Kretzschmar v. Birmingham Nursing & Rehabilitation East et al

Filing 32

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 10/27/2015. (KAM, )

FILED
2015 Oct-27 PM 03:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KENDRALIA KRETZSCHMAR,
Plaintiff,
v.
BIRMINGHAM NURSING AND
REHABILITATION CENTER EAST,
LLC,
Defendant.

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Case No. 2:14-cv-02207-JEO

MEMORANDUM OPINION
In this action, plaintiff Kendralia Kretzschmar has asserted a variety of
employment-related claims against her former employer, defendant Birmingham
Nursing and Rehabilitation Center East, LLC (“Birmingham East”). Before the
court is Birmingham East’s motion to dismiss Kretzschmar’s amended complaint.
(Doc. 1 7). For the reasons set forth below, Birmingham East’s motion to dismiss is
due to be granted in part and denied in part.
PROCEDURAL HISTORY
Kretzschmar initially filed this action against Birmingham East and its
Executive Director, Melody Burch. (Doc. 1). In Kretzschmar’s original

1

References to “Doc. __” are to the document numbers assigned by the Clerk of the Court to the
pleadings, motions, and other materials in the court file, as reflected on the docket sheet in the
court’s Case Management/Electronic Case Files (CM/ECF) system.
1

complaint, she cited a litany of federal employment law statutes: Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., as amended
(including 42 U.S.C. § 2000e-5(b)); the Americans with Disabilities Act (“ADA”),
42 U.S.C. §§ 12101 et seq.; 42 U.S.C. § 1981 (“Section 1981”); 42 U.S.C. §
1981a; 42 U.S.C. § 1983 (“Section 1983”); the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. §§ 626 et seq.; and the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. (Doc. 1 at ¶ 1). She did not
state her claims in separate counts, but rather lumped all of her claims into a single
paragraph that accused Birmingham East and Burch of discriminating and
retaliating against her with respect to “job duties, and assignments, job evaluations,
pay, working conditions, hiring, promotion, hostile work environment, discipline,
and other terms and conditions of employment” in violation of all of the statutes
she had cited. (Doc. 1 at ¶ 20).
Birmingham East and Burch filed a motion to dismiss the complaint for
insufficiency of service of process under Rule 12(b)(5) of the Federal Rules of
Civil Procedure and failure to state a claim upon which relief may be granted under
Rule 12(b)(6). (Doc. 7). Kretzschmar filed an opposition to the motion to
dismiss, which included a request for an extension of time to perfect service of
process on both Birmingham East and Burch. (Doc. 15 at 5-6).

2

Kretzschmar also filed a motion for leave to file an amended complaint.
(Doc. 16). The motion included a proposed amended complaint that named
Birmingham East as the only defendant. (Doc. 16 at 5-14). In the opening
sentence of her proposed amended complaint, Kretzschmar again cited Title VII,
the ADA, Section 1981, 42 U.S.C. § 1981a, the ADEA, and the FLSA. 2 (Id. at ¶
1). Unlike her original complaint, however, her proposed amended complaint was
divided into four counts, none of which referenced the ADA, the ADEA, or the
FLSA. (Id. at ¶¶ 28-50).
Birmingham East and Burch replied to Kretzschmar’s opposition to their
motion to dismiss and opposed her motion for leave to file an amended complaint.
(Doc. 17). In the reply, Birmingham East acknowledged that, subsequent to the
filing of Kretzschmar’s opposition to the motion to dismiss, she effected proper
service on Birmingham East. (Doc. 17 at 3 n.2). Consequently, Birmingham East
withdrew its argument that the complaint should be dismissed for insufficiency of
service of process, while arguing that the complaint should still be dismissed for
failure to state a claim. (Id.) Burch, on the other hand, continued to contest
service and continued to assert both grounds for dismissal of the complaint as to
her. She also noted that Kretzschmar’s proposed amended complaint identified
Birmingham East as the sole defendant, making it unclear whether Kretzschmar
2

The proposed amended complaint did not reference Section 1983.
3

intended to continue to pursue any claims against her. (Doc. 17 at 3 n.3).
Birmingham East and Burch also opposed Kretzschmar’s motion to file her
proposed amended complaint, asserting that the proposed amended complaint
contained many of the same defects as her original complaint and raised new
claims, including a termination claim. (Doc. 17 at 9-10).
In light of the uncertainty as to whether Kretzschmar intended to pursue her
action against Burch, the court held a telephone conference with the parties. Based
on Kretzschmar’s representation that she did not intend to pursue any claims
against Burch as reflected in her proposed amended complaint, the court granted
Kretzschmar’s motion to file the amended complaint and noted that Burch was no
longer a defendant. (Doc. 26). The court also advised the parties that the pending
motion to dismiss would be taken under submission and would be treated as a
motion to dismiss the claims in Kretzschmar’s amended complaint against
Birmingham East, based on the parties’ representations that the motion to dismiss
had been fully briefed, that they had no additional arguments to submit with
respect to the amended complaint, and that the motion to dismiss was ripe for
decision as to the amended complaint. (Id.)
Nearly one month later, Kretzschmar filed her amended complaint (the
“Amended Complaint”). (Doc. 28). Although the Amended Complaint is
substantially similar to the proposed amended complaint Kretzschmar attached to
4

her motion, it differs from her proposed amended complaint (and her original
complaint) in one significant respect: whereas Kretzschmar’s proposed amended
complaint (and original complaint) referenced a single charge of discrimination
filed with the Equal Employment Opportunity Commission (“EEOC”), the
Amended Complaint references both an “individual” EEOC charge and an
“amended” EEOC charge. (Doc. 28 at ¶ 5). Consequently, the court held a second
telephone conference with the parties. During the call, Kretzschmar’s counsel
admitted that she was unsure whether Kretzschmar had, in fact, filed an amended
EEOC charge. The court directed Kretzschmar’s counsel to clear up the matter
and to file a notice confirming whether an amended charge had or had not been
filed. (Doc. 30). The court also asked Kretzschmar’s counsel whether
Kretzschmar had abandoned her claims based on the ADA, the ADEA, and the
FLSA, as her Amended Complaint did not appear to state any claims for relief
under those statutes. Kretzschmar’s counsel confirmed that Kretzschmar is not
asserting any claims under the ADA, the ADEA, or the FLSA. (See id.). As
directed, Kretzschmar’s counsel subsequently filed a notice affirming that
Kretzschmar never filed an amended EEOC charge. (Doc. 31).
STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss for failure to state a claim upon which
relief can be granted challenges the sufficiency of the claim(s) set out in the
5

plaintiff’s pleadings. Harris v. Proctor & Gamble Cellulose Co., 73 F.3d 321, 324
(11th Cir. 1996). A complaint attacked by a Rule 12(b)(6) motion need not contain
“detailed factual allegations,” but “a 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). To survive a motion to dismiss, a
complaint must contain “only enough facts to state a claim to relief that is plausible
on its face.” Id. at 570. A claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Speaker v. U.S. Dep’t of Health &
Human Servs., 623 F.3d 1371, 1380 (11th Cir. 2010) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 677 (2009)). When ruling on a motion to dismiss, the court must
accept the factual allegations in the complaint as true and construe them in the light
most favorable to the plaintiff. Speaker, 623 F.3d at 1379.
FACTS AS ALLEGED IN THE AMENDED COMPLAINT
Kretzschmar, an African-American female, began working at Birmingham
East in June 2012 as “MDS Coordinator.”3 On June 13, 2013, she was promoted
to the position of Assistant Director of Nursing and was asked to perform the
duties of Director of Nursing on an interim basis.

3

The Amended Complaint provides no information regarding the MDS Coordinator position.
6

The following month, Kretzschmar was accused of creating a racially hostile
work environment at Birmingham East, an accusation that she denies. On July 11,
2013, Burch, a white female, placed Kretzschmar on administrative leave without
pay for five days and advised Kretzschmar that she was being demoted to her prior
position of MDS Coordinator. Kretzschmar went to Birmingham East’s Human
Resources Department and filed a “verbal complaint” of discriminatory treatment
against Burch. Kretzschmar alleged that Burch demoted her because of her race.
According to Kretzschmar, after she filed her complaint against Burch, “the
office became unbearable. … Burch was constantly telling [her] that she had an
attitude, [and] constantly trying to find reasons to write her up. [She] was
scrutinized constantly and denied her much earned vacation.” (Doc. 28 at ¶ 22).
On August 28, 2013, Kretzschmar filed a charge of discrimination with the
EEOC against Birmingham East. 4 In her EEOC charge, Kretzschmar checked the
box for discrimination based on “race” and stated as follows:
I am a Black female. I was hired as the MDS Coordinator for the
above named employer in July of 2012. I performed my job in an
exemplary manner. In June of 2013, I was asked to perform the duties
of interim Director of Nursing until a permanent replacement was
found for the previous Director of Nursing. I was told that once the
permanent position was filled, I would be placed in the position of
Assistant Director of Nursing. I moved into the office and began
performing the duties as the Director of Nursing. In or about July of
4

Kretzschmar filed a copy of her EEOC charge along with her original complaint. (Doc. 1-2 at
3).
7

2013, I received an unfavorable text message from a co-worker
concerning my placement in the interim position. I responded to the
text message; however, my response was not received as I intended. I
was told by the Executive Director, Melody Burch that I was creating
a racially hostile work environment and I was being suspended
pending an investigation. Prior to my suspension, my personal
belongings were moved from my office without any regard to their
importance. When I returned to work, I was placed in the position
that I originally occupied and my pay was reduced. I am aware that
Amanda Galliot, White, was suspended for making racially motivated
statements and unlike me, received a promotion after she returned to
work.
I believe that I have been discriminated against and subjected to
different terms and conditions because of my race, Black in violation
of Title VII of the Civil Rights Act of 1964, as amended.
(Doc. 1-2 at 3).
Birmingham East terminated Kretzschmar’s employment in September
2013. In November 2013, Birmingham East promoted a white female employee to
the position of Assistant Director of Nursing. Kretzschmar alleges that the white
employee was “fresh out of nursing school” and had less experience than she had.
(Doc. 28 at ¶¶ 16, 18).
On August 13, 2014, the EEOC issued a Dismissal and Notice of Rights
with respect to Kretzschmar’s charge of discrimination. (Doc. 1-2 at 1).
Kretzschmar filed this action on November 13, 2014.

8

DISCUSSION
A.

The Amended Complaint Does Not State any Claims for Relief Under
the ADA, the ADEA, or the FLSA
The opening sentence of Kretzschmar’s Amended Complaint references

Title VII, the ADA, Section 1981, 42 U.S.C. §1981a, the ADEA, and the FLSA. 5
(Doc. 28 at ¶ 1). Her statement of facts, however, does not allege any facts that
would give rise to a claim under the ADA, the ADEA, or the FLSA. Kretzschmar
does not allege that she is a person with a disability entitled to the protections of
the ADA. She does not allege that she is age 40 or over so as to come within the
class of individuals protected under the ADEA. 6 See 29 U.S.C. § 631(a). And she
does not allege that Birmingham East failed to pay her minimum wage or overtime
so as to give rise to an FLSA claim. See 29 U.S.C. §§ 206 & 207. Moreover,
none of the four counts of the Amended Complaint references the ADA, ADEA, or
the FLSA, and Kretzschmar’s counsel has represented to the court that
Kretzschmar is not pursuing any claims under those statutes. Accordingly, the
court finds that the Amended Complaint does not state any claims for relief under
the ADA, the ADEA, or the FLSA.

5

Like her proposed amended complaint, the Amended Complaint does not reference Section
1983.
6

Indeed, it appears from Kretzschmar’s EEOC charge that she is under age 40. (Doc. 1-2 at 3).
9

B.

Kretzschmar’s Claims for Violation of Title VII and Section 1981
As noted, Kretzschmar’s Amended Complaint is divided into four counts.

Count One alleges race discrimination, Count Two alleges retaliatory discharge,
Count Three alleges reprisal, and Count Four alleges a hostile and abusive work
environment. Although each count references only Title VII, Kretzschmar’s
“Prayer for Relief” requests the court to issue a declaratory judgment that
Birmingham East’s “policies, practices, procedures, conditions and customs” were
violative of her rights as secured by both Title VII and Section 1981.7 (Doc. 28 at
9). In addition, in the section of the Amended Complaint titled “Administrative
Exhaustion,” Kretzschmar cites Section 1981 and states that “[u]nder [42] U.S.C.
Section 1981, there is no[ ] requirement that a Plaintiff first file a charge of
discrimination with an administrative agency before commencing the lawsuit as
long as the lawsuit is brought with[in] the four years from the violation of a
protected activity.” (Id. at ¶ 7). Therefore, despite Kretzschmar’s failure to
specifically cite Section 1981in any of her four counts, the court is satisfied that
she intends to pursue her claims under both Title VII and Section 1981 and will
construe her claims accordingly. See Albert v. Carovano, 851 F.2d 561, 571 n.3
(2d Cir. 1988) (“The failure in a complaint to cite a statute, or to cite the correct

7

The Prayer for Relief also references the ADA, but, as noted, Kretzschmar has alleged no facts
that would support a claim under the ADA and her counsel has confirmed that she is not
pursuing an ADA claim.
10

one, in no way affects the merits of a claim. Factual allegations alone are what
matters.”); Garrett v. Unum Life Ins. Co. of America, 427 F. Supp. 2d 1158, 1161
(M.D. Ga. 2005) (citing Albert).
1.

Title VII and Section 1981 claims in general
a.

Title VII

Title VII prohibits employment discrimination against any individual with
respect to his or her “compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). It is well-settled that before an individual
may pursue a Title VII discrimination claim, she must first exhaust her
administrative remedies with the EEOC. Wilkerson v. Grinnell Corp., 270 F.3d
1314, 1317 (11th Cir. 2001). “The first step down this path is filing a timely
charge of discrimination with the EEOC.” Id. (citing 42 U.S.C. § 2000e-5(b)
(1994)). “To be timely within a non-deferral state, such as Alabama, it must be
filed within 180 days of the last discriminatory act.” Gray v. Vestavia Hills Bd. of
Educ., 317 F. App’x 898, 902 (11th Cir. 2008) (citing 42 U.S.C. § 2000e–5(e)(1)).
The purpose of the exhaustion requirement is to allow the EEOC “the first
opportunity to investigate the alleged discriminatory or retaliatory practices, and a
plaintiff’s judicial complaint is thereby limited by the scope of the investigation
that can reasonably be expected to grow out of the administrative charge of
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discrimination or retaliation.” Basel v. Sec’y of Defense, 507 F. App’x 873, 875
(11th Cir. 2013) (citing Gregory v. Georgia Dep’t of Human Res., 355 F.3d 1277,
1279-80 (11th Cir. 2004)). “The proper inquiry is, therefore, whether the plaintiff's
judicial complaint was like or related to, or grew out of, the administrative
allegations. Judicial claims are allowed if they ‘amplify, clarify, or more clearly
focus’ the charges made before the agency ….” Basel, 507 F. App’x at 575-76
(citations omitted). While a plaintiff’s Title VII complaint need not mirror her
earlier EEOC charge, “allegations of new acts of discrimination that are offered as
the essential basis for judicial review must nonetheless be presented to the
agency.” Id. at 576 (citing Ray v. Freeman, 626 F.2d 439, 442-43 (5th Cir. 1980)).
Therefore, “[d]iscrete acts of discrimination that occur after an administrative
filing must first be administratively reviewed before a plaintiff may obtain judicial
review of those same acts.” Id. Termination, failure to promote, denial of transfer,
and refusal to hire are examples of discrete discriminatory acts that are “easy to
identify.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).
b.

Section 1981

Section 1981 provides that all persons “shall have the same right … to make
and enforce contracts, to sue, be parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of persons and property as is
enjoyed by white citizens ….” 42 U.S.C. § 1981(a). The elements of a cause of
12

action under § 1981 are: “(1) that the plaintiff is a member of a racial minority; (2)
that the defendant intended to discriminate on the basis of race; and (3) that the
discrimination concerned one or more of the activities enumerated in the statute.”
Kinnon v. Arcoub, Gopman & Assocs., Inc., 490 F.3d 886, 891 (11th Cir. 2007)
(internal quotation marks omitted) (quoting Jackson v. BellSouth Telecomms., 372
F.3d 1250, 1270 (11th Cir. 2004)).
Unlike Title VII claims, “[t]here are no administrative prerequisites to the
maintenance of a § 1981 claim.” Caetio v. Spirit Coach, LLC, 992 F. Supp. 2d
1199, 1209 (N.D. Ala. 2014). “Neither the filing of an EEOC charge of
discrimination within 180 days of the alleged unlawful employment as required by
Title VII …, nor ‘resort to Title VII’s administrative machinery are …
prerequisites for the institution of a § 1981 claim.’” Id. (quoting Johnson v. Ry.
Express Agency, Inc., 421 U.S. 454, 460 (1975)).
2.

Race Discrimination

In Count One of her Amended Complaint, Kretzschmar alleges that she was
“denied promotional [sic] opportunity and higher wages while less qualified and
less senior Caucasian employees were promoted and paid higher wages” and that
Birmingham East “implemented and executed a system that was meant to promote
Caucasian employees and pay Caucasian employees higher wages while denying
African American employees promotion and higher wages.” (Doc. 28 at ¶¶ 31-32).
13

She alleges that as a consequence of Birmingham East’s “unlawful conduct and
practices” she has been deprived of “employment, benefits and other terms and
conditions of employment based on her race.” (Id. at ¶ 33).
In Birmingham East’s reply brief in support of its motion to dismiss,
Birmingham East concedes that Kretzschmar has satisfied the Iqbal/Twombly
pleading standards and exhausted her Title VII administrative remedies to the
extent she is asserting a claim for race discrimination based on her suspension,
demotion, and pay cut in July 2013.8 (Doc. 17. at 6, 8, 11). However, to the
extent that Kretzschmar is attempting to assert a race discrimination claim based
on any other alleged adverse employment actions, Birmingham East disputes that
Kretzschmar has satisfied the Iqbal/Twombly pleading standards or exhausted her
Title VII administrative remedies. (Doc. 8 at 19-20; Doc. 17 at 11). Birmingham
East specifically argues that Kretzschmar did not exhaust her Title VII remedies
with respect to her allegations of discriminatory pay and promotion practices.
(Doc. 17 at 10). Kretzschmar responds that the issues she has raised in her
complaint are “reasonably related” to her EEOC charge with “no material

8

Birmingham East’s briefs were submitted before Kretzschmar filed her Amended Complaint.
Consequently, the briefs do not address the separate counts of the Amended Complaint, but
rather Kretzschmar’s claims as stated in her original complaint.
14

differences.”9 (Doc. 15 at 10). She also notes that her claims are filed under
Section 1981 as well as Title VII. (Id. at 11).
The court agrees with Birmingham East that to the extent Kretzschmar is
attempting to assert a race discrimination claim based on discriminatory pay and
promotion practices, the claim is due to be dismissed. Even construing the factual
allegations in the Amended Complaint in the light most favorable to Kretzschmar,
she has not alleged any adverse pay or promotion practices by Birmingham East.
Indeed, her own allegations belie her assertion that she was denied “promotional
opportunity and higher wages.” (Doc. 28 at ¶ 31). According to her very own
pleading, Birmingham East “promoted” her to the Assistant Director of Nursing
Position. (Id. at ¶ 13). Her race discrimination claim is based on her subsequent
suspension and demotion from that position, not on her failure to receive the
promotion in the first place. Simply put, the Amended Complaint contains no
factual allegations that support Kretzschmar’s contention that Birmingham East
engaged in discriminatory pay and promotion practices. She does not identify any
promotion (with corresponding higher wages) that she—or any other AfricanAmerican employee at Birmingham East—was denied, much less any promotion
that was awarded to a less-qualified white employee. She has failed to plead any

9

Like Birmingham East’s briefs, Kretzschmar’s brief in opposition to the motion to dismiss
discusses her claims as stated in her original complaint and not as repleaded in the Amended
Complaint.
15

“factual content” that would allow the court to draw the “reasonable inference”
that Birmingham East is liable for engaging in discriminatory pay and promotion
practices. Iqbal, 556 U.S. at 678.
Likewise, Kretzschmar’s EEOC charge says nothing about discriminatory
pay and promotion practices by Birmingham East. The “particulars” of her EEOC
charge are limited to her suspension, demotion, and pay reduction in July 2013;
there is no allegation in the charge that she was denied any desired promotion
because of her race. The allegation in her Amended Complaint that Birmingham
East denied her opportunities for promotion and higher wages is not “like or
related to” the allegations in her EEOC charge. Basel, 507 F. App’x at 875-76.
Therefore, Kretzschmar failed to exhaust her administrative remedies to the extent
she now seeks to bring a Title VII claim premised upon alleged discriminatory pay
and promotion practices by Birmingham East.
Based on the foregoing, Birmingham East’s motion to dismiss is due to be
granted as to Count One of the Amended Complaint to the extent that Count One
alleges a Title VII or Section 1981 claim for race discrimination based on alleged
discriminatory pay or promotion practices by Birmingham East. The motion is due
to be denied to the extent that Count One alleges a Title VII or Section 1981 race
discrimination claim premised upon Kretzschmar’s suspension, demotion, and pay
reduction in July 2013. Kretzschmar may pursue both a Title VII claim and a
16

Section 1981 claim for race discrimination arising out of her suspension, demotion,
and pay reduction, but may not pursue any such claims based on any other alleged
discriminatory employment actions by Birmingham East.
3.

Retaliatory Discharge

In Count Two of her Amended Complaint, Kretzschmar alleges that “[her]
employment was terminated in retaliation for her having complained about racial
discrimination in violation of Title VII ….” (Doc. 28 at ¶ 39). Birmingham East
argues that the claim is due to be dismissed because Kretzschmar did not exhaust
her administrative remedies. (Doc. 17 at 10). The court disagrees.
As previously noted, a Title VII claim is limited by the scope of the
administrative investigation that could “reasonably be expected to grow out of” the
plaintiff’s EEOC charge. Basel, 507 F. App’x at 875. “[A] claim of retaliation
could reasonably be expected to grow out of [an] original charge of
discrimination.” Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir.
1988). As a consequence,
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.
There are strong practical reasons and policy justifications for this
conclusion. It is the nature of retaliation claims that they arise after
the filing of the EEOC charge. Requiring prior resort to the EEOC
would mean that two charges would have to be filed in a retaliation
17

case—a double filing that would serve no purpose except to create
additional procedural technicalities when a single filing would comply
with the intent of Title VII.
Gupta v. East Texas State Univ., 654 F.2d 411, 414 (5th Cir. 1981) (citing Held v.
Missouri Pacific R.R. Co., 373 F. Supp. 996, 1001 (S.D. Tex. 1974), and Nat’l
Org. for Women v. Sperry Rand Corp., 457 F. Supp. 1338, 1344 (D. Conn. 1978));
see also Thomas v. Miami Dade Pub. Health Trust, 369 F. App’x 19, 23 (11th Cir.
2010) (citing Gupta).
Here, Kretzschmar’s retaliatory discharge claim “grew out of” her EEOC
charge; she alleges that she was terminated in retaliation for having filed the
charge. Therefore, it was not necessary for her to file a second charge in order to
pursue a retaliatory discharge claim under Title VII. See Caetio, 992 F. Supp. 2d
at 1212 (“Because Caetio alleges that defendant retaliated against her ... for filing
an EEOC discrimination charge, her retaliation claim ‘grew out of’ that charge.
Thus, Caetio was under no obligation to file a separate EEOC charge in order to
maintain a retaliation action in compliance with Title VII.”).
In addition, as noted above, Kretzschmar is pursuing the claims in her
Amended Complaint under Section 1981 as well as Title VII, and there are no
administrative prerequisites to the maintenance of a Section 1981 claim.
Therefore, Kretzschmar may pursue her retaliatory discharge claim under both
Title VII and Section 1981. Birmingham East’s motion to dismiss is due to be
18

denied as to Count Two of the Amended Complaint.
4.

Reprisal

Although titled “Reprisal,” Count Three of the Amended Complaint appears
to be asserting another retaliation claim. In Count Three, which incorporates the
preceding paragraphs of the Amended Complaint by reference, Kretzschmar
alleges that Birmingham East’s “conduct as alleged above constitutes retaliation
against [her] because she engaged in activities protected by Title VII.” (Doc. 28 at
¶ 48). Kretzschmar does not specify what particular “conduct as alleged above”
was retaliatory. To the extent that the “conduct as described above” includes her
termination, Birmingham East’s motion to dismiss is due to be denied for the
reasons discussed above with respect to Count Two.
However, to the extent that Birmingham East’s “conduct as described
above” includes alleged retaliatory acts commencing before Kretzschmar filed her
EEOC charge, the court agrees with Birmingham East that Kretzschmar is
precluded from pursuing a Title VII retaliation claim because she failed to exhaust
her administrative remedies. Kretzschmar filed her EEOC charge on August 28,
2013, more than a month after she filed her “verbal complaint” against Burch with
Birmingham East’s Human Resources Department. (Doc. 1-2 at 3; Doc. 28 at ¶
17). She did not check the box for “retaliation” on her EEOC charge and the word
“retaliation” does not appear anywhere in her description of the particulars of her
19

charge. Nowhere in her EEOC charge does she even suggest that Burch (or
anyone else at Birmingham East) retaliated against her for reporting alleged
discriminatory treatment. Consequently, to the extent that Kretzschmar seeks to
pursue a retaliation claim under Title VII based on acts commencing before she
filed her EEOC charge, the claims are due to be dismissed for failure to exhaust
administrative remedies.
Kretzschmar may, however, pursue such a retaliation claim under Section
1981. Despite Kretzschmar’s failure to specify the particular “conduct as
described above” that she claims was retaliatory, the court is satisfied that she has
alleged sufficient facts to state a plausible Section 1981 retaliation claim
encompassing more than just her termination. She alleges that after she reported
Burch’s alleged acts of discrimination, her employment at Birmingham East
became unbearable, she was scrutinized constantly, and she was denied earned
vacation. (Doc. 28 at ¶ 22). Accepting these allegations as true and construing
them in the light most favorable to Kretzschmar, she has adequately pleaded a
retaliation claim under Section 1981 to survive Birmingham East’s motion to
dismiss.
Based on the foregoing, Birmingham East’s motion to dismiss is due to be
granted to the extent that the retaliation claim in Count Three is brought pursuant
to Title VII and is based on alleged retaliatory acts commencing before
20

Kretzschmar filed her EEOC charge. The motion to dismiss is otherwise due to be
denied as to Count Three.
5.

Hostile Work Environment

In Count Four, which incorporates all of the preceding paragraphs of the
Amended Complaint by reference, Kretzschmar alleges that Birmingham East’s
“conduct as described above constitutes [a] hostile and abusive working
environment in violation of Title VII.” (Doc. 28 at 49). Again, she does not
specify what particular “conduct as described above” created the alleged hostile
work environment. Birmingham East argues that the hostile work environment
claim should be dismissed because, once again, Kretzschmar failed to exhaust her
Title VII administrative remedies and because she has failed to satisfy the
Iqbal/Twombly pleading standards. (Doc. 17 at 10). As before, Kretzschmar
asserts that the issues in her complaint are “reasonably related” to her EEOC
charge with “no material differences,” and notes that her claims have been brought
pursuant to Section 1981 as well as Title VII. (Doc. 15 at 10-11). She also argues
that “the complaint gives rise to a reasonable inference that [she] was
discriminated against, and retaliated against and exposed by those means to a
hostile work environment thus satisfying [a] prima facie case ‘post Twombly.’”
(Id. at 10).

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The court agrees with Birmingham East that Kretzschmar failed to exhaust
her administrative remedies with respect to her hostile work environment claim. A
hostile work environment claim is materially different from a claim that
Kretzschmar was suspended and demoted (with a corresponding reduction in pay)
in July 2013 because of her race, which is all her EEOC charge alleges. See
McCann v. Tillman, 526 F.3d 1370, 1378 (11th Cir. 2008) (“As opposed to
‘[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal
to hire,’ a hostile work environment claim addresses acts ‘different in kind’ whose
‘very nature involves repeated conduct,’ such as ‘ “discriminatory intimidation,
ridicule, and insult.” ’ ”) (quoting Morgan, 536 U.S. at 114-16). Nowhere in her
EEOC charge does Kretzschmar state that she was subjected to repeated
intimidation, ridicule, and insult or that “the office became unbearable” after she
reported her allegations of discrimination to Human Resources, as she alleges in
the Amended Complaint. (Doc. 28 at ¶ 22). Nothing in her EEOC charge suggests
or even implies that she was subjected to a hostile work environment. Therefore,
to the extent that Kretzschmar now seeks to bring a hostile work environment
claim pursuant to Title VII, she failed to exhaust her administrative remedies and
the claim is due to be dismissed.
To the extent that Kretzschmar’s hostile work environment claim has been
brought pursuant to Section 1981, however, the court will allow the claim to
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proceed. In her Amended Complaint, Kretzschmar alleges more than just the
discrete acts of her suspension, demotion, pay reduction, and ultimate termination;
she also alleges that once she reported Burch’s alleged discrimination, her
employment was made “unbearable.” (Doc. 28 at ¶¶ 22, 26). She allege that she
was “treated differently” and “scrutinized constantly” and that Burch was
“constantly telling [her] that she had an attitude” and “constantly trying to find
reasons to write her up.” (Id.). Although it is a close call, the court is satisfied that
these allegations of repeated conduct, which suggest at least a degree of
intimidation, are sufficient to state a plausible hostile work environment claim
under Section 1981. Of course, whether the allegations are borne out in discovery
remains to be seen.
Accordingly, Birmingham East’s motion to dismiss is due to be granted as to
Count Four to the extent that Kretzschmar’s hostile work environment claim arises
under Title VII, but denied to the extend the claim arises under Section 1983.
CONCLUSION
Based on the foregoing, Birmingham East’s motion to dismiss (doc. 7) is
due to be granted in part and denied in part. The motion is due to be granted as to
(1) any claims asserted under the ADA, the ADEA, or the FLSA; (2) any race
discrimination claims in Count One based on any alleged discriminatory
employment actions by Birmingham East other than Kretzschmar’s suspension,
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demotion, and pay reduction in July 2013; (3) any Title VII retaliation claims in
Count Three based on alleged retaliatory acts commencing before Kretzschmar
filed her EEOC charge on August 28, 2013; and (4) any Title VII hostile work
environment claims in Count Four. The motion is due to be denied to the extent
that (1) Count One asserts a claim under Title VII and Section 1981 for race
discrimination arising out of Kretzschmar’s suspension, demotion, and pay
reduction in July 2013; (2) Counts Two and Three assert a claim under Title VII
and Section 1981 for retaliatory discharge; (3) Count Three asserts a claim under
Section 1981 (but not Title VII) for retaliatory acts other than discharge; and (4)
Count Four asserts a hostile work environment claim under Section 1981 (but not
Title VII).
An appropriate order consistent with this opinion will be entered.
DATED this 27th day of October, 2015.

_________________________________
JOHN E. OTT
Chief United States Magistrate Judge

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