Wright v. Carter & Carter Construction LLC
MEMORANDUM OPINION AND ORDER: IT IS THEREFORE ORDERED AND ADJUDGED that the 6 Motion to Dismiss is granted; Plf's claim of retaliation under Title VII is dismissed with prejudice. Signed by Honorable Judge Keith Starrett on 5/30/2017. (Attachments: # 1 Civil Appeals Checklist) (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
CIVIL ACTION NO. 3:16-CV-977-KS-TFM
CARTER & CARTER CONSTRUCTION, LLC
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss Count Two – Retaliation (“Motion
to Dismiss”)  filed by Defendant, Carter & Carter Construction, LLC. After considering the
submissions of the parties, the record, and the applicable law, the Court finds that the motion is
well taken and should be granted.
Plaintiff Trina Wright (“Plaintiff”) filed this action in this Court on December 19, 2016,
against Defendant Carter & Carter Construction LLC (“Defendant”). (Compl. .) This action
focuses on Plaintiff’s employment relationship with Defendant, a business located in Lee County,
Alabama, during 2015. Plaintiff brings claims of sexual harassment, retaliation, and assault against
Defendant. Defendant’s Motion to Dismiss  challenges only Plaintiff’s retaliation claim.
Standard of Review
Defendant filed its Motion to Dismiss  under Federal Rule of Civil Procedure 12(b)(6).
For a claim to survive a Rule 12(b)(6) motion, it must include “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). In
evaluating the motion, the Court accepts “the allegations in the complaint as true and construe[s]
them in the light most favorable to the plaintiff.” Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1347
(11th Cir. 2016). However, “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. “While
legal conclusions can provide the framework of a complaint, they must be supported by factual
allegations.” Id. at 679.
To make out a prima facie retaliation claim under Title VII, Plaintiff must show that she
was engaged in a statutorily protected activity, that she suffered a materially adverse action, and
that there was some causal relation between the two. Butler v. Alabama Dept. of Transp., 536 F.3d
1209, 1212-13 (11th Cir. 2008). Statutorily protected activities include opposing an unlawful
employment practice, and making a charge, testifying, assisting, or participating in any manner in
an investigation, proceeding or hearing related to an unlawful employment practice. 42 U.S.C. §
2000e-3(a) (2017). Statutory protection extends, not just to employees who have filed formal
complaints, but also to employees who have informally voiced complaints to supervisors or who
have used internal procedures for voicing complaints. Rollins v. State of Fla. Dept. of Law
Enforcement, 868 F.2d 397, 400 (11th Cir. 1989). Additionally, the statute protects an employee
from retaliation even if her complaint is meritless, if she can “show a good faith, reasonable belief
that the challenged practice violates Title VII.” Id.
Defendant rightfully asserts in its Motion to Dismiss  that Plaintiff’s Complaint  fails
to allege that Plaintiff was engaged in statutorily protected conduct that resulted in retaliation.
Plaintiff states that she “had to quit . . . to escape from her supervisor’s harassment,” (Compl. 
at ¶ 24), and that she “was forced to leave employment . . . to escape the [h]arassment.” (Compl.
 at ¶ 31.) However, at no point does Plaintiff allege that her separation from her employment
or any other actions by the employer were causally linked to her engagement in a statutorily
protected activity. The only indication that Plaintiff engaged in a statutorily protected activity is
the statement that Plaintiff filed a charge of sex discrimination with the Equal Employment
Opportunity Commission (“EEOC”). (Compl. ¶ 3.) It is not clear from the Complaint  whether
this charge was filed with the EEOC while Plaintiff was still employed by Defendant, and Plaintiff
does not allege any facts that plausibly lead to a finding that Defendant’s actions were causally
linked to the filing of the EEOC charge. Even construing all of Plaintiff’s assertions as true,
Plaintiff’s retaliation claim, as currently stated, is not sufficient to survive a Rule 12(b)(6) motion
to dismiss because it does not allege “enough facts to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570, 127 S. Ct. at 1974.
Defendant also asserts Plaintiff’s failure to allege that she administratively exhausted her
retaliation claim is a basis for granting the Motion to Dismiss. (Mot. Dismiss  at pp. 3-4).
Defendant relies on the fact that Plaintiff only alleges that she filed an EEOC charge of “sex
discrimination” and that Plaintiff never alleges that she filed a retaliation charge with the EEOC.
(Compl.  ¶ 3.) Generally, a plaintiff must file a charge with the EEOC prior to filing a Title VII
action. Gregory v. Georgia Dept. of Human Resources, 355 F.3d 1277, 1279 (11th Cir. 2004).
However, “it is unnecessary for a plaintiff to exhaust administrative remedies prior to urging a
retaliation claim growing out of an earlier charge; the district court has ancillary jurisdiction to
hear such a claim when it grows out of an administrative charge that is properly before the court.”
Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988) (quoting Gupta v. E. Tex.
State Univ., 654 F.2d 411, 414 (5th Cir. Unit A Aug. 1981)). Because the Complaint does not
contain enough facts to properly assert all elements of a retaliation claim, the Court is unable to
determine if the Plaintiff’s retaliation claim plausibly grew out of the earlier charge of sex
discrimination filed with the EEOC.
Request for Leave to Amend
In her Response to Defendant’s Partial Motion to Dismiss Count Two – Retaliation
(“Plaintiff’s Response”) , Plaintiff requests the Court’s authorization to file an amended
complaint including “facts that could amount to retaliation.” (Pl.’s Resp.  at p. 3.) The Court
questions Plaintiff’s ability to allege facts that sufficiently state a claim for retaliation. Under
Federal Rule of Civil Procedure 15(a)(1)(B), Plaintiff had 21 days after service of Defendant’s
Motion to Dismiss to amend her pleading as a matter of course but failed to do so. Though Federal
Rule of Civil Procedure 15(a)(2) instructs the Court to “freely give leave” to amend, the Court
“may properly deny leave to amend under Rule 15(a) when such amendment would be futile.”
Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262-63 (11th Cir. 2004). Plaintiff’s own assertion
that “discovery is expected to show many specific acts that could constitute retaliation” leads the
Court to believe that there are no facts that she could currently allege that would state a plausible
claim for retaliation. (Pl.’s Resp.  at p. 3.) As such, any amendment would be futile, and the
Court will deny Plaintiff’s request for leave to amend.
Therefore, the Court finds that Defendant’s Motion to Dismiss  should be granted, and
Plaintiff’s retaliation claim under Title VII will be dismissed with prejudice.
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion to Dismiss  is
granted. Plaintiff’s claim of retaliation under Title VII is dismissed with prejudice.
SO ORDERED AND ADJUDGED, on this, the
day of May, 2017.
UNITED STATES DISTRICT JUDGE
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