McShan v. Dynamis Educational Systems Inc. (MAG+)

Filing 13

REPORT AND RECOMMENDATIONS that defendant's 9 MOTION to Dismiss be GRANTED, and that Plaintiff's Complaint, as amended, be DISMISSED without prejudice because Plaintiff has failed to state a claim for which relief can be granted. Objections to R&R due by 10/14/2008. Signed by Honorable Wallace Capel, Jr on 10/1/2008. (cc, )

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION B R E N D A McSHAN, P l a in tif f , v. D Y N A M IC EDUCATIONAL S Y S T E M S , INC., D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) C I V I L ACTION NO. 2:08cv543-MEF R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE In this Title VII employment discrimination action, Plaintiff Brenda McShan (" M c S h a n " or "Plaintiff") alleges in her Complaint, as amended, (Docs. #1, 5), that Dynamic E d u c a tio n a l Systems, Inc., ("Defendant") discriminated against her in terminating her e m p lo ym e n t in December of 2007. Plaintiff seeks the recovery of "back pay" among other d am ag es. This matter is before the Court on Defendant's Motion to Dismiss (Doc. #9). F o r the reasons that follow, the undersigned Magistrate Judge RECOMMENDS that the Court GRANT the Defendant's Motion to Dismiss (Doc. #9), and DISMISS Plaintiff's C o m p la in t without prejudice for failure to state a claim upon which relief can be granted. I . DISCUSSION P la in tif f , an African-American female, asserts she was discriminated against when D e f en d a n t terminated her employment after she was involved in an altercation with another A f r i c a n -A m e ric a n female employee. Plaintiff first brought her claim before the Equal E m p lo ym e n t Opportunity Commission ("EEOC"), which rejected the claim in June of 2008 b e c a u s e Plaintiff failed to state a claim for relief under the statutes enforced by the EEOC. O n July 9, 2008, Plaintiff filed the instant suit under Title VII of the Civil Rights Act of 1 9 6 4 . Complaint (Doc. #1 at 2).1 Defendant discriminated against her, Plaintiff contends, b e c au s e "[i]t is standard procedure for an investigation to be conducted whenever an in c id e n t/a lte rc a tio n occurs. There was no investigation conducted regarding this other e m p lo ye e ." Id. Nowhere in her original Complaint did Plaintiff specifically allege that she w a s discriminated against on the basis of her race, color, sex, religion, or national origin. B a se d on this apparent deficiency in Plaintiff's complaint, the Court ordered her to amend th e complaint such that it clearly stated the acts of wrongdoing attributed to Defendant, as w e ll as "the federal statute or constitutional provision that was violated" by Defendant. O rd e r (Doc. # 4) at 2. O n July 28, 2008, Plaintiff filed her Amended Complaint (Doc. #5). The Amended C o m p la in t presents only a narrative of the events leading to Plaintiff's termination and the su b se q u e n t denial of her application for unemployment compensation. Notably, once again P la in tif f failed to allege that she suffered discrimination by her employer due to animus t o w a rd any protected characteristic, and she did not cite to any federal statute or 1 Plaintiff submitted a Title VII form complaint. See Complaint (Doc. #1). On the p a rt of the form where Plaintiff was asked to indicate that "Defendant's conduct is d is c rim in a to ry with respect to the following" protected characteristics, Plaintiff did not c h e ck any of the boxes corresponding with race, religion, sex, or national origin. Instead, P la in tif f checked "Other" and stated "[m]y employment was terminated, but the other s ta f f member was not terminated." 2 c o n s titu tio n a l provision providing a basis for her suit. On August 18, 2008, Defendant filed a Motion to Dismiss (Doc. #9), seeking d is m is s a l due to, inter alia, Plaintiff's purported failure to state a claim upon which relief m a y be granted. This Court entered an Order (Doc. #10) instructing Plaintiff to show cause w h y the motion should not be granted. On September 8, 2008, Plaintiff filed her Response (D o c . #12) to the show cause order, which simply reiterates the general allegations of the A m e n d e d Complaint and presents additional allegations about the hardships wrought on her a n d her family due to the denial of her application for unemployment compensation. The plaintiff in an employment discrimination lawsuit "must show (1) she belongs to a protected class; (2) she was qualified to do the job; (3) she was subjected to adverse e m p lo ym e n t action; and (4) her employer treated similarly situated employees outside her c la ss more favorably." Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). See also S t im p s o n v. City of Tuscaloosa, 186 F.3d 1328, 1331 (11th Cir. 1999) ("In order to prove inten tio n al discrimination under this section, a plaintiff must establish (1) the employer's d is c rim in a to ry animus towards the employee based on the employee's protected c h a ra c te ris tic ; (2) a discharge or other significant change in the terms or conditions of e m p lo ym e n t; and (3) a causal link between the two."). Conclusory allegations of unfair tre a tm e n t and resulting hardships do not suffice to state a claim of employment d is c rim in a tio n . See McCray v. Potter, 263 F. App'x 771, 773 (11th Cir. 2008) (citing G ilc h ris t v. Bolger, 733 F.2d 1551, 1553-54 (11th Cir. 1984) ("Title VII does not encompass 3 e v e ry tribulation a worker may experience in the workplace, but instead only proscribes e m p lo ym e n t discrimination based on race, color, religion, sex, or national origin."). Even construed liberally, Plaintiff has "failed to state a valid Title VII claim because s h e did not allege that any discriminatory act was taken because of her race, color, religion, s e x , or national origin." McCray, 263 F. App'x at 773. She only alleges that she was te rm in a te d after an insufficient investigation into events precipitating the termination, and th a t a co-worker, allegedly of the same race and sex as Plaintiff, was not terminated despite h er involvement in the same events. Despite being instructed to do so on the form C o m p la in t, Plaintiff failed to identify the race of the two persons whom she alleges d is c rim in a te d against her. It is also telling that Plaintiff "selected `other' as her category of d is c rim in a tio n " on her form complaint, but failed to provide an explanation of what protected c h a ra c te ris tic animated her employer to discriminate against her if not race, color, sex, re lig io n , or national origin. See id. Plaintiff's general grievance about her alleged unfair tre a tm e n t relative to that of her co-participant in the altercation leading to Plaintiff's firing d o e s not suffice as a cognizable allegation of employment discrimination. "Put simply, Title V II does not protect [Plaintiff] from the kinds of discrimination she alleged." Id. Thus, P la in tif f has failed to state a claim of employment discrimination for which relief can be g ra n te d . Accordingly, Defendant's Motion to Dismiss (Doc. #9) is due to be GRANTED. II. CONCLUSION F o r the reasons discussed above, it is the RECOMMENDATION of the Magistrate 4 Ju d g e that Defendant's Motion to Dismiss (Doc. #9) be GRANTED, and that Plaintiff's C o m p lain t, as amended, be DISMISSED without prejudice because Plaintiff has failed to state a claim for which relief can be granted.2 It is further O R D E R E D that the parties are DIRECTED to file any objections to the said R e c o m m e n d a tio n on or before October 14, 2008. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation objected to. Frivolous, co n clus ive or general objections will not be considered by the District Court. The parties are a d v is e d that this Recommendation is not a final order of the court and, therefore, it is not a p p e a la b le . F a ilu re to file written objections to the proposed findings and recommendations in the M a g i stra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain 2 Within its prayer for relief, Defendant requests that the Court "dismiss Plaintiff's Complaint in its entirety with prejudice and award [Defendant] its costs and attorney's fees." (Doc. #9 at 3). The Court does not construe this as a proper motion for attorney's fees pursuant to Fed. R. Civ. P. 54(d)(2), which governs the timing and content of such requests. Defendant has not explained why it may be entitled to attorney's fees, or even specified the amount of attorney's fees for which it seeks recoupment. While attorney's fees may be awarded to a prevailing defendant in a Title VII case, see Quintana v. Jenne, 414 F.3d 1306, 1309-10 (11th Cir. 2005), the defendant is required to do more than simply ask for such extraordinary relief almost as an afterthought. The Court advises Defendant that, in order for the Court to deem it in compliance with Rule 54, Defendant will be required to submit a memorandum demonstrating its entitlement to such relief under prevailing law, as well as provide the Court with an itemized list of services rendered, the date such services were performed, the name of the attorney or paralegal who performed such services and their rate per hour, and the total amount of attorney's fees requested. The itemized list must be supported by affidavits or statutory declarations of persons with actual knowledge of the facts contained within the list. 5 e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th C ir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11th Cir. 1981) (en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. D O N E this 1st day of October, 2008. / s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE 6

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