Turner v. McKesson Corp

Filing 23

MEMORANDUM OPINION. Signed by Chief Judge Sharon Lovelace Blackburn on 9/2/2013. (KAM, )

FILED
2013 Sep-03 PM 02:00
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MELANIE S. TURNER,
Plaintiff,
v.
MCKESSON CORPORATION,
Defendant.

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CASE NO. 2:12-CV-2053-SLB

MEMORANDUM OPINION
This case is currently before the court on McKesson Corporation’s Motion to Dismiss
Amended Complaint. (Doc. 15.) Upon consideration of the Motion, the relevant law, and
the arguments of counsel, the court is of the opinion that defendant’s Motion is due to be
granted.
I. STANDARD OF REVIEW
A complaint is required to contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A defendant may move to
dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) if the plaintiff has
failed to state a claim upon which relief may be granted. In order to survive a 12(b)(6)
motion to dismiss for failure to state a claim, the complaint “does not need detailed factual
allegations”; however, the “plaintiff’s obligation to provide the grounds of his entitle[ment]
to relief requires more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(internal quotation marks and citations omitted).1 Accordingly, “[f]actual allegations must
be enough to raise a right to relief above the speculative level . . . on the assumption that all
the allegations in the complaint are true (even if doubtful in fact).” Id. (internal citations and
footnote omitted). The plaintiff need not prove his case, but must plead “enough facts to
state a claim to relief that is plausible on its face.”

Id. at 570 (emphasis added).

Additionally, “[w]hen considering a motion to dismiss, all facts set forth in the plaintiff’s
complaint ‘are to be accepted as true and the court limits its consideration to the pleadings
and exhibits attached thereto.’” Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th
Cir. 2000) (quoting GSW, Inc. v. Long Cnty., 999 F.2d 1508, 1510 (11th Cir. 1993)). Further,
all “reasonable inferences” are drawn in favor of the plaintiff. St. George v. Pinellas Cnty.,
285 F.3d 1334, 1337 (11th Cir. 2002). However, “‘[u]nsupported conclusions of law or of
mixed fact and law have long been recognized not to prevent a Rule 12(b)(6) dismissal.’”
Dalrymple v. Reno, 334 F.3d 991, 996 (11th Cir. 2003) (quoting Marsh v. Butler Cnty., 268
F.3d 1014, 1036 n.16 (11th Cir. 2001)). Therefore, though the court must accept all factual
allegations as true, it is “not bound to accept as true a legal conclusion couched as a factual

1

In Bell Atlantic Corp. v. Twombly, the United States Supreme Court abrogated the oftcited standard that “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 which
would entitle him to relief,” which was set forth in Conley v. Gibson, 355 U.S. 41 (1957). See
Twombly, 550 U.S. at 561 (quoting Conley, 355 U.S. at 45-46). The Supreme Court stated that
the “no set of facts” standard “is best forgotten as an incomplete, negative gloss on an accepted
pleading standard: once a claim has been stated adequately, it may be supported by showing any
set of facts consistent with the allegations in the complaint.” Id. at 562-63. The “decision in
Twombly expounded the pleading standard for ‘all civil actions.’” Ashcroft v. Iqbal, 556 U.S.
662, 684 (2009).
2

allegation.” Iqbal, 556 U.S. at 678.
II. FACTS AND PROCEDURAL HISTORY2
Melanie Turner (“plaintiff”) is a white female in her mid-fifties who began to work
at D and K Corporation in January of 2005 as a Customer Service Manager. (Doc. 14 ¶¶ 68.) Plaintiff holds a business degree and has more than twenty years of experience in
managerial roles. (Id. ¶ 81.) She was hired by D and K’s former company Vice President,
Tom Smith, (id. at ¶ 8), before it was acquired by McKesson Corporation (“defendant”) in
2006, (id. ¶ 9). After her hiring, she worked for defendant for over seven years, (id. ¶ 81),
before being terminated, (id. ¶ 112, 116).
In November of 2009, plaintiff underwent “major in-patient surgery,” which resulted
in her taking two weeks of leave from work under the Family and Medical Leave Act
(“FMLA”), and an additional week of paid leave. (Id. ¶ 34.) During the following spring
of 2012, McKesson Corporation gave plaintiff an employee evaluation. (Id. ¶ 36.) The
evaluation included a performance review, which was a “primary factor” in determining
whether an employee was eligible for a salary increase under defendant’s “Merit Increase[]”
policy. (Id.¶ 31.) The merit adjustment under this policy operates to raise an employee’s
salary by a certain percentage, and once added in (along with any other adjustment increases
the employee has earned during the year), the resulting figure serves as the employee’s base
2

The “facts” are drawn from the Complaint and for purposes of defendant’s Motion to
Dismiss are accepted as true. See Twombly, 550 U.S. at 572; Resnick v. AvMed, Inc., 693 F.3d
1317, 1321-22 (11th Cir. 2012) (citing Lanfear v. Home Depot, Inc., 679 F.3d 1267, 1271 n.4
(11th Cir. 2012)).
3

pay for the following year. (Id. ¶ 32-33.) As a result of plaintiff’s evaluation, she earned a
merit adjustment increase of 3.17% for fiscal year 2010. (Id. ¶ 37, 39.) However, when
plaintiff received her evaluation and merit adjustment form, it reflected that the merit
adjustment increase had been prorated to 3.00%—allegedly as a result of her FMLA leave.
(Id. ¶ 42, 46-47.) The prorating of plaintiff’s merit adjustment would have caused her to earn
a lower salary than she otherwise would have gotten every subsequent year that she remained
employed with defendant. (Id. ¶ 48-50.) Upon asking Tammi Webb (“Webb”), Tom Smith’s
assistant, (id. at 11), about why her merit adjustment had been prorated, Webb allegedly told
plaintiff that it was because she had taken FMLA leave. (Id. ¶ 51.)
Once she learned this, plaintiff complained to Webb, (id. ¶¶ 51-55), who also had
certain human resources responsibilities, (id. ¶ 11), and Gary Smith, the manager of the
distribution center where plaintiff and Webb worked, (id. ¶ 29). After complaining, plaintiff
was reassigned to a new supervisor, Harold Fagan (“Fagan”), a much younger AfricanAmerican male coworker at plaintiff’s same managerial level whom plaintiff had helped to
train. (Id. ¶ 55-59.) In plaintiff’s original Complaint, she alleged that assigning her to report
to Fagan was an “attempt at retaliation . . . for complaining about her rights and engaging in
protected activity.” (Doc. 1 ¶ 33.) And though the court noted in its Memorandum Opinion
on the first Motion to Dismiss that reassignment to a younger supervisor does not constitute
an adverse action under the McDonnell Douglas framework, (see doc. 10 at 13 n.8), plaintiff
has retained this language within her Amended Complaint, (see doc. 14 ¶ 60.)

4

Sometime in 2011, defendant held a monthly managerial meeting; among the
attendees were plaintiff, Webb, and Gary Smith. (Id. ¶ 65.) Plaintiff alleges that in the
course of this meeting, Gary Smith discussed management’s concerns that there were no
African-American female managers in their distribution center, and a memorandum
discussing affirmative action was circulated. (Id. ¶ 66-67.) Plaintiff further claims that it
was represented to her at the meeting that defendant had “mandated a quota” for AfricanAmerican females. (Id. ¶ 69.) At some point after the meeting in 2011, Fagan resigned, and
plaintiff applied to the vacant position despite alleged protests from Gary Smith. (Id. ¶ 7075.) She never received an interview for the position. (Id. ¶ 76, 79.)
After she was denied an interview, plaintiff asked Gary Smith not to bar her from the
position left open by Fagan’s resignation, stating “[p]lease Gary, don’t do this,” but she
claims that he told her he thought he was making the right decision. (Id. ¶ 77-78.)
Ultimately, in October of 2011, defendant hired Lachera Church (“Church”), an AfricanAmerican female who had not yet earned her bachelor’s degree. (Id. ¶ 83, 85, 87). Church
was hired from outside the corporation and had far less managerial experience than plaintiff.
(Id. ¶ 84, 86.)
Once plaintiff learned that Church had been hired, she discussed it with Gary Smith
in order to determine whether she would be reporting to Church. (Id. ¶ 88-89.) Smith
allegedly told plaintiff that he had not yet decided, and plaintiff requested that he not make
Church her supervisor, saying “[d]on’t put her over me, this is wrong.” (Id. ¶ 89-90, 92.)

5

Plaintiff alleges that immediately after this request, training that she had been scheduled to
participate in was cancelled against her will. (Id. ¶ 93.) She further alleges that this directly
prevented her from gaining experience that would have increased her eligibility for future
promotions. (Id. ¶ 94.) She does not, however, state what sort of promotions she would have
been entitled to, or specifically mention any promotions she was denied because of the
cancelled training. By March of 2011, Church had become plaintiff’s supervisor. (Id. ¶ 95).
When Church allegedly expressed to plaintiff that she did not know why she was evaluating
her, plaintiff explained that it was because Gary Smith wanted to hurt plaintiff. (Id. ¶ 96-97.)
By March 2012, plaintiff’s supervisor had been changed at least six times. (Id. ¶ 106-07.)
Several months later, in January of 2012, plaintiff filled out an online survey with
defendant. (Id. ¶ 98.) Plaintiff gave defendant a poor review—specifically in regards to
company ethics, allowing employees to speak their mind, its support of diversity, equal
opportunity for its employees, and its lack of internal promotions. (Id. ¶ 99-104.) In
addition, in 2012, Gary Smith created two new management positions: one was filled by
fellow employee Tim Sullivan and was never interviewed for, and the other was filled by an
outside employee. (Id. ¶ 108, 110-111.)3 Finally, on April 23, 2012, defendant informed
plaintiff that her position was being eliminated, effective April 30, 2012, without any
explanation. (Id. ¶ 112-113.) Plaintiff alleges that there were other vacant managerial

3

Again, plaintiff has retained an allegation from her first Complaint, claiming that the
outside employee was “introduced to every manager but [p]laintiff,” (doc. 14 ¶ 111), despite this
court’s observation that non-introduction is not an adverse action, (doc. 10 at 13 n.8).
6

positions at the time, but that she was not permitted to interview for them. (Id. ¶ 115.) She
further claims that the elimination of her position and subsequent termination were in
retaliation for her engaging in protected activity. (Id. ¶ 116.)
On June 1, 2012, plaintiff filed her Complaint against defendant alleging claims of
interference and retaliation in violation of the FMLA, as well as race discrimination and
retaliation in violation of 42 U.S.C. § 1981. (Doc. 1.) Defendant filed a Motion to Dismiss
and Brief in Support on June 27, 2012, (docs. 4 & 5), arguing that all four Counts were due
to be dismissed, “[e]xcept for the claim in Count Three where Plaintiff, a Caucasian, alleges
she sought a promotion for which an African-American was selected,” (doc. 4 ¶ 3). Upon
consideration of the parties’ arguments, this court denied defendant’s Motion as to both of
plaintiff’s FMLA counts (Count I and Count II), and granted it as to any claims alleged in
plaintiff’s § 1981 racial discrimination count (Count III) other than the failure to promote
claim, as well as to all of plaintiff’s § 1981 retaliation count (Count IV). (Doc. 11.) The
court then granted plaintiff leave to amend her Complaint, (doc. 11), which she filed on
August 31, 2012, (doc. 14). Contemporaneously with its Order and Memorandum Opinion
on defendant’s first Motion to Dismiss, this court also issued an Order directing plaintiff to
file an Amended Complaint in compliance with the Federal Rules of Civil Procedure, (doc.
12), given that her first Complaint had not been clear as to which claims were supported by
which facts, (see doc. 1). The court further stated that “[e]ach count in the Amended
Complaint should contain no more than one discrete claim for relief,” that it must include

7

“allegations of fact which support each discrete claim,” and that “the facts pertaining to each
cause of action should be clearly labeled and delineated.” (Doc. 12 at 2.) After plaintiff filed
her Amended Complaint, defendant filed its second Motion to Dismiss and Brief in Support.
(Docs. 15 & 16.)
III. DISCUSSION
Before addressing the parties’ arguments, it is worth noting that both of defendant’s
Motions to Dismiss in this case have been somewhat atypical. Specifically, in both Motions
defendant agrees that there are viable claims, but limits this admission to specific facts
alleged in certain paragraphs within the Complaint and Amended Complaint. (See doc. 5 at
11; doc. 16 at 1, 6.)4 The court understands this as defendant’s attempt to limit the number
of potential claims within each count, potential damages, and the scope of discovery.5

4

Plaintiff has also observed that this method is not typical, noting that “the undersigned
counsel is not sure exactly what relief [d]efendant seeks from this Court insofar as it moves to
dismiss any of [p]laintiff’s claims under the FMLA. If anything, the undersigned counsel
supposes that [d]efendant may be petitioning for a limitation of the scope of [p]laintiff’s damages
. . . or otherwise attempting to limit the scope of [p]laintiff’s claims in this lawsuit to the precise
facts as they are alleged in her initial pleading . . . .” (Doc. 18 at 4-5.)
5

The court will entertain defendant’s attempt to limit and define any possible claims
through its Motion to Dismiss in part because it also entertained defendant’s first Motion to
Dismiss where it requested dismissal of all claims, including all those in Count Three “[e]xcept
for the claim in Count Three where [p]laintiff . . . alleges she sought a promotion for which an
African-American was selected,” (doc. 4 ¶ 3). However, this method of defining the claims in an
unclear complaint is not the preferred course of action. See Brooks v. Blue Cross & Blue Shield
of Florida, Inc., 116 F.3d 1364, 1368 (11th Cir. 1997) (noting that a Rule 12(b)(6) motion’s
purpose is to test the facial sufficiency of the claim for relief; it is “not designed to strike
inartistic pleadings or to provide a more definite statement to answer an apparent ambiguity”).
In the future, at least in cases before the undersigned judge, when faced with this sort of
complaint defense counsel should consider filing a motion for more definite statement under

8

A. FMLA Interference and Retaliation
Defendant first addresses plaintiff’s FMLA claims, alleging that “Counts One and
Two are completely shotgun and unspecific about what adverse actions [plaintiff] claims
amounted to either FMLA interference or FMLA retaliation.” (Doc. 16 at 7-8.) While
defendant acknowledges that plaintiff has stated a claim for FMLA interference and FMLA
retaliation based on the court’s ruling in its Opinion on defendant’s first Motion to Dismiss,
(see doc. 10 at 11-12), it takes issue with the fact that when plaintiff amended her Complaint,
she did not remove allegations which the court noted either “do not constitute adverse
actions,” or were too remote to satisfy the causation prong of the McDonnell Douglas
framework. (See doc. 16 at 9-10 (quoting doc. 10 at 13 n.8.).) Plaintiff responds, agreeing
that these alleged facts “would not alone support [p]laintiff’s claims for FMLA Retaliation,”
but arguing that she has unquestionably stated a claim for retaliation under the FMLA. (Doc.
18 at 4.) She further states that, pursuant to the court’s Opinion, (doc. 10), she specifically
labeled only certain paragraphs as supporting her FMLA claims, and that they did not include

Federal Rule of Civil Procedure 12(e). In fact, a case that defendant heavily relies upon, Davis v.
Coca-Cola Bottling Co. Consolidated, 516 F.3d 955 (11th Cir. 2008), (see doc. 16 at 6-8, 12-14),
points out that when there is an unclear shotgun pleading, this is the appropriate course of action.
See Davis, 516 F.3d at 983-84. The purpose of a Rule 12(e) motion is served “[w]here, as here,
the plaintiff asserts multiple claims for relief, [because] a more definite statement, if properly
drawn, will present each claim for relief in a separate count, as required by Rule 10(b).” Davis,
516 F.3d at 984 (citing Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366
(11th Cir. 1996)).

9

“allegations of termination or other temporally adverse employment actions.” (Doc. 18 at
4 n.2.)6 Apparently appeased because plaintiff “concedes . . . that her FMLA claims do not
include temporally remote adverse employment actions,” (doc. 19 at 1), defendant’s Reply
focuses on plaintiff’s § 1981 claims, but notes that plaintiff’s request for reinstatement is no
longer an available remedy to her because it is only available for termination claims. (Doc.
19 at 6.)
After reviewing all of the above arguments made by the parties, it is apparent that they
do not have a true disagreement as to Counts I and II.7 Though plaintiff has added several
additional facts to her FMLA claims in the Amended Complaint, (see doc. 14 ¶ 29-61),
defendant does not challenge this part of plaintiff’s FMLA interference or retaliation claim.
(See doc. 16 at 8-9.) The court agrees with the parties and with its earlier Opinion on the
matter. Therefore, the court again notes that plaintiff has stated a claim for both FMLA
interference and retaliation. However, to be clear, these two Counts rest only on plaintiff’s
6

While this is true, as noted earlier, the FMLA section of the Amended Complaint did
still retain facts regarding reassignment to Fagan, (doc. 14 ¶ 55-61), which the court has held
would not constitute adverse employment action, (doc. 10 at 13 n.8). Additionally, the court
notes that while plaintiff contends that she complied with the court’s Order to replead, (doc. 12),
the Amended Complaint suffers from similar defects as the original Complaint. (See doc. 14.)
While adding headings to the facts has been an improvement, by “adopt[ing] and re-alleg[ing]
each and every allegation contained in this Complaint,” within every Count, (see doc. 14 ¶¶ 117,
120, 123, 127), without specifying which discrete act supports each Count, plaintiff has not
complied with this court’s Order, or with Rule 10(b). (See doc. 12); Fed. R. Civ. P. 10(b).
Nevertheless, because dismissal for failing to properly plead or noncompliance with a court order
is a drastic measure, see Beckwith v. Bellsouth Telecommunications Inc., 146 F. App’x 368, 372
(11th Cir. 2005), the court allows plaintiff’s FMLA claims to move forward.
7

Counsel for both parties confirmed this at oral argument.

10

specific allegations regarding the reduction of her base salary.8 (See doc. 14 ¶¶ 31-51.)
Furthermore, because plaintiff retained language regarding reassignment within the FMLA
fact section of her Amended Complaint, (see id. ¶¶ 52-61), the court again notes that “[t]o
the extent plaintiff contends that . . . reassignment . . . constitute[s] a claim of FMLA
retaliation, the court finds that [it] do[es] not constitute [an] adverse action[] under the
McDonnell Douglas framework. See Foshee [v. Ascension Health-IS, Inc.], 384 F. App’x
[890,] 891 [(11th Cir. 2010) (per curiam).]” (Doc. 10 at 13 n.8.)
Additionally, because plaintiff did not retain “allegations of termination or other
temporally remote adverse employment actions,” (doc. 18 at 4 n.2), within the FMLA section
of her Amended Complaint, and states that “only ¶¶ 29-61” support her FMLA claims, (id.),
defendant’s arguments against plaintiff’s re-alleging the same actions which the court had
already determined were not actionable need not be considered. The same is true for any new
facts that plaintiff added into the “Race Discrimination and Retaliation” portion of her
Amended Complaint, such as the allegation that plaintiff’s training was cancelled
immediately after her request that she not be placed under Church. (Doc. 14 ¶¶ 92-94; see
also doc. 16 at 10-11 (arguing that new facts in Amended Complaint found within “Race
Discrimination and Retaliation” fact section are too remote and do not constitute adverse

8

As defendant observes, plaintiff has altered the language that the court originally held
sufficient to state an FMLA claim in the first Complaint. (Doc. 16 at 8.) However, the substance
of each claim remains the same, and plaintiff explains that she “revised the factual language
supporting these claims in an attempt to add specificity and clarity.” (Doc. 18 at 2 n.1.)
11

employment actions for purposes of FMLA claims).) Once plaintiff made clear that she was
not attempting to use any facts other than those in ¶¶ 29-61 to support her FMLA claims,
defendant’s initial arguments as to these allegations became moot.9
Finally, the court agrees with defendant that reinstatement is no longer a feasible
remedy for plaintiff’s surviving FMLA allegations. Among other remedies, the FMLA states
that “[a]ny employer who violates section 2615 of this title shall be liable to any eligible
employee affected . . . for such equitable relief as may be appropriate, including . . .
reinstatement.” 29 U.S.C. § 2617(a)(1)(B). Section 2615 sets forth the provisions for FMLA
interference and retaliation. See See Strickland v. Water Works & Sewer Bd. of City of
Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001) (“[T]he FMLA creates two types of
claims: interference claims, in which an employee asserts that his employer denied or
otherwise interfered with his substantive rights under the Act, see 29 U.S.C. § 2615(a)(1),
and retaliation claims, in which an employee asserts that his employer discriminated against
him because he engaged in activity protected by the Act, see 29 U.S.C. § 2615(a)(1) & (2)
. . . .”). However, the Supreme Court has discussed the remedies available under the FMLA,
noting that

9

The clarification was needed because though plaintiff did label two factual sections in
the Amended Complaint, as discussed earlier, each Count states that it “adopts and re-alleges
each and every allegation contained in this Complaint,” (doc. 14 ¶¶ 117, 120, 123, 127), creating
confusion as to which facts plaintiff was relying on for each Count. However, as already noted,
once plaintiff’s claims were clarified in her Response, (doc. 18), defendant’s Reply ceased to
focus on her FMLA claims, (see doc. 19).
12

To prevail under the cause of action set out in § 2617, an employee must
prove, as a threshold matter, that the employer violated § 2615 by interfering
with, restraining, or denying his or her exercise of FMLA rights. Even then,
§ 2617 provides no relief unless the employee has been prejudiced by the
violation: The employer is liable only for compensation and benefits lost “by
reason of the violation,” § 2617(a)(1)(A)(i)(I), for other monetary losses
sustained “as a direct result of the violation,” § 2617(a)(1)(A)(i)(II), and for
“appropriate” equitable relief, including employment, reinstatement, and
promotion, § 2617(a)(1)(B). The remedy is tailored to the harm suffered.
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002) (emphasis added). Thus,
despite the fact that § 2617(a)(1)(B) does not explicitly specify that reinstatement (or other
equitable relief) ought only be used as a remedy where the termination is a direct result of
the violation, it is implicit that equitable relief would not be “appropriate” in a case where
the termination did not result from an FMLA violation. See Bender v. City of Clearwater,
8:04-CV-1929-T23EAJ, 2006 WL 1046944, *12 (M.D. Fla. Apr. 19, 2006) (“An employer
can deny the right of reinstatement if it can demonstrate that it would have discharged the
employee had he not been on FMLA leave.” (citing O’Connor v. PCA Family Health Plan,
Inc., 200 F.3d 1349, 1354 (11th Cir. 2000))). Though plaintiff still has cognizable FMLA
claims, because the facts surrounding her eventual termination do not support an FMLA
claim, it follows that she will never be able to prove that reinstatement is an appropriate
remedy.10

10

Moreover, this court has already specifically addressed how any claim that plaintiff
was terminated because she took FMLA leave fails to satisfy the causation prong of McDonnell
Douglas. (See doc. 10 at 13 n.8.)
13

B. Section 1981 Discrimination
In its first Motion to Dismiss, defendant moved only to dismiss any other potential
claims of race discrimination that were contained within Count III of plaintiff’s initial
Complaint, but agreed that any claims surrounding Church’s selection were not due to be
dismissed. (See doc. 4 ¶ 3.) Now, plaintiff has amended her Complaint to include more
specific facts in regards to the selection of Church, as well as a number of new, seemingly
unrelated facts. (See doc. 14 ¶¶ 62-107.) Just as it did in regards to plaintiff’s original
Complaint, defendant has moved to dismiss any additional potential race discrimination
claims that these new facts might conceivably allege. (Doc. 16 at 11-14.) However, plaintiff
clarifies in her Response that “[p]laintiff did not did not attempt to state any other claim of
race discrimination in Count III of its [sic] Amended Complaint,” and goes on to argue that
defendant’s arguments are therefore moot. (Doc. 18 at 5-6.) Accordingly, in its Reply
defendant (again) ceases its arguments regarding plaintiff’s § 1981 discrimination claims,
noting that plaintiff “concedes her § 1981 claim is limited to the 2011 promotion claim.”
(Doc. 19 at 1.)
Once again, it appears that defendant and plaintiff do not ultimately disagree as to
which facts support plaintiff’s Count III race discrimination claim.11 However, plaintiff’s
labeling of ¶¶ 62-116 as supporting both “Race Discrimination and Retaliation,” (doc. 14 at

11

Again, counsel for the parties confirmed this at oral argument.
14

9), along with her “adopt[ion] and re-alleg[ing] of each and every allegation” in the Amended
Complaint, (id. ¶ 123), has operated to muddy the waters as to what the alleged discrete,
discriminatory acts, actually are. This type of confusion is exactly what the requirements of
Rules 8(a)(2) and 10(b) are in place to avoid. See Davis, 516 F.3d at 980 n.57 (explaining
that the “rules work together to require the pleader to present his claims discretely and
succinctly, so that his adversary can discern what he is claiming and frame a responsive
pleading, [and] the court can determine which facts support which claims and whether the
plaintiff has stated any claims upon which relief can be granted” (quoting Fines v. City of
Daphne, 79 F.3d 1079, 1082-83 (11th Cir. 1996))).
Therefore, though any disagreement as to plaintiff’s § 1981 discrimination claim
seems to have been resolved, in the interest of clarity, the court will follow its first Opinion
on the matter and make clear that the only discrete act supporting a claim of § 1981 racial
discrimination is plaintiff’s failure to promote claim regarding Lachera Church, re-alleged
in paragraphs 81-87 of the Amended Complaint. Any other potential claims are dismissed
because they fail to state a claim on which relief can be granted.
C. Section 1981 Retaliation
As defendant’s Reply eventually makes clear, (see doc. 19 at 1), Plaintiff’s § 1981
retaliation claim is the only truly contested issue on this second Motion to Dismiss. Just as
it did for plaintiff’s first Complaint, defendant moves to dismiss the entirety of plaintiff’s
§ 1981 retaliation claims. (Doc. 15 at 2; doc 16 at 14-15.) Plaintiff claims that to “remedy

15

th[e] deficiency” in her original Complaint, she has added “specific factual allegations that
allege protected activity.” (Doc. 18 at 7.) However, defendant notes—and the court
agrees—that it still is not clear what, exactly, plaintiff alleges is the discrete act of retaliation
in Count IV.12 (See doc. 19 at 1-2.) Additionally, even aside from defendant’s observation
that this claim is neither in compliance with this court’s Order to replead, (doc. 12), nor Rule
10(b), defendant argues that the claim is due to be dismissed because none of the facts
alleged can even plausibly support a § 1981 retaliation claim. (Doc. 19 at 2.) The court is
in agreement with defendant that plaintiff’s § 1981 retaliation claim is due to be dismissed
in its entirety.
In order to plead a claim for § 1981 retaliation, a plaintiff need not prove a prima facie
case; rather she need only “provide enough factual matter (taken as true) to suggest
intentional race discrimination.” Uppal v. Hosp. Corp. of Am., 11-13614, 2012 WL 2136156,
*1 (11th Cir. 2012) (emphasis added) (quoting Davis, 516 F.3d at 974). It follows that the
plaintiff must allege facts which suggest that a prima facie case might be proven. This
requires showing that: “[(1)] he engaged in statutorily protected activity, [(2)] he suffered a

12

For example, as plaintiff has illustrated in her Response, the Amended Complaint
alleges under “Race Discrimination and Retaliation” that plaintiff plead with her supervisor when
she learned that she was denied an interview for an open position, (doc. 14 ¶ 77), she plead with
him again when she learned he had placed Church above her, (doc. 14 ¶ 92), and she replied
negatively to an online company survey, (doc. 14 ¶¶ 98-105). As defendant correctly observes in
its Reply, these are three discrete and separate actions, (doc. 19 at 1-2), and if plaintiff alleges
they are each actionable, they should have been placed in separate counts in accordance with this
court’s Order, (see doc. 12).
16

materially adverse action, and [(3)] there was some causal relation between the two events.
Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008) (citing Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)). In a § 1981 retaliation case, “[a]s with
other statutory retaliation claims, . . . the protected activity [must] involve the assertion of
rights encompassed by the statute.” Jimenez v. Wellstar Health Sys., 596 F.3d 1304, 1311
(11th Cir. 2010). Section 1981, along with Title VII, “prohibit[s] an employer from
retaliating against an employee for reporting discrimination or filing a charge of
discrimination.” Davis v. Dunn Const. Co., Inc., 2:10-CV-2075-RDP, 2012 WL 1952125,
*1 (N.D. Ala. May 24, 2012) (citing CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457
(2008)). Thus, “statutorily protected activity includes complaining to superiors of [racial]
harassment or discrimination and lodging complaints with the EEOC.” Id. at *18 (citing
Pipkins v. City of Temple Terrace, Fla., 267 F.3d 1197, 1201 (11th Cir. 2001)).
Furthermore, courts have held that in order to establish a causal connection between
an adverse action and the employee’s protected activity, “a plaintiff must prove the protected
activity and the adverse action are not completely unrelated.” Young v. Napolitano, 1:10CV-1584-CAP-GGB, 2011 WL 2519529, *4 (N.D. Ga. June 24, 2011) (citing Davis, 516
F.3d at 978 n.52). This includes showing “at a minimum . . . that the adverse act followed
the protected conduct[, which] stems from the important requirement that the employer was
actually aware of the protected expression at the time it took adverse employment action.”
Prowell v. Ala. Dep’t of Human Res., 2:10-CV-2993-VEH, 2012 WL 3848667, *12 (N.D.

17

Ala. Sept. 5, 2012) (quoting Griffin v. GTE Fla., Inc., 182 F.3d 1279, 1284 (11th Cir. 1999))
(internal quotation marks omitted). Finally, as mentioned in this court’s prior Opinion, (see
doc.10 at 13 n.8), the time that has elapsed between the protected conduct and adverse
employment action is relevant to causal connection: “in this circuit, lapses of time of more
than three months between the alleged adverse action and the employee’s statutorilyprotected activity uniformly have been found to be insufficient to demonstrate a causal
connection, as required to establish a prima facie case.” Byrne v. Ala. Alcoholic Beverage
Control Bd., 635 F. Supp. 2d 1281, 1297-98 (M.D. Ala. 2009) (citing several examples).
The first of plaintiff’s allegations that could potentially be construed as supporting a
retaliation claim is the allegation that plaintiff plead with her supervisor after she was denied
an interview, saying “[p]lease Gary, please don’t do this.” (Doc. 14 ¶ 77.) Plaintiff claims
that this “is a factual scenario that alone supports retaliation under § 1981.” (Doc. 18 at 7.)
Conversely, defendant claims that this fails as a retaliation claim for three main reasons: (1)
it does not refer to race discrimination; (2) it occurred after defendant’s decision not to
interview took place; (3) it is too remote to satisfy the causation requirement. (Doc. 19 at 2.)
The court agrees with defendant.
First, defendant is correct in that the allegation does not refer to race discrimination.
As this court noted in its last Opinion, “[i]n the absence of any facts alleging racial
discrimination or retaliation as a result of protected activity, plaintiff’s accusation of
retaliation is a mere recitation of formalistic elements insufficient to state a cause of action.”

18

(Doc. 10 at 18.) Similarly, the Amended Complaint lacks facts which indicate that plaintiff
engaged in protected activity—specifically, complaints of race discrimination. As discussed
above, to be considered protected activity under § 1981, any complaints must include some
sort of reference to race discrimination or harassment. See, e.g., Davis, 2012 WL 1952125,
at *18 (no protected activity where plaintiff complained about pay rate, but never alleged that
he complained he was being paid less because of his race); Enadeghe v. Ryla Teleservices, Inc.,
CIV.A 108-CV-3551-TW, 2010 WL 481210, *9 (N.D. Ga. Feb. 3, 2010) (“Plaintiff has not

engaged in activity protected by Section 1981 because she has failed to allege that she
complained in any manner about race discrimination or that her underlying complaints about
the noise and touching in any way related to her race.”). Here, plaintiff merely alleged that
she complained to her supervisor about being denied an interview; there is no allegation that
she complained she was being denied an interview because she was white. (See doc. 14 ¶
77.) And as defendant observes, though plaintiff alleges that there was a meeting regarding
affirmative action, she does not allege that her complaint was made near the time of the
meeting. (See id. ¶¶ 65-79). Plaintiff cannot simply rely on her employer—or the court—to
infer that she complained of racial discrimination. See Demers v. Adams Homes of Nw.
Florida, Inc., 321 F. App’x 847, 852 (11th Cir. 2009) (“[T]o engage in protected activity, the
employee must . . . communicate her belief that discrimination is occurring to the employer,
and cannot rely on the employer to infer that discrimination has occurred.” (internal quotation
marks and citations omitted)).

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Moreover, even if protected activity could be inferred, defendant also observes that
plaintiff complained after she was barred from interviewing. On this matter, the law is clear:
If the complaint occurred after the alleged adverse employment action, then the employer
could not have been aware of it at the time he was making the decision. See Griffin, 182 F.3d
at 1284 (stating that the adverse act must follow the protected conduct so that the employer
is aware of the complaints); see also, e.g., Foster v. Select Med. Corp., 6:11-CV-1234-J37GJK, 2012 WL 1415499, *7 (M.D. Fla. Apr. 24, 2012) (dismissing retaliation claim on
motion to dismiss because plaintiff did not provide facts alleging that the protected conduct
occurred before the adverse action, or that therefore, the employer was aware of the protected
conduct). Upon close inspection and reading the Amended Complaint liberally, perhaps
plaintiff could state a claim for retaliation if the alleged adverse action were not the failure
to interview, but rather, the selection of Church instead of herself for the position. In such
a scenario, the alleged adverse action would have occurred after plaintiff’s complaints;
however, plaintiff still, in that case, would not have properly alleged that she engaged in
protected activity.13

13

Plaintiff’s Response does little to shed light on which adverse action she is alleging,
stating that “[p]laintiff learned her supervisor was looking to hire a black female, plead for the
same supervisor to not bar her from selection for an open position, was denied an interview, and
was then non-selected in favor of a black female.” (Doc. 18 at 7.) Defendant alleges that
plaintiff claims the adverse action is the failure to interview, (doc. 19 at 3), then states that “[a]ll
other alleged adverse employment actions occurred in 2012,” so they are too remote to show a
casual connection, (id. at 3). However, plaintiff does allege that Church was selected instead of
herself in October of 2011. (Doc. 14 ¶ 83.) Though the selection of Church instead of plaintiff is
certainly connected to the failure to interview plaintiff, the promotion of another employee
20

Second, plaintiff argues in her Response that her Amended Complaint also sets forth
facts which could support a § 1981 retaliation cause of action by alleging that plaintiff
complained to Gary Smith about making Church her supervisor. (Doc. 18 at 7 (quoting doc.
14 ¶ 92).) She alleges that as a result of this, her scheduled training was cancelled,
preventing her from gaining experience that “would have increased her eligibility for future
promotions.” (Doc. 14 ¶ 93-94.) Again, plaintiff’s allegations do not indicate that her
complaint was protected activity because it lacks any facts tying it to race. See Demers, 321
F. App’x at 852. As defendant has observed, the Amended Complaint itself indicates that
plaintiff could have been complaining because there was personal animosity between herself
and Gary Smith. (See doc. 19 at 3-4.) Moreover, based on the facts alleged, plaintiff could
have been complaining because Church was less experienced, less educated, an outside hire,
or even because plaintiff had wanted the position herself. (See doc. 14 ¶¶ 83-84, 86-88.)
Without any allegations that plaintiff was complaining about racial discrimination, the court
cannot find that plaintiff has alleged that she engaged in any protected activity. Therefore,
plaintiff’s § 1981 retaliation claim cannot be based on her complaint to Gary Smith. (See

instead of plaintiff could also constitute an adverse action—one which was not alleged to have
occurred before plaintiff’s complaint. (See doc. 14 ¶ 83.) Moreover, given the lack of specifics
as to what date plaintiff complained to Gary Smith, (see doc. 14 ¶ 77), the court cannot say at this
point that the time lapse between plaintiff’s complaints and the hiring of Church was too remote.
However, defendant is correct that all other alleged adverse employment actions (all occurring in
2012) would be too remote to suggest causation. Thomas v. Cooper Lighting, Inc., 506 F.3d
1361, 1364 (11th Cir. 2007) (“A three to four month disparity between the statutorily protected
expression and the adverse employment action is not enough.”). But, even if adverse action
could be inferred, as noted, plaintiff does not allege that she engaged in protected activity.
21

doc. 14 ¶¶ 92-94.)14
Third and finally, plaintiff alleges that in January of 2012, she participated in an
online survey with defendant where she responded negatively to every prompt, including
those asking about company ethics, fairness, and promotion of diversity, among others.
(Doc. 14 ¶¶ 98-105.) She further claims that in March of 2012 she was again reassigned to
report to Church, (id. ¶ 107), then states that on April 23, 2012, her position was eliminated,
(id. ¶ 112). These facts, too, fail to state a claim on which relief can be granted. As
defendant observes, not only has plaintiff failed to allege that she complained about race
discrimination—i.e., alleged protected activity15—but, she has also not alleged a causal
connection because there is no allegation that her supervisors knew of her complaints. (Doc.
19 at 4-5.) See Griffin, 182 F.3d at 1284 (employer must be aware of protected conduct at
time of adverse action); see also, e.g., Enadeghe, 2010 WL 481210, at *9 (dismissing
14

Moreover, even had plaintiff claimed that she engaged in protected activity, the court
doubts that she would have been able to withstand a motion to dismiss on these facts as alleged.
Specifically, claiming that plaintiff’s job training cancellation was an adverse action that
“directly prevented [p]laintiff from gaining experience that would have increased her eligibility
for future promotions,” (doc. 14 ¶ 94), is vague at best. In order to show an adverse action, a
plaintiff must show that “a reasonable employee would have found the challenged action
materially adverse,” which means that it “well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Williams v. Waste Mgmt., Inc., 411 F. App’x
226, 229 (11th Cir. 2011) (internal quotation marks and citations omitted). Nevertheless, the
court need not address the issue at this point because plaintiff has clearly failed to allege
protected activity.
15

Though the survey plaintiff took did mention diversity, it did not operate as a claim
that she was being discriminated against. At most, the survey simply operated as a general
observation of company operations; stating that a company does not support diversity is not the
same as complaining of actual discrimination.
22

retaliation claim because plaintiff “d[id] not identify the individual who made the decision
to terminate her in her Complaint, and she d[id] not allege that the decisionmaker was aware
that she complained about any discriminatory conduct”). Finally, because reassignment is
not an adverse action, (see doc. 10 at 13 n.8), the only adverse action that plaintiff could be
alleging resulted from her negative survey results is her ultimate termination, (see doc. 14
¶ 112). However, this was more than three months from the time that plaintiff completed the
survey, which this court has already observed is too long a time lapse to satisfy the causal
connection prong of a prima facie case of retaliation. See Byrne, 635 F. Supp. 2d at 1297-98.
Therefore, plaintiff has not stated a retaliation claim based on her alleged survey responses.
Defendant’s Motion is due to be granted as to the entirety of plaintiff’s claim of retaliation
under § 1981.
IV. CONCLUSION
For the foregoing reasons, defendant’s Motion to Dismiss is due to be granted as to
any claims of FMLA interference and retaliation other than those alleging a reduction of
plaintiff’s base salary. Defendant’s Motion to Dismiss is due to be granted as to any claims
of discrimination under § 1981 other than the failure to promote claim alleged in paragraphs
81-87 of the Amended Complaint. Defendant’s Motion to Dismiss is due to be granted as
to plaintiff’s § 1981 retaliation claim. An Order in accordance with this Memorandum
Opinion will be entered contemporaneously with this Opinion.

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DONE this 2nd day of September, 2013.

SHARON LOVELACE BLACKBURN
CHIEF UNITED STATES DISTRICT JUDGE

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