Kirkland v. Rauch et al (MAG+)

Filing 8

ORDER AND REPORT AND RECOMMENDATIONS re 1 Complaint filed by Sabrina Kirkland, It is the Recommendation of the undersigned Mag Judge that this action be dismissed; granting 2 MOTION to Proceed in forma pauperis filed by Sabrina Kirkland; Objections to R&R due by 2/20/2009. Signed by Honorable Wallace Capel, Jr on 2/6/09. (vma, ) (Additional attachment(s) added on 2/6/2009: # 1 main doc. #2) (vma, ).

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION S A B R IN A KIRKLAND, P l a in tif f , v. G R E G RAUCH, et al, D e f e n d a n ts . ) ) ) ) ) ) ) ) )

C A S E NO.: 2:08-cv-915-WKW

O R D E R AND RECOMMENDATION OF THE MAGISTRATE JUDGE B e f o re the Court are Plaintiff's Complaint, as amended (Docs. #1, 7), and Motion to P r o c e ed In Forma Pauperis (Doc. #2). Based on the Court's review of Plaintiff's Motion fo r in forma pauperis status and the supplemental information she has provided (Doc. #6), P la in tif f 's Motion to Proceed In Forma Pauperis (Doc. #2) is GRANTED. For the reasons th a t follow, the undersigned Magistrate Judge RECOMMENDS that the Court DISMISS P la in tif f 's Complaint, as amended, without any further opportunity for amendment and prior to service, pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B) (2000).1 I. BACKGROUND2

The statute provides, in pertinent part: "[T]he court shall dismiss the case at any time if the court determines that . . . the action or appeal ­ (i) is frivolous or malicious, (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). The following recitation of relevant facts is gathered from Plaintiff's complaint and supporting documents. For purposes of determining whether she has stated a claim for relief which could be granted, the well-pleaded allegations of the complaint and appended documents 1
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P lain tiff is a former seasonal employee of the Montgomery Professional Baseball C lu b , the corporate entity responsible for the Montgomery Biscuits baseball team. Plaintiff w a s employed as a "suite server" for two years, including through the 2007 baseball season. A s the 2008 season approached, Plaintiff anticipated resuming her seasonal employment as a suite server. In March of 2008 she was invited to and attended orientation, which she took a s indicative of the employers' intent to retain her. At the orientation, she was told that the s u ite server positions were being filled on an individual basis. Thus, she completed an a p p lica tio n . She was told that she would be given a position, but was not promised a suite s e rv e r position. She was told to expect a phone call later in the month with further in stru c tio n s or information. She never received that phone call. Plain tiff initiated Equal Employment Opportunity Commission ("EEOC") proceedings in May of 2008. Upon completing its investigation, the EEOC determined that it was unable to conclude that a violation of federal employment discrimination statutes had occurred. A c c o rd in g ly, the EEOC issued Plaintiff a right to sue letter on September 26, 2008. On November 19, 2008, Plaintiff filed her original Complaint. (Doc. #1). Plaintiff's c o m p la in t alleges employment discrimination on the basis of her race, sex, and age. On N o v e m b e r 21, 2008, this matter was referred to the undersigned for action or re c o m m e n d a tio n on all pretrial matters (Doc. #3). On initial review, the Court observed that P la in t if f ' s complaint appeared to suffer from fatal defects, namely her failure to properly are taken as true and construed in the light most favorable to Plaintiff. American United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007). 2

s ta te a claim of employment discrimination or provide sufficient factual support for her c la im . Thus, on November 24, 2008, the Court ordered Plaintiff to amend her complaint by D e c em b e r 22, 2008. (Doc. #4). On January 23, 2009, after the Court again ordered (Doc. # 5 ) her to amend her complaint, Plaintiff filed her Amended Complaint (Doc. #7). II. S T A N D A R D OF REVIEW To sufficiently state a claim of employment discrimination, Plaintiff need not plead a prima facie case of employment discrimination in her complaint. Swierkiewicz v. Sorema N .A ., 534 U.S. 506, 515 (2002). Rather, Plaintiff need include only "`a short and plain s ta te m e n t of the claim showing that the pleader is entitled to relief.'" Id. at 512; Fed. R. Civ. P . 8(a)(2). The notice pleading requirement of Rule 8, as emphasized in Swierkiewicz, does n o t absolve Plaintiff of the requirement to plead her claims with a degree of clarity and s p e c if ic ity. Plaintiff must offer "more than labels and conclusions, and a formulaic recitation o f the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S .C t. 1955, 1965 (2007). Likewise, "[f]actual allegations must be enough to raise a right to re lie f above the speculative level." Id. (internal quotations omitted). Accordingly, in her c o m p lain t, Plaintiff must present "`enough factual matter (taken as true) to suggest' in te n tio n a l race discrimination." Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 974 (11th C ir. 2008) (quoting Twombly, 127 S.Ct. at 1965). III. D IS C U S S IO N P lain tiff ' s complaint, as amended, does not meet the minimal standards set forth

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a b o v e . Plaintiff submitted a form "EEOC COMPLAINT." (Doc. #1). The substance of her c la im , as provided in the section requiring the plaintiff to describe the "nature" of the c o m p l a in t , is as follows: I was invited and attended orientation in March of 2008. Jason Wilson to ld me there was a mess down there but we would find me something to do b e c a u s e of my loyal[t]y and respo[n]sibi[li]ty. In August[,] Deyonee Harris[,] I n v e s tig a to r for the U.S. EQUAL EMPLOYMENT OPPORTUNITY C O M M IS S I O N , Birmingham District Office[,] called me and said that the M o n tg o m e ry Professional Baseball Club would like to make a settlement. She a sk [sic] me what amount. I told her between $15,000 and $20,000, she said a sk for $20,000. She called me back in about 30 days and told me I would n e e d an attorney. Complaint (Doc. #1) at 2. Plaintiff also attached a number of documents to her complaint w h ich appear to have been generated during the EEOC's investigation of her claim. While c e rta in of these documents arguably describe her claim in greater detail,3 others appear to d isp u te the claim.4 Thus, reliance on these documents is not particularly helpful in

Within these documents is a handwritten account from Plaintiff in which she describes her participation in the orientation and states "I could tell at the orientation they were all new girl[s] all of them white [and] younger." Although she does not explicitly allege it, Plaintiff seems to be implying that these "new," "white," and "younger" "girls" were hired to replace Plaintiff and others. Elsewhere in the appended documents, Plaintiff states the "employer failed to hire me and to my knowledge, a younger White female who had only worked with the employer the previous year was rehired." Of course, Plaintiff's observation of "younger" "white" "girls" at orientation does not mean that they were hired as suite servers and certainly does not permit the inference that Plaintiff was not rehired as a suite server because of her age or race. Likewise, the retention of one "younger White" female as a suite server does not amount to an allegation that Plaintiff was not retained as a suite server due to her race. In essence, such inferences, if that is what is intended, amount to pure speculation. See, e.g., Pre-Determination Interview with Charging Party Summary Sheet (attached to original Complaint) (Doc. #1)("Respondent contends that they decided not to rehire [Plaintiff], but that it had nothing to do with her race or age. Respondent further contends that they decided to keep only four (4) Suite Servers from the previous year. Respondent also 4
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c o n sid e rin g whether Plaintiff has adequately stated a claim for relief because, even c o n sid e rin g the allegations set forth in the attached documents, Plaintiff still has not pled a c la im consisting of more than bare speculation. I n light of these deficiencies, the Court ordered Plaintiff to amend her complaint. S p e c if ic a lly, the Court instructed Plaintiff to clearly state "the factual and legal basis for her c la im s against Defendants, including specific allegations addressing whether Plaintiff was d is c rim in a te d against based on her membership in a protected class, and whether persons fro m outside her protected class(es) were treated more favorably by Defendants." (Doc. #4). P la in tif f 's Amended Complaint is not responsive to the Court's order, as it only restates the a lle g a tio n s already presented in the original Complaint. See Amended Complaint (Doc. #7) a t 1-2. T a k in g all of the allegations of Plaintiff's complaint, as amended, as true, Plaintiff has n o t stated a claim of employment discrimination exceeding the "speculative level" because s h e has not "provide[d] `enough factual matter (taken as true) to suggest' intentional race [or a g e ] discrimination." Davis, 516 F.3d at 974 (quoting Twombly, 125 S.Ct. at 1965). P la in tif f 's naked assertion, itself only an inference tenuously culled from the totality of her c o m p l a in t and appended documents, that she was not rehired as a suite server solely because o f her age and/or race amounts to nothing more than speculation. See Davis, 516 F.3d at 974 (" T h e closest the complaint ever comes to pleading [certain discrimination claims] is when contends that of the four employees, they retained one African-American male age 25, one 41year-old female Asian, and one 42-year-old African-American female." 5

it states plaintiffs were `denied promotions . . . and treated differently than similarly situated w h ite employees solely because of [] race.' That statement epitomizes speculation and t h e re f o re does not amount to a short and plain statement of their claim under Rule 8(a)."). D e sp ite the Court's order instructing her to amend her complaint and provide the requisite " f ac tu a l matter," Plaintiff simply restated the insufficient allegations of her original c o m p la in t. Nowhere in the Amended Complaint does Plaintiff so much as allege that D e f en d a n t's decision not to rehire her as a suite server was a result of her age, race, or sex. T h u s , Plaintiff has failed to state a claim of employment discrimination for which relief can b e granted and this action is due to be dismissed. IV . C O N C L U SIO N P la in tif f has failed to state a claim of employment discrimination for which relief c o u ld be granted. Accordingly it is the RECOMMENDATION of the undersigned

M ag istrate Judge that this action be DISMISSED. It is further ORDERED that Plaintiff's Motion To Proceed In Forma Pauperis (Doc. #2) is G R A N T E D . It is further O R D E R E D that Plaintiff is DIRECTED to file any objections to the said R e c o m m e n d a tio n on or before February 20, 2009. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which Plaintiff objects. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that this Recommendation is not a final order of the court and, therefore,

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it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra 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 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 C ir. 1981) (en banc), adopting as binding precedent all of the decisions 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 6th day of February, 2009.

/s/ Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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