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Barr v. Board of Regents of the University System of Georgia

United States District Court, S.D. Georgia, Savannah Division

March 8, 2019

ALEX BARR, Plaintiff,
BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA; and NICHOLAS SILBERG, individually and in his official capacity as Department Head of Fine Arts, Humanities and Wellness at Savannah State University, Defendants.



         On March 23, 2018, Plaintiff Alex Barr filed an Amended Complaint pursuant to 42 U.S.C. § 1981 alleging claims of race discrimination against Defendants stemming from his employment as an instructor at Savannah State University.[1] (Doc. 11.) Presently before the Court is Defendants' Motion to Dismiss, (doc. 12), to which Plaintiff filed a Response in opposition, (doc. 13), and Defendants filed a Reply, (doc. 15). Defendants move to dismiss Plaintiff's case for lack of subject-matter jurisdiction and for failure to state a claim upon which relief can be granted, arguing that Plaintiff's claims are insufficiently pleaded and are barred by the applicable statute of limitations as well as sovereign immunity. (Doc. 12.) Plaintiff contends his claims were timely filed and are not barred by sovereign immunity as to Defendant Silberg; to the extent his claims are not well-pleaded, Plaintiff seeks permission to amend. (Doc. 13.)

         For the reasons set forth below, the Court GRANTS in part and DENIES in part Defendants' Motion, (doc. 12), and DISMISSES with prejudice Plaintiff's claims against Defendant Board of Regents of the University System of Georgia (“BOR”). The Court DIRECTS the Clerk of Court to TERMINATE the BOR as a Defendant on the docket of this action. Further, the Court DISMISSES with prejudice Plaintiff's § 1981 claims against Defendant Silberg for failure to hire, rehire, or promote and for unequal pay regarding compensation for Fall 2015 as barred by the applicable statute of limitations, as well as his hostile work environment claim against Defendant Silberg for failure to state a claim upon which relief can be granted. The Court also DISMISSES with prejudice Plaintiff's retaliatory discharge claim stemming from the grievance letter Plaintiff submitted after Defendant Silberg failed to tender Plaintiff a contract and demanded Plaintiff's resignation. In addition, the Court DISMISSES without prejudice and with leave to amend Plaintiff's claim for disparate treatment in the terms and conditions of employment, regarding teaching accommodations, for failure to state a claim.

         However, as explained below, Plaintiff's claim against Defendant Silberg for unequal pay regarding nonpayment of “overload” pay for the Fall 2014 semester shall remain pending before the Court. Additionally, Plaintiff's retaliatory discharge claim against Defendant Silberg stemming from the disparate treatment complaints which occurred prior to Defendant Silberg's adverse employment action shall remain pending before the Court. Accordingly, the Court DENIES Defendants' Motion as to these claims. In addition, the Court GRANTS Plaintiff leave to file a second amended complaint for the reasons set forth below. Plaintiff may file a second amended complaint in the limited manner set forth below within fourteen (14) days from the date of this Order.

         Further, given that Plaintiff has stated plausible Section 1981 unequal pay and retaliatory discharge claims against Defendant Silberg, the Court extends time for service. The Court ORDERS Plaintiff to properly effect service of process on Defendant Silberg within thirty-five (35) days from the date of this Order and to provide proof thereof.[2] The Court provides Plaintiff this amount of time for service so that Plaintiff will have time to first file his second amended complaint and then serve Defendant Silberg with that operative version of his complaint. Thus, if Plaintiff does intend to amend his complaint, he must first file the second amended complaint and then serve Defendant Silberg with the second amended complaint. Should Plaintiff fail to timely serve Defendant Silberg within this specified period, the Court will dismiss this action without prejudice pursuant to Federal Rule of Civil Procedure 4(m).

         Lastly, the Court DIRECTS the Clerk of Court to LIFT the discovery stay imposed in this case and ORDERS the remaining parties to conduct a Rule 26(f) conference within fourteen (14) days from the filing of Defendant Silber's Answer and to file a Rule 26(f) Report within seven (7) days from the Rule 26(f) conference.[3] Failure to comply with these directives may result in the dismissal of this action or striking of the answer.


         On or about August 1, 2013, Plaintiff Alex Barr was hired by Defendants as an instructor at Savannah State University (“SSU”) to teach critical thinking and communications courses. (Doc. 11, p. 4.) During the 2013-2014 academic year, Plaintiff taught twelve hours of classes- a “full four-course” load-each semester for the Department of Liberal Arts. (Id.) Plaintiff had a separate employment contract for each semester of that academic year. (Id.) During the 2014- 2015 academic year Plaintiff served as an instructor in the Department of Fine Arts, Humanities, and Wellness, teaching an “overload” schedule of five three-hour classes for the Fall Semester but returned to teaching a four-course load for the Spring Semester. (Id.) By the end of Spring Semester 2015, Plaintiff had completed his second consecutive year as a full-time faculty member at SSU. (Id.) Over the course of these two years, Plaintiff received classroom performance reviews of “excellent” or “outstanding.” (Id.)

         That following summer, in mid-June of 2015, Plaintiff discovered, per SSU's class roster, that he was slated to teach five classes in the upcoming Fall Semester. (Id.) Plaintiff had not agreed to teach an overload schedule; rather, Defendants had simply “assigned” this schedule to him. (Id.) Some two weeks later, however, Plaintiff was “locked out” of the SSU computer network, including his email account. (Id.) Plaintiff then became concerned that he had not actually been contracted by SSU to teach for the 2015-2016 academic year. (Id.) When Plaintiff had yet to receive a teaching contract by late July 2015, he began discussions with Defendant Silberg, his department chair and direct supervisor, about teaching the upcoming semester. (Id. at p. 5.) Plaintiff informed Defendant Silberg that he had not received a contract for Fall 2015, had not been paid his overload premium for the previous Fall Semester of 2014, and had been locked out of SSU's computer network.[5] (Id.) Defendant Silberg responded that, contrary to Plaintiff's understanding, overload pay was not available unless he taught six classes, a requirement Plaintiff considered “impossible” given his contemporaneous enrollment in a PhD program at SSU. (Id.) Nonetheless, with classes scheduled to begin Monday, August 10, 2015, and realizing that he was still not under contract, Plaintiff requested that he be offered an employment contract. (Id.)

         By August 7, 2015, Plaintiff was still without an employment contract and SSU email access; he notified Defendant Silberg that he would not teach the next Monday unless he was put under contract for teaching the assigned overloaded schedule. (Id.) Instead of tendering Plaintiff his contract, however, Defendant Silberg demanded Plaintiff's resignation. (Id.) As result of Defendant Silberg's actions, Plaintiff submitted a grievance that was never responded to or referred for further review. (Id. at p. 6.) When Plaintiff refused to resign, he was removed from the teaching roster and terminated. (Id.)

         Plaintiff states that he was the only black faculty member in his department, and he was the only faculty member in the department who was refused an employment contract and reasonable teaching accommodations. (Id.) Further, unlike his white counterparts, Plaintiff was the only faculty member asked to teach an overload schedule and the only faculty member not paid prior to agreeing to a new contract. (Id.) Defendants gave white employees “preferred terms and conditions [of employment] in order to succeed and achieve at their positions.” (Id.) Plaintiff avers that he complained of this disparate treatment to Defendant Silberg and SSU, but those complaints went unaddressed. (Id.) After refusing to offer Plaintiff an employment contract, Defendants later replaced him with a white female instructor. (Id.)

         Based on these allegations, Plaintiff brings claims under § 1981 for racial discrimination in the making of a contract, retaliation, and disparate treatment in the terms and conditions of employment, including refusal to hire or promote, unequal pay, and hostile work environment. (Id. at p. 3.) Plaintiff asserts each of these claims under a single count of civil rights violations prohibited by § 1981. (Id. at pp. 3-7.) As relief, Plaintiff seeks compensatory damages, punitive damages, an injunction against future civil rights violations, attorney's fees, and any other relief deemed just and appropriate by the Court. (Id. at pp. 3, 7-8.)


         When a court has pending before it both a Federal Rule of Civil Procedure 12(b)(1) motion to dismiss for lack of subject matter jurisdiction and a Rule 12(b)(6) motion to dismiss for failure to state a claim, the generally preferable approach is to decide the jurisdictional issue first and then, if jurisdiction is found, to decide whether a claim has been stated. Jones v. State, 725 F.2d 622, 623 (11th Cir. 1984). Motions pursuant to Rule 12(b)(1) take one of two forms: a “facial attack” on subject matter jurisdiction based on the complaint's allegations taken as true or a “factual attack” based on evidentiary matters outside of the pleadings. McElmurray v. Consol. Gov't of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007) (citation omitted)). In the “factual attack” context, the court considers whether subject matter jurisdiction tangibly exists in fact, irrespective of the complaint's allegations, id., and is permitted to “consider extrinsic evidence such as testimony and affidavits, ” Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003) (citation omitted). A “facial attack, ” however, merely requires the court “to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (alteration in original). Thus, on a “facial attack, ” courts are to proceed as if evaluating a Rule 12(b)(6) motion. See McElmurray, 501 F.3d at 1251.

         Under a Rule 12(b)(6) motion to dismiss, a court must “accept[] the allegations in the complaint as true and constru[e] them in the light most favorable to the plaintiff.” Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009) (citation omitted). “A complaint must state a facially plausible claim for relief, and ‘[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.'” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A pleading that offers ‘labels and conclusions' or a ‘formulaic recitation of the elements of a cause of action'” does not suffice. Ashcroft, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (citation and internal quotations omitted). While a court must accept all factual allegations in a complaint as true, this tenet “is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” are insufficient. Id. However, dismissal under Rule 12(b)(6) “on statute of limitations grounds is appropriate only if it is apparent from the face of the complaint that the claim is time-barred.” Boyd v. Warden, Holman Corr. Facility, 856 F.3d 853, 872 (11th Cir. 2017) (citation and internal quotations omitted).


         In their Motion to Dismiss, Defendants present three grounds for dismissal of Plaintiff's Complaint: (1) they level a “facial attack” on this Court's subject matter jurisdiction over Plaintiff's claims against Defendant BOR based on Eleventh Amendment sovereign immunity, [6](doc. 12-1, pp. 5-6, 14-16); (2) they argue that Plaintiff's failure to hire, failure to promote, and unequal pay § 1981 claims, filed more than two years after his resignation, are time-barred because the statute of limitations applicable to those claims only provides two years to bring suit rather than four, (id. at pp. 5-10); and (3) they contend that Plaintiff fails to plead sufficient facts to support each of his discrimination claims, (id. at pp. 5, 10-14).

         In his Response, Plaintiff argues that his § 1981 claims are not time-barred by the statute of limitations because they fall under the revised four-year statutory limit. (Doc. 13, pp. 3-4.) Plaintiff also contends that he properly sets forth plausible claims in his Amended Complaint, and in the event the Court finds to the contrary, he seeks leave to further amend. (Id. at pp. 4-5.) However, as to Defendants' sovereign immunity defense, Plaintiff acknowledges its applicability to the BOR but asserts that he “rectified” the issue by adding Defendant Silberg. (Id. at p. 5.) In their Reply, Defendants press the statute of limitations defense, arguing that because Plaintiff “worked under a contract that automatically ended the employment relationship” and required renegotiation for another term of employment, his failure to hire, failure to promote, and unequal pay claims are subject to the two-year statute of limitations. (Doc. 15, pp. 2-3.) Defendants also urge that Plaintiff failed to “provide specific analysis” regarding the factual sufficiency of his claims as set forth in his Amended Complaint. (Id. at pp. 3-4.)

         The parties' arguments raise several doctrines of law, each of which the Court addresses in turn. As explained below, the Court finds that the allegations Plaintiff levies in his Amended Complaint against Defendant Silberg, taken as true and construed in his favor, state a plausible § 1981 claim for unequal pay regarding nonpayment of “overload” pay. However, his claims against Defendant BOR are foreclosed by sovereign immunity and his § 1981 claims against Defendant Silberg for failure to hire, rehire, or promote and for unequal pay regarding the Fall 2015 employment contract are precluded by the applicable statute of limitations. As such, these claims shall be dismissed as a matter of law. In addition, Plaintiff's § 1981 claims for hostile work environment, disparate terms and conditions of employment, and retaliation are due to be dismissed for failure to state a claim upon which relief can be granted.

         I. Dismissal of Defendant BOR Under Eleventh Amendment Immunity

         Plaintiff brings claims of employment discrimination against Defendant BOR pursuant to 42 U.S.C. § 1981, [7] made actionable through 42 U.S.C. § 1983. (Doc. 11.) As an instrumentality of the State of Georgia, a suit against the BOR would be the same as a suit against the State of Georgia itself. “The Eleventh Amendment insulates a state from suit brought by individuals in federal court unless the state either consents to suit or waives its Eleventh Amendment immunity.” Stevens v. Gay, 864 F.2d 113, 114 (11th Cir. 1989) (footnote omitted) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984)). A lawsuit against a state agency or employee in its official capacity is no different from a suit against a state itself; such a defendant is immune. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (holding that the state and its “arms” are not “persons” amenable to suit under Section 1983); see Butts v. County of Volusia, 222 F.3d 891, 894 (11th Cir. 2000) (“[Section] 1983 contains the sole cause of action against state actors for violations of § 1981.”); see also Pittman v. Oregon, 509 F.3d 1065, 1072 (9th Cir. 2007) (Under the Will Court's interpretation of the Eleventh Amendment, “actions against arms of the state under both § 1983 and § 1981 cannot be brought in either federal or state court, because the cause of action in § 1983 does not reach arms of the state.” (emphasis in original)).

         In enacting Section 1981, Congress did not abrogate a state's sovereign immunity from suit provided by the Eleventh Amendment. Henry v. Fla. Bar, 701 Fed.Appx. 878, 881 (11th Cir. 2017) (per curiam) (citing, inter alia, Sessions v. Rusk State Hosp., 648 F.2d 1066, 1069 (5th Cir. 1981) (“Unlike Title VII, Section 1981 contains no congressional waiver of the state's [E]leventh [A]mendment immunity.”)).[8] Likewise, Congress did not abrogate the “well-established immunities or defenses” provided by the Eleventh Amendment and common law when it enacted 42 U.S.C. § 1983, the statutory cause of action through which Plaintiff brings his Section 1981 claims.[9] Will, 491 U.S. at 67. Arms or agencies of the state, such as the BOR, are therefore immune from suit. Nicholl v. Bd. of Regents of the Univ. Sys. of Ga., 706 Fed.Appx. 493, 495 (11th Cir. 2017) (per curiam) (“The B[OR] is considered a state entity that is an arm of the state of Georgia for purposes of the Eleventh Amendment, and, therefore, is entitled to sovereign immunity, unless waived.”); see also Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 616-17 (2002) (addressing whether the BOR had waived its Eleventh Amendment immunity in that specific case); Stroud v. McIntosh, 722 F.3d 1294, 1299 (11th Cir. 2013) (characterizing the BOR as an arm of the state); Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1301-02 (11th Cir. 2007) (“Nor has . . . the B[OR] waived its Eleventh Amendment immunity.”).

         Plaintiff has not shown that Defendant BOR has waived its sovereign immunity;[10]indeed, Plaintiff appears to concede that the Eleventh Amendment precludes suit against the BOR, (doc. 13, p. 5). Thus, because the State of Georgia would be the real party in interest in a suit against Defendant BOR, the Eleventh Amendment immunizes the BOR from suit, even as to Plaintiff's request for injunctive relief.[11] Accordingly, the Court DISMISSES Plaintiff's claims against Defendant BOR under Eleventh Amendment sovereign immunity.

         II. 42 U.S.C. § 1981 Discrimination Claims

         Under Section 1981, as amended by Congress in the Civil Rights Act of 1991, “[a]ll persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a) (1991). With its 1991 amendment, Congress broadly defined the term “make and enforce contracts” to include “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” Id. § 1981(b). The addition of Section 1981(b) by Congress overturned the Supreme Court's decision in Patterson v. McLean Credit Union, which had narrowly construed the protective reach of Section 1981 to prohibit race discrimination “only [in] the formation of a contract, but not [in] problems that may arise later from the conditions of continuing employment.” 491 U.S. 164, 176 (1989). Prior to this amendment, courts were to apply the most analogous state statute of limitations to Section 1981 claims. Goodman v. Lukens Steel Co., 482 U.S. 656, 661-62 (1987), superseded by statute as stated in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 383 (2004).

         In Jones v. R.R. Donnelley & Sons Co., however, the Supreme Court determined that Section 1981 claims made possible by the enactment of the Civil Rights Act of 1991 and § 1981(b) are subject to the default four-year statute of limitations period for federal causes of action as set forth in 28 U.S.C. § 1658(a). 541 U.S. at 374-80. The Jones Court explained that, to the extent Congress created new causes of action not previously cognizable under Section 1981, such claims are subject to the four-year “catch-all” statute of limitations provided by § 1658(a). Id. at 380-83. However, for causes of action that existed before the enactment of § 1981(b), the practice of borrowing the relevant state statute of limitations still applies. Edwards v. Nat'l Vision, Inc., 568 Fed.Appx. 854, 860 (11th Cir. 2014) (per curiam) (citing 28 U.S.C. § 1658; Jones, 541 U.S. at 371). Thus, in Georgia, the state's two-year statute of limitations for personal injury torts controls those Section 1981 claims which existed prior to the 1991 amendment. See O.C.G.A. § 9-3-33; Saunders v. Emory Healthcare, Inc., 360 Fed.Appx. 110, 114 (11th Cir. 2010) (per curiam).

         A. What Statute of Limitations Applies to Plaintiff's Section 1981 Claims

         In his Amended Complaint, Plaintiff sets forth five Section 1981 employment discrimination claims: (1) failure to hire, rehire, or promote; (2) unequal pay; (3) hostile work environment; (4) disparate treatment in the terms and conditions of employment; and (5) retaliation. (Doc. 11, pp. 3-7.) Plaintiff filed his claims on October 23, 2017, complaining of employment actions that began on or about August 1, 2013 and continued through August 2015.[12] (Docs. 1, 11.) Accordingly, any claim brought by Plaintiff that was actionable under Section 1981 prior to the 1991 amendment is foreclosed by O.C.G.A. ยง 9-3-33. Defendants contend that Plaintiff's claims for failure to hire, rehire, or promote and for unequal pay are subject to Georgia's two-year statute of limitations and are thus time barred. (Doc. 12-1, pp. 6- 10.) Plaintiff responds by arguing that each of these claims was made possible by the 1991 ...

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