Clifton v. Georgia Merit System

• Decision Date: 06 March 2007
• Docket Number: Civil Action No. 1:05-CV-3272-CAP.
• Citation: 478 F.Supp.2d 1356
• Parties: Wagan CLIFTON, Jr., Plaintiff, v. GEORGIA MERIT SYSTEM, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

Page 1356

478 F.Supp.2d 1356

Wagan CLIFTON, Jr., Plaintiff, v. GEORGIA MERIT SYSTEM, et al., Defendants.

Civil Action No. 1:05-CV-3272-CAP.

United States District Court, N.D. Georgia, Atlanta Division.

March 6, 2007.

COPYRIGHT MATERIAL OMITTED

Wagan Clifton, Jr., Cocoa, FL, Pro se.

Bryan K. Webb, Office of State Attorney General, Atlanta, GA, for Defendants.

ORDER

PANNELL, District Judge.

This action comes before the court on the defendants' motions to dismiss [Doc. Nos. 8 and 12]. The plaintiff, Wagan Clifton, Jr., alleges that he was denied accommodation for his disability (blindness) by the defendants while applying for jobs with the State of Georgia. His claims are brought under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. ("ADA"), 42 U.S.C. § 1983, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq. ("Title VII"). The defendants move to dismiss for lack of personal jurisdiction, improper service of process, and failure to state a claim upon which relief may be granted.

Factual Background

I. The Plaintiffs Job Search

Because this matter is before the court on a motion to dismiss, the court accepts as true the facts alleged in the complaint and construes them in the light most favorable to the plaintiff. See Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992). The relevant facts alleged in the plaintiff's complaint [Doc. No. 2] and "statement of claim" [Doc. No. 11] are somewhat difficult to follow. Nevertheless, they are summarized to the best of the court's understanding as follows:

The plaintiff, who is blind, sought employment with the Georgia Department of Juvenile Justice in 2004. The plaintiff was specifically interested in the position of Juvenile Justice Specialist II at the Dublin or Savannah facilities. Individuals seeking employment in that position were required by the State to pass a certification exam before submitting an application. The plaintiffs job inquiry began with a call to Georgia Merit System ("GMS"), the State human resources agency responsible for accepting applications for State employment and administering certification examinations. On May 17 or 18, 2004, either the plaintiff or his wife spoke to GMS employee Gil Hodges about the possibility of special accommodations for the certification exam due to the plaintiff's disability. Hodges stated that he would look into the request and call the plaintiff back, but never did.

On May 19, 2004, the plaintiff called the Department of Juvenile Justice Multi-Service Center in Savannah and spoke to Patricia Merritt. The plaintiff told Merritt that he was visually impaired and had already called GMS about certification testing, but had not heard back from anyone. Merritt told the plaintiff that she would call GMS to see if an exam could be sent to Savannah so that he would not have to travel to Atlanta.¹ Later that day a female representative of GMS named either Amanda Daniels or McDaniel (hereinafter "Daniels") called the plaintiff, stated that a message had been left for her to call him, and asked what the plaintiff wanted. The plaintiff responded that he needed special accommodation for testing because he was blind. Daniels responded "My problem is do you think you can do the job?", to which the plaintiff answered that he could if he was provided with special accommodations. Daniels ended the call by telling the plaintiff that she would check with her supervisor to see what they could come up with and that she would call the plaintiff back the morning of March 22, 2004.

When he did not hear from Daniels the morning of March 22, 2004, the plaintiff called GMS, as the deadline for the Savannah position was approaching. The male GMS representative that answered the phone told the plaintiff that Daniels was at lunch, but that he would leave a message for Daniels to call the plaintiff back.

After not hearing back from Daniels for more than a month, the plaintiff phoned the Juvenile Justice Department's ("JJD") Employment Relations Department. By this time the Savannah position had closed, but there was now an opening for the same position at the Dublin, Georgia location. The plaintiff reached Chris Jones in the JJD Employee Relations Department and asked who he could speak to regarding special accommodations for the certification exam for the Specialist II position. That position had opened on May 3, 2004, and was to close on May 18, 2004. Jones stated that the individual who typically dealt with special accommodation requests was not available, but that Jones could handle the plaintiff's request.

The plaintiff explained that he was completely blind. Jones stated that in light of the plaintiffs disability, a job position such as prison guard or police officer would be out of the question. The plaintiff agreed. Although the JJD web site specifically stated that an applicant must take the certification exam first, then submit an application for the specialist position, Jones told the plaintiff that he was not sure whether the position required an exam. Jones said he would need to call the Dublin facility and then call the plaintiff back, and requested that the plaintiff go ahead and send his application directly to the Dublin facility. The plaintiff faxed his application information to the attention of Rusty Rogers at the Dublin facility on May 7, 2004.

Jones called the plaintiff back later on May 7 and stated that Rogers had received the plaintiffs application and wanted him to take the certification exam before interviewing. Jones told the plaintiff he would need to call GMS and ask for Dick Doughtier to schedule a date for the exam. Jones also told the plaintiff to call Rogers and review the job description with him to see if the plaintiff was still interested in the job.

Plaintiff did not contact GMS as Jones had instructed. Jones consequently phoned the plaintiff on May 10, 2004, to ask whether the plaintiff had spoken to GMS to set up an exam date. The plaintiff told Jones he was not going to call GMS because GMS representatives had treated the plaintiff improperly when he had previously requested special accommodations. The plaintiff told Jones that if he wanted to contact GMS on the plaintiffs behalf, "it was up to him." Jones replied that GMS might deny the request, but that he would call them.

On May 11, 2004, 53 days after the plaintiff last spoke to her, Daniels finally returned his call. Daniels stated that she was calling to schedule a date for the plaintiff to take the certification exam and to clarify what accommodations he would need. Daniels asked the plaintiff if he could read Braille; the plaintiff responded by asking if the examination was given in Braille. Daniels did not know if the examination was available in Braille and said she would check to see if it was. The plaintiff then asked if GMS had JAWS, a speech synthesizer program for the blind, or if a reader could be provided. Again, Daniels stated that she did not know, but would look into it. Finally, the plaintiff inquired as to whether the examination could be sent to the Office of Disabled Students at the University of Central Florida, where the plaintiff had taken other states' certification examinations. Daniels responded "No, I don't think we can do that," and stated the she would call the plaintiff back on May 12, 2004, to let him know what had been decided. Daniels did not call the plaintiff back on May 12.

The plaintiffs complaint and statement of claim do not state whether he ever took a certification exam, and are unclear as to whether the plaintiff spoke to anyone at GMS or JJD about the position after the events described in the pleadings.

II. The Plaintiffs Lawsuit

The plaintiff, acting pro se, filed a complaint against GMS on November 14, 2005, alleging disability discrimination in violation of the ADA [Doc. No. 2]. GMS filed a motion to dismiss the complaint on March 16, 2006 [Doc. No. 8]. The plaintiff responded to the motion to dismiss on March 27, 2006 [Doc. No. 10]. Nine days later, the defendant filed a "notice of filing statement of claim" [Doc. No. 11] in which he added Section 1983 and Title VII claims and also named several additional defendants, all of whom are State employees (collectively, the "individual defendants"). All but two of the individual defendants are specifically named in their official capacity. Although this "statement of claim" essentially amounted to an amended complaint, the plaintiff never sought leave of the court to amend his complaint and/or add new defendants.²

On April 21, 2006, GMS, along with the individual defendants, filed a motion to dismiss the amended complaint [Doc. No. 12]. The plaintiff did not file a response to the motion to dismiss the amended complaint. This order addresses the defendants' motions to dismiss the original and amended complaints.

Legal Analysis

Local Rule 7.1(B) requires that responses opposing a motion be filed within 10 days after service of the motion, and also provides that failure by a party to file a response to a motion indicates that the motion is unopposed. Here, the plaintiff has failed to respond to the motion to dismiss the amended complaint, but he previously responded to GMS's motion to dismiss his original complaint. Because the court typically provides leniency to pro se litigants, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (directing the courts to construe pro se pleadings liberally), the court will consider the motion to dismiss the amended complaint as contested and address the motion on its merits along with the original motion to dismiss.

I. Standard of Review

A motion to dismiss may be granted only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957); Bradberry v. Pinellas County, 789 F.2d...