IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DIANE SMITH, : 

: 

Plaintiff, : 

: 

vs. : CIVIL ACTION 09-0616-CG-M

: 

BALDWIN COUNTY COMMISSION, : 

: 

Defendant. : 

REPORT AND RECOMMENDATION

The Motion for Partial Dismissal filed by Defendant (Docs.

21-22) has been referred for report and recommendation, under 28

U.S.C. § 636(b)(1)(B) and Local Rule 72.2. Jurisdiction has been

invoked in this Court under Title VII of the Civil Rights Act of

1964 (hereinafter Title VII), 42 U.S.C. § 2000e et seq., and the

Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.,

pursuant to 28 U.S.C. § 1331. After consideration, it is

recommended that Defendant’s motion be granted as to Plaintiff’s

claim for punitive damages, but denied as to Smith’s claim for

retaliation.

The facts are, briefly, as follows. Plaintiff Diane Smith,

who is fifty-seven years old, was employed by Defendant Baldwin

County Commission (hereinafter Commission) from December 2006

through March 2008 as a Basic Living Skills Coordinator for the

Baldwin County Girl’s Residential Wilderness Program (hereinafter

the Program) (Doc. 19, ¶¶ 11-13). Beginning in October 2007,

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Smith noticed that Program Director William Ford was touching

Jennifer Hadley, one of Plaintiff’s co-employees; Smith also

observed Ford smelling her hair and making “numerous

inappropriate comments to Hadley regarding her looks and

appearance” (Doc. 19, ¶¶ 5, 14-15). On March 4, 2008, Plaintiff

wrote a letter to Susan Lovett, the Director of Human Resources

for the Commission, complaining of Ford’s treatment of Hadley;

[l]ater that day, Ford sent Smith home for the remainder of the

day” (Doc. 19, ¶¶ 20-21). “The next day, Smith returned to work

and Ford wrote her up for ‘gossiping’” (Doc. 19, ¶ 22). “On

March 6, 2008, Ford terminated Smith, and on March 7, 2008,

Lovett rehired Smith” (Doc. 19, ¶ 23). “On April 9, 2008, Smith

was terminated” (Doc. 19, ¶ 24).

On September 21, 2009, Plaintiff brought this action,

asserting that she was constructively discharged by the

Commission, raising two claims against it: (1) retaliation; and

(2) age discrimination (Docs. 1, 19). Defendant filed this

Motion for Partial Dismissal (Docs. 21-22). Plaintiff has

responded to the Motion (Doc. 26) and the Commission has replied

to the response (Doc. 27).

The Court notes, initially, that “[w]hen considering a

motion to dismiss, all facts set forth in the plaintiff’s

complaint ‘are to be accepted as true and the court limits its

consideration to the pleadings and exhibits attached thereto.’” 

Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir.

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Conley also stated that “a complaint should not be dismissed for

failure to state a claim unless 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, 355 U.S. at 45-46. The U.S.

Supreme Court has done away with this standard in Bell Atlantic

Corporation v. Twombley, 550 U.S. 544, 557-563 (2007). The Court,

nevertheless, finds Conley’s statement regarding the purpose of Rule

8(a)(2) to be useful here in deciphering the analysis necessary for

evaluating Plaintiff’s claims.

3

2000) (quoting GSW, Inc. v. Long County, 999 F.2d 1508, 1510

(11th Cir. 1993)). In order to state a claim for relief, the

Federal Rules of Civil Procedure state that a pleading must

contain “a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The

U.S. Supreme Court explained that the purpose of the rule was to

“give the defendant fair notice of what the plaintiff’s claim is

and the grounds upon which it rests.” Conley v. Gibson, 355 U.S.

41, 47 (1957).1

 While factual allegations do not have to be

detailed, they must contain more than “labels and conclusions;”

“a formulaic recitation of the elements of a cause will not do.” 

Bell Atlantic Corporation v. Twombley, 550 U.S. 544, 555 (2007)

(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual

allegations must be enough to raise a right to relief above the

speculative level.” Id. (citations omitted). “Facts that are

‘merely consistent with’ the plaintiff’s legal theory will not

suffice when, ‘without some further factual enhancement [they]

stop short of the line between possibility and plausibility of

“entitle[ment] to relief.”’” Weissman v. National Association of

Securities Dealers, Inc., 500 F.3d 1293, 1310 (11th Cir. 2007)

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(quoting Twombley, 550 U.S. 557) (quoting DM Research, Inc. v.

College of American Pathologists, 170 F.3d 53, 56 (1st Cir.

1999)). “Only a complaint that states a plausible claim for

relief survives a motion to dismiss.” Ashcroft v. Iqbal, — U.S.

—, 129 S.Ct. 1937, 1950 (2009) (citing Twombley, 550 U.S. at 556. 

“Where the well-pleaded facts do not permit the court to infer

more than the mere possibility of conduct, the complaint has

alleged—but it has not ‘show[n]’—‘that the pleader is entitled to

relief.’” Iqbal, — U.S. —, 129 S.Ct. at 1950 (quoting

Fed.R.Civ.P. 8(a)(2)). As noted by the Supreme Court, Plaintiffs

must “nudge[] their claims across the line from conceivable to

plausible[; otherwise,] their complaint must be dismissed.” 

Twombly, 550 U.S. at 570. It is noted, however, that a complaint

may be dismissed, under Federal Rule of Civil Procedure 12(b)(6),

“on the basis of a dispositive issue of law.” Executive 100,

Inc. v. Martin County, 922 F.2d 1536, 1539 (11th Cir.) (citing

Neitzke v. Williams, 490 U.S. 319 (1989)), cert. denied, 502 U.S.

810 (1991). 

In its Motion, Defendant first asserts that Smith’s

retaliation claim is untimely (Doc. 22, pp. 4-8). More

specifically, the Commission claims that Plaintiff did not assert

a claim of retaliation until seventeen months after it occurred,

more than eleven months after her 180-day limitations period had

run.

Statutory law states that a charge of discrimination must be

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This Exhibit is the Amended Charge of Discrimination filed by

Smith on September 19, 2009.

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filed with the Equal Employment Opportunity Commission

(hereinafter EEOC) within 180 days of the discriminatory act. 42

U.S.C. § 2000e-5(e)(1). In this action, the Amended Complaint

states that Smith was terminated on April 9, 2008; she filed an

amended charge of discrimination which asserted retaliation on

September 19, 2009 (Doc. 19, ¶ 24). September 19, 2009 is

clearly more than 180 days beyond April 9, 2008. 

Smith admits that she did not initially file a charge of

retaliation along with her age discrimination claim and did not

do so until September 19, 2009 (Doc. 26, p. 4; see also Doc. 6,

Exhibit B).2 She goes on to assert, though, that she reasonably

relied on information provided by an EEOC employee who told her

that she could not bring a retaliation claim (Doc. 26, pp. 4-5). 

Smith’s Amended Complaint states the facts as follows:

4. In or about April 2008, Plaintiff

Diane Smith met with Investigator Enrica

Lacour (“Lacour”) at the Equal Employment

Opportunity Commission (“the EEOC”) to file a

claim for retaliation and age discrimination

against the Baldwin County Commission (“the

BCC”).

5. Smith specifically told Lacour that

she had been terminated in retaliation for

complaining about Director Bill Ford’s

(“Ford”) sexual harassment of and retaliation

against a fellow employee, Jennifer Hadley

(“Hadley”).

6. Lacour told Smith that Smith did not

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have a retaliation claim against the BCC, but

that she did have a claim for age

discrimination since the person who replaced

her was under the age of forty.

7. Because Lacour was employed by the

EEOC, Smith assumed that Lacour knew what she

was talking about and that her statements

were accurate.

8. Relying on Lacour’s statements, on

May 19, 2008, Smith filed an EEOC charge that

only included an age discrimination claim.

9. On September 19, 2009, after

retaining counsel, Smith filed an amended

charge of discrimination, alleging that she

was terminated in retaliation for complaining

about Ford’s sexual harassment of and

retaliation against Hadley.

(Doc. 19). Plaintiff argues that she has equitably tolled the

limitations period (Doc. 26, pp. 4-5). 

The U.S. Supreme Court, in Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 393 (1982), held that “filing a timely charge

of discrimination with the EEOC is not a jurisdictional

prerequisite to suit in federal court, but a requirement that,

like a statute of limitations, is subject to waiver, estoppel,

and equitable tolling.” The Eleventh Circuit Court of Appeals

has recognized “three distinct situations in which the Title VII

limitation period may be equitably tolled;” the one which is

relevant here is “when the EEOC misleads a complainant about the

nature of his rights under Title VII.” Jones v. Wynne, 266

Fed.Appx. 903, 906 (11th Cir. 2008). The Eleventh Circuit Court

of Appeals has also noted that “equitable tolling may be

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The Eleventh Circuit Court of Appeals, in the en banc decision

Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981),

adopted as precedent decisions of the former Fifth Circuit rendered

prior to October 1, 1981.

4

While Plaintiff may have mischaracterized Page as being

concerned with filing an EEOC charge rather than filing a lawsuit (see

Doc. 27, pp. 5-6; cf. Doc. 26, p. 5), Page, nevertheless, stands for

the proposition that a claimant should not be penalized for relying on

misinformation provided by the EEOC.

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appropriate when a plaintiff has been ‘lulled into inaction by .

. . state or federal agencies’ or ‘if a plaintiff is actively

misled.’” Miller v. Marsh, 766 F.2d 490, 493 (11th Cir. 1985)

(quoting Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir. 1984)). 

As noted by the Fifth Circuit Court of Appeals, a claimant should

be “entitled to rely on [an] authoritative statement by the

[EEOC, an] agency presumed to know the most about these matters.” 

Page v. U.S. Industries, Inc., 556 F.2d 346, 351 (5th Cir. 1977),3

cert. denied, 434 U.S. 1045 (1978).4 

Defendant has argued that “a single casual pre-filing

conversation with an EEOC investigator” should not be the basis

for finding that Smith has equitably tolled the limitations

period (Doc. 22, p. 8). Defendant has also asserted that

Plaintiff’s lack of due diligence is fatal to her claim.

The Court finds otherwise, however. Accepting her

assertions as true, see Grossman, 225 F.3d at 1231, the Court

finds that the EEOC investigator provided Smith with

misinformation which resulted in Plaintiff’s failure to raise a

claim of retaliation against Defendant. The Commission is wrong

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in asserting that Smith was not diligent; she filed her first

EEOC charge the month after she first talked with Lacour. If

Lacour had not told her she did not have a claim of retaliation,

one would presume that Smith would have filed it in addition to

her age discrimination claim. Therefore, the Court finds that

Smith’s claim for retaliation has equitably tolled the statute

and should be allowed to proceed in this action.

Defendant next claims that the retaliation claim should be

dismissed because Plaintiff did not engage in a protected

activity (Doc. 22, pp. 8-9). Plaintiff, however, has pointed to

statutory language which states as follows:

It shall be an unlawful employment

practice for an employer to discriminate

against any of his employees or applicants

for employment, for an employment agency, or

joint labor-management committee controlling

apprenticeship or other training or

retraining, including on-the-job training

programs, to discriminate against any

individual, or for a labor organization to

discriminate against any member thereof or

applicant for membership, because he has

opposed any practice made an unlawful

employment practice by this subchapter, or

because he has made a charge, testified,

assisted, or participated in any manner in an

investigation, proceeding, or hearing under

this subchapter.

42 U.S.C. § 2000e-3(a) (emphasis added). 

Though Defendant asserts that the nature of Plaintiff’s

retaliation claim is not clear (Doc. 27, p. 6), the Court finds

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“26. By complaining to the BCC about Ford’s sexual harassment

of and retaliation against Hadley, Smith engaged in activity protected

by Title VII.

27. As a result of her complaints, Smith was terminated on April

9, 2008" (Doc. 19).

6

The Court notes that Defendant has argued that Plaintiff’s

affidavit and the first three pages of her brief should be struck

because they contain information not included in the Amended Complaint

(Doc. 27, pp. 1-3). Because the Court has not relied on any of that

material, it is unnecessary to address Defendant’s argument.

9

that paragraph five in the Amended Complaint clearly sets out

Smith’s belief that she was terminated from her job because she

objected to Director Ford’s harassment of another employee. The

Court finds that that paragraph, along with the specific

assertions in the retaliation claim,5 satisfies the requirement

of Iqbal in that she has stated “a plausible claim for relief”

under § 2000e-3(a).6 Therefore, it is recommended that

Defendant’s Motion to Dismiss the retaliation claim be denied.

Defendant has also urged this Court to dismiss Plaintiff’s

claims for punitive damages (Doc. 22, p. 9). The Commission

argues that because it is a government entity of the State,

punitive damages cannot be recovered from it.

The law is clear that a complaining party can recover both

compensatory and punitive damages in a Title VII action. 42

U.S.C. § 1981a(a)(1). However, punitive damages cannot be

recovered against “a government, government agency or political

subdivision.” 42 U.S.C. § 1981a(b)(1); see also Garrett v.

Clarke County Bd. of Education, 857 F.Supp. 949, 953 (S.D. Ala.

1994) (In a Title VII action, it was noted that “[i]n no event,

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however, may the complaining party recover punitive damages from

a governmental entity”). 

However, Plaintiff has pointed to an Alabama case,

Smitherman v. Marshall County Comm’n, 746 So.2d 1001 (Ala. 1999),

as evidence that “Alabama distinguishes between counties and

county commissions” (Doc. 26, p. 7). The Court notes that

although the Smitherman Court did discuss the differences between

a county and a county commission, the holding of the case was

that the county commission was a government entity for the

purpose of limiting recovery of damages on a judgment against it. 

Smitherman, 746 So.2d 1005-09. If anything, Smitherman counsels

the Court to find Defendant to be a government entity for Title

VII purposes, meaning that punitive damages would not be

available for Plaintiff to recover. It is so recommended.

In summary, it is recommended that Defendant’s Motion for

Partial Dismissal (Docs. 21-22) be granted as to Plaintiff’s

claim for punitive damages, but denied as to Smith’s claim for

retaliation.

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within fourteen days of the date of service

of this document, file specific written objections with the clerk

of court. Failure to do so will bar a de novo determination by

the district judge of anything in the recommendation and will bar

an attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404

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(5th Cir. Unit B, 1982)(en banc). The procedure for challenging

the findings and recommendations of the magistrate judge is set

out in more detail in SD ALA LR 72.4 (June 1, 1997), which

provides that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing

a “Statement of Objection to Magistrate Judge’s

Recommendation” within fourteen days after being served

with a copy of the recommendation, unless a different

time is established by order. The statement of

objection shall specify those portions of the

recommendation to which objection is made and the basis

for the objection. The objecting party shall submit to

the district judge, at the time of filing the

objection, a brief setting forth the party’s arguments

that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It

is insufficient to submit only a copy of the original

brief submitted to the magistrate judge, although a

copy of the original brief may be submitted or referred

to and incorporated into the brief in support of the

objection. Failure to submit a brief in support of the

objection may be deemed an abandonment of the

objection.

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

2. Transcript (applicable where proceedings tape recorded). 

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the

magistrate judge finds that the tapes and original records in

this action are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay the

fee for a transcript, is advised that a judicial determination

that transcription is necessary is required before the United

States will pay the cost of the transcript.

DONE this 26th day of March, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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