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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16362
________________________
D.C. Docket No. 4:14-cv-01603-KOB
PAUL BOYLE,
Plaintiff-Appellant,
versus
CITY OF PELL CITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(August 10, 2017)
Before JULIE CARNES and FAY, Circuit Judges, and GOLDBERG, * Judge.
FAY, Circuit Judge:
*
Honorable Richard W. Goldberg, Judge, United States Court of International Trade,
sitting by designation.
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Paul Boyle, a former employee of the City of Pell City (“the City”), appeals
the dismissal of his claims under state law and the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201–219, as well as the grant of summary judgment in
favor of the City as to his claims under Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794. On appeal, Boyle argues that the district court erred by
dismissing his FLSA and state-law claims because he sufficiently stated a claim
under the FLSA and his state-law claims are not barred by Alabama’s statutory
notice requirement. He further contends that he made a prima facie showing with
respect to both of his Rehabilitation Act claims. Contrary to Boyle’s arguments, he
failed to state a claim for a violation of the FLSA and his state-law claims are
barred. He also did not establish a prima facie case as to either of his
Rehabilitation Act claims. Accordingly, we affirm.
I. BACKGROUND
Boyle was employed by the City’s Street Department from March 2001 until
October 2012. 1 In June 2001, while working as a Heavy Equipment Operator, he
suffered an on-the-job injury that caused him to develop spinal stenosis, chronic
nerve pain, and other related conditions. After the injury, he could no longer
1
We take these facts from the third amended complaint and the exhibits filed during the
litigation of the City’s motion for summary judgment, construing the facts in the light most
favorable to Boyle. See Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1347 (11th Cir. 2016)
(stating that we view the facts in the light most favorable to the plaintiff when reviewing the
grant of a motion to dismiss); Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1321 (11th
Cir. 2014) (stating that we view the facts in the light most favorable to the nonmoving party
when reviewing the grant of a motion for summary judgment).
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perform the duties of a Heavy Equipment Operator. Mike Martin, the Street
Department Superintendent, initially accommodated Boyle by letting him do office
work.
In 2005, Martin began allowing Boyle to perform the duties of the Street
Department Foreman, while the actual Foreman, Jeff Crowe, voluntarily worked as
a mechanic. On November 9, 2005, Boyle, Martin, and Judy Tipton, the City’s
Director of Human Resources, memorialized this arrangement through a written
“[A]greement Between Mike Mar[tin] & Paul Boyle,” in which Boyle agreed to act
as the Street Department Foreman “for a period of time not exceeding but not
limited to two years without renegotiating the agreement.” The agreement stated
that this would be “considered a lateral move . . . at Heavy Equipment Operator[’s]
pay” (approximately $15.00 per hour), which was $8.00 or $9.00 less per hour than
the Foreman rate. Although Boyle performed the duties of a Foreman from 2005
until June 2012, he was paid at the Heavy Equipment Operator rate. Crowe
retained the Foreman job title and earned Foreman’s pay during this time.
On June 6, 2012, Martin wrote a memorandum noting that the 2005
agreement was overdue for renegotiation. He stated, “It is in my opinion . . . that
[Boyle] is to be compensated for the time . . . that he has rendered, beyond the
scope of the agreement, being the [Foreman]/Supervisor of the Street
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Department . . . .” The memorandum was signed by Boyle and Martin. Although
Boyle or Martin took the memorandum to Tipton, she refused to sign it.
Around the same time he wrote the memorandum, Martin retired from the
Street Department and Greg Gossett became the new Superintendent. Before
Gossett was hired, Boyle heard a rumor that Gossett intended to fire him. After
hearing this, Boyle decided to apply for disability retirement. He did not do
anything to verify whether the rumor was accurate, and Gossett never told him,
before he applied for disability retirement, that he would be fired.
Boyle filed his first application for disability retirement with the Retirement
Systems of Alabama (“RSA”) in June 2012, before Gossett became
Superintendent. Attached to his application was a “Report of Disability,” in which
a physician confirmed that, in his professional opinion, Boyle was “totally
incapacitated for further performance of his . . . duty.” The physician further
opined that the City could not make any reasonable accommodation that would
allow Boyle to continue his employment. The RSA denied Boyle’s application.
Immediately after becoming Superintendent, Gossett removed Boyle from
the Foreman position, replaced him with Crowe, and assigned Boyle to work
inventory. Boyle told Gossett that the physical activities involved in conducting
inventory made the job hard for him to do, but Gossett ignored his complaints and
told him to continue working. Gossett also assigned Boyle to operate heavy
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equipment on one day and disregarded Boyle’s protests that he could not operate
the equipment because of his back. When Boyle asked to be returned to the
Foreman position, Gossett refused. Gossett stated that since Crowe had the title
and received the pay he should do the work of the Foreman position.
Boyle filed a second application for disability retirement with the RSA in
August 2012. He attached another Report of Disability, which was substantially
similar to the prior Report of Disability. The RSA approved Boyle’s second
application; Boyle retired on October 1, 2012. He also applied for disability
benefits with the Social Security Administration and was ultimately approved.
On August 18, 2014, Boyle filed a complaint against the City, which he
amended three times to assert violations of the Rehabilitation Act and FLSA, as
well as state-law claims for quantum meruit, unjust enrichment, and breach of
contract. As to his Rehabilitation Act claims, he alleged that (1) the City
unlawfully denied him a reasonable accommodation by refusing to return him to
the Foreman position, and (2) he was constructively discharged. He also argued
that the City violated the FLSA by paying him overtime at the Heavy Equipment
Operator rate rather than the Foreman rate. Finally, he asserted that the City was
liable under state law because it breached the 2005 agreement and failed to
compensate him for the value of his services as a Foreman.
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The City filed a motion to dismiss Boyle’s FLSA and state-law claims,
which the district court granted. The district court concluded that Boyle failed to
state a claim for a violation of the FLSA because his “regular rate” did not violate
the FLSA’s minimum-wage requirement and he had alleged that he was paid for
overtime based on his regular rate. The court further determined that Boyle’s
state-law claims were barred under Alabama’s statutory notice requirement,
Ala. Code § 11–47–23.
The City subsequently filed a motion for summary judgment, which the
district court also granted. First, the court determined that Boyle’s Rehabilitation
Act claims failed because he did not offer a sufficient explanation for the
inconsistencies between his current claims and his representations in his
disability-retirement applications. Alternatively, Boyle could not establish that the
City failed to provide him with a reasonable accommodation, given that he did not
identify any reasonable accommodation that would have allowed him to perform
the essential functions of the Heavy Equipment Operator position. Finally, the
district court found that Boyle could not meet the standard for constructive
discharge, and, in any event, he failed to show that the alleged constructive
discharge occurred solely because of his disability. Accordingly, the court granted
summary judgment in favor of the City. Boyle filed this timely appeal.
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II. DISCUSSION
A. Dismissal of Boyle’s FLSA claim
We review de novo a district court’s order granting a motion to dismiss for
failure to state a claim. Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1347 (11th Cir.
2016). Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to
dismiss a claim for failure to state a claim upon which relief may be granted.
Fed. R. Civ. P. 12(b)(6). “To survive a Rule 12(b)(6) motion to dismiss, a
complaint must plead ‘enough facts to state a claim to relief that is plausible on its
face.’” Ray, 836 F.3d at 1347–48 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S. Ct. 1955, 1974 (2007)). A claim is facially plausible when the
plaintiff pleads sufficient facts to allow the court to draw the reasonable inference
that the defendant is liable for the alleged misconduct. Id. at 1348.
Subject to exceptions not relevant here, the FLSA provides that an employer
must pay its employee an overtime rate of at least one and one-half times the
employee’s “regular rate.” 29 U.S.C. § 207(a)(1). An employee’s regular rate is
“the hourly rate actually paid the employee for the normal, non-overtime
workweek for which he is employed.” Walling v. Youngerman-Reynolds
Hardwood Co., 325 U.S. 419, 424, 65 S. Ct. 1242, 1245 (1945). “The regular rate
by its very nature must reflect all payments which the parties have agreed shall be
received regularly during the workweek, exclusive of overtime payments.” Id.
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Boyle failed to plead facts sufficient on their face to state a plausible claim
for a violation of the FLSA. See Ray, 836 F.3d at 1347–48. Assuming arguendo
that Martin and Tipton had the authority to effectuate the 2005 agreement on the
City’s behalf, the agreement stated that Boyle would be paid at the Heavy
Equipment Operator rate.2 The fact that Martin later opined that Boyle should
have been paid at a higher rate does not change the calculation of his regular rate
for purposes of the FLSA, given that the parties agreed he would be paid at the
Heavy Equipment Operator rate. See Walling, 325 U.S. at 424, 65 S. Ct. at 1245.
Thus, Boyle’s “regular rate” was $15.00 per hour—the rate at which he was
actually paid. See id. He did not assert that he renegotiated his pay rate after the
expiration of the two-year term specified in the 2005 agreement, nor did he allege
that the City failed to compensate him for overtime hours based on the Heavy
Equipment Operator rate. Accordingly, the district court did not err in dismissing
Boyle’s FLSA claim.
B. Dismissal of Boyle’s state-law claims
Section 11–47–23 of the Alabama Code provides:
All claims against the municipality (except bonds and interest
coupons and claims for damages) shall be presented to the clerk for
payment within two years from the accrual of said claim or shall be
2
Although the 2005 agreement and Martin’s 2012 memorandum were not attached to
Boyle’s third amended complaint, the district court was permitted to consider them because they
were central to his claims and neither party disputed their authenticity. See Speaker v. U.S. Dep’t
of Health & Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th
Cir. 2010).
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barred. Claims for damages growing out of torts shall be presented
within six months from the accrual thereof or shall be barred.
Ala. Code § 11–47–23. Section 11–47–23 is a statute of nonclaim rather than a
statute of limitations. City of Birmingham v. Davis, 613 So. 2d 1222, 1224 (Ala.
1992). “The whole theory of the statute is to create a defense broader in its
operation than the statute of limitations, not only barring remedies, but
extinguishing debts and liabilities.” Ivory v. Fitzpatrick, 445 So. 2d 262, 264 (Ala.
1984) (emphasis omitted) (quoting Fretwell v. McLemore, 52 Ala. 124, 144
(1875)). The filing of a complaint within the specified period is sufficient to
satisfy the requirements of section 11–47–23. Marvin W. Sumlin Constr. Co. v.
City of Prichard, 465 So. 2d 371, 373 (Ala. 1985).
In Hood v. City of Birmingham, the plaintiff, as executrix of her husband’s
estate, sued the City of Birmingham for breach of contract based on its failure to
pay legal fees to her husband for services he had performed for Roosevelt City,
which had been annexed by the City of Birmingham. 562 So. 2d 164, 164 (Ala.
1990). Before Roosevelt City was annexed, it had entered into a written agreement
with the plaintiff’s husband, stating that it was “justly indebted to [the plaintiff’s
husband]” and that it “confess[ed] judgment in behalf of the City of Roosevelt City
to [the plaintiff’s husband].” Id. The Supreme Court of Alabama concluded that
“[t]he ‘claim’ spoken of in [section] 11–47–23 does not include a contractual
obligation known to and acknowledged by the city.” Id. at 165. Because the
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plaintiff’s claim “was actually one for a debt (and not a claim contemplated by
[section] 11–47–23) owed her husband by Roosevelt City,” compliance with
section 11–47–23 was not required. Id.
Here, the district court properly dismissed Boyle’s state-law claims based on
his failure to comply with section 11–47–23.3 Because Boyle’s claims center on
the wages allegedly owed to him for his performance as a Foreman, his claims
accrued, at the latest, in June 2012, when he was relieved of the Foreman duties.
Boyle did not allege that he had ever presented his claims to the city clerk, and he
filed his initial complaint in August 2014, more than two years after his claims
accrued.
Furthermore, there is no evidence indicating that the City knew about and
acknowledged a contractual obligation to Boyle for the difference between the
Heavy Equipment Operator and Foreman pay rates. See id. The 2005 agreement
reflects that Boyle would be paid at the Heavy Equipment Operator rate after he
was transferred to the Foreman position and that this would be considered a
“lateral move.” While Martin, in his 2012 memorandum, opined that Boyle should
have been paid at a higher rate after the expiration of the 2005 agreement, the
memorandum does not constitute an acknowledgment by the City of a debt to
3
Boyle has not argued on appeal or before the district court that a Rule 12(b)(6) motion
is an inappropriate vehicle by which to assert a defense based on section 11–47–23. As such, we
do not consider the issue.
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Boyle. Rather, the memorandum simply states Martin’s opinion as to the pay that
Boyle should have received. Boyle has not pointed to any other documents
reflecting an acknowledgment by the City of a contractual obligation, and there is
no evidence that anyone authorized to act on behalf of the City acknowledged any
debt to Boyle. 4 See id. Thus, the district court properly dismissed Boyle’s
state-law claims for failure to comply with section 11–47–23.
C. Summary judgment as to Boyle’s Rehabilitation Act claims
“We review a district court’s grant of summary judgment de novo, viewing
all the evidence, and drawing all reasonable factual inferences, in favor of the
nonmoving party.” Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1321
(11th Cir. 2014). Summary judgment is appropriate when the movant
demonstrates that there is no genuine issue of material fact and it is entitled to
judgment as a matter of law. Id. Once the movant submits a properly supported
motion for summary judgment, “the burden shifts to the nonmoving party to show
that specific facts exist that raise a genuine issue for trial.” Id. (quoting Dietz v.
Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010)). If the nonmoving
party presents evidence that is “‘merely colorable’ or ‘not significantly probative,’”
4
Ala. Code § 11–47–5 (“Contracts entered into by a municipality shall be in writing,
signed and executed in the name of the city or town by the officers authorized to make the same
and by the party contracting. In cases not otherwise directed by law or ordinance, such contracts
shall be entered into and executed by the mayor in the name of the city or town . . . .”).
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summary judgment is appropriate. Id. (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S. Ct. 2505, 2511 (1986)).
Section 504 of the Rehabilitation Act of 1973 prohibits entities receiving
federal funds from discriminating against otherwise qualified individuals with
disabilities. Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 507 F.3d 1306,
1310 (11th Cir. 2007). To establish a prima facie case of discrimination under the
Rehabilitation Act, a plaintiff must show that (1) he has a disability, (2) he is
otherwise qualified for the position, and (3) he was subjected to unlawful
discrimination as a result of his disability. Id.
A disability, for purposes of the Rehabilitation Act, is a physical or mental
impairment that substantially limits one or more major life activities. See 29
U.S.C. § 705(9)(B) (cross-referencing 42 U.S.C. § 12102). A person with a
disability is “otherwise qualified” if he is able to perform the essential functions of
the job in question with or without a reasonable accommodation. See Sch. Bd. of
Nassau Cty. v. Arline, 480 U.S. 273, 287 n.17, 107 S. Ct. 1123, 1131 n.17 (1987).
“[T]he issue of whether an employee is an otherwise qualified individual and
whether a reasonable accommodation can be made for that employee is determined
by reference to a specific position.” Duckett v. Dunlop Tire Corp., 120 F.3d 1222,
1224–25 (11th Cir. 1997) (discussing reasonable accommodations and the
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otherwise-qualified inquiry in the context of the Americans with Disabilities Act
(“ADA”)). 5
An employer unlawfully discriminates against an otherwise qualified person
with a disability when it fails to provide a reasonable accommodation for the
disability, unless doing so would impose an undue hardship on the employer.
Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001). The plaintiff
bears the burden of identifying an accommodation and showing that the
accommodation would allow him to perform the essential functions of the job in
question. Id. at 1255–56.
The Rehabilitation Act does not require employers to create new positions
for employees with disabilities. Sutton v. Lader, 185 F.3d 1203, 1210–11 (11th
Cir. 1999) (stating that an employer “is under no obligation to hire an employee for
a non-existent job,” nor is it required to create a light-duty position for a disabled
employee). “Reassignment to another position is a required accommodation only
if there is a vacant position available for which the employee is otherwise
qualified.” Willis v. Conopco, Inc., 108 F.3d 282, 284 (11th Cir. 1997). An
employer is not required to promote the disabled employee or remove another
employee from a position in order to accommodate the disabled employee. Lucas,
5
“The standard for determining liability under the Rehabilitation Act is the same as that
under the [ADA]; thus, cases involving the ADA are precedent for those involving the
Rehabilitation Act.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citation omitted).
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257 F.3d at 1256. When an employer provides a greater accommodation than that
required under the Rehabilitation Act, it “incurs no legal obligation to continue
doing so.” Id. at 1257 n.3.
A plaintiff also may satisfy the third prong of a prima facie case of disability
discrimination by showing that he suffered an adverse employment action, such as
termination, because of his disability. Ellis v. England, 432 F.3d 1321, 1326 (11th
Cir. 2005). Under the constructive-discharge doctrine, “an employee may be
deemed to have been discharged where the terms or conditions of employment
under which [he] is asked to work are so intolerable that a reasonable person in
[his] position would have been compelled to resign.” Thomas v. Dillard Dep’t
Stores, Inc., 116 F.3d 1432, 1433–34 (11th Cir. 1997). We employ an objective
standard in determining whether an employee was constructively discharged; the
employee’s subjective feelings are not considered. Hipp v. Liberty Nat’l Life Ins.
Co., 252 F.3d 1208, 1231 (11th Cir. 2001).
Although we are sympathetic to Boyle’s situation, we cannot say that the
district court erred in granting summary judgment in favor of the City as to his
Rehabilitation Act claims. Assuming arguendo that he satisfied the first two
prongs of a prima facie case of discrimination under the Rehabilitation Act,
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notwithstanding his representations in his applications for disability benefits,6 he
did not make a prima facie showing that the City unlawfully failed to
accommodate him or that he suffered an adverse employment action.
As to his failure-to-accommodate claim, Boyle did not meet his burden of
identifying a reasonable accommodation. See Lucas, 257 F.3d at 1255. Although
the City allowed him to perform Foreman duties for several years, there is no
evidence that the position, which was officially held by Crowe, was ever vacant
during this time. The City was not required to reassign Boyle to a non-vacant
position, nor was it obligated to create a second Foreman position or remove
Crowe from the Foreman position in order to make a vacancy. See id. at 1256;
Sutton, 185 F.3d at 1210–11; Willis, 108 F.3d at 284. Even if the Foreman position
had been vacant, the City would not have been required to promote Boyle as an
accommodation. See Lucas, 257 F.3d at 1256. The fact that the City
accommodated Boyle for years by allowing him to perform Foreman duties does
not indicate that it violated the Rehabilitation Act by removing this
accommodation. See id. at 1257 n.3. While we can all applaud and appreciate the
kindness of Martin and Crowe toward Boyle, the law simply does not require an
6
To survive summary judgment, Boyle was required to explain why his representations
in his disability-retirement applications were consistent with his current allegation that he could
perform the essential functions of the job in question, at least with a reasonable accommodation.
See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 798, 119 S. Ct. 1597, 1600 (1999).
Because it makes no difference to the outcome of his appeal, we assume, without deciding, that
Boyle sufficiently explained any inconsistencies between his current claims and the statements in
his disability-retirement applications.
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employer to demote or discharge an employee to accommodate another employee
who is disabled.
Boyle also did not show that he was constructively discharged. Although he
contended that Gossett assigned him to tasks he could not physically perform,
thereby making his work conditions intolerable, the record reflects that he applied
for disability-retirement benefits before Gossett became Superintendent. This
evidence eviscerates his argument that he was constructively discharged. While
Boyle testified that he decided to apply for disability-retirement benefits after
hearing a rumor that he would be fired, the existence of an unverified rumor did
not render his work environment “so intolerable that a reasonable person in [his]
position would have been compelled to resign.” See Thomas, 116 F.3d at 1434.
III. CONCLUSION
The district court properly dismissed Boyle’s FLSA and state-law claims, as
he failed to state a claim for a violation of the FLSA and his state-law claims were
barred by Alabama’s statutory notice requirement. Additionally, the district court
did not err in granting summary judgment as to Boyle’s Rehabilitation Act claims,
given that he failed to establish a prima facie case as to either claim. Accordingly,
we affirm the district court’s dismissal of Boyle’s FLSA and state-law claims and
its grant of summary judgment as to his Rehabilitation Act claims.
AFFIRMED.
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