Turner v. AMICO a Gibraltar Company

Filing 13

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 12/3/15. (SAC )

FILED
2015 Dec-03 AM 11:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL WAYNE TURNER,
Plaintiff,
v.
AMICO, a GIBRALTAR COMPANY,
Defendant.

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CV-15-BE-1202-S

MEMORANDUM OPINION
This case, filed by a pro se Plaintiff, asserts claims of employment discrimination, and is
before this court on Defendant’s “Motion to Dismiss Second Amended Complaint.” (Doc. 10).
The Plaintiff failed to respond to the motion by October 23, 2015, the deadline provided in the
court’s briefing schedule on the motion to dismiss (doc. 11), and failed to respond by the
November 12, 2015 deadline stated in the court’s subsequent order warning the Plaintiff that the
case may be dismissed and giving him one more opportunity to respond (doc. 12). For the
reasons stated in this Memorandum Opinion, the court will GRANT the motion.
I. PROCEDURAL BACKGROUND
On July 17, 2015, the Plaintiff, Michael Wayne Turner, filed a Complaint against his
employer, Alabama Metal Industries Corporation (“AMICO”), alleging employment
discrimination based on age, race, and retaliation in violation of Title VII. The facts stated in the
Complaint were very brief: “A similar situation of white employees have been allowed to keep
1

chairs in their work areas without being disciplined. . . . was it accurate for my chair to be taken
from me which I have since my first day of employment with the company, and white employee
[sic] keep theirs.” (Doc. 1, at 3). The Complaint did not refer to or attach an EEOC charge or
right to sue letter or otherwise allege that he had satisfied the administrative prerequisites for a
Title VII suit.
On August 12, 2015, AMICO filed a motion to dismiss, referring to a lawsuit that Turner
had filed against AMICO a few months earlier, on March 9, 2015, Case 2:15-CV-00406-AKK.
In effect, AMICO asked in the motion to dismiss for the court to take judicial notice of the filings
in that earlier lawsuit, including the information Turner stated under penalty of perjury in his
application under § 706(f) of the Civil Rights Act of 1964 and the documents attached to that
application, his EEOC charge and Right to Sue letter. Given the information in those filings,
the original motion to dismiss asserted that the instant suit’s filing on July 17, 2015 was not
timely as to the claims of race discrimination and retaliation alleged in the EEOC charge and the
previous suit. Further, it asserted that the Plaintiff failed to exhaust the administrative
prerequisites for an Age Discrimination in Employment Act (“ADEA”) claim, to the extent one
was asserted. (Doc. 3).
On August 13, 2015, the court entered a Show Cause Order (doc. 6), ordering Turner to
show cause in writing on or before August 27, 2015 why the court should not dismiss the action
for the reasons set out in the Defendant’s motion to dismiss.
On August 26, 2015, Turner filed an Amended Complaint (doc. 7), purportedly in
response to the Show Cause Order, stating that AMICO had discriminated against him in 2009
when it failed to give him a pay increase and in April 15, 2014 when it suspended him for not
2

removing his chair from his work area. Turner also referred to other undated acts of alleged
discrimination and made vague references to filing “numerous EEOC charges” and grievances
but did not mention receipt of Right to Sue letters and did not specifically allege that he had
exhausted administrative prerequisites. As to the statutory basis of his claims, he asserted claims
of discrimination based on race and retaliation in violation of Title VII; and age discrimination in
violation of the ADEA. This “response”/Amended Complaint did not address the arguments in
the Defendants’ motion to dismiss regarding the time bar, as the court had ordered.
On September 3, 2015, the court entered an order (doc. 8) finding the original motion to
dismiss moot based on the filing of an Amended Complaint. Further, the court noted that
Turner’s “response” to the Show Cause Order did not answer the court’s question why it should
not dismiss because of the time bar. The court stated that the acts of discrimination in the
Amended Complaint that allegedly occurred in 2009 and April of 2014 (the latter addressed in
the April 2014 EEOC charge) would appear to be time barred based on the filings in Case No.
15-CV-406-AKK, and that Turner failed to show cause to the contrary. The court also stated that
the response/Amended Complaint referred to additional undated discrimination but failed to
reflect the required exhaustion of administrative remedies for those undated claims. Therefore, to
avoid confusion and clarify the record, the court directed the plaintiff “to file the Second
Amended Complaint on or before September 25, 2015 that sets forth the dates of the alleged
discrimination, the dates of filing of any applicable EEOC charges and receipt of Right to Sue
letters, and anything else required to state a claim under applicable law and these federal rules.”
(Doc. 8, at 3).
On September 25, 2015, Turner filed his second Amended Complaint stating as follows:
3

I Michael Wayne Turner. Back in 2009 I had a large Left indirect inguinal hernia. In
2014 the same left hernia is back. This is a Disabilities under Title VII of the Civil
Rights Act the Americans with Disabilities Act (ADA) the Genetic Information
Nondiscrimination Act (GINA), or the Age Discrimination in Employment Act
(ADEA)!
(Doc. 9, at 1). Turner also attached medical records dated from 2009 reflecting that Turner was
treated for a large left indirect inguinal hernia and records from 2015 indicating that his left
inguinal hernia recurred and that he was receiving treatment for the resulting generalized
abdominal pain. (Doc. 9, at 3-6). Turner did not make clear, in filing the second amended
complaint, whether he intended this version to replace the previous complaint and amended
complaint or simply to add to them.
On October 1, 2015, AMICO filed a motion to dismiss the second Amended Complaint,
noting that Turner referred only to his hernia condition that first occurred in 2009 and returned in
2014, and that he has not alleged that he timely filed an EEOC charge regarding this medical
condition or the undated acts of discrimination referenced in his first amended complaint. Further,
AMICO incorporated by reference the arguments set forth in its original motion to dismiss
regarding the claim about his discipline in April of 2014. (Doc. 10).
The court entered an order setting a briefing schedule on this motion to dismiss, requiring
Turner to file a response by October 23, 2015. Turner did not file a response by that deadline.
On November 2, 2015, the court entered another order, noting that the Defendant’s motion
to dismiss requested, in effect, that this court take judicial notice of the EEOC Charge and Right to
Sue Letter that Plaintiff filed in a previous case, Case No. 15-CV-00405-AKK, and further,
providing the Plaintiff with an opportunity to be heard pursuant to Rule 201(e) of the Federal Rules
of Evidence on the propriety of taking judicial notice of those documents and the nature of the facts
4

to be noticed. The court advised the Plaintiff that by the deadline of November 12, 2015,1 he must
respond to the court’s order regarding the judicial notice issue and regarding the exhaustion of
administrative prerequisites and the requested dates of the alleged discriminatory acts, and warned
the Plaintiff that if he did not respond, the court would dismiss those claims. The Plaintiff did not
respond by the November 12, 2015 deadline.
II. LEGAL STANDARD
A Rule 12(b)(6) motion to dismiss attacks the legal sufficiency of the complaint. The
motion to dismiss in the instant case attacks the sufficiency of the Second Amended Complaint
filed by a pro se Plaintiff. Although the court is required to show leniency to a pro se plaintiff’s
pleadings, his complaint is still “subject to the relevant law and rules of court, including the
Federal Rules of Civil Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). Pro se
complaints must “comply withe the procedural rules that govern pleadings.” Beckwith v. Bellsouth
Telecomms. Inc., 146 Fed. Appx. 368, 371 (11th Cir. 2005).
Generally, the Federal Rules of Civil Procedure require only that the complaint provide “‘a
short and plain statement of the claim’ that will give the defendant fair notice of what the
plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957)
(quoting Fed. R. Civ. P. 8(a)). A plaintiff must provide the grounds of his entitlement, but Rule 8
generally does not require “detailed factual allegations.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quoting Conley, 355 U.S. at 47). It does, however, “demand[ ] more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,

1

The court advised the Plaintiff that if he chose to mail his responses, he must do so in
time for the responses to be received by the court on November 12, 2015.
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678 (2009).
The Supreme Court explained that “[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Iqbal, 556 U.S. at 678 (quoting and explaining its decision in Twombly, 550 U.S. at 570).
To be plausible on its face, the claim must contain enough facts that “allow[ ] the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678. Although “[t]he plausibility standard is not akin to a ‘probability requirement,’” the
complaint must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.”
Id. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it
‘stops short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting
Twombly, 550 U.S. at 557).
The Supreme Court has recently identified “two working principles” for the district court to
use in applying the facial plausibility standard. The first principle is that, in evaluating motions to
dismiss, the court must assume the veracity of well-pleaded factual allegations; however, the court
does not have to accept as true legal conclusions even when “couched as [] factual allegation[s]” or
“threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements.” Iqbal, 556 U.S. at 678.

The second principle is that “only a complaint that states a

plausible claim for relief survives a motion to dismiss.” Id. at 679. Thus, under prong one, the
court determines the factual allegations that are well-pleaded and assumes their veracity, and then
proceeds, under prong two, to determine the claim’s plausibility given the well-pleaded facts. That
task is “context-specific” and, to survive the motion, the allegations must permit the court based
on its “judicial experience and common sense. . . to infer more than the mere possibility of
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misconduct.” Id. If the court determines that well-pleaded facts, accepted as true, do not state a
claim that is plausible, the claim must be dismissed. Id.
IIII. DISCUSSION
Pro se complaints present challenges to the court and opposing attorneys addressing them,
as they struggle to decipher what legal theories plaintiffs without legal training are attempting to
assert. The complaints in the instant case are particularly perplexing because Turner filed three
pleadings—a complaint, and two subsequent documents entitled “Amended Complaint”—but he
did not make clear whether the information in these amendments are adding to or replacing the
information in the previous complaints. In light of Turner’s pro se status and in an abundance of
caution, the court will give Turner the most lenient reading and assume that the amendments are
additions to his first complaint, and will read all three documents together as one. Although the
court recognizes that Turner may have meant for the second amended complaint to replace the
others, that view would mean that Turner abandoned claims asserted in his previous complaint and
amended complaint, and, without clearer direction from this pro se Plaintiff, the court does not
assume abandonment.
Therefore, the court reads the three complaints as asserting the following claims: race
discrimination and age discrimination based on April 2014 suspension for failure to remove a chair
brought pursuant to Title VII; April 2014 retaliation for having filed a charge of discrimination
brought pursuant to Title VII; undated discrimination in failure to accommodate after hernia
surgery; 2009 discrimination based on the failure to receive a raise; undated race and age
discrimination and retaliation occurring when employees who were not members of a protected age
were allowed to run jobs in his department that he could have performed after his job was shut
7

down; undated harassment by supervisor Smallwood who denied him vacation days despite his
eligibility and denied him the overtime work he desired; 2014 violation of the ADA based on
failure to accommodate his disability with light duty after a hernia recurrence; 2014 violation of the
Genetic Information Nondiscrimination Act (GINA) based on a hernia recurrence; and 2014
violation of the Age Discrimination in Employment Act (ADEA) based on a hernia recurrence.
A. Failure to Exhaust Administrative Remedies in Cases Brought Pursuant to Title
VII, the ADA, the ADEA, and GINA
Before bringing suit pursuant to Title VII, the ADA, the ADEA, and GINA, a plaintiff must
exhaust his administrative remedies, including filing a timely EEOC charge. See 42 U.S.C. §
2000e-5(b) (Title VII); 42 U.S.C. § 12117(a) (ADA); 42 U.S.C. § 2000ff-6 (GINA); 29 U.S.C. §
626 (d)(1) (ADEA); see also Forehand v. Fla. State Hosp. at Chattahoochee, 89 F. 3d 1562, 1567
(11th Cir. 1996) (Title VII); Abram v. Fulton Cnty. Gov’t, 598 Fed. Appx. 672, 675-76 (11th Cir.
2015) (ADA); Jones v. Dillard’s, Inc., 331 F.3d 1259, 1263 (11th Cir. 2003) (ADEA) (file charge
within 180 days of discriminatory act in Alabama federal court). When exhaustion of
administrative remedies is a condition precedent to bringing suit, “a plaintiff must generally allege
in his complaint that ‘all conditions precedent to the institution of the lawsuit have been fulfilled.’”
Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1010 (11th Cir. 1983) (addressing a Title
VII complaint and quoting Fed. R. Civ. P. 9(c)).
In the instant case, none of Turner’s three complaints contained a general allegation that all
conditions precedent had been fulfilled, nor did he say either that he had exhausted his
administrative remedies, or that he had timely filed an EEOC charge encompassing the
discriminatory and/or retaliatory acts. Although Turner is pro se, his complaint is still “subject to

8

the relevant law and rules of court, including the Federal Rules of Civil Procedure.” Moon, 863
F.2d at 837.
Indeed, Turner cannot claim ignorance of the need to include such allegations, as AMICO
stated that requirement in its first motion to dismiss (doc. 3, at 3 ¶ 8). Turner has amended his
complaint twice since then, but failed to include the required allegations about conditions
precedent in those amended complaints.
In its subsequent order dated September 3, 2015, the court noted AMICO’s reference to the
EEOC Charge and Right-to-Sue Letter that Turner attached to his pleading in another related case,
and this court stated:
The Plaintiff fails to refer to subsequent EEOC Charges and Right to Sue letters that
would reflect the required exhaustion of administrative remedies for subsequent
claims under Title VII. Thus, on the face of the Amended Complaint, the Plaintiff
has failed to properly plead his case . . . .[T]he court DIRECTS the Plaintiff to file
the Second Amended Complaint on or before September 25, 2015 that sets for the
dates of the alleged discrimination, the dates of filing of any applicable EEOC
charges and receipt of Right to Sue letters, and anything else required to state a claim
under applicable law and these federal rules.
(Doc. 8, at 2-3). In defiance of that order, in his second Amended Complaint, Turner failed to state
the dates of any EEOC charges and the dates of the receipt of Right to Sue letters, or otherwise
allege that he had satisfied the condition precedent to filing these discrimination claims under Title
VII, the ADA, GINA or ADEA. Accordingly, the court entered another order giving Turner one
more opportunity to comply by November 12, 2015 with the court’s order regarding, among other
things, exhaustion of administrative prerequisites to suit. The court warned Turner that if he did
not comply, the court would dismiss such claims. (Doc. 12, at 2-3). Turner did not comply with
that order, either.

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Therefore, the court FINDS that claims in the instant suit brought pursuant to Title VII,
ADA, GINA, and ADEA are all due to be DISMISSED for failure to state a claim, because they
fail to allege that the conditions precedent of exhaustion of administrative remedies are met; they
fail to satisfy Rule 9(c) of the Federal Rules of Civil Procedure and otherwise fail to state a claim
as a matter of law as required by Rule 12(b)(6).
1. Dismissal: With or Without Prejudice
In light of Turner’s pro se status, the court will dismiss some of Turner’s claims without
prejudice. However, dismissal with prejudice is appropriate if granting leave to amend would be
futile. “Leave to amend a complaint is futile when the complaint as amended would still be
properly dismissed or be immediately subject to summary judgment for the defendant.” Cockrell v.
Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007).
For the reasons stated below, the court finds to be futile any amendment of claims for race
discrimination and retaliation based on Turner’s April 15, 2014 suspension for not removing a
chair from his work area. The complaint and first amended complaint asserted such claims, and
AMICO argued that they were barred as untimely. Indeed, AMICO advised the court that Turner
had filed a previous suit in this district based on those claims and filed an application under 706(f)
of the Civil Rights Act of 1964 and EEOC documents in that earlier suit showing that the filing of
those same claims in the instant suit was untimely as a matter of law. Because Turner filed those
documents in another lawsuit, the court next addresses those filings in the context of judicial notice
and judicial estoppel.

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a. Judicial Notice
In its motion to dismiss2 AMICO asks, in effect, that the court take judicial notice of
documents that Turner filed in another related case against AMICO, Case no. 15-CV-00406-AKK,
dismissed without prejudice earlier this year. Rule 201 of the Federal Rules of Evidence provides
in pertinent part as follows:
(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice
a fact that is not subject to reasonable dispute because it
(1) is generally known within the trial court’s territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.
(c) Taking Notice. The court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the court is supplied with
the necessary information.
(e) Opportunity to be Heard. On timely request, a party is entitled to be heard on the
propriety of taking judicial notice and the nature of the case fact to be noticed. If the
court takes judicial notice before notifying the party, the party, on request, is still
entitled to be heard.
Fed. R. Evid. 201 (1975).
The court advised the Plaintiff that the Defendant was, in effect, asking that it take
judicial notice of the filings in the previous case, and it gave the Plaintiff an opportunity to be
heard pursuant to Rule 201(e), but the Plaintiff did not respond.
The Eleventh Circuit has explained that a court may take judicial notice of filings in court
cases under Rule 201(b)(2) of the Federal Rules of Evidence. Cunningham v. District
2

This motion incorporates by reference the arguments in the motion to dismiss the
original complaint (doc. 3) regarding the Plaintiff’s failure to timely pursue and exhaust his
administrative remedies, arguments that referred to the documents filed in Case No. 15-CV00406-AKK: the EEOC Charge, the Right to Sue Letter, and the Plaintiff’s filing stating the date
of his receipt of the Right to Sue Letter.
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Attorney’s Office for Escambia Cnty., 592 F.3d 1237, 1255 (11th Cir. 2010) (taking judicial
notice of state and federal court proceedings in which the plaintiff was convicted or challenged
the conviction); see Moore v. Estelle, 526 F.2d 690, 694 (5th Cir. 1971)3 (stating “we take
judicial notice of prior habeas proceedings brought by this appellant in connection with the same
conviction ... even when the prior state case is not made part of the record on appeal ....”).
In addressing whether a court properly takes judicial notice of the nature or substance of
court filings and other legal documents, the Eleventh Circuit has distinguished between taking
judicial notice of the fact that court records or court rulings exist versus taking judicial notice of
the truth of matters stated within those court records or court rulings. The Court of Appeals
explained that
“a court may take judicial notice of a document filed in another court not for the
truth of the matters asserted in the other litigation, but rather to establish the fact
of such litigation and related filings.” Accordingly, a court may take notice of
another court's order only for the limited purpose of recognizing the “judicial act”
that the order represents or the subject matter of the litigation.
United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (citations omitted) (quoting Liberty
Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992) (internal
quotation marks omitted)).
Having first given the Plaintiff an opportunity to be heard regarding judicial notice, the
court TAKES JUDICIAL NOTICE of the of the fact that the following court records and court
rulings exist:
•

The Plaintiff, Michael Turner, filed in a previous case, Turner v. AMICO, Case No. 153

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc), the
Eleventh Circuit adopted as precedent all Fifth Circuit decisions handed down prior to the close
of business on September 30, 1981.
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CV-00406 (doc. 1) (N.D. Ala. 2015 filed Mar. 11, 2015), an “Application under Section
706(f)” containing the signature of Michael Turner dated 3/8/2015 below the words in
bold “Attestation and Signature, Under penalty of perjury I declare that the
information given on the preceding 14 pages is true and correct.”; stating that Turner
had filed with the EEOC a Charge, which he attached to the application; and further,
stating that Turner had “received from the EEOC a letter notifying [him] of [his] right-tosue respecting such Charges ... [on] Dec. 27, 2014,” which he also attached to the
application. Turner v. AMICO, No. 15-CV-00406, doc. 1 (N.D. Ala. filed Mar. 11,
2015).
•

The EEOC Charge that Turner attached to the application in Turner v. AMICO, Case No.
15-CV-00406 (doc. 1) (N.D. Ala. 2015 filed Mar. 11, 2015) was one he filed against
AMICO dated April 16, 2014 and stated in pertinent part as follows:
I am Black.... Management has assigned me additional duties not listed
in my job analysis, which I protested. On March 11, 2014, I received a
Written Reprimand for not filling out a data sheet. I was suspended
without pay on April 15, 2014, for not removing a chair out of my
work area, which I protested. I am scheduled to return to work on
April 21, 2014.
I believe that I am being discriminated against because of my race,
black and in retaliation for having filed a previous charge, in violation
of Title VII of the Civil Rights Act of 1964 as amended. Similarly
situated white employees have been allowed to keep chairs in their
work area without being disciplined.
Id., doc. 1, at 10 (N.D. Ala. filed Mar. 11, 2015).

•

In Turner v. AMICO, Case No. 15-CV-00406 (doc. 1, at 10) (N.D. Ala. 2015 filed Mar.
11, 2015), in the section of the Charge marked as “Discrimination Based On (Check
appropriate box(es).),” the boxes for race and retaliation were checked but the boxes for
age, disability or genetic information were not. Above the signature of Michael Turner
are the words: “I declare under penalty of perjury that the above is true and correct.”

•

In Turner v. AMICO, Case No. 15-CV-00406 (doc. 1, at 9) (N.D. Ala. 2015 filed Mar. 11,
2015), the right to sue notice that Turner attached contained the “Date Mailed” of “Dec
19 2014,” and stated in part “Your lawsuit must be filed WITHIN 90 DAYS of your
receipt of this notice; or your right to sue based on this charge will be lost.”

•

On June 11, 2015, the court in Turner v. AMICO, Case No. 15-CV-00406 (N.D. Ala.
2015 filed Mar. 11, 2015) dismissed that case without prejudice because Plaintiff had
failed by the April 18, 2015 deadline to follow the court’s order to file an amended
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complaint. Id. at doc. 3.
b. Judicial Estoppel
The Eleventh Circuit Court of Appeals has explained that “[j]udicial estoppel is an
equitable doctrine invoked at the court’s discretion, designed ‘to protect the integrity of the
judicial process.’” Transamerica Leasing, Inc. v. Inst. of London Underwriters, 430 F.3d 1326,
1335 (11th Cir. 2005) (quoting New Hampshire v. Main, 532 U.S. 742, 749 (2001)). Courts have
applied this doctrine “to prevent a party from asserting a claim in a legal proceeding that is
inconsistent with a claim taken by that party in a previous proceeding.” Id. In determining
whether the doctrine of judicial estoppel applies, the Eleventh Circuit examines two factors:
“first, it must be established that the allegedly inconsistent positions were made under oath in a
prior proceeding; and, second, the inconsistencies must have been calculated to make a mockery
of the judicial system.” Id.
This court has taken judicial notice that in a previous case Turner filed documents in
which he stated under penalty of perjury that he had filed an EEOC Charge against AMICO for
race discrimination and retaliation based upon the company’s refusal to allow him to keep a chair
in his work area; that he had attached a copy of that EEOC Charge; that he had attached the
Right-to-Sue Letter based upon that Charge; and that he had received the Right-to-Sue Letter on
December 27, 2014. Regardless of whether the information in those documents is true, Turner
filed them in the previous proceeding and attested that the information in the documents was true
under penalty of perjury.
In the instant case, on July 17, 2015, more than 90 days after his receipt of the Right-toSue Letter, Turner filed this second suit against AMICO based in part on the same alleged acts of
14

discrimination alleged in the first: race discrimination4 and retaliation based on the April 15,
2014 suspension for not removing his chair. In light of his filings in the previous case, Turner is
judicially estopped from taking the positions that those EEOC documents filed in the first suit are
not correct and that he did not receive the Right-to-Sue Letter in December of 2014.
Accordingly, he is judicially estopped from arguing that the Title VII claims in the instant case
for race discrimination and retaliation based on the April 15, 2014 suspension are timely. Any
such positions would be contrary to his filings under oath in the previous proceeding. Further,
given the information provided to Turner and by Turner in those documents regarding exhaustion
of administrative remedies and deadlines, coupled with his failure to follow orders of this court,
the court concludes that the inconsistencies must have been calculated to “make a mockery” of
the judicial system.
Further, the timely filing of the previous case, Case No. 15-CV-00406-AKK, and its
dismissal without prejudice does not toll the deadline for filing the instant suit or otherwise allow
it to be filed outside the deadline. See Price v. Digital Equip. Corp., 846 F.2d 1026, 1027 (5th
Cir. 1988) (per curiam) (finding where the court dismissed the original Title VII suit for failure
to prosecute, the 90-day limitations period had not been tolled by timely filing of the first Title
VII action, and the second suit was time-barred); see also Bost v. Fed. Express Corp., 372 F.3d
1233, 1242 (11th Cir. 2004) (stating in an ADEA case, where the employee filed a second
complaint outside the 90-day period: “Dismissal of a complaint, without prejudice, does not
allow a later complaint to be filed outside the statute of limitations.”). “Although a court may

4

The earlier lawsuit asserted claims of race discrimination and retaliation but not age
discrimination based on the April 2015 suspension.
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equitably toll a limitations period, the plaintiff[ ] must establish that tolling is warranted.” Bost,
32 F. 3d at 1242. In addition, equitable tolling “‘is an extraordinary remedy which should be
extended only sparingly’” and is “inappropriate when a plaintiff did not file an action promptly or
failed to act with due diligence.” Id. (quoting Justice v. United States, 6 F.3d 1474, 1479 (11th
Cir. 1993)).
In the instant case, Turner did not even allege that equitable tolling should apply and
certainly did not allege the existence of extraordinary circumstances that would justify its
application, despite having numerous opportunities to do so in the amended complaints filed
after AMICO and the court pointed out the timeliness issues.
Therefore, the court FINDS that the application of judicial notice and judicial estoppel
means that the claims for race discrimination and retaliation based on the April 15, 2014
suspension are time-barred.5 In light of those rulings, the court WILL DISMISS WITH
PREJUDICE the Title VII claims in the instant case for race discrimination and retaliation based
on the April 15, 2014 suspension.
2. Conclusion
In sum, the court WILL DISMISS WITH PREJUDICE all claims for race discrimination
and retaliation based on Turner’s April 15, 2014 suspension for not removing a chair from his
work area. The court WILL DISMISS WITHOUT PREJUDICE all other discrimination claims

5

In the order dated September 3, 2015, the court stated that it “accepts the ‘Amended
Complaint’ as timely filed pursuant to Rule 15[a](1)(B) of the Federal Rules of Civil Procedure.”
(Doc. 8, at 2). That statement referred to the timeliness of the amendment pursuant to Rule 15,
which requires filing amendments as a matter of course within 21 days after service of a motion
under 12(b); that statement regarding timeliness did not refer to the timeliness of filing the
lawsuit and did not state that the discrimination claims were not time-barred.
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brought under Title VII, the ADA, the ADEA, and GINA. As an alternative ruling, the court
WILL DISMISS WITHOUT PREJUDICE all other claims brought under Title VII, the ADA, the
ADEA, and GINA for failure to prosecute based on Turner’s repeated failing to comply with the
court’s orders of September 3, 2015 and November 2, 2015.
B. Other Claims, i.e., Those NOT Brought Pursuant to Title VII, the ADA, the
ADEA, and GINA
This court acknowledges difficulty in interpreting the language in Turner’s pro se
complaints and in determining whether any claims remain after the dismissal of all claims
brought pursuant to Title VII, the ADA, the ADEA, and GINA. Given that difficulty, the court
ordered Turner to file an amended complaint or to otherwise provide information setting forth
“the dates of the alleged discrimination, the dates of filing of any applicable EEOC charges and
receipt of Right to Sue letters and anything else required to state a claim under applicable law
and these federal rules.” (Doc. 8, at 3). When Turner filed an amended complaint that failed to
comply with that order, the court gave Turner one more opportunity to comply, and he did not.
(Doc. 12). To the extent, if any, that Turner attempted to assert a claim that was NOT brought
pursuant to Title VII, the ADA, the ADEA, and GINA, the court FINDS that such claim is due to
be DISMISSED WITHOUT PREJUDICE under Rule 12(b)(6) for failure to state a plausible
claim. Alternatively, the court FINDS that such claim is due to be DISMISSED WITHOUT
PREJUDICE for failure to prosecute in light of the refusal to comply with court orders dated
September 3, 2015 and November 2, 2015.
IV. CONCLUSION
For the reasons stated above, the court FINDS that the motion to dismiss is due to be

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GRANTED. The court WILL DISMISS WITH PREJUDICE all claims for race discrimination
and retaliation based on Turner’s April 15, 2014 suspension for not removing a chair from his
work area. The court WILL DISMISS WITHOUT PREJUDICE all remaining claims.
The court will enter a separate order consistent with this Memorandum Opinion.
Dated this 3rd day of December, 2015.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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