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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHEN DIVISION

TREBOR J. DUKES, *

 *

 Plaintiff, *

*

vs. * CIVIL ACTION NO. 16-00381-CG-B

*

YMCA OF SELMA DALLAS COUNTY, *

et al., *

*

 Defendants. *

REPORT AND RECOMMENDATION

This matter, which was referred to the undersigned 

Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B), is before 

the Court on Defendant Ann Murray’s Motion to Dismiss and Motion 

to Strike. (Docs. 3, 12). The motions are ripe for resolution. 

Upon review of the motions, and the supporting and opposing 

briefs and materials, the undersigned recommends that the 

motions be granted.

I. Background Facts

Plaintiff Trebor J. Dukes filed the instant employment 

discrimination action against Defendants YMCA of Selma Dallas 

County (hereinafter “YMCA”) and Ann Murray. Plaintiff seeks to 

raise claims pursuant to Title VII of the Civil Rights Act of 

1964, 42 U.S.C § 2000e et seq., as amended by the Civil Rights 

Act of 1991 (“Title VII”), 42 U.S.C. § 1981, 42 U.S.C. § 1983, 

and Ala. Code § 25-4-78. In his complaint, Plaintiff alleges 

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that he was employed by the YMCA, that Ann Murray, in her role 

as executive director of the YMCA, wrongfully demoted him, that 

he complained to the board chairman about the wrongful or 

discriminatory treatment towards him, including being called the 

“Fat Black Guy” and that no action was taken in response to his 

complaint. Plaintiff further alleges that he was treated less 

favorably than white employees, and that Murray terminated him 

in retaliation for complaining about race discrimination and for 

filing a charge with the Equal Employment Opportunity Commission

(Doc. 1-1 at 7-11). 

In her motion to dismiss, Defendant Murray argues that 

Plaintiff’s claims against her in her official capacity under 

Title VII, § 1981, and § 1983 are redundant of the claims 

alleged against Defendant YMCA; thus, those claims should be 

dismissed. (Doc. 3) According to Defendant, there is no 

reasonable expectation that Plaintiff will or could recover any 

damages or relief against Defendant Murray in her official 

capacity separate and distinct from potential damages or relief 

that Plaintiff could recover against Defendant YMCA. (Id. at 5). 

Defendant Murray also asserts that Ala. Code § 25-4-78 sets 

forth the circumstances under which an employee will be 

disqualified from state unemployment benefits, but does not 

create a private cause of action. (Id. at 2). Defendant further 

argues that Plaintiff’s affidavit, submitted in connection with 

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his response in opposition to Defendant Murray’s motion to 

dismiss, should be stricken because on a 12(b)(6) motion, the 

Court’s inquiry is restricted to the complaint. (Doc. 12). 

In Plaintiff’s response in opposition, he argues that the 

allegations in his complaint are sufficient to hold Ann Murray 

liable in her individual capacity. (Doc. 10). According to 

Plaintiff, while a corporation must act through its employees, 

Defendant Murray’s willful discrimination against him should not 

absolve her from any degree of individual liability. (Id. at 5-

6). Along with his response in opposition, Plaintiff submitted 

his affidavit (Doc. 10-1), which contains additional factual 

assertions in support of his complaint.

II. Discussion

A. Standard of Review

Rule 8(a) of the Federal Rules of Civil Procedure requires 

that a plaintiff present “a short and plain statement of the 

claim showing that the pleader is entitled to relief in order to 

give the defendant fair notice of what the plaintiff claim is. . 

. and the grounds upon which it rests.” Bell Alt. Corp. v. 

Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 

(2007). To survive a motion to dismiss, a plaintiff must plead 

“only enough facts to state a claim to relief that is plausible 

on its face.” Id. at 570. The court must accept the allegations 

in the complaint as true, and the facts must be construed in the 

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light most favorable to the plaintiff. Lopez v. Target Corp.,

676 F. 3d 1230, 1232 (llth Cir. 2012). 

Typically, a court reviewing a motion to dismiss under rule 

12(b)(6) is limited to the four corners of the complaint, 

however, "where the plaintiff refers to certain documents in the 

complaint and those documents are central to the plaintiff's 

claim, then the Court may consider the documents part of the 

pleading for purposes of Rule 12(b)(6) dismissal” without 

converting the motion into a motion for summary judgment. See

Bickley v. Caremark RX, Inc., 461 F.3d 1325, 1329 n. 7 (11th 

Cir. 2006)(citation omitted). See also Esch v. Universal 

Pictures Co., 2010 U.S. Dist. Lexis 140543 (M.D. Ala. Nov. 1, 

2010)(affidavit stricken as evidence outside the scope of the 

motion to dismiss). In this case, Plaintiff’s affidavit is not 

referenced in nor incorporated into his complaint. Because the 

affidavit is clearly outside the four corners of the complaint, 

it should be stricken.

B. Analysis

As a preliminary matter, the undersigned observes that 

Plaintiff’s complaint is not the model of clarity. In the style 

of Plaintiff’s complaint, Ann Murray is listed as a defendant 

“in Official Capacity”. (Doc. 1-1). Also, in the body of the 

complaint, Plaintiff avers that “Defendant, Ann Murray is the 

Executive of the Y.M.C.A.[,] and is being sued in her official 

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capacity”. (Id. at 7). However, in his response in opposition to 

Defendant Murray’s motion to dismiss, Plaintiff asserts that 

individual liability should be imposed on Defendant Murray due 

to her personal involvement in the alleged discriminatory 

treatment against him. Yet, Plaintiff’s complaint expressly 

provides otherwise, and to date, he has made no attempt to seek 

leave to assert claims against Defendant Murray in her 

“individual capacity”. Accordingly, his claims against Murray 

are being analyzed as “official capacity” claims. 

“Official-capacity suits ... generally represent 

only another way of pleading an action against an 

entity of which an officer is an agent." Penley v. 

Eslinger, 605 F.3d 843, 854 (11th Cir. 2010) (citation 

omitted); see also Mann v. Taser Int'l, Inc., 588 F.3d 

1291, 1309 (11th Cir. 2009) ("A claim asserted against 

an individual in his or her official capacity is, in 

reality, a suit against the entity that employs the 

individual.")(citation omitted); Cook ex rel. Estate 

of Tessler v. Sheriff of Monroe County, Fla., 402 F.3d 

1092, 1115 (11th Cir. 2005) ("[A]n official-capacity 

suit is, in all respects other than name, to be 

treated as a suit against the entity. It is not a suit 

against the official personally, for the real party in 

interest is the entity.") (citation omitted); Brown v. 

Neumann, 188 F.3d 1289, 1290 (11th Cir. 1999) ("We 

start with the proposition that a suit against a 

governmental official in his official capacity is 

deemed a suit against the entity that he 

represents."); Busby v. City of Orlando, 931 F.2d 764, 

776 (11th Cir. 1991) ("Because suits against a 

municipal officer sued in his official capacity and 

direct suits against municipalities are functionally 

equivalent, there no longer exists a need to bring 

official-capacity actions against local government 

officials ...."). 

Raby v. Reese, 2016 U.S. Dist. LEXIS 54688 at *20 (S.D. AL 

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April 25, 2016).

Based on the extant law, the undersigned finds that 

Plaintiff’s “official capacity” claims against Defendant Murray 

are due to be dismissed because Plaintiff has asserted the same 

claims against his former employer, YMCA. Title VII prohibits 

an employer from discriminating "against any individual with 

respect to his compensation, terms, conditions, or privileges of 

employment, because of such individual's race, color, religion, 

sex, or national origin." 42 U.S.C. § 2000e—2(a)(1). The

relief granted under statute is against the employer, not 

individual employees who violated the Act. Busby v. City of 

Orlando, 931 F.2d 764, 772 (11th Cir. 1991); Dearth v. Collins, 

441 F.3d 931, 933 (11th Cir. 2006)(relief under Title VII is 

available against only the employer and not against individual 

employees whose actions would constitute a violation of the Act, 

regardless of whether the employer is a public company or a 

private company). Accordingly, individual capacity suits under 

Title VII are inappropriate, and the only proper defendant in a 

Title VII suit is the employer or supervisory employees in their 

official capacities as agents of the employer. See Kentucky v. 

Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 87 L. Ed. 2d 114 

(explaining that official capacity suits "generally represent 

only another way of pleading an action against an entity of 

which an officer is an agent"). However, where the employer has 

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been named as a defendant in a Title VII suit, it is redundant 

to name the supervisory employee in his or her official 

capacity. Busby, 931 F.2d at 776. Accordingly, Plaintiff’s Title 

VII claims against Murray are inappropriate and should be 

dismissed.

With respect to Plaintiff’s § 19831 claims, he asserts that 

the YMCA is a nonprofit corporation, that its officers’ conduct 

was done “under color of state law” and pursuant to a custom or 

practice endorsed are approved by the board of directors and its 

chairman. (Doc. 1-1 at 7-9). A § 1983 claim against a defendant 

in her official capacity “generally represent[s] only another 

way of pleading an action against an entity of which an officer 

is an agent. Graham, 473 U.S. at 165. Where the entity may be 

sued, there is no need to allow an official capacity action. 

Busby, 931 F.2d at 776. Accordingly, Plaintiff’s 1983 official 

capacity suit against Murray is properly understood as an action 

against the YMCA, and as such, it is clearly redundant of 

Plaintiff’s 1983 claims against the YMCA. Thus, it is due to be 

dismissed. 

Finally, Plaintiff has also asserted § 19812 claims against 

 

1 §1983 “provides every person with the right to sue those acting 

under color of state law for violations of federal 

constitutional and statutory provisions.” Williams v. Board of 

Regents of Univ. Sys. Of GA, 477 F. 3d 1282, 1299 (llth Cir. 

2007).

2 §1981 protects individuals from discrimination during the 

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Murray in her official capacity. However, § 1983 constitutes the 

exclusive remedy against purported state actors for violations 

of the rights contained in § 1981. See Jett v. Dallas Indep. 

Sch. Dist., 491 U.S. 701, 736, 109 S. Ct. 2702, 105 L. Ed. 2d 

598 (1989); see also Butts v. County of Volusia, 222 F.3d 891, 

893 (llth Cir. 2000). And, as discussed previously, Plaintiff’s 

1983 official capacity claims against Murray are due to be 

dismissed because they are redundant of the claims against the 

YMCA. 

I. Conclusion

For the reasons set forth above, the undersigned finds that 

Defendant Murray’s Motion to Dismiss and Motion to Strike be 

granted.

The attached sheet contains important information regarding 

objections to the report and recommendation of the Magistrate 

Judge.

Notice of Right to File Objection

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects 

to this recommendation or anything in it must, within fourteen 

(14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. §

 

making of contracts and creates a federal right of action. 

Webster v. Fulton County, Ga., 283 F.3d 1254 (llth Cir. 2002); 

42 U.S.C.§ 1981 (a).

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636(b)(1); FED.R.Civ.P. 72(b); S.D. ALA. GenLR 72(c). The 

Parties should note that under Eleventh Circuit Rule 3-1, “[a] 

party failing to object to a magistrate judge’s findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

the right to challenge on appeal the district court’s order 

based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of 

a proper objection, however, the court may review on appeal for 

plain error if necessary in the interest of justice.” 11th Cir. 

R. 3-1. In order to be specific, an objection must identify the 

specific finding or recommendation to which objection is made, 

state the basis for the objection, and specify the place in the 

Magistrate Judge’s report and recommendation where the disputed 

determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the Magistrate Judge 

is not specific. 

DONE this 19th day of October, 2016.

 /s/ SONJA F. BIVINS _

 UNITED STATES MAGISTRATE JUDGE

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