Bell v. Alabama Department of Transportation

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ROOSEVELT BELL, }

}

}

Plaintiff,

}

}

}

v. Case No.: 2:18-cv-01122-MHH

}

}

}

ALABAMA DEPARTMENT OF

}

TRANSPORTATION,

}

}

Defendant.

MEMORANDUM OPINION

Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, plaintiff

Roosevelt Bell has asked the Court to alter its orders dismissing his Title VII

retaliation claim against ALDOT without prejudice and denying him the opportunity

to name as individual defendants Mudhar Alsafarjalani and Joseph Blankenship.

(Docs. 35, 38, 47).1 The bar for motions to alter judgments is high. A party may

not use a motion to alter a judgment “to relitigate old matters, raise [new] argument

or present evidence that could have been raised prior to the entry of judgment.”

Hasanti v. Sec’y, Fla. Dep’t of Corr., 729 Fed. Appx. 912, 913 (11th Cir. 2018)

(quoting Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir. 2010)) (alterations in

original omitted). Following a judgment, the “only grounds for granting” a Rule

59(e) motion “‘are newly-discovered evidence or manifest errors of law or fact.’”

Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (quoting In re Kellogg, 197

F.3d 1116, 1119 (11th Cir. 1999)); see also Jacobs v. Tempur-Pedic Int’l, Inc., 626

F.3d 1327, 1344 (11th Cir. 2010) (“Reconsidering the merits of a judgment, absent

a manifest error of law or fact, is not the purpose of Rule 59.”). Because Mr. Bell

challenges an order based on pleadings rather than evidence, his request for relief

may be better-framed as a Rule 60(b)(1) or (b)(6) motion for relief from a court

order. Either way, the bar for relief is high.2

1 The Court dismissed Mr. Bell’s ADEA, § 1981, and § 1983 claims against ALDOT because

ALDOT is entitled to Eleventh Amendment immunity on those claims. The Court also dismissed

Mr. Bell’s Title VII retaliation claim without prejudice for failure to state a claim. Mr. Bell has

asked the Court to amend or alter its dismissal order only with respect to his Title VII retaliation

claim.

2 Mr. Bell has attempted to fit his motion for relief within the structure of Rule 59(e) by filing an

affidavit with the motion, thereby giving the Court “evidence” to consider. (Doc. 47-1). The Court

wonders aloud whether it may consider evidence on a motion to reconsider an order granting a

motion to dismiss because, absent documents incorporated by reference into a complaint and

matters of which a district court may take judicial notice, a district court, at the pleading stage,

typically considers only the factual allegations in the operative complaint when evaluating a

motion to dismiss. Even if the Court accepts the affidavit, Mr. Bell’s assertions in his affidavit

To properly plead a Title VII claim for retaliation, a plaintiff must allege “(1)

that [ ]he engaged in statutorily protected expression; (2) that [ ]he suffered an

adverse employment action; and (3) that there is some causal relation between the

two events.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir.

2007). Mr. Bell argues that the Court construed his Title VII retaliation claim too

narrowly because the Court focused on only two occasions on which he complained

to the EEOC about discrimination at ALDOT, ignoring his other protected activity

concerning his treatment at the company. (Doc. 47, pp. 6-11). Mr. Bell alleges two

adverse employment actions: his alleged demotion in August 2017 and his alleged

constructive discharge.

Mr. Bell acknowledges that the Court considered the protected conduct

consisting of his September 15, 2017 EEOC charge. In the September 2017 EEOC

charge, Mr. Bell asserted that ALDOT retaliated against him because he filed EEOC

charge number 420-0217-1872. (Doc. 1-1, p. 4). In EEOC charge number 420-

0217-1872, dated August 4, 2017, Mr. Bell asserted that ALDOT discriminated

against him because of his age in violation of the ADEA; he did not mention his race

in the August 2017 charge. (Doc. 1-1, p. 8). In the September 2017 charge, Mr.

Bell explained that he took leave from ALDOT on August 23, 2017 to avoid

largely summarize the allegations and evidence that the Court considered before dismissing his

Title VII retaliation claim without prejudice.

“continued discrimination” and that he would “be officially retired on October 1,

2017.” (Doc. 1-1, p. 4). Mr. Bell stated that he believed that he had “been

constructively discharged and retaliated against” as of the September 2017 EEOC

charge because he filed the August 2017 EEOC charge concerning age

discrimination. (Doc. 1-1, p. 4).

Mr. Bell cannot assert a Title VII retaliation case based on alleged age

discrimination. Title VII addresses discrimination based on race, color, religion,

sex, or national origin. If ALDOT retaliated against him because he complained

about age discrimination, then his retaliation claim would arise under the ADEA,

not under Title VII.3

There is another barrier to Mr. Bell’s attempt to base his retaliation claim on

his August and September 2017 EEOC activity. Mr. Bell’s August 2017 EEOC

charge cannot form the basis of a retaliation claim concerning his alleged demotion

because that protected conduct occurred after his alleged demotion, not before. On

August 2, 2017, Mr. Blankenship notified Mr. Bell that he was being reassigned to

Concrete Lab Technician effective August 3, 2017. (Doc. 14, p. 24). On August 4,

2017, Mr. Bell filed an EEOC charge alleging that his transfer was the result of age-

3 Mr. Bell alleged retaliation under the ADEA and Title VII in his September 2017 charge. (Doc.

1-1, p. 4). He seeks relief now only with respect to his claim for Title VII retaliation. In response

to Mr. Bell’s August 2017 EEOC charge concerning age discrimination, ALDOT stated that Mr.

Bell’s new job classification as of August 2017 was “a lateral change that did not result in any

change in pay or benefits.” (Doc. 15, p. 60).

based discrimination. (Doc. 14, p. 24). Thus, the alleged act of retaliation preceded

Mr. Bell’s protected conduct in filing his August 4, 2017 EEOC charge.

Likewise, in his September 2017 EEOC charge, Mr. Bell asserted that he

already had been constructively discharged. So, though Mr. Bell alleges that his

discharge was effective as of October 1, 2017, the date that he officially retired, he

informed the EEOC that he had been constructively discharged in August 2017.

Therefore, his alleged constructive discharge preceded his September 2017 protected

conduct.

An employment action that precedes protected conduct generally cannot form

the basis of a Title VII retaliation claim. See Uni. Of Texas SW Med. Center v.

Nassar, 570 U.S. 338, 362 (2013) (“The text, structure, and history of Title VII

demonstrate that a plaintiff making a retaliation claim under § 2000e–3(a) must

establish that his or her protected activity was a but-for cause of the alleged adverse

action by the employer.”).

In ruling on ALDOT’s motion to dismiss, the Court considered other

protected conduct in which Mr. Bell allegedly engaged in 2017. The Court

considered Mr. Bell’s communication with the EEOC in May 2017. (Doc. 46, pp.

8, 34-36, 43; see Doc. 37, ¶ 62). The Court examined the May 2017 communication

(Doc. 15, p. 6) and pointed out that Mr. Bell complained of race discrimination that

had occurred “several years ago,” making an EEOC charge relating to that conduct

untimely. On the advice of the EEOC officer with whom he met, Mr. Bell chose not

to file an EEOC charge in May 2017, and there is no indication that ALDOT was

aware that he complained to the EEOC about race discrimination in May 2017, so

that complaint to the EEOC could not form the basis of a Title VII retaliation claim.

(Doc. 46, pp. 34-36, 43); McCann v. Tillman, 526 F.3d 1370, 1376 (11th Cir. 2008)

(plaintiff in retaliation action must show that “the decision-makers were aware of

the protected conduct, and that the protected activity and the adverse action were not

wholly unrelated”). The Court considered Mr. Bell’s May 17, 2017 email to Latanga

Kennedy, an employee in ALDOT’s EEO office. (Doc. 37, ¶ 62). In that email, Mr.

Bell discussed an ADA matter and complaints that he had about his work

environment and the way other employees were treating him, but the email does not

mention race discrimination. (Doc. 15, pp. 14, 29). So, as the Court explained to

Mr. Bell, that email cannot supply the basis for a Title VII retaliation claim. (Doc.

46, pp. 20-22).

Mr. Bell contends that he engaged in protected activity when he complained

to ALDOT management and human resources in several email messages that he sent

in 2015 and 2016. (Doc. 47, p. 10) (citing Doc. 37, p. 15). Those messages are too

remote from the alleged demotion in August 2017 to provide a basis for a retaliation

claim. In the absence of other factual allegations establishing a causal relationship

between Mr. Bell’s alleged protected conduct and the alleged adverse employment

action, Mr. Bell’s retaliation claim cannot survive a motion to dismiss based on

complaints so temporally distant from the alleged adverse employment action.

Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (citing cases in which a

three to four-month disparity was insufficient to show a causal connection and

stating: “If there is a substantial delay between the protected [activity] and the

adverse action in the absence of other evidence tending to show causation, the

complaint of retaliation fails as a matter of law.”).

Because Mr. Bell has not demonstrated the Court’s order dismissing his Title

VII retaliation claim without prejudice was clearly erroneous or otherwise unjust,

the Court denies Mr. Bell’s motion to alter that order.

Mr. Bell also seeks relief from the Court’s order denying his request to add §

1981 and 1983 claims against Mr. Blankenship and Mr. Alsafarjalani as individual

defendants. (Doc. 47, pp. 1-2; see also Doc. 25, pp. 7-9). Mr. Bell sought leave to

add the individual defendants on November 4, 2019 (Doc. 32), outside the two-year

statute of limitations period for claims brought under § 1983. Fuqua v. Turner, No.

3:17-cv-1911-UJH-AKK, 2018 WL 513343, at * 2 (N.D. Ala. Jan. 23, 2018) (citing

Lufkin v. McCallum, 956 F. 2d 1104, 1105 (11th Cir. 1992); Ala. Code § 6-2-38(1)).

Mr. Bell wishes to assert against the individual defendants claims for hostile work

environment and retaliation. Mr. Bell’s claims against the individual defendants rest

on the events that form the basis of his claims against ALDOT, and he alleges the

same adverse employment actions of demotion and constructive discharge.

The EEOC records that Mr. Bell has submitted to the Court indicate that an

amendment to add claims against Mr. Blankenship and Mr. Alsafarjalani, even if

timely, would be futile. When the EEOC reviewed with Mr. Bell his claims of race

discrimination, the EEOC officer explained to Mr. Bell that the only conduct he

ascribed to race, preferential seating of white employees at a luncheon, occurred

“several years” before Mr. Bell met with the EEOC in May 2017. Other conduct

that Mr. Bell described, such as the elimination of his assigned parking space,

applied across the board to all employees. (Doc. 15, p. 6). The EEOC officer

explained to Mr. Bell that statutes addressing discrimination are not a general civility

code. In addition, during an August 4, 2017 interview with the EEOC, Mr. Bell

acknowledged that Mr. Alsafarjalani was demoted to concrete technician the same

day that he was demoted and that neither of them received an explanation for the

demotions. (Doc. 15, p. 6; see also Doc. 15, p. 27).4 This information undermines

Mr. Bell’s proposed § 1981 and 1983 claims for retaliation and hostile work

environment against Mr. Blankenship and Mr. Alsafarjalani.

4 See Doc. 15, pp. 23 and 48 and Doc. 27, p. 2, identifying Mr. Alsafarjalani as Mr. Bell’s

immediate supervisor.

In so far as Mr. Bell seeks to assert Title VII claims against Mr. Blankenship

and Mr. Alsafarjalani, individual defendants cannot be held liable for violations of

Title VII. Dearth v. Collins, 441 F.3d 931, 933 (11th Cir. 2006). Therefore, the

Court will not alter its order refusing Mr. Bell’s request to add claims against

individual defendants to his complaint.

The Court’s dismissal order did not specifically address Mr. Bell’s Title VII

claim for race discrimination. In his third amended complaint, Mr. Bell alleges that

ALDOT “engaged in a pattern or practice of racial discrimination by denying him

“fair salary increases and subjecting him to an arbitrary layoff and discharge in the

form of an early retirement on or about October 1, 2017 on the basis of his race or

national origin . . .” (Doc. 37, ¶ 42).

Mr. Bell cannot allege this claim in federal court because he did not preserve

this claim in his EEOC charges. The most significant functions of an EEOC charge

are “notice to the employer and initiation of an EEOC investigation.” See Wilkerson

v. Grinnell Corp., 270 F.3d 1314, 1319 (11th Cir. 2001). To ensure fair notice to an

employer, a plaintiff is limited in his case filed in federal court to the allegations of

the EEOC charge and “the scope of the EEOC investigation which can reasonably

be expected to grow out of the charge of discrimination.” Jerome v. Marriott

Residence Inn Barcelo Crestline/AIG, 211 Fed. Appx. 844, 846 (11th Cir. 2006).

The plaintiff does not have to exhaustively prove his claim in his EEOC charge;

rather, “[f]rom a practical standpoint, one of the most important considerations is

‘whether the defendant had sufficient notice from the administrative charge of the

alleged kinds and areas of discrimination.’” See White v. Wells Fargo Guard Servs.,

908 F. Supp. 1570, 1581 (M.D. Ala. 1995) (quoting Brown v. Walt Disney World

Co., 805 F. Supp. 1554, 1558 (M.D. Fla. 1992). When an EEOC charge does not

give the employer fair notice about the claim, the plaintiff may not bring the claim

regarding new acts of discrimination in federal court. See Gay v. AirTran Airways,

Inc., 427 Fed. Appx. 743, 745 (11th Cir. 2011).

As noted, Mr. Bell’s August 2017 EEOC charge is premised on alleged age

discrimination, and his September 2017 EEOC charge concerns alleged retaliation

arising from the August 2017 charge. As noted, in his first EEOC charge filed on

August 4, 2017, Mr. Bell did not mention race at all. He charged that he was a 69-

year-old man and that his employer had discriminated against him based on his age.

(Doc. 1-1, p. 8). The entirety of his August 2017 charge is this:

I am a 69 year old male who began employment with the above named

Respondent [ALDOT] on February 2, 2000 as a Civil Engineer. I was

one of three people who worked in pavement design office. On August

2, 2017, I was notified that I was being demoted to Concrete Lab

Technician effective August 3, 2017. No explanation was given for my

transfer. I am aware that Logan Jolley, who is not in the protected age

group, was not transferred. I believe that I have been discriminated

against because of my age in violation of the Age Discrimination in

Employment Act of 1967, as amended.

(Doc. 1-1, p. 8).

In his September 15, 2017 EEOC charge, Mr. Bell explained that he had been

constructively discharged and retaliated against because of his August EEOC

charge. (Doc. 1-1, p. 4). Although Mr. Bell described himself in the September

2017 charge as a black male and checked the box for race, he tied the alleged

retaliatory conduct (his constructive discharge and unfounded accusations of

misconduct) to the filing of his August 2017 EEOC charge which, again, did not

mention race.

If Mr. Bell intended to allege ALDOT discriminated against him on the basis

of race, ALDOT did not have sufficient notice of the claim. Mr. Bell did not allege

particular acts of discrimination or any unlawful employment practice he suffered

because of his race. ALDOT could not have reasonably expected Mr. Bell to bring

a claim for race discrimination because this claim does not normally arise out of age

discrimination or retaliation. Because Mr. Bell did not preserve a claim for race

discrimination in his August and September 2017 EEOC charges, he may not pursue

a race discrimination claim now. And, even if he had properly raised race

discrimination in his September 2017 charge, for the reasons discussed above with

respect to his § 1981 and 1983 theories, Mr. Bell’s Title VII race discrimination

claim fails.

For these reasons, the Court denies Mr. Bell’s motion to alter its orders in this

matter.

DONE and ORDERED this 12th day of January, 2021.

Aadeles HUGHES HAIKALA

UNITED STATES DISTRICT JUDGE

12