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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

PAUL C. VINCENT, 

 Plaintiff,

vs. 3:10cv217/MCR/MD

SANTA ROSA COUNTY SCHOOL DISTRICT,

 Defendant.

REPORT AND RECOMMENDATION

This case is before the court upon defendant’s motion to dismiss and

memorandum of law in support. (Doc. 14 & 15). Plaintiff has failed to timely respond

in opposition to this motion, despite having been directed to do so. (Doc. 27).

I. Background

Plaintiff Paul C. Vincent sues Santa Rosa County School District (“the

District”) and Joyce McCorvey under Title VII of the Civil Rights Act of 1964 (“Title

VII”) and the Americans with Disabilities Act (“ADA”). (Doc. 6 at 4). Plaintiff, who

was at one time employed by the District, alleges that he suffered discrimination on

the basis of his gender (male), his race (white), his color (white) and his disability

(speech impairment). (Doc. 6 at 3). Plaintiff indicates on the amended complaint

form that the discrimination took place when defendant failed to hire plaintiff,

terminated his employment, and subjected him to unequal treatment. Plaintiff filed

a complaint with the EEOC and received a Notice of Right to Sue from the EEOC on

May 21, 2010.

From the allegations in the complaint, it appears that plaintiff is a teacher with
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ESE certification. Plaintiff alleges that a black female without this certification was 1

given preference for summer employment. The following academic year, another

female teacher without this certification was hired. This led to the creation of a new

position for a teacher with ESE certification. Plaintiff contends that the school had

a lead teacher with no certification who was allowed to continue with his

employment until that teacher could take the exams needed, although it is not clear

whether this teacher was in the newly created position. With respect to his alleged

disability, plaintiff asserts that he overheard conversations in which an individual

identified as “the FA” stated that he did not like the way plaintiff talked. Plaintiff

asserts that this was the reason he was not re-hired, despite having an exemplary

rating in his program area. 

Plaintiff admits on the complaint form that the defendant did not deny a

request for reasonable accommodation. He asserts that he needed no

accommodation, and his job performance was rated exemplary. (Doc. 6 at 6). As

relief, plaintiff asks that defendants be directed to re-employ him, compensate him

for lost wages and pay other expenses that may have occurred as a result of the

discrimination. 

Defendants move to dismiss the case as to defendant Joyce McCorvey, who

they note is incorrectly identified by plaintiff as Joyce McCarvey, and to dismiss the

ADA claim against the Santa Rosa County School District (the “District”).

II. Legal Standard for Motions to Dismiss

In ruling on a motion to dismiss, plaintiff’s well-pled allegations are accepted

as true and construed in the light most favorable to him. Sinaltrainal v. Coca-Cola

Co., 578 F.3d 1252, 1260 (11 Cir. 2009); Oxford Asset Managment Ltd. v. Jaharis,

th

297 F.3d 1182, 1188 (11 Cir. 2002); Davis v. Monroe County Bd. Of Educ., 120 F.3d th

1390, 1393 (11 Cir. 1997). Furthermore, a pro se litigant’s pleadings are held to a th

Plaintiff does not define this acronym, but it likely denotes “Elementary Special Education.”

1

Case No: 3:10cv217/MCR/MD
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less stringent standard than those drafted by an attorney. See, e.g., Hughes v. Lott,

350 F.3d 1157, 1160 (11 Cir. 2003). Nonetheless, conclusory allegations, th

unwarranted deductions of fact, or legal conclusions masquerading as facts will not

insulate a complaint from dismissal. Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937,

1949, 173 L.Ed.2d 868 (2009); Jaharis, 297 F.3d at 1188;Sinaltrainal, 578 F.3d at 1260. 

The complaint may be dismissed if the facts as pleaded do not state a claim to relief

that is plausible on its face. See Iqbal, 129 S.Ct. at 1950; Bell Atl. Corp. v. Twombly,

127 S.Ct. 1955, 1968-1969, 1974 (2007) (retiring the “unless it appears beyond doubt

that the plaintiff can prove no set of facts” standard). A complaint is also subject to

dismissal under Rule 12(b)(6) when its allegations--on their face--show that an

affirmative defense bars recovery on the claim. LeFrere v. Quezada, 582 F.3d 1260,

1263 (11 Cir. 2009); Marsh v. Butler County, Ala., 268 F.3d 1014, 1022 (11 Cir. th th

2001). 

III. Plaintiff’s claims against Joyce McCorvey

Plaintiff names Joyce McCorvey, who defendant speculates was plaintiff’s

supervisor, in his complaint and alleges violations of the ADA and Title VII against

her. To the extent he sues Ms. McCorvey in her individual capacity, the Eleventh

Circuit , has expressly held that neither Title VII nor the ADA permits the imposition

of liability on individuals in their individual capacity. See, e.g., Albra v. Advan, Inc.,

490 F.3d 826, 829-830 (11 Cir. 2007); Mason v. Stalling, 82 F.3d 1007, 1009 (11 Cir. th th

1996); Busby v. City of Orlando, 931 F.2d 764, 772 (11 Cir. 1991). And, to the extent th

he sues Ms. McCorvey in her official capacity, his claims against her must be

dismissed because he has also asserted a claim against her employer, and therefore

such a claim is redundant. See Adams v. Cobb County School District, 242

Fed.Appx. 616, 617 (11 Cir. 2007); Busby, 931 F.2d at 776. th

IV. Plaintiff’s ADA Claims against the District

Plaintiff makes the same Title VII and ADA claims against the District. The

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defendants argue that plaintiff’s ADA claim against the District is also subject to

dismissal because he has failed to plead sufficient facts to establish a prima facie

claim. 

In order to establish a prima facie case of disability discrimination under the

ADA, a plaintiff must show that: (1) he has a disability; (2) he is a qualified individual;

and (3) he was subjected to unlawful discrimination because of his disability. Holly

v. Clairson Industries, L.L.C., 492 F.3d 1247, 1255-1256 (11 Cir. 2007); Morisky v. th

Broward County, 80 F.3d 445, 447 (11 Cir. 1996). Plaintiff may establish that he has th

a disability in one of three ways. He must allege either (1) the existence of a physical

or mental impairment which substantially limits one or more of his major life

activities, or (2) or a record of such an impairment, or (3) that he is regarded as

having such an impairment. 42 U.S.C. § 12102(1); D’Angelo v. ConAgra Foods, Inc.,

422 F.3d 1220, 1225 (11 Cir. 2005). In this case plaintiff has not alleged that his th

physical impairment “substantially limited” one or more of his major life activities

or that he had a record of such a limiting impairment. Instead, plaintiff alleges that

he received exemplary ratings despite this alleged impairment. Plaintiff’s case

appears to rest on the third prong of the test, that he was “regarded as having such

an impairment.” 

Plaintiff states in his amended complaint that he overheard conversations that

the FA had with others in which the FA remarked that he “did not like the way 2

[plaintiff] talks.” (Doc. 6 at 5). Plaintiff speculates that this is the reason he was not

rehired. (Id.). Under the ADA, an individual meets the requirement of “being

regarded as having such an impairment” if the individual establishes that he or she

has been subjected to a prohibited employment action “because of an actual or

perceived physical or mental impairment whether or not the impairment limits or is

perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A). A comment that

Neither the meaning of the acronym FA nor the identity of this person is apparent from the

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complaint. Clearly plaintiff does not refer to Joyce McCorvey; from the context of the complaint it is clear

that the FA is a male.

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someone does not like how someone else talks, even if referring to a speech

impediment rather than a manner or communication, is not necessarily equivalent

to regarding that person as having a physical or mental impairment. And, even if the 

FA regarded the plaintiff as having an impairment, there are no allegations in the

complaint to suggest that this person was involved in the decision not to rehire the

plaintiff. Therefore, as presented, plaintiff fails to state an ADA claim against the

District, and this claim should be dismissed. 

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Accordingly, it is respectfully RECOMMENDED:

That the defendants’ motion to dismiss (doc. 14) be GRANTED as follows:

(1) The claims against defendant Joyce McCorvey should be

dismissed with prejudice and Ms. McCorvey should be dismissed as a defendant

in this action.

(2) The plaintiff’s ADA claim against the District should be dismissed

without prejudice; and. 

That this case be referred back to the undersigned for further proceedings

with respect to plaintiff’s claims against the District. 

At Pensacola, Florida, this 1 day of November, 2010. ST

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

Dismissal should be without prejudice so that plaintiff may, after consideration of the legal

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standards outlined herein, chose to move for leave to file a second amended complaint. Plaintiff should

note that the Local Rules of this court provide that the proposed amended pleading must accompany the

motion for leave to amend. N.D.Fla. Loc.R. 15.1

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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy thereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of objections shall be served upon all other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 3:10cv217/MCR/MD