McKinstry v. Jefferson County Board of Education

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RENITTA MCKINSTRY, )

)

Plaintiff, )

)

v. )

) Case No.: 2:20-cv-00735-JHE

JEFFERSON COUNTY BOARD OF )

EDUCATION, et al., )

)

Defendants. )

MEMORANDUM OPINION1

On May 26, 2020, Plaintiff Renitta McKinstry (“McKinstry”) filed this employment

discrimination action, alleging Defendants Jefferson County Board of Education (the “Board”) and

Superintendent Craig Pouncey (“Pouncey”) discriminated against her on the basis of her race and

disability and in retaliation for engaging in protected activity by terminating her. (Doc. 1). On

July 29, 2020, Defendant Superintendent Craig Pouncey moved to dismiss McKinstry’s claims

against him. (Doc. 10). McKinstry has filed a response in opposition, (doc. 21), and Pouncey has

replied in support, (doc. 22). For the reasons discussed more fully below, Pouncey’s motion to

dismiss is GRANTED.

Legal Standard

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

a claim upon which relief can be granted. “To survive a motion to dismiss, a complaint must

1 In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil

Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge

conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 24).

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) (citations and internal quotation marks omitted).

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. (citation omitted). The complaint must establish “more than a sheer possibility that

a defendant has acted unlawfully.” Id.; accord Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)

(“Factual allegations must be enough to raise a right to relief above the speculative level.”).

Ultimately, this inquiry is a “context-specific task that requires the reviewing court to draw on its

judicial experience and common sense.” Iqbal, 556 U.S. at 679.

To that end, under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a

short and plain statement of the claim showing 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.” Iqbal, 556 U.S. at 678

(citing Twombly, 550 U.S. at 555). Mere “labels and conclusions” or “a formulaic recitation of

the elements of a cause of action” are insufficient. Iqbal, 556 U.S. at 678. (citations and internal

quotation marks omitted). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid

of ‘further factual enhancement.’” Id. (citing Twombly, 550 U.S. at 557). Further, “[i]n alleging

fraud or mistake, a party must state with particularity the circumstances constituting fraud or

mistake.” FED. R. CIV. P. 9(b). “[A] plaintiff must plead facts as to time, place, and substance of

the defendant's alleged fraud, specifically the details of the defendants' allegedly fraudulent acts,

when they occurred, and who engaged in them.” U.S. ex rel. Clausen v. Lab. Corp. of Am., Inc.,

290 F.3d 1301, 1310 (11th Cir. 2002) (internal quotation marks omitted). “Malice, intent,

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knowledge, and other conditions of a person's mind may be alleged generally.” FED. R. CIV.

P. 9(b).

The court accepts all factual allegations as true on a motion to dismiss under Rule

12(b)(6). See, e.g., Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000).

However, legal conclusions unsupported by factual allegations are not entitled to that assumption

of truth. Iqbal, 556 U.S. at 678.

Factual Background

McKinstry is a black woman who suffers from major depression and generalized anxiety

disorder. (Doc. 1 at ¶¶ 1, 10). McKinstry worked as a teacher for the Board from August 2007

until her termination on July 10, 2018. (Id. at ¶¶ 9, 17). Pouncey is the Superintendent of the

Board and was McKinstry’s ultimate supervisor, as well as being responsible for the Board’s

administration. (Id. at ¶¶ 13, 15).

Starting in May 2014, McKinstry began complaining to the Board about what she

perceived to be race discrimination. (Id. at ¶ 17). After McKinstry’s complaints, Gary Evans, a

white male, forced McKinstry to write a letter of resignation. (Id.). However, McKinstry did not

resign her employment, nor was she terminated. (Id.).

In August 2016, McKinstry was hired as an Instructional Coach at Chalkville Elementary

School. (Id. at ¶ 18). She continued to file complaints of race discrimination and was subsequently

transferred to Irondale Community School to work as an Alabama Reading Initiative Specialist.

(Id. at ¶ 19).

On October 25, 2016, Board officials called McKinstry into a meeting and informed her

that her position was being eliminated. (Id. at ¶ 20). McKinstry filed a charge of discrimination

with the EEOC the next day alleging race and retaliation. (Id.). McKinstry was demoted from

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Reading Initiative Specialist to Instructional Coach and assigned the most difficult students. (Id.

at ¶ 22). McKinstry received a right to sue letter from the EEOC on November 22, 2016 but did

not file suit. (Id. at ¶ 23).

On March 6, 2017, McKinstry was placed on indefinite paid administrative leave. (Id. at

¶ 24). McKinstry filed another charge of discrimination with the EEOC three days later based on

race and retaliation. (Id.). McKinstry was notified on March 23, 2017, that she was being placed

on administrative leave without pay. (Id. at ¶ 25). On March 31, 2017, McKinstry filed another

charge of discrimination with the EEOC, alleging retaliation. (Id.). The Board rescinded the

unpaid leave decision on April 14, 2017 and moved McKinstry back to paid leave. (Id. at ¶ 26).

On August 8, 2017, McKinstry requested that a teacher work with her in her classroom as

a permanent substitute to accommodate her disability. (Id. at ¶ 27). Pouncey verbally agreed to

this request, but no permanent substitute was assigned. (Id.). McKinstry submitted additional

requests to Pouncey and Principal Ann Tillman, but these requests were denied. (Id. at ¶ 28).

McKinstry filed a charge of disability discrimination based on these denials on August 25, 2017.

(Id.). Defendants did not work with McKinstry to determine whether an accommodation was

appropriate. (Id. at ¶ 29).

On April 24, 2018, Pouncey provided McKinstry a letter outlining events leading up to the

2017-2018 school year. (Id. at ¶ 30). On April 25, 2018, McKinstry was notified that Pouncey

would recommend her termination to the Board. (Id.). Defendants terminated McKinstry’s

employment on July 17, 2018, effective July 10, 2018. (Id. at ¶ 31). On September 25, 2018,

McKinstry filed another charge of discrimination based on retaliation and disability. (Id. at ¶ 32).

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Discussion

McKinstry’s complaint raises three causes of action, each of which Pouncey challenges as

applied to him:2 (1) Claim A, a disability and retaliation cause of action pursuant to the Americans

with Disabilities Act (“ADA”), the Americans with Disabilities Act Amendments Act of 2008,

(“ADAAA”), and § 504 of the Rehabilitation Act of 1973, asserted against Pouncey and the Board,

(doc. 1 at ¶¶ 34-41); (2) Claim B, a Title VII and 42 U.S.C. § 1983 race discrimination claim,

asserted against the Board alone, (id. at ¶¶ 42-48); and (3) Claim C, a race discrimination and

retaliation claim under the Fourteenth Amendment to the United States Constitution and § 1983,

asserted against Pouncey alone, (id. at ¶¶ 49-52). In her response to the motion to dismiss,

McKinstry concedes that the following claims are due to be dismissed: (1) claims against Pouncey

in his official capacity; (2) claims against Pouncey for prospective injunctive and equitable relief;

(3) ADA, ADAAA, and § 504 claims against Pouncey; and (4) the retaliation claim against

Pouncey under the Equal Protection Clause. (Doc. 21 at 2). However, McKinstry maintains that

her race-based equal protection claim, Claim C, should survive the motion to dismiss. (Id.). The

undersigned addresses only that claim below.3

“[T]he substantive law and proof requirements of Title VII, section 1981, and section 1983

are the same for claims alleging intentional employment discrimination based on race by state

2 The Board has answered the complaint, so Pouncey’s motion does not affect McKinstry’s

claims against it. (Doc. 16).

3 Although a portion of the motion to dismiss contends the complaint is an impermissible

shotgun pleading, its only real arguments concern Claim A. (Doc. 10 at 5-8). Pouncey does state

that McKinstry’s factual allegations “contain[] generic, conclusory allegations against the

‘Defendants,’” (id. at 8), but an examination of the complaint does not really bear this out as to

most of its allegations. To the extent the undersigned agrees that Count C is due to be dismissed,

it is for the other reasons discussed below.

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actors . . . .” Alexander v. Fulton Cty., Ga., 207 F.3d 1303, 1314 (11th Cir. 2000), overruled on

other grounds by Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003). To survive a motion to dismiss,

an employment plaintiff proceeding under any theory who alleges disparate treatment based on

her race “must provide ‘enough factual matter (taken as true) to suggest’ intentional race

discrimination” by the defendant in question. Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d

955, 974 (11th Cir. 2008) (quoting Twombly, 550 U.S. at 556).

Pouncey argues there are no allegations that connect him to McKinstry’s disparate

treatment on the basis of her race. (Doc. 10 at 10). He is correct. Pouncey notes the only specific,

factual reference that touches on race-based disparate treatment is paragraph 17 of the complaint,

alleging Gary Evans, a white male, forced McKinstry to write a letter of resignation in 2014. (Id.).

This does not relate to Pouncey, so it cannot provide any support for McKinstry’s claim against

him.4 Pouncey also states that McKinstry’s description of the “Nature of this Action” makes “the

generic allegation that the ‘Defendants’ discriminated against her by ‘(1) assigning her the most

difficult students within the school system while white teachers received much easier

assignments,’” (doc 10 at 10-11, n.4) (citing doc. 1 at ¶ 3), but nowhere in the complaint is this

further developed beyond simply reiterating that she was demoted and assigned those difficult

students, (doc. 1 at ¶ 22). There is no factual allegation in the complaint that would support the

conclusory assertion that this assignment was due to McKinstry’s race, nor that Pouncey had

4 In addition, McKinstry admits she did not resign and was not terminated after writing this

letter, so it is difficult to see how this would be an actionable instance of employment

discrimination. See Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001), overruled

on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (To qualify

as disparate treatment, an adverse employment action must “impact the ‘terms, conditions, or

privileges’ of the plaintiff’s job in a real and demonstrable way.”).

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anything to do with it. McKinstry’s complaint contains another conclusory assertion that

“Defendant Pouncey’s conduct was motivated by racial discrimination,” (id. at ¶ 49), but this is

exactly the sort of “bare assertion” rejected by the Supreme Court in Iqbal. 556 U.S. at 680-81.

Finally, McKinstry’s complaint notes she filed EEOC complaints alleging race-based

discrimination at various points, but McKinstry never explains why race was a factor in any of

them at all, much less why Pouncey is liable for any alleged discrimination.5

McKinstry’s response to the motion to dismiss spends several pages discussing the

appropriate pleading standard. (Doc. 21 at 2-6). She is correct that she is not required to make

out a prima facie case of race discrimination, such as she might have to do at summary judgment.

See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515, 122 S.Ct. 992, 999 (2002) (“[A]n

employment discrimination plaintiff need not plead a prima facie case of discrimination . . . to

survive [a] motion to dismiss.”); Davis, 516 F.3d at 974 (Title VII complaint not required to make

out McDonnell Douglas prima facie case); Jackson v. BellSouth Telecomms., 372 F.3d 1250,

1270–71 (11th Cir. 2004) (“McDonnell Douglas [is] an evidentiary rather than a pleading standard

... pleading a McDonnell Douglas prima facie case [is] not necessary to survive a motion to

dismiss”) (emphasis in original). Similarly, her complaint is not doomed solely because she does

5 McKinstry states that “[a]t the moment, the complete scope of Pouncey’s role in any

employment decisions rendered regarding the Plaintiff is unknown. What is known, however, is

that Pouncey was the Superintendent of the Jefferson County School System . . . [and] was able to

make employment recommendations regarding hiring and firing . . . [and] the terms and conditions

of employment for Board employees. And, perhaps most importantly Pouncey was singularly

tasked with implementing and enforcing the Board’s Equal Employment Opportunity and anti-

discrimination policies.” (Doc. 21 at 7-8). To support the last sentence, McKinstry asks the court

to take judicial notice of the Board’s policy handbook. (Id. at 8 n.5). It is unnecessary to do so,

because there is no supervisory liability under § 1983, see Cottone v. Jenne, 326 F.3d 1352, 1360

(11th Cir. 2003), and McKinstry admits she is only speculating as to Pouncey’s personal

involvement in employment decisions against her.

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not point to a comparator. Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1327-28 (11th Cir.

2011). However, the problem here is that her complaint does not connect Pouncey to any arguable

reference to race discrimination raised in the complaint, not that she has failed to make out a full

prima facie case for race discrimination or failed to plead the existence of a comparator.

McKinstry’s only argument that her complaint contains more than conclusory allegations

of Pouncey’s race discrimination concerns the EEOC Cause Finding in Charge Number 420-2017-

01528, attached as an exhibit to her complaint. (Doc. 21 at 6-9) (citing doc. 1-1). McKinstry

claims that the complaint combines with this document to “sufficiently allege that the Plaintiff was

subjected to what appears to be a pattern and/or practice of race discrimination and/or retaliation

by Pouncey and others,” (id. at 6-7), and quotes extensively from the EEOC Cause Finding, (id. at

8-9). But the EEOC Cause Finding—and, in fact, McKinstry’s briefing and quotation of the

finding—do not support this. First, Pouncey is not the respondent to the EEOC charge; the Board

is. (See doc. 1-1 at 2). Second, even if Pouncey were the respondent to the EEOC charge, it would

only support McKinstry’s claim that Pouncey retaliated against her by “suspend[ing] her in

retaliation for her engagement in protected activity,” (doc. 21 at 9) (quoting doc. 1-1 at 3).

McKinstry has conceded that her retaliation claim against Pouncey is due to be dismissed, (doc.

21 at 2), so it is unclear how the EEOC Cause Finding could save her race discrimination claim.

And the other exhibit to McKinstry’s complaint is related solely to her claims of disability

discrimination, (see doc. 1-2), which she has also conceded should be dismissed, (doc. 21 at 2).

Because the complaint contains nothing to support Pouncey’s liability for race discrimination, and

because McKinstry has conceded all other claims against him should be dismissed, Pouncey’s

motion to dismiss is due to be granted.

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IV. Conclusion

For the reasons stated above, Pouncey’s motion to dismiss, (doc. 10), is GRANTED.

McKinstry’s claims against Pouncey are DISMISSED.

DONE this 11th day of January, 2021.

~~

vo

JOHN H. ENGLAND, III

UNITED STATES MAGISTRATE JUDGE