Cobb v. State of Alabama, Department of Human Resources et al

Filing 17

REPORT AND RECOMMENDATIONS of the undersigned Magistrate Judge that Defendants' 9 Second Motion for Dismiss, and 13 Motion to Dismiss, as supplemented be GRANTED and this matter DISMISSED for failure to state a claim upon which relief can be granted. The Magistrate Judge further RECOMMENDS as follows:(1) The 5 Motion to Dismiss, or IN the Alternative, for More Definite Statement is DENIED as it seeks dismissal of the complaint prior to amendment but GRANTED as to the request for a mo re definite statement; (2) Plaintiff's 7 Motion for Leave to File Amended Complaint be GRANTED; (3) Plaintiff's 11 Motion to Amend Motion for Leave to File Amended Complaint is DENIED as moot; (4) Defendants' 14 Motion to Dismiss on behalf of Deceased Party be DENIED as moot. Objections to R&R due by 9/14/2009. Signed by Honorable Wallace Capel, Jr on 9/1/2009. (cb, ) Modified on 9/17/2009 (cb, ).

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION J A N I E D. COBB, P la i n t i f f , v. A L A B A M A DEPT. OF HUMAN R E S O U R C E S , et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) )

C I V I L ACTION NO. 2:09cv226-MEF

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P la in tif f has filed a Complaint (Doc. #1) alleging unlawful race, sex, and age-based e m p lo ym e n t discrimination against her in violation of Title VII of the Civil Rights Act of 1 9 6 4 and the Age Discrimination in Employment Act of 1967. On March 25, 2009, this m a tte r was referred to the undersigned Magistrate Judge "for all pretrial proceedings and e n try of any orders or recommendations as may be appropriate." Order (Doc. #2). Upon s e rv ic e of the Complaint, Defendants filed a "Motion to Dismiss, Or In The Alternative, For M o re Difinite [sic] Statement" (Doc. #5). On May 12, 2009, the Court ordered Plaintiff to s h o w cause why Defendants' Motion should not be granted. Order (Doc. #6). On June 1, 2 0 0 9 , Plaintiff filed a Motion For Leave To File Amended Complaint (Doc. #7), to which s h e attached a copy of her proposed Amended Complaint. Plaintiff also filed her

" O p p o sitio n To Defendant's Motion To Dismiss, Or In The Alternative, For More Definite S ta te m e n t Submits An Amended EEOC Complaint And In Response to Court Order" (Doc.

# 8 ).1 On June 12, 2009, without the Court having ruled on Defendants' first motion, D e f e n d a n ts filed a "Second Motion To Dismiss, Or In The Alternative, For More Definite S tate m e n t" (Doc. #9). On June 23, 2009, Plaintiff filed her "Opposition" (Doc. #10) to D e f e n d a n ts ' second motion and another "Motion to Amend" (Doc. #11) her Complaint.2 On J u ly 7, 2009, Defendants filed their Response (Doc. #12) to Plaintiff's Opposition. On A u g u s t 7, 2009, Defendants filed a "Supplement" (Doc. #13) to their "Second Motion To D is m is s , Or In The Alternative, For More Definitive Statement." Finally, on August 31, 2 0 0 9 , Defendants filed a "Motion To Dismiss On Behalf Of A Deceased Party" (Doc. #14), in which Defendants assert that Defendant Thomas King should be dismissed as a defendant d u e to his recent passing. All of these pleadings are presently before the undersigned for c o n s id e ra tio n . I. BACKGROUND In October, 2008, Plaintiff initiated an Equal Employment Opportunity Commission [ E E O C ] discrimination charge. In the charge, Plaintiff alleged that I am a 47 year old Black female. . . . Since 2007 I have been inflicted with i n s e c t s in my department. Since May of 2008, I have been affected by h a z ard o u s chemicals I believe to be in my work space. I notified the employer a n d they have failed to take action to identify the insects or hazardous c h e m ic a l. Additionally, no action has been taken to eliminate the problems.

Upon review, it appears that Plaintiff's proposed Amended Complaint and her "Opposition" to Defendants' Motion are identical excepting the prefatory paragraph included in the "Opposition." This Motion to Amend requests only the correction of Defendant Craig Nelson's name to Donald Craig Nelson. 2
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O n September 10, 2008, I moved to a new location within the office. Because I am still in the same building, the employees who are placing the poisonous in s e c ts and hazardous chemicals at my work station may continue to do so at m y new location. O n December 19, 2008, the EEOC mailed to Plaintiff a notice-of-right-to-sue-letter in which th e Commission explained that it was closing its file on her charge because it was unable to d e te rm in e that Defendants had committed unlawful employment discrimination. Plaintiff f ile d suit in this Court on March 18, 2009. P la in tif f 's original Complaint is a perplexing document. Discerning, in clear and c o n c is e terms, Plaintiff's allegations of discrimination has proved somewhat difficult. She c la im s that "[t]he acts of discriminations [sic] happened on more than one day. The abuse s ta rte d around The first act of discrimination started in [sic] 2004, stopped, but resurfaced u n d e r a different strategy in May 2007 to October 15, 2008." Complaint (Doc. #1) at 2. S u b sta n tiv e ly, Plaintiff alleges the following: 1) " D e f en d a n t failed to provide a safe and non-hostile work environment as a g re e d by policy that guides harassment of an employee," id. at 2-3; " [ r ]e ta lia tio n " for Plaintiff's complaints "included moving from original desk to a new location where cold air and dust would blow down from the ceiling v e n t, plus within 24 inches from a HP printer which emits high printer ink d u s t," id. at 3; th a t, "around February 2009, new acts committed or omitted by Defendant; [ sic ] where I had to start wearing black gloves. I found that there is yellow s u b s ta n c e that I was absorbing by skin contact. This substance appeared to be c a u sin g arteries constriction in my finger tips," id.; th a t Defendants treat her complaints as "free entertainment or a joke" while the c o m p l a in ts of white males are "taken more serious," id.; 3

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v a rio u s acts of "teasing," including "taking my wallet from out of my purse, tak in g my Christmas decorations from my desk, co-worker male-slipping old in v o ice s on my desk while I was away. . . . One male employee brought rattle ta il and was dancing around in front of me because he knew that I would be a f ra id ," id. at 3-4; " in c id e n ts of racial discrimination," which included compiling a spreadsheet th a t listed Plaintiff and "one white male employee and one white female e m p l o ye e ," and "identified posting errors where invoices were not recorded as b e in g paid," id.; th a t Defendants employed an "`environmental strategy' of discrimination" re lyin g upon p o is o n o u s insects and "toxic chemicals to induce ill health," id. a t 4-5; and th a t "Defendant used Family Medical Leave Policy [FAML] to discriminate a n d violate policy to label employee as disabled having mental disorders," id. a t 5.

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In addition to "damages, costs, and attorneys' fees if case is accepted by attorney," Plaintiff re q u e sts that she "be removed from the supervision of Craig Nelson and placed away from d e f e n d a n t's employees Steve Coker and David Garner because so much abuse happened u n d e r his supervision and with these two white male co-workers." Id. at 6. Defendants' first "Motion To Dismiss, Or In The Alternative, For More Difinite [sic] S ta te m e n t" (Doc. #5) asserts that Plaintiff's original Complaint failed to state a claim upon w h ic h relief could be granted and was so "vague and ambiguous" that Defendants could not p r e p a r e a proper response. After the Court directed Plaintiff to show cause why Defendants' M o tio n should not be granted, Plaintiff filed her proposed "Amended EEOC Complaint" and "O p p o sitio n " to Defendants' Motion to Dismiss. As noted above, these two documents are e s s e n tia lly identical. The "Amended EEOC Complaint" again alleges that Defendants'

" a c ts " constituted unlawful racial, gender, and age discrimination and that Defendants also v io la te d the Family Medical Leave Act. "Amended EEOC Complaint" (Doc. #7, att. 1) at 2 - 3 ; "Plaintiff's Opposition" (Doc. #8) at 2-3. Specifically, the discriminatory "acts" id e n tifie d by Plaintiff are as follows: 1) D e f en d a n ts "conspired to use unlawful FMLA form to cover up facts of not p ro m p tly investigating Plaintiff's internal complaints and/or testing, removal o f chemical substances on Plaintiff's desk and desk area. Defendants only sent o u t pest control for the bugs," id. at 5. " c o n s p ire d to falsify EEOC response" to Plaintiff's complaints, id.; " v io la te d ADHR's safety policy," id.; v io la te d ADHR's harassment policy," id.; v io la tio n s of ADHR's internal Employee Assistance Program, id.; th e "teasing" described in the original complaint, id.; and " a d m in is tra tiv e abuse of authority and dishonest conduct caused mistrust and u n f a v o ra b le work conditions," id.

2) 3) 4) 5) 6) 7)

D e f en d a n ts again moved to dismiss the Complaint, contending that Plaintiff had failed to state a claim upon which relief may be granted and that the Complaint, even as amended, " re m a in s cohesively incoherent" such that Defendants are unable to formulate a proper resp o n se. Plaintiff's "Opposition" to this Second Motion charged that Defendants are e v a d in g answering her claims in an effort to prevent her from being able to prove her claims in court. She reiterated what appears to be her primary claim - that, when she was hired, " th e re were no terms and conditions or State or Federal laws that chemicals and bugs would

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b e used in the employment, and against Plaintiff as a `new form' of harassment or d isc rim in a tio n to force a termination of employment for medical reasons," and that "[i]f this is the `new policy', it is not used equally with 1) non-black employees 2) male employees 3) e m p lo ye e s under 40 years of age." Defendants filed a Response to Plaintiff's "Opposition," a n d , later, a supplement to the Second Motion to Dismiss. The Supplement raises, for the f irs t time, Defendant's contention that the individually-named Defendants were not parties to Plaintiff's EEOC proceedings and, hence, may not be sued by Plaintiff in the instant m a t te r . II. A N A L Y SIS T h e Court will address Defendants' assertion that this matter should be dismissed due to Plaintiff's alleged failure to state a claim upon which relief may be granted and, perhaps re late d , failure to adhere to the pleading requirements of the Federal Rules of Civil P r o c e d u r e . Generally, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim w h ic h would entitle him to relief." In re Johannessen, 76 F.3d 347, 349 (11th Cir. 1996). T o sufficiently state a claim of employment discrimination, whether based on age, race, or g e n d e r , Plaintiff need not plead a prima facie case of employment discrimination in her c o m p la in t. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002). Rather, Plaintiff need in c lu d e only "`a short and plain statement 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

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e m p h a s iz e d in Swierkiewicz, does not absolve Plaintiff of the requirement to plead her claims w ith a degree of clarity and specificity. Plaintiff must offer "more than labels and

c o n c lu s io n s , and a formulaic recitation of the elements of a cause of action." Bell Atlantic C o rp . v. Twombly, 550 U.S. 544, 555 (2007); see also Davila v. Delta Air Lines, Inc., 326 F .3 d 1183, 1185 (11th Cir. 2003) ("conclusory allegations, unwarranted factual deductions o r legal conclusions masquerading as facts will not prevent dismissal."). Thus, "[f]actual a lle g a tio n s must be enough to raise a right to relief above the speculative level." Id. (internal q u o ta tio n s omitted). Accordingly, in her complaint, Plaintiff must present "`enough factual m a tte r (taken as true) to suggest' intentional race [or age or gender] discrimination." Davis v . Coca-Cola Bottling Co., 516 F.3d 955, 974 (11th Cir. 2008) (quoting Twombly, 127 S.Ct. at 1965). T h e re can be little argument that, at best, Plaintiff's allegations, as summarized above, a re vague, general, confusing, conclusory, and dependent on the sort of "unwarranted factual d e d u c tio n s" which are insufficient to state a claim for which relief could be granted.3 It is a p p a re n t, from the totality of Plaintiff's allegations, that Plaintiff has not presented "`enough f a c tu a l matter (taken as true) to suggest'" discrimination of any sort. While courts generally f a v o r permitting amendment of the complaint rather than dismissal for failure to state a

Candidly, the Court views the majority of Plaintiff's allegations - especially the poisonous insects and chemicals allegations at the heart of her complaint and EEOC proceedings - as bizarre, fantastic, and incredible. However, even Plaintiff concedes that Defendants attempted to abate the perceived insect problem by "sen[ding] out pest control for the bugs." "Amended EEOC Complaint" (Doc. #7, att. 1) at 5. 7

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c la im , see Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001) (reversing district c o u rt's dismissal, for failure to state a claim, where Plaintiff presented a "shotgun" complaint w h ic h did not comply with Fed. R. Civ. P. 8 & 10), in this instance Plaintiff has already su b m itte d one Amended Complaint and it is evident from her filings in this Court, as well a s her EEOC charge, that Plaintiff is unable to state a cognizable claim of race, gender, or a g e discrimination based on the allegations she has thus far raised. A c c o rd in g ly, it is the RECOMMENDATION of the undersigned Magistrate Judge th a t Defendants' Second Motion to Dismiss (Doc. #9), as supplemented (Doc. #13) be G R A N T E D and this matter DISMISSED for failure to state a claim upon which relief can b e granted. The Magistrate Judge further RECOMMENDS, for the reasons set forth above, as follows: 1. D e f e n d a n ts' "Motion to Dismiss, Or In The Alternative, For More Difinite [ sic ] Statement" (Doc. #5) be DENIED insofar as it seeks dismissal of the co m p lain t prior to amendment but GRANTED as to the request for a more d e f in ite statement; 2. P la in tif f 's "Motion For Leave To File Amended Complaint" (Doc. #7) be GRANTED; 3. P la in tif f 's "Motion To Amend Motion For Leave To File Amended C o m p lain t" (Doc. #11) be DENIED as moot; 4. D e f en d a n ts ' Motion to Dismiss on Behalf of Deceased Party (Doc. #14) be

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D E N IE D as moot.

It is further ORDERED that the parties shall file any objections to this Recommendation on or before September 14, 2009. A party must specifically identify the findings in the

Recommendation to which objection is made; frivolous, conclusive, or general objections will not be considered. Failure to file written objections to the Magistrate Judge's proposed findings and recommendations shall bar a party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).
Done this 1st day of September, 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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