IN	THE	UNITED	STATES	DISTRICT	COURT	FOR	THE

SOUTHERN	DISTRICT	OF	ALABAMA

SOUTHERN	DIVISION

WINSTON	E.	MORSE,	SR.

Plaintiff,

v.

ADVANCE	CENTRAL	

SERVICES	ALABAMA	and	

MATT	HAVARD,

Defendants,

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CIVIL	ACTION	NO.

15-00343-CB-M

		ORDER

This	matter	is	before	the	Court	on	Defendants’	motion	to	dismiss the	

complaint	for	failure	to	state	a	claim.		(Doc.	10)	After	considering	the	motion	and	

supporting	brief,	Plaintiff’s	pro	se	response (Doc.	23),	and	Defendants’	reply (Doc.	

27),	the Court	finds Plaintiff’s	claims	against	defendant	Matt	Havard	are	due	to	be	

dismissed.		With	respect	to	defendant	Advance	Central	Services	Alabama,	Plaintiff	

will	be	given	an	opportunity	to	amend	and	clarify	his	claim.		

Background

On	July	2,	2015,	Plaintiff	Winston	Morse,	Sr.	filed	a	pro	se complaint.		(Doc.	1.)		

On	the	form	complaint,	he listed	as	defendants	“Advance	Central	Services	Alabama	

(Press	Register)	and	Matt	Havard,	Human	Resources	Mgr.”	Plaintiff alleged that	he	

was	terminated	from	his	employment	with	Advance	Central	Services	Alabama	on	

account	of	his	disability	in	violation	of	the	Americans	with	Disabilities	Act	(ADA),	42	

U.S..	§	12117.		(Compl.	¶	8.)		According	to	the	complaint	Plaintiff suffered	a	

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debilitating	work-related	injury	and	was diagnosed	with	arthritis	in	both	hands.		(Id.

¶	11.)		The	alleged	discrimination	occurred	on	or	about	January	7,	2014,	Morse	filed	

charges	with	the	EEOC	on	July	8,	2014,	and	he	received	a	right-to-sue	letter	on	April	

10,	2015. (Id. ¶¶	10	&	13.)

Along	with	the	complaint,	Morse	filed	a	motion	to	proceed	in	forma	pauperis.		

Before	ruling	on	that	motion,	the	Magistrate	Judge	entered	an	order	requiring	Morse	

to	clarify	his	claims	by	responding	to	four	interrogatories	regarding alleged	

disability	and	also	required	that	Morse	file	copy	of	his	EEOC	charge	of	

discrimination.		(Doc.	3.)		Morse	responded	that	his	injury occurred	on	December	

14,	2013 and resulted	from	feeding	paper	into	a	hopper.		(Pl.’s	Rsp. to	Interrogs.	5,	

Doc.	4.)		After	working	a	shift	in	which	there	were	problems	with	the	hopper,	Morse	

had	wrist	pain,	which	became	severe,	as	well	as	some	numbness	in	his	hand	and	

arm.		His	was	subsequently	diagnosed	with “carpal	tunnel	syndrome	and	“nerve	

ending	damages.”		(Id.	6.)		

In	response	to	the	Magistrate	Judge’s	order and	in	response	to	the	motion	to	

dismiss,	Morse	filed	copies	of	various	EEOC	filings	and	correspondence.	(Docs.	5	&	

23.)		Among	these	is	a	document	is	entitled	Amended	Charge	of	Discrimination,1

dated	July	8,	2014	and	stamped	“Received	Jul-8	2014	EEOC	Mobile	Local	Office.”		

(Pl.’s	Notice	1,	Doc.	5;	Pl.’s	Rsp.	3,	Doc.	23.)		The	Amended	Charge	states	January	4,	

2014	was	the	date	of	termination.		One	week	later,	on	July	15,	2014,	the	EEOC	issued	

																																																							 1 Morse	later	submitted	a	“Charge	of	Discrimination”	filed	on	the	same	date	

as	the	Amended	Charge.		The	only	difference	between	the	two	is	the	respondents.		

The	Charge	named	only	Advance	Central	Service	Alabama.		The	Amended	Charge	

added	Mobile	Press	Register	as	a	respondent.

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a	“Dismissal	and	Notice	of	Rights”	informing	Morse	that	it	was	closing	its	file	on	this	

charge	because	“[y]our	charge	was	not	timely	filed	with	EEOC;	in	other	words,	you	

waited	too	long	after	the	date(s)	of	the	alleged	discrimination	to	file	your	charge.”		

(Pl.’s	Rsp.	4,	Doc.	23.)		However,	on	October	15,	2014,	the	EEOC,	through	its	Local	

Office	Director, issued	a	“Notice	of	Intent	to	Reconsider”	stating:

Pursuant	to	the	Commission’s	procedural	Rules	and	Regulations	29	

CFR	Section	1601.21(d)	I,	under	the	authority	vested	in	me,	I	[sic]	

hereby	notify	the	parties	of	my	intention	to	reconsider	the	

determination	issued	on	July	15,	2014,	and	to	revoke	the	Dismissal	

and	Notice	of	Right	to	Sue.		After	reconsideration,	the	Commission	will	

issue	determination	anew	to	the	parties.

(Id. 5.)		On	April	8,	2015,	the	EEOC	issued	a	second	Dismissal	and	Notice	of	Rights	

letter.		This	one	concluded:		“Based	upon	its	investigation,	the	EEOC	is	unable	to	

conclude	that	the	information	obtained	establishes	violations	of	the	statute.”		(Id. 9.)

Issues	Presented

Defendants	argue	that	the	complaint	fails	to	state	a	claim	against	either	of	

them	for	two	reasons:		(1)	Plaintiff	failed	to	comply	with	one	of	the	administrative	

prerequisites	for	filing	suit	(i.e.,	failing	to	file	a	timely	EEOC	charge	of	

discrimination)	and	(2)	the	complaint	does	not	allege	that	Plaintiff	was	“disabled”	as	

that	term	is	defined	by	the	ADA.		Furthermore,	they	argue	that	Plaintiff	cannot	

recover	against	defendant	Matt	Havard.

Analysis

Legal	Standard

A	complaint	drafted	by	a	pro	se plaintiff	is	“[held]	to	less	stringent	standards	

than	formal	pleadings	drafted	by	lawyers[.]”	Haines	v.	Kerner,	404	U.S.	519,	520,	

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(1972)	(per	curiam).		Nevertheless,	any	complaint,	even	one	drafted	by	a	pro	se	

plaintiff,		“must	set	forth	enough	factual	matter	(taken	as	true)	to	suggest	[the	

required	elements	of	a	cause	of	action].”		Bell	Atlantic	Corp.	v.	Twombly,	550	U.S.	544	

(2007).				When	considering	whether	a	complaint	states	a	claim	for	relief,	the	Court	

“should	assume,	on	a	case-by-case	basis,	that well	pleaded	factual	allegations	are	

true	and	then	determine	whether	they	plausibly	give	rise	to	an	entitlement	to	relief.”		

Randall	v.	Scott,	610	F.3d	701,	710	(11th Cir.	2010).		Plausibility	means	something	

more	than	allegations	that	are	“merely	consistent	with”	liability.		Ashcroft	v.	Iqbal,	

556	U.S.	662,	678	(2009).		Finally,	“[w]here	a	more	carefully	drafted	complaint	

might	state	a	claim,	a	plaintiff	must	be	given	at	least	one	chance	to	amend	the	

complaint	before	the	district	court	dismisses	the	action	with	prejudice.”		Bank	v.	Pitt,	

928	F.2d	1108,	1112	(11th Cir.	1991)(per	curiam),	overruled	in	part	by	Wagner	v.	

Daewoo	Heavy	Indus.	Am	Corp.,	314	F.3d	541,	542	(11th Cir.	2002).		See	also	Watkins	

v.	Hudson,	560	Fed.	Appx.	908	,	911	n.	2	(11th Cir.	2014) (explaining	that	Wagner	

overruled	Hudson	with	respect	to	plaintiffs	who	are	represented	by	counsel).

Matt	Havard	is	not	a	Proper	Defendant

Defendants	point	out,	correctly,	that	Havard	is	due	to	be	dismissed	as	a	

defendant	because	the	ADA	provides	relief only	against	the	employer.		Alba	v.	Advan,	

Inc.,	490	F.3d	826,	830	(11th	Cir.	2007).		Plaintiff’s	claims	against	Havard	are,	

therefore,	due	to	be	dismissed.

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Timeliness	of	EEOC	Charge

		 The	Eleventh	Circuit	has	succinctly	set	forth the	relevant	administrative	

requirement a	plaintiff	must	satisfy	before	filing	a	lawsuit	under	the	ADA	or	other	

anti-discrimination	statutes:		

In	order	to	litigate	a	claim	for	discrimination	under	Title	VII,	the	ADA,	

or	the	ADEA	a	plaintiff	must	first	exhaust	his	administrative	remedies,	

beginning	with	the	filing	of	a	charge	of	discrimination	with	the	EEOC.	.	

.	.		In	a	non-deferral	state,	such	as Alabama,	a	plaintiff	must	file	an	

employment	discrimination	charge	with	the	EEOC	within	180	days	

after	the	date	of	the	alleged	discrimination.	.	.		Failure	to	file	a	timely	

charge	with	the	EEOC	results	in	a	bar	of	the	claims	contained	in	the	

untimely	charge.	

Rizo	v.	Alabama	Dep't	of	Human	Res.,	228	Fed.	Appx.	832,	835	(11th	Cir.	2007).		

According	to	the	complaint,	Morse	was	terminated	on	January	7,	2014.2		He	filed	his	

charge	of	discrimination	182	days	later	on	July	8,	2014.

Nevertheless,	the	Court	is	not	prepared	to	conclude,	based	on	the	record	

currently	before	it,	that	the	pro	se plaintiff’s	claim	should	be	dismissed.

3		At	the	very	

least,	the	Court	is	perplexed	by	the	EEOC’s	decision	to	reconsider	the	claim	on	the	

merits	after	having	concluded	that	it	was	untimely. “The	purpose	of	the	

requirement	that	a	plaintiff	file	an	EEOC	charge	within	180		days	(or	300	days	in	a	

deferral	state)	of	the	allegedly	illegal	act	or	practice	is	(1)	to	give	the	employer	

																																																							 2 In	the	charge	of	discrimination,	Morse	stated	that	his	date	of	termination	

was	earlier—January	4,	2014.

3Normally,	evidence	outside	the	pleadings	may	not	be	considered	in	deciding	

a	motion	to	dismiss	for	failure	to	state	a	claim	under Fed.	R.	Civ.	P.	12(b)(6).		“There	

is	an	exception,	however,	to	this	general	rule.	In	ruling	upon	a	motion	to	dismiss,	the	

district	court	may	consider	an	extrinsic	document	if	it	is	(1)	central	to	the	plaintiff's	

claim,	and	(2)	its	authenticity	is	not	challenged.”		SFM	Holdings,	Ltd.	v.	Banc	of	Am.	

Sec.,	LLC,	600	F.3d	1334,	1337	(11th	Cir.	2010).		The	EEOC	documents	have	been	

considered	under	this	exception.

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prompt	notice	of	the	complaint	against	it,	and	(2)	to	give	the	EEOC	sufficient	time	to	

attempt	the	conciliation	process	before	a	civil	action	is	filed.”	Grayson	v.	K	Mart	

Corp.,	79	F.3d	1086,	1102-03	(11th	Cir.	1996).		The	latter	requirement	was	

undoubtedly	satisfied.		Because	the	EEOC reversed	its	initial	dismissal	and

attempted	the	conciliation	process,	the	Court	cannot discount	the	possibility	that	

notice	was	timely.4

Plaintiff’s	ADA	Claim	is	Deficient

“To	state	a	discrimination	claim	under	the	ADA,	a	plaintiff	must	allege	

sufficient	facts	to	plausibly	suggest	‘(1)	that	he	suffers	from	a	disability,	(2)	that	he	is	

a	qualified	individual,	and	(3)	that	a	‘covered	entity’	discriminated	against	him	on	

account	of	his	disability.”	Surtain	v.	Hamlin	Terrace	Foundation,	789	F.3d	1289 (11th

Cir.	2015)	(quoting	Cramer	v.	Fla.,	117	F.3d	1258,	1264	(11th	Cir.1997)).		As	

Defendants	point	out,	the	facts	alleged	by	Plaintiff	(in	the	complaint	and	in	Plaintiff’s	

supplemental	pleadings)	do	not	plausibly	suggest	that	Plaintiff	suffered	from	a	

“disability”	or	that	he	is	a	“qualified	individual”	as	those	terms	are	defined	by	the	

ADA.	

For	ADA	purposes,	disability	means	‘“(A)	a	physical	or	mental	impairment	

that	substantially	limits	one	or	more	of	the	major	life	activities	of	such	individual;	

(B)	a	record	of	such	an	impairment;	or	(C)	being	regarded	as	having	such	an	

impairment.’”	Id.	(quoting	42	U.S.C.	§	12102(2);	see	also	29	C.F.R.	§	1630.2(g)).	 The	

																																																							 4 Also,	in	some	instances	the	doctrines	of	equitable	tolling,	estoppel,	or	

waiver	may	apply	to	extend	the	time	for	filing	a	charge	of	discrimination.		Zipes	v.	

Trans	World	Airlines,	Inc.,	455	U.S.	385	(1982).

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regulations	implementing	the	ADA	define	“major	life	activity”	to	include	activities	

such	as	“caring	for	oneself,	performing	manual	tasks,	seeing,	hearing,	eating,	

sleeping,	walking,	standing,	sitting,	reaching,	lifting,	bending,	speaking,	breathing,	

learning,	reading,	concentrating,	thinking,	communicating,	interacting	with	others,	

and	working;	and	the	operation	of	a	major	bodily	function.”		29	C.F.R.	§	1630.2(i)(1).		

Plaintiff	has	not	provided	any	facts	to	suggest	that	his	diagnosed	physical	

impairments--carpal tunnel	syndrome,	arthritis,	and	nerve-ending	damage--have	

substantially	limited	a major	life	activity.		Nor	do	the	facts	suggest	that	his	employer	

regarded	him	as	being	substantially	limited	in	a	major	life	activity	due	to	these	

impairments.

Plaintiff’s	factual	allegations	also	do	not	support	an inference	that	he	was	a	

“qualified	individual.”		“The	term	‘qualified,’	with	respect	to	an	individual	with	a	

disability,	means	that	the	individual	satisfies	the	requisite	skill,	experience,	

education	and	other	job-related	requirements	of	the	employment	position	such	

individual	holds	or	desires	and,	with	or	without	reasonable	accommodation,	can	

perform	the	essential	functions	of	such	position.”		Id. §	1630.2(m).		Plaintiff	does	not	

assert	that despite	his	injury he	possessed	the	requirements	necessary	to	perform	

the	essential	functions	of	the	position with or	without	reasonable	accommodation.

Conclusion

Even	if	the	additional	facts	asserted	in	subsequent	pleadings	and	filings	are	

considered	as	part	of	the	complaint,	Plaintiff	has	failed	to	assert	facts	that	would	

plausibly	suggest	all	of	the	elements	of	an ADA	claim.		Because	Plaintiff	is	

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proceeding	pro	se,	he	will	be	given	an	opportunity	to	cure	these	deficiencies.		On	or	

before	April	29,	2016,	Plaintiff	must	file	an	amended	complaint	that	contains	a	

short	and	plain	statement	of	facts	to	support	his	ADA	claim,	including	facts	that	

would	show	(1)	his	physical	impairments	substantially	limited	a	major	life	activity	

and	(2)	that	he	could	fulfill	the	requirements	of	his	job	with	or	without	reasonable	

accommodation.		

DONE and	ORDERED this	the	11th day	of	April,	2016.

s/Charles	R.	Butler,	Jr.

Senior	United	States	District	Judge

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