United States District Court, N.D. Mississippi, Greenville Division
B. BIGGERS, JR. UNITED STATES DISTRICT JUDGE
before the court is a motion to dismiss for failure to state
a claim filed by all Defendants. Upon due consideration of
the motion, response, complaint, and documents attached to
the complaint, the court is ready to rule.
and Procedural Background
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
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.
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
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.
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).
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).
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.
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.
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