Greene v. Alabama Department of Revenue et al (Mag+)

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

M.D. Ala.September 9, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA CHARLES J. GREENE, § Plaintiff, § v. § Civil Action No: 2:16-CV-561-WKW-WC ALABAMA DEPARTMENT OF REVENUE § and ALABAMA DEPARTMENT OF PUBLIC HEALTH, d/b/a CHILDREN’S HEALTH § INSURANCE PROGRAM, § Defendants. § DEFENDANT ALABAMA DEPARTMENT OF REVENUE’S MOTION TO DISMISS AMENDED COMPLAINT AND BRIEF IN SUPPORT THEREOF Comes now the Defendant, Alabama Department of Revenue, an agency of the State of Alabama, (hereinafter referred to as the "Revenue Department"), by and through its attorney of record, and pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure (FRCP), hereby request that this Court enter an Order dismissing this action against the Revenue Department. 1. STANDARD OF REVIEW When evaluating a motion to dismiss pursuant to Rule 12(b)(6), the court must "take the facts alleged in the complaint as true and construe them in the light most favorable to" the plaintiff. Danley v. Allen 540 F.3d 1298, 1304 (11th Cir. 2008). "[D]etailed factual allegations" are not required, but something "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action" is necessary. Bell Atlantic Case 2:16-cv-00561-WKW-WC Document 25 Filed 09/09/16 Page 1 of 11 2 Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). While it is true, when evaluating a motion to dismiss pursuant to Rule 12(b)(6), the court must "take the facts alleged in the complaint as true and construe them in the light most favorable to" the plaintiff. Danley v. Allen 540 F.3d 1298, 1304 (11th Cir. 2008) citing, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The Supreme Court in Ashcroft v. Iqbal, 566 U.S. 662, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009), provided guidance as to how lower courts should apply the Bell Atlantic Corp. v. Twombly test: Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. ... Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Our decision in Twombly illustrates the two-pronged approach. (Emphasis added.) See also, Estate of Crystal Reed v. Ponder Enterprises, Inc., 2012 U.S. Dist. WL1031487 (M.D. Ala. March 27, 2012) 2. LACK OF SUBJECT MATTER JURISDICTION 42 U.S.C. § 2000e-2 The Plaintiff has alleged that this Honorable Court has jurisdiction over the subject Case 2:16-cv-00561-WKW-WC Document 25 Filed 09/09/16 Page 2 of 11 3 matter of this action based upon the provisions of Title 42, U.S.C, § 2000e, et. seq. 42 U.S.C. §2000e-2, provides in pertinent part: It shall be an unlawful employment practice for an employer- (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. The Plaintiff has alleged that this Honorable Court has jurisdiction over the subject-matter of this action based upon the provisions of Title VII of the Civil Rights Act of 1964, 42, U.S.C. § 2000e, et seq. (Doc. 19-1, ¶1). Title VII, 42 U.S.C. §2000e-2, makes it unlawful for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. In order to sustain a claim under Title VII, 42 U.S.C. §2000e-2, the Plaintiff must be able to establish that the Revenue Department purposefully discriminated against him due to one of these prohibited reasons by terminating his employment during his working test period. See, Anderson v. Liberty Lobby, 477 U.S. 242, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986). The Revenue Department contends that the Plaintiff has not alleged nor can he prove that the termination of his employment with the Revenue Department was due to (status discrimination) race, color, religion, sex, or national origin in violation of Title VII, 42 U.S.C. §2000e-2. Case 2:16-cv-00561-WKW-WC Document 25 Filed 09/09/16 Page 3 of 11 4 42 U.S.C. § 2000e-3(a) The Plaintiff has alleged that this Honorable Court has jurisdiction over the subject matter of this action based upon the provisions of Title 42, U.S.C, § 2000e, et. seq. 42 U.S.C. §2000e-3(a), provides in pertinent part: It shall be an unlawful employment practice for an employer- to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. The Plaintiff alleges that the Revenue Department’s termination of his employment during his probationary or working test period was in retaliation for filing discrimination charges with the EEOC against his former employer the Alabama Department of Public Health (ADPH). (Doc. 19-1, ¶¶14-16) Specifically, the Plaintiff has asserted in the Amended Complaint filed in this action, (Doc. 19-1, ¶21) that his discharge from the Revenue Department was in retaliation for filing four (4) gender based discrimination/retaliation charges with the EEOC against the ADPH between October 3, 2013 and October 10, 2014. In order to establish a prima facie claim of retaliation, the Plaintiff must demonstrate that: (1) he engaged in a statutorily protected activity; (2) he suffered a materially adverse employment action; and (3) there is a causal connection between his participation in the Case 2:16-cv-00561-WKW-WC Document 25 Filed 09/09/16 Page 4 of 11 5 protected activity and the adverse employment action. See Goldsmith v. Bagley Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008); Dixon v. Hallmark Companies, Inc., 627 F. 3d 849, 856 (11th Cir. 2010); Mitchell v. Mercedes-Benz U.S. International, Inc., 637 Fed. Appx 535 (11th Cir. 2015). In 2013, the U.S. Supreme Court adopted a “but-for” causation standard of proof necessary for plaintiffs to prove retaliation under 42 U.S.C. § 2000e-3(a). University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013). The Court determined that retaliation claims require that the plaintiff prove that the adverse employment action taken by the employer would not have occurred in the absence of the employee’s participation in the protected activity (opposition to employment discrimination or complaint of discrimination). The lesser “motivating factor” standard, still applies to status discrimination claims under 42 U.S.C. § 2000e-2 (i.e., race, color, religion, sex, national origin) even if other factors also motivated the unlawful employment practice. The Revenue Department asserts that the Plaintiff cannot prove the third-prong of his prima facie claim; because he has not alleged any facts which meet the plausibility test of Rule 8(a)(2), FRCP nor can he prove that he would not have been terminated for the reasons articulated by the Revenue Department during his probationary period as protecting the confidentiality of taxpayer information is a high priority within the Department. 3. FAILURE TO ESTABLISH A PRIMA FACIE CLAIM The Plaintiff applied for and was appointed to a position as a Revenue Examiner I with the Revenue Department from an employment register established for that Case 2:16-cv-00561-WKW-WC Document 25 Filed 09/09/16 Page 5 of 11 6 position, on August 16, 2014. Every person appointed to a position in the classified service must successfully pass a probationary period (working test period) before receiving permanent status. Specifically, §36-26-21, Ala. Code 1975, provides as follows: (a) Every person appointed to a position in the classified service after certification of his name from a promotion list or an employment list shall be tested by a working test while occupying such position. The period of such working test shall commence immediately upon appointment and shall continue for such time, not less than six months, as shall be established by the director. At such times during the working test period and in such manner as the director may require, the appointing authority shall report to the director his observation of the employee's work and his judgment of the employee's willingness and ability to perform his duties satisfactorily and as to his habits and dependability. (b) At any time during his working test period, the appointing authority may remove an employee if, in the opinion of the appointing authority, the working test indicates that such employee is unable or unwilling to perform his duties satisfactorily or that his habits and dependability do not merit his continuance in the service. Upon such removal, the appointing authority shall forthwith report to the director and to the employee removed his action and the reason thereof. … The position of Revenue Examiner I has a probationary period of one year. An unsatisfactory or unsuitable employee will be involuntarily terminated by the Commissioner prior to the end of the probationary period based upon written justification provided by the probationary employee’s supervisors. The Plaintiff had been told on several occasions by his supervisors, Laura Waldon and Angela Cumbie, Manager II over the Corporate Income Tax Section, that one of the work rules of the Individual and Corporate Tax Division, is not to remove taxpayer information from the Corporate Income Tax Section, as doing so, compromises the confidentiality of the taxpayer’s information. Plaintiff chose to disregard this rule, and in Case 2:16-cv-00561-WKW-WC Document 25 Filed 09/09/16 Page 6 of 11 7 fact, did take taxpayer documents home. In addition to the Plaintiff’s failure to comply with work rules of the Department by taking taxpayer documents and documents containing taxpayer information home; he had also been observed bringing some of those documents back to work and placing them into the shred bin. The documents were recovered from the shred bin. The documents removed from the shred bin included copies of emails and other written correspondence between the Plaintiff and various corporate taxpayers including copies of schedules, returns and other information provided by taxpayers. This action resulted in an investigation by agents from the Revenue Department’s Investigation Division and led to the decision to terminate his employment with the Revenue Department prior to the end of his probationary period. As previously stated, the Plaintiff was a probationary employee. During the probationary period the employee is technically still an applicant for employment, and does not acquire the full protection of the Merit System until the probationary period has ended and the employee acquires permanent status. During the probationary period the employee has very few job protections and can be terminated for almost any reason except an impermissible one. Failure to comply with the work rules of the Revenue Department is not an impermissible reason. The Plaintiff is asserting in his Amended Complaint that the reason provided by the Revenue Department for terminating his employment prior to acquiring permanent status was a pretext for the “real” reason he was terminated; the filing of his discrimination/retaliation charges against the ADPH with the Equal Employment Opportunity Commission (EEOC) in violation of 42 U.S.C. § 2000e-3(a). (Doc. 19-1, ¶20). Case 2:16-cv-00561-WKW-WC Document 25 Filed 09/09/16 Page 7 of 11 8 It is the position of the Revenue Department that Plaintiff’s claim is totally without merit. The Plaintiff must show that (a) the decision-makers (the person(s) who recommended the termination to the Commissioner and/or the Commissioner, as the appointing authority for the Revenue Department and the final decision maker) were aware of the filing of the charges of discrimination with the EEOC against the ADPH and (b) the filing of those charges and the ending of his probationary period prior to acquiring permanent merit system status were not wholly unrelated. Gupta v. Florida Bd. Of Regents, 212 F.3d 571, 590 (11th Cir. 2000); Clover v. Total System Servs., 176 F.3d 1346, 1354 (11th Cir. 1999). The Court in Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993) held, “at a minimum, a plaintiff must generally establish that the employer was actually aware of the protected expression at the time it took adverse employment action.” Awareness may be established by circumstantial evidence, but ‘our cases have required plaintiffs to show a defendant’s awareness with more evidence than mere curious timing coupled with speculative theories.’ Raney v. Vinson Guard Ser., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997), cited in Mitchell v. Mercedes Benz U.S. International, Inc., 637 Fed. Appx. 535 (11th Cir. 2015). The Revenue Department contends that the Plaintiff cannot make this causal connection. The Revenue Department asserts that it was unaware of the filing of the charges against ADPH until Plaintiff revealed that fact in the EEOC charge of retaliation he filed against the Revenue Department on October 13, 2015, after he had already been terminated on June 4, 2015. (Charge No. 420-2015-02917). (Doc. 19-1, ¶12). Case 2:16-cv-00561-WKW-WC Document 25 Filed 09/09/16 Page 8 of 11 9 The Plaintiff has alleged that the Revenue Department was in fact aware of the filing of his charges against the ADPH at the time he was terminated. (Doc. 19-1, ¶22). He asserts that this awareness was the result of ADPH directly informing the Revenue Department of the charges filed against them OR alternatively awareness of the charges was acquired by the Department through its own inquiry. (Doc 19-1, ¶23). Clearly, the allegations set forth in Paragraph 23 are not facts; but are merely speculative theories and/or legal conclusions proffered by the Plaintiff. The Plaintiff is also asserting awareness on the part of the Revenue Department under an alternative theory, that being, the ADPH and the Revenue Department should be treated as a “single employer” under the test set forth in McKenzie v. Davenport-Harris Funeral Home, 834 F. 2d 930, 933 (11th Cir. 1987) or as an “integrated enterprise” as set out in the National Labor Relations Board (NLRB) test by which normally separate entities are treated as a single employer for purposes of meeting the statutory definition of an employer under Title VII. (Doc. 19-1, ¶¶28-34). Both agencies meet the statutory definition a person pursuant to 42 U.S.C. § 2000e(a), “[t]he term “person” includes one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under title 11, or receivers.” Both agencies are considered employers pursuant to 42 U.S.C. § 2000e(b), [t]he term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in Case 2:16-cv-00561-WKW-WC Document 25 Filed 09/09/16 Page 9 of 11 10 the current or preceding calendar year, and any agent of such a person,…” The Plaintiff meets the definition of an employee pursuant to 42 U.S.C. § 2000e(f), [t]he term employee” means an individual employed by an employer,…” And most importantly, the Plaintiff is suing both agencies, thereby negating the need to treat them as a single employer. The Revenue Department further contends that the same reasoning applies for not treating both agencies as an “integrated enterprise”. The Revenue Department and ADPH are both separately already under the jurisdiction of 42 U.S.C § 2000e and both agencies are currently being sued as Plaintiff’s employers. In addition, the Eleventh Circuit Court of Appeals has adopted a presumption “where a state legislative body creates a public entity and declares it to be separate and distinct, that declaration should be entitled to a significant degree of deference, amounting to a presumption that the public entity is indeed separate and distinct for purposes of Title VII.“ Lyes v. City of Riviera Beach, Florida, 166 F.3d 1332, 1341 (11th Cir. 1999). The Plaintiff has not presented any facts to rebut this presumption. WHEREFORE, the above premises considered, the Defendant prays that this Honorable Court will dismiss this Amended Complaint and grant any other relief to which the Revenue Defendant is entitled. Respectfully submitted on this the 9th day of September 2016. /s/Gwendolyn B. Garner___________________ GWENDOLYN B. GARNER (GAR050) Assistant Attorney General State of Alabama and Assistant Counsel Department of Revenue P.O. Box 320001 Montgomery, AL 36132-0001 Case 2:16-cv-00561-WKW-WC Document 25 Filed 09/09/16 Page 10 of 11 11 Telephone: (334) 242-9690 CERTIFICATE OF SERVICE I, Gwendolyn B. Garner, hereby certify that a copy of the above and foregoing Motion to Dismiss and Brief in Support thereof in Response to Plaintiff’s Amended Complaint has been filed electronically with the Clerk of the Court, and served upon Charles J. Greene, 1274 Adell Street, Prattville, AL 36066 by placing a copy of same in the United States mail, properly addressed and with first-class postage prepaid, on this the 9th day of August 2016. _/s/Gwendolyn B. Garner_______________________ GWENDOLYN B. GARNER OF COUNSEL STATE OF ALABAMA DEPARTMENT OF REVENUE Case 2:16-cv-00561-WKW-WC Document 25 Filed 09/09/16 Page 11 of 11