Stewart v. Board of Trustees for the University of Alabama System, The

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

WALTER STEWART, }

}

Plaintiff, }

}

v. } Case No.: 2:22-CV-203-RDP

}

THE BOARD OF TRUSTEES for the }

UNIVERSITY OF ALABAMA SYSTEM, }

}

Defendant. }

MEMORANDUM OPINION

This matter is before the court on Defendant’s Partial Motion to Dismiss. (Doc. # 5). The

motion is fully briefed (Docs. # 5, 16, 17) and ripe for review. For the reasons provided below, the

motion is due to be granted.

I. Background

Plaintiff is an African-American employed at the University of Alabama-Birmingham

(“UAB”) as a Director in the Veterans Services Department. (Doc. # 1 at 1). He alleges “that

similarly situated white Directors within the University of Alabama System1 receive $13,000.00

to $30,000.00 more per year than him in compensation.” (Id. at 3) (footnote added). Plaintiff

contends that the alleged pay disparity results from UAB “enforcing a corporate policy and practice

that expressly and impliedly denies him pay equal to that of Caucasian employees.” (Id. at 4).

Plaintiff further claims that “UAB allows an overwhelmingly Caucasian group of selectors

to use an organization wide ‘Performance Evaluation’ process(es) for its compensation decisions

to the detriment of its African-American employees.” (Id.). He contends that UAB’s process

1As further alleged in the complaint, the University of Alabama System includes the University of Alabama,

the University of Alabama at Birmingham, and the University of Alabama at Huntsville. (Doc. # 1 at 1 n.1).

allows for “subjectivity and favoritism” because “decision-makers are free to exercise their

discretion in an unguided, subjective manner that provides a ready mechanism for Caucasians to

vent discriminatory feelings, whether conscious or unconscious, upon African-American

employees.” (Id.).

Plaintiff asserts two counts: (1) “Race Discrimination in Violation of Title VII and 42

U.S.C. § 1981 (42 U.S.C. §1983)” and (2) “Disparate Impact Discrimination on the Basis of Race

in Violation of Title VII of the Civil Rights Act of 1964.” (Id. at 5-7). And, in his prayer for relief,

Plaintiff seeks a declaratory judgment, a permanent injunction, back pay, reinstatement or front

pay, compensatory damages, punitive damages, and any other relief that justice may require. (Id.

at 7-8).

II. Standard of Review

The Federal Rules of Civil Procedure require that a complaint provide “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

However, the complaint must include enough facts “to raise a right to relief above the speculative

level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain nothing more

than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards,

nor do pleadings suffice that are based merely upon “labels and conclusions” or “naked

assertion[s]” without supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6)

motion to dismiss, courts view the allegations in the complaint in the light most favorable to the

non-moving party. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).

To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible

on its face.” Twombly, 550 U.S. at 570. “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). Although “[t]he

plausibility standard is not akin to a ‘probability requirement,’” the complaint must demonstrate

“more than a sheer possibility that a defendant has acted unlawfully.” Id. A plausible claim for

relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal

evidence” to support the claim. Twombly, 550 U.S. at 556.

In considering a motion to dismiss, a court should “1) eliminate any allegations in the

complaint that are merely legal conclusions; and 2) where there are well-pleaded factual

allegations, ‘assume their veracity and then determine whether they plausibly give rise to an

entitlement to relief.’” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App’x 136, 138

(11th Cir. 2011) (quoting Am. Dental Ass’n. v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)).

That task is context specific and, to survive the motion, the allegations must permit the court based

on its “judicial experience and common sense . . . to infer more than the mere possibility of

misconduct.” Iqbal, 556 U.S. at 679. If the court determines that well-pleaded facts, accepted as

true, do not state a claim that is plausible, the claims are due to be dismissed. Twombly, 550 U.S.

at 570.

III. Analysis

In its partial motions to dismiss, Defendant presents four arguments. First, Defendant

contends that it is entitled to Eleventh Amendment immunity as to the § 1981 cause of action

within Count One. (Doc. # 5 at 4-8). Second, Defendant argues that Count Two (the disparate

treatment claim) is due to be dismissed for failing to state a claim upon which relief can be granted.

(Id. at 8-13). Third, Defendant states that, under 42 U.S.C. §1981a(b)(1), Plaintiff cannot recover

punitive damages because Defendant is a government agency. (Id. at 13). Fourth, Defendant argues

that Plaintiff is not entitled to front pay or reinstatement because he remains employed in his

position as UAB Director of Veteran Services. (Id. at 13-14).

In response, Plaintiff concedes arguments one, three, and four. (Doc. 16 at 1). Accordingly,

Plaintiff’s § 1981 claim is due to be dismissed as well as any claim for punitive damages,

reinstatement, and front pay. But, Plaintiff maintains that he has sufficiently pleaded a disparate

impact claim.2 For the reasons discussed below, the court concludes that Plaintiff must replead this

claim.

“To establish a prima facie case of disparate impact discrimination, a plaintiff must show

(1) a significant statistical disparity among members of different racial groups; (2) a specific

facially-neutral employment policy or practice; and (3) a causal nexus between that specific policy

or practice and the statistical disparity.” Turner v. City of Auburn, 361 F. App’x 62, 65 (11th Cir.

2010) (citing Cooper v. Southern Co., 390 F.3d 695, 724 (11th Cir. 2004) overruled on other

grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006)); see Baggett v. Rehau, Inc., 2008 WL

11344812, at *2 (N.D. Ala. Feb. 7, 2008) (“While the prima facie showing is an evidentiary

standard and not pleading requirement in the context of a disparate impact claim a defendant will

have “fair notice” of the claim only if the complaint identifies the policy that allegedly caused or

causes the disparate impact.”).

Here, the question is whether Plaintiff has sufficiently pleaded a specific facially-neutral

employment policy or practice. See Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 994 (1988)

(“Especially in cases where an employer combines subjective criteria with the use of more rigid

2 “[T]he central difference between disparate treatment and disparate impact claims is that disparate

treatment requires a showing of discriminatory intent and disparate impact does not.” E.E.O.C. v. Joe's Stone Crab,

Inc., 220 F.3d 1263, 1278 (11th Cir. 2000) (citing In re Emp’t Discrimination Litig. Against State of Ala., 198 F.3d

1305, 1310 n.8 (11th Cir. 1999)). “[T]he two theories are not interchangeable, and ‘courts must be careful to

distinguish between them.’” E.E.O.C. v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1024 (11th Cir. 2016) (quoting

Raytheon Co. v. Hernandez, 540 U.S. 44, 53 (2003)) (alteration omitted).

standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the

specific employment practices that are allegedly responsible for any observed statistical

disparities.”); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 357 (2011) (“Other than the

bare existence of delegated discretion, respondents have identified no ‘specific employment

practice.’”). Although Plaintiff need not label the policy at this stage of the litigation, he must

sufficiently describe the policy. Baggett, 2008 WL 11344812, at *2.

The only policy that Plaintiff identifies in the complaint is “an organization wide

‘Performance Evaluation’ process(es) for its compensation decisions.” (Doc. # 1 at 4). It is unclear

from the face of the complaint if that is an actual policy or merely a placeholder that Plaintiff has

assigned to a purported process. Further, there are puzzling inconsistencies seen when putting

Plaintiff’s factual allegations alongside his disparate impact cause of action. For example, while

the factual allegations describe discrimination based on unequal pay, Plaintiff’s disparate impact

claim states that “Defendants [sic] allow an overwhelmingly Caucasian group of selectors to use

a ‘hazy’ selection process for its employment decisions.” (Compare Doc. # 1 3-4 with Doc. # 1 at

6). Therefore, the court concludes that Plaintiff has not sufficiently described the specific facially-

neutral employment policy or practice. See Forsyth v. Univ. of Alabama Bd. of Trustees, 2018 WL

3012343, at *5 (N.D. Ala. June 15, 2018). Plaintiff’s disparate impact claim is not sufficiently

pleaded. Nevertheless, the court concludes it is appropriate to provide Plaintiff an opportunity to

replead his disparate impact claim.

Also, and to be clear, Plaintiff must sufficiently plead a causal connection between the

facially-neutral policy and the alleged disparate impact. That is, although Plaintiff does not have

to present the statistical data at this stage of the litigation, he must sufficiently allege a causal

connection between the specific policy and the disparate impact. See Forsyth v. Univ. of Alabama

Bd. of Trustees, 2018 WL 4517592, at *6 (N.D. Ala. Sept. 20, 2018). Therefore, in his amended

complaint, Plaintiff should ensure that he has sufficiently pleaded a causal connection between the

facially-neutral policy and the alleged disparate impact.

IV. Conclusion

Defendant’s Partial Motion to Dismiss (Doc. # 5) is due to be granted, but Plaintiff will be

permitted to replead his disparate impact claim.

A separate order in accordance with this memorandum opinion will be entered.

DONE and ORDERED this August 8, 2022.

UNITED STATES DISTRICT JUDGE