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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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