McElroy v. Jefferson County Commission

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ANTHONERIA McELROY, ]

]

Plaintiff, ]

]

v. ] 2:23-cv-00062-ACA

]

JEFFERSON COUNTY COMMISSION, ]

]

Defendant. ]

MEMORANDUM OPINION

In her amended complaint, Plaintiff Anthoneria McElroy sued her employer,

Defendant Jefferson County Commission, for (1) gender/sex discrimination, in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; (2)

age discrimination, in violation of the Age Discrimination in Employment Act of

1967 (“ADEA”), 29 U.S.C. § 623(a); (3) retaliation, in violation of the ADEA, 29

U.S.C. § 623(d); and (4) disability discrimination, in violation of the Americans with

Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12112(a). (Doc. 4). Jefferson County

moves to dismiss the amended complaint. (Doc. 21).

The court WILL GRANT IN PART and WILL DENY IN PART Jefferson

County’s motion. The court WILL GRANT the motion to dismiss the gender/sex

discrimination claim because it is procedurally barred. The court WILL DENY AS

MOOT Jefferson County’s motion to dismiss the disability retaliation claim because

Ms. McElroy does not plead a claim of retaliation under the ADA. The court WILL

DENY the motion to dismiss the age discrimination and retaliation claim under the

ADEA because Ms. McElroy’s amended complaint is timely and she plausibly states

a claim for relief. Finally, the court WILL GRANT Jefferson County’s motion to

dismiss Ms. McElroy’s request for punitive damages and WILL DISMISS WITH

PREJUDICE Ms. McElroy’s request for punitive damages.

I. BACKGROUND

When deciding a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), the court must accept all factual allegations in the complaint as true and

“draw all reasonable inferences in favor of” the plaintiff. K.T. v. Royal Caribbean

Cruises, Ltd., 931 F.3d 1041, 1043 (11th Cir. 2019). The court may also consider

evidence outside the complaint if the evidence is central to the plaintiff’s claim and

its authenticity is not challenged. SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600

F.3d 1334, 1337 (11th Cir. 2010). If the defendant attached the document to its

motion to dismiss, the plaintiff must also mention the document in the complaint.

Edwards v. Dothan City Schs., 82 F.4th 1306, 1311 (11th Cir. 2023).

Ms. McElroy, a woman born in 1952, alleges she works as a workforce

planner for Jefferson County. (See doc. 4 at 3–4). In 2019, when she was sixty-seven-

years old, she informed a supervisor that she thought she was being discriminated

against because of her age. (Id. at 3; see id. at 2). The supervisor followed her down

the hall to her office, leaned over her desk so they were face-to-face and said in a

threatening tone that Ms. McElroy “was never to say that [the supervisor]

discriminated against [her] because of [her] age.” (Doc. 4 at 3). Immediately after

this conversation, Jefferson County discriminated and retaliated against her,

including issuing written warnings and other discipline that caused her to lose pay;

denial of leave under the Family Medical Leave Act (“FMLA”); denial of training

opportunities available to all employees in her position, including a person twenty

years younger than her; and denial of the ability to telework. (Id. at 3–5).

On December 30, 2020, Ms. McElroy filed a charge of discrimination with

the EEOC. (Doc. 21-2). On September 27, 2022, the EEOC declined to proceed with

her charge and issued her a notice of right to sue. (Doc. 21-1). Her counsel was

copied on the determination and notice. (Id. at 2). On October 18, 2022, the EEOC

sent another letter informing Ms. McElroy that their records indicated she did not

download the notice of right to sue from the EEOC’s online portal. (Doc. 6 at 2).

The letter stated it included a courtesy copy of the notice. (Id.). Ms. McElroy filed

her complaint in this case on January 17, 2023. (Doc. 1).

Ms. McElroy’s amended complaint does not reference or attach the EEOC

charge, the notice of right to sue, or the October 18th letter. (See doc. 4). Jefferson

County attached the EEOC charge and the notice of right to sue to its motion to

dismiss (docs. 21-1, 21-2) and Ms. McElroy filed the October 18th letter in response

to an order from this court (doc. 6 at 2). The court will consider the EEOC charge

and the notice of right to sue because Ms. McElroy mentions them in her complaint

(see doc. 4 at 6), they are central to her claims, and Ms. McElroy does not dispute

their authenticity (see doc. 4). And the court will consider the October 18th letter

because it is central to Ms. McElroy’s claims and Jefferson County does not dispute

its authenticity. (Cf. doc. 22 at 2).

Ms. McElroy’s amended complaint, construed liberally in the light of her

status as a pro se litigant, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), asserts

claims for:

• gender/sex discrimination in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq.;

• age discrimination in violation of the Age Discrimination in Employment Act

of 1967 (“ADEA”), 29 U.S.C. § 621(a);

• retaliation in violation of the ADEA, 29 U.S.C. § 621(a); and

• and disability discrimination in violation of the Americans with Disability

Act (“ADA”), 42 U.S.C. § 12112(a).

(Doc. 4 at 2–7).

II. DISCUSSION

First, the court addresses the gender/sex discrimination claim and the

disability discrimination claim. Then the court discusses whether Ms. McElroy’s

suit is timely and whether her age discrimination and retaliation claims survive on

the merits. Finally, the court addresses her claim for punitive damages.

1. Gender/Sex Discrimination under Title VII

In her amended complaint, Ms. McElroy checked the “gender/sex”

discrimination box. (Doc. 4 at 2). Jefferson County moves to dismiss the gender/sex

discrimination claim because Ms. McElroy failed to timely file an EEOC charge and

because she asserts no allegations of gender or sex discrimination in her amended

complaint. (Doc. 22 at 11). Before filing a Title VII action, a plaintiff must file a

charge of discrimination with the EEOC. Patterson v. Ga. Pac., LLC, 38 F.4th 1336,

1345 (11th Cir. 2022). Although a court does not strictly construe an EEOC charge,

even under the most expansive reading of the charge, Ms. McElroy did not allege

gender or sex discrimination. (See doc. 21-2 at 1–7); see Patterson, 38 F.4th at 1345.

Therefore, the court WILL GRANT Jefferson County’s motion to dismiss the

gender/sex discrimination claim and WILL DISMISS Ms. McElroy’s claim WITH

PREJUDICE. (Doc. 22).

2. Disability Discrimination

Ms. McElroy also checked the “disability or perceived disability”

discrimination box in her amended complaint and identified rheumatoid arthritis as

the specific disability. (Doc. 4 at 2). Jefferson County’s motion to dismiss

substantively addresses Ms. McElroy’s ADA claim only in a footnote (see doc. 22

at 5 n.3); this court’s initial order expressly instructs parties that the court “will not

consider substantive arguments made in footnotes” (see doc. 19 at 15). And even if

the court were to consider the argument, Jefferson County construes Ms. McElroy’s

amended complaint as asserting only a claim for retaliation under the ADA. (Doc.

22 at 5 n.3). The court construes the amended complaint as asserting only a claim

for disability discrimination under the ADA.1 (See doc. 4 at 2, 6). Therefore, to the

extent Jefferson County moves to dismiss Ms. McElroy’s claim for disability

retaliation, the court WILL DENY the motion AS MOOT.

3. The Timeliness of the Amended Complaint

Jefferson County moves to dismiss the age discrimination and age retaliation

claims as untimely because Ms. McElroy (1) alleges discrimination that predates her

EEOC charge by 180 days and (2) failed to file suit ninety days after she received

her notice of right to sue.

a. 180-Day Deadline to Bring an EEOC Charge of Discrimination

Before a plaintiff may bring suit under the ADEA, she must file a charge with

the EEOC alleging unlawful discrimination within 180 days after the alleged

unlawful practice occurred. See 29 U.S.C. § 626(d)(1)(a); Turlington v. Atl. Gas

1 While the parties were briefing the motion to dismiss, Ms. McElroy filed a motion to

amend her complaint “by adding Disability to the initial protected classes.” (Doc. 27). The court

denied that motion as moot in a separate order. (Doc. 37).

Light Co., 135 F.3d 1428, 1433, 1435–36 (11th Cir. 1998). Ms. McElroy filed her

EEOC charge on December 30, 2020, but her amended complaint alleges

discriminatory acts that occurred before July 3, 2020—i.e., more than 180 days

before she filed her EEOC charge. (Doc. 21-2; see doc. 4 at 2–5).

Jefferson County argues the entire amended complaint should be dismissed

with prejudice as procedurally barred because some of the alleged discriminatory

acts fall outside the 180-day window. (Doc. 22 at 7–9). But several of the alleged

discriminatory acts fall within the 180-day window and are timely. (See doc. 4 at 2–

5).

And the alleged discriminatory acts that fall outside the 180-day window may

still support some of Ms. McElroy’s claims for liability depending on the nature of

the acts. (See doc. 4 at 2). The court construes Ms. McElroy’s amended complaint

as alleging discrete discriminatory or retaliatory acts and a hostile work environment

claim. (See id. at 3–5).

For the allegations of discrete discriminatory or retaliatory acts, the pre-July

3, 2020 incidents may not from the basis for liability but they may be used “as

background evidence in support of the timely claim.” Ledbetter v. Goodyear Tire &

Rubber Co., Inc., 421 F.3d 1169, 1179 (11th Cir. 2005) (quotation marks omitted;

alteration accepted). For the allegations supporting a hostile work environment

claim, the pre-July 3, 2020 incidents may form the basis for liability because an act

contributing to the hostile work environment occurred after July 3, 2020. (See doc.

4 at 4) (describing “an extremely hostile” environment after a September 16, 2020

warning); see Ledbetter, 421 F.3d at 1179.

Therefore, the court WILL DENY Jefferson County’s motion to dismiss the

amended complaint as procedurally barred.

b. Ninety-Day Deadline to File Suit After Notice of Right to Sue

A plaintiff bringing claims under the ADEA must file suit within ninety days

after she has adequate notice that the EEOC dismissed the charge. 29 U.S.C.

§ 626(e); Santini v. Cleveland Clinic Fla., 232 F.3d 823, 825 (11th Cir. 2000). The

EEOC issued its notice of determination that it dismissed her charge and its notice

of right to sue on September 27, 2022. (Doc. 21-1). Ms. McElroy filed this suit on

January 27, 2023, 122 days after the EEOC issued the notice. (Doc. 21-1; see also

doc. 1). Jefferson County moves to dismiss Ms. McElroy’s amended complaint as

untimely because she filed suit more than ninety days after she received her notice

of right to sue. (Doc. 22 at 5–6).

But the clock for the ninety-day deadline begins when the claimant, or their

counsel, received the notice. (See doc. 21-1 at 1) (“Receipt generally occurs on the

date that you (or your representative) view this document.”). The record before the

court is not clear as to when Ms. McElroy, or her counsel, viewed the notice. On

October 18, 2022, the EEOC sent Ms. McElroy a letter stating that she had not

downloaded the notice from the online portal and provided her a courtesy copy of

the letter. (Doc. 6 at 2). Ms. McElroy represents that she spoke to someone at EEOC

who told her the October 18th letter was not mailed until the following day; she

alleges she did not receive the letter until after October 18th, but she never alleges

the date she received the letter. (See id. at 3).

Drawing all reasonable inferences in Ms. McElroy’s favor, the October 18th

letter suggests she did not view the notice until she received the October 18th letter.

See Edwards, 82 F.4th at 1311. The court must therefore determine when

Ms. McElroy received the October 18th letter. A party is presumed to receive notice

three days after its issuance. Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147,

148 n.1 (1984); see Fed. R. Civ. P. 6(d). Ms. McElroy is presumed to have received

the October 18th letter on October 21, 2022, see Baldwin, 466 U.S. at 148 n.1;

therefore, the ninety-day deadline expired on January 19, 2023. Accordingly,

Ms. McElroy’s January 17, 2023 complaint is timely.

Jefferson County also argues Ms. McElroy’s attorney is copied on the

September 27th notice and that a copy of the notice was sent to her attorney. (Doc.

22 at 6). Although a party is considered to have notice of all facts which can be

charged upon their attorney, see Irwin v. Dep’t of Veteran Affs., 498 U.S. 89, 92

(1990) (cleaned up), there is no evidence or allegation before the court that her

counsel viewed the letter.

Based on the record before the court at this stage of the litigation, the court

WILL DENY Jefferson County’s motion to dismiss Ms. McElroy’s amended

complaint as untimely.

4. Age Discrimination

Jefferson County also moves to dismiss Ms. McElroy’s claim for age

discrimination under the ADEA for two reasons: (1) she failed to exhaust her

administrative remedies by not timely presenting the charge to the EEOC, and (2)

she failed to allege facts in her amended complaint sufficient to support a violation

of the ADEA. (Doc. 22 at 12–13). The court does not find these arguments

persuasive.

First, Ms. McElroy has timely presented her charge of age discrimination to

the EEOC. Although Ms. McElroy did not provide a date for each alleged act of

discrimination, she did allege discriminatory acts of age discrimination after July 3,

2020—i.e., within the 180-day window. (See doc. 21-2 at 4) (alleging discriminatory

acts in July and August 2020).

Second, Ms. McElroy has adequately alleged a claim for relief. As is relevant

here, the ADEA makes it unlawful for an employer to discriminate against an

individual who is at least forty years old, “with respect to his compensation, terms,

conditions, or privileges of employment” or “limit, segregate, or classify his

employees in any way which would deprive or tend to deprive any individual of

employment opportunities or otherwise adversely affect his status as an employee.”

29 U.S.C. §§ 623(a)(1)–(2), 631(a). To establish a prima facie case of age

discrimination, a plaintiff must prove she was: “(1) a member of the protected class;

(2) qualified for the position; (3) subjected to adverse employment action; and (4)

replaced by a person outside the protected class or suffered from disparate treatment

because of membership in the protected class.” Kelliher v. Veneman, 313 F.3d 1270,

1275 (11th Cir. 2002). A plaintiff does not need to satisfy a prima facie case to

survive a motion to dismiss. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–

14 (2002); see also Buchanan v. Delta Air Lines, Inc., 727 F. App’x 639, 642 (11th

Cir. 2018)2 (applying Swierkiewicz to the ADEA).

Here, Ms. McElroy was a member of the protected class because she was in

her late sixties during the alleged conduct. (See doc. 4 at 2). She alleges she was

subject to adverse employment action because she received disciplinary action,

including a written warning and suspension without pay; was denied leave under the

FMLA; and was denied training opportunities that were available to all employees

in her position. (Id. at 3–5); see Turlington, 135 F.3d at 1434, 1436 n.16. She also

alleges a colleague twenty years younger than her was treated more favorably

because she was offered training opportunities that Ms. McElroy was denied. (Doc.

2 Although this case is not binding authority, this court finds it persuasive. See 11th Cir. R.

35-2; Santos v. Healthcare Revenue Recovery Grp., LLC, 85 F.4th 1352, 1363 n.1 (11th Cir. 2023).

4 at 5). Construing the amended complaint liberally in the light of her status as a pro

se litigant, see Erickson, 551 U.S. at 94, and construing the facts in the light most

favorable to Ms. McElroy, the court finds she has adequately alleged a claim of age

discrimination.

Accordingly, the court WILL DENY Jefferson County’s motion to dismiss

the age discrimination claim.

5. Retaliation

The court construes Ms. McElroy’s amended complaint as asserting a

retaliation claim under the ADEA and a retaliatory-hostile-work-environment claim,

also under the ADEA. (Doc. 4 at 3–5). Jefferson County moves to dismiss the

retaliation claims for two reasons: (1) she failed to exhaust her administrative

remedies by not timely presenting the charge to the EEOC, and (2) she has failed to

allege a prima facie case of retaliation. (Doc. 22 at 13–15).

Jefferson County’s first argument fails for the same reasons the court provided

regarding the age discrimination claim: Ms. McElroy timely presented her charge to

the EEOC because some of the alleged dates of retaliation were after July 3, 2020.

(Doc. 4 at 3–5). That leaves only Jefferson County’s second argument—that

Ms. McElroy failed to plausibly state a claim for ADEA retaliation.

a. ADEA Retaliation

To allege a prima facie case of ADEA retaliation, a plaintiff must show “(1)

she engaged in statutorily protected expression; (2) she suffered an adverse

employment action; and (3) the adverse action was causally related to the protected

expression.” Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002);

see also 29 U.S.C. § 623(d). A plaintiff need not prove a prima facie case to survive

a motion to dismiss. See Swierkiewicz, 534 U.S. at 511, 514.

Ms. McElroy alleges that after she informed her immediate supervisor that the

supervisor was discriminating against Ms. McElroy because of her age, her

supervisor followed Ms. McElroy to her office, leaned over her desk in a threatening

stance and said, in a threatening tone, that Ms. McElroy “was never to say that [her

supervisor] discriminated against her because of her age.” (Doc. 4 at 3). She alleges

that immediately after that incident she was targeted and retaliated against. (Id.). She

also alleges that she was retaliated against after she complained about a lack of

training. (Id.). And construing Ms. McElroy’s complaint liberally, and drawing all

reasonable inferences in her favor, she has plausibly alleged adverse employment

actions, such as receiving written and oral warnings, denial of FMLA leave, and

denial of training opportunities. (Id. at 3–5).

b. Retaliatory-Hostile-Work-Environment Claim

To adequately allege a retaliatory-hostile-work-environment claim,

Ms. McElroy must plead that the harassment “well might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.”

Monaghan v. Wordplay US, Inc., 955 F.3d 855, 861 (11th Cir. 2020) (quotation

marks omitted); see Weeks, 291 F.3d at 1311 (holding that a prima facie case of

retaliation is the same under Title VII, the ADEA, and the ADA).

Ms. McElroy alleges that after she complained about discrimination, she was

yelled at, humiliated, disciplined for misconduct she did not engage in, denied leave

under the FMLA, denied the ability to telework, and denied training opportunities.

(Doc. 4 at 3–5). Ms. McElroy has adequately alleged a retaliatory-hostile-work-

environment claim.

Accordingly, the court WILL DENY Jefferson County’s motion to dismiss

the retaliation claims.

6. Punitive Damages

Ms. McElroy seeks as damages the “maximum amount that Alabama permits

$500,000.” (Id. at 6). Jefferson County moves to dismiss Ms. McElroy’s claim for

punitive damages. (Doc. 22 at 15–16). Although a plaintiff may recover punitive

damages under Title VII and the ADA, see 42 U.S.C. § 1981a(a)(1)–(2), a plaintiff

is prohibited from recovering punitive damages from a government or government

entity. § 1981a(b)(1). Because Ms. McElroy filed suit against a government entity,

she is not entitled to recover punitive damages under Title VII and the ADA. See

§1981a(b)(1); Booth v. Pasco Cnty., 757 F.3d 1198, 1206 n.12 (11th Cir. 2014). And

punitive damages are not recoverable under the ADEA. Goldstein v. Manhattan

Indus., Inc., 758 F.2d 1435, 1446 (11th Cir. 1985).

Accordingly, the court WILL GRANT Jefferson County’s motion to dismiss

Ms. McElroy’s claim for punitive damages and WILL DISMISS WITH

PREJUDICE her claim for punitive damages.

HI. CONCLUSION

The court WILL GRANT IN PART AND DENY IN PART Jefferson

County’s motion to dismiss. The court WILL GRANT the motion to dismiss the

gender/sex discrimination claim and will dismiss Ms. McElroy’s claim WITH

PREJUDICE. The court WILL DENY AS MOOT the motion to dismiss the

disability retaliation claim. The court WILL DENY the motion to dismiss the age

discrimination and retaliation claims under the ADEA. Finally, the court WILL

GRANT the motion to dismiss Ms. McElroy’s claim for punitive damages and

WILL DISMISS WITH PREJUDICE her claim for punitive damages.

DONE and ORDERED this January 12, 2024.

bu

UNITED STATES DISTRICT JUDGE

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