Graise v. City of Greenville

          MEMORANDUM OPINION

          NEAL B. BIGGERS, JR. UNITED STATES DISTRICT JUDGE

         Presently before the court is a motion to dismiss for failure to state a claim filed by all Defendants.^[1] Upon due consideration of the motion, response, complaint, and documents attached to the complaint, the court is ready to rule.

         Factual and Procedural Background

         The plaintiff, Dannie Graise, began working for the Greenville Police Department in Greenville, Mississippi in September of 1989. Since that time, he has gradually been promoted to various ranks, now holding the position of Captain, or Division Commander.

         In April of 2014, the Assistant Chief of Police position became vacant. Although Graise felt he was more qualified and more deserving of the position, another officer, Delando Wilson, received the promotion. In July of 2015, Wilson was appointed as Greenville's Chief of Police, leaving the position of Assistant Chief available yet again. Although Graise renewed his interest in the position, Wilson recommended someone else who the city council ultimately appointed. Two months later, in September of 2015, Graise applied for a newly-opened Major position, but was denied the promotion.

         Before these latter two positions became available, Graise alleges that he suffered injuries to his left leg and wrist while at home. These injuries allegedly required Graise to undergo several surgeries during the months of June through October 2015. Graise asserts, however, that “his injuries never hindered him from performing his duties.” Several months later, Graise filed charges of discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging age and disability discrimination. Because Graise's charges were not timely filed, the EEOC determined it did not have jurisdiction to investigate Graise's allegations and, accordingly, dismissed the charges.^[2]

         On June 30, 2016, Graise filed the instant action against Defendants. He alleges violations under 42 U.S.C. § 12101 for claims arising under the Americans with Disabilities Act (“ADA”) and the Americans with Disabilities Amendments Act (“ADAA”), as well as violations under 29 U.S.C. § 621 for claims arising under the Age Discrimination in Employment Act (“ADEA”). He further asserts a claim pursuant to 42 U.S.C. § 1983 for ageism and disability discrimination. Defendants have now filed a motion to dismiss for failure to state a claim upon which relief can be granted.

         Standard of Review

         A complaint must contain a “short and plaint statement . . . showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). For a plaintiff to survive a Rule 12(b)(6) motion to dismiss, “a complaint must 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). A motion to dismiss for failure to state a claim tests both the legal and factual sufficiency of a plaintiff's complaint. Id. at 679. Though motions to dismiss are “viewed with disfavor and [are] rarely granted, ” the burden rests on the plaintiff to prove her claim should go forward. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 497 (5th Cir. 2000).

         To meet her burden, a plaintiff cannot rest merely on “labels or conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Instead, a plaintiff must demonstrate that facts pleaded allow the court “to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 556. At this stage, the court “must accept as true all of the allegations in complaint, ” except for those which are mere conclusions. Ashcroft, at 678. Moreover, the court views all well-pleaded facts in the light most favorable to the plaintiff. Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004). Ultimately, a plaintiff's complaint must “nudge his claims . . . across the line from conceivable to plausible.” Id. at 680 (citing Twombly, 550 U.S. at 547).

         Analysis

         In moving to dismiss, Defendants first argue that Graise's ADA and ADEA claims are procedurally barred. Defendants additionally contend that Graise has failed to state a viable § 1983 claim.

         Before initiating an action under either the ADA or ADEA, an employee must file charges with the EEOC within one hundred and eighty (180) days after the alleged unlawful practice. See McCollum v. Puckett Machinery Co., 628 F. App'x 225, 228 (5th Cir. 2015); Taylor v. General Telephone Co. of Southwest, 759 F.2d 437, 438 (5th Cir. 1985). This requirement operates as a statute of limitations and, consequently, bars any such claims unless the plaintiff can demonstrate that the application of equitable tolling is justified. Hood v. Sears Roebuck and Co., 168 F.3d 231, 232 (5th Cir. 1999). It is undisputed that Graise's EEOC charges were not timely filed. Accordingly, Graise must establish the applicability of equitable tolling to survive the instant motion to dismiss.

         Courts agree that equitable tolling is appropriate only in “rare and exceptional circumstances” when the plaintiff is either “actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.” Lovett v. Barbour Intern., Inc., 211 F. App'x 281, at *2 (5th Cir. 2006) (citing Teemac v. Henderson, 298 F.3d 452, 457 (5th Cir. 2002)). Although he fails to allege anywhere in his complaint that equitable tolling ...