . . . after I

previously complained about sexual harassment and retaliation, filed an EEOC

charge and lawsuit under Title VII against TCSS.” (Doc. 45–1.) Hamner appears to

be referring to her previous lawsuit, Hamner I, which she describes in her Second

Amended Complaint as a lawsuit based upon “race based racially discriminatory

sexual harassment.” (Doc. 45 ¶ 98.)

Hamner’s failure to expressly state in her EEOC charge that Hamner I

included a race-based as well as a gender-based claim is not fatal to her retaliation

claim. She incorporated these claims by reference, and the EEOC had access to her

prior charge from Hamner I.8

Concerning Count VI, Title VII retaliation for opposing sexual harassment

and a sexually hostile work environment, the only grounds for dismissal raised by

8 In Hamner’s first EEOC charge in Hamner I, she selected race, sex, and retaliation as the grounds

for her complaint of discrimination. See Plaintiff’s Motion to Amend Complaint at 2–2, Hamner v.

Pruitt, No. 7:15-cv-00925-LSC (N.D. Ala. Mar. 2, 2016).

TCSS are procedural, which the Court previously denied for reasons there stated

(see doc. 53); thus, TCSS’s Motion to Dismiss Counts III and VI is due to be denied.

Hamner’s claims against the Individual Defendants in their official capacities

in Counts III and VI are due to be dismissed because Title VII allows for recovery

against the employer, not against individual employees.9 Accordingly, Hamner’s

Title VII retaliation claims against the Individual Defendants are due to be

dismissed.

2. Gender Discrimination and Hostile Work Environment—

Counts IV, V

The only grounds for dismissal raised by TCSS are procedural, which this

Court previously denied (see doc. 53), therefore TCSS’s Motion to Dismiss Counts

IV and V is due to be denied. Because a Title VII claim must be brought against the

employer and not the employee, Hamner’s Title VII claims for gender

discrimination and hostile work environment against the Individual Defendants are

due to be dismissed.

C. Battery—Count VII

Under Alabama law, “the State of Alabama shall never be made a defendant

in any court of law or equity.” ALA. CONST. of 1901, art. 1, § 14. “This absolute

9 Plaintiff references several cases for the proposition that both the employer and individual

employees may be sued under Title VII, but she misinterprets Eleventh Circuit precedent.

immunity extends to arms or agencies of the state.” Ex parte Montgomery Cnty. Bd.

of Educ., 270 So. 3d 1171, 1173 (Ala. 2018) (quoting Ex parte Hale Cnty. Bd. of Educ.,

14 So. 3d at 848). As agencies of the state, boards of education are “immune from

tort actions.” Id. (quoting Ex parte Hale Cnty. Bd. of Educ., 14 So. 3d at 848). As an

agency of the state, TCSS is immune from tort actions under the Alabama

Constitution. Accordingly, Hamner’s claim of battery against TCSS is due to be

dismissed. The only argument raised by the Individual Defendants against this claim

is procedural, which the Court finds to be without merit for reasons previously stated

in this Opinion. Accordingly, the Individual Defendants’ Motion to Dismiss Count

VII against Henson is due to be denied. 10

IV. CONCLUSION

For the reasons stated above, Defendants’ motions to dismiss (docs. 51 & 54)

are due to be granted in part and denied in part. Plaintiff’s § 1981 claims of retaliation

are due to be dismissed against Defendants. All Title VII claims are due to be

dismissed against the Individual Defendants. Plaintiff’s § 1983 claim against the

Individual Defendants in their official capacities is due to be dismissed. Plaintiff’s

state law battery claim is due to be dismissed against TCSS. All other claims remain

10 Although the Individual Defendants raised this argument, the claim was brought solely against

Defendant Henson.

pending. An order consistent with this opinion will be entered contemporaneously

herewith.

DONE and ORDERED on September 11, 2020.

L. Scott Cf

United States Dist¥ict Judge

202892

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