Jenkins v. Security Engineers Inc
Filing
15
MEMORANDUM OPINION AND ORDER The court GRANTS IN PART AND DENIES IN PART Security Engineers's motion to dismiss and motion for a more definite statement. (Doc. 12).The Court DISMISSES WITH PREJUDICE Ms. Blackmore-Jenkins's OSHA retaliation claim.Ms. Blackmore-Jenkins's Title VII sexual harassment, ADEA age discrimination, Title VII hostile work environment and retaliation, and FLSA wage and hour claims state plausible claims for relief and will proceed. Within 14 days of entry of this order, Security Engineers shall file an answer to the amended complaint. Unless instructed otherwise by this court, the parties shall conduct discovery consistent with the May 9, 2018 scheduling order. (Doc.10).(TLM, )
FILED
2018 Jun-27 PM 01:12
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PAMELA BLACKMORE
JENKINS,
Plaintiff,
v.
SECURITY ENGINEERS, INC.,
Defendant.
}
}
}
}
}
}
}
}
}
}
Case No.: 2:18-cv-00309-ACA
MEMORANDUM OPINION AND ORDER
This is an employment discrimination action. The case is before the court
on defendant Security Engineers, Inc.’s motion to dismiss pro se plaintiff Pamela
Blackmore-Jenkins’s amended complaint and motion for a more definite statement.
(Doc. 12). Security Engineers asks the court to dismiss Ms. Blackmore-Jenkins’s
OSHA retaliation claim.
Security Engineers asks the court to require Ms.
Blackmore-Jenkins to re-plead her remaining claims.
Ms. Blackmore-Jenkins responded to the motion. (Doc. 14). She contends
that pursuant to Rule 8 of the Federal Rules of Civil Procedure, her amended
complaint provides a short and plain statement that puts Security Engineers on
notice of the claims that she asserts her former employer.
For the reasons explained below, the Court finds that Security Engineers’s
motion is due to be granted in part and denied in part.
I.
STANDARD OF REVIEW
Pursuant to Rule 8(a)(2), a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). Rule 12(b)(6) enables a defendant to move to dismiss a complaint for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6).
To survive a motion to dismiss, a complaint must “state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plausible
claim for relief requires “enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence” to support the claim. Twombly, 550 U.S. at 556.
A complaint need not contain detailed factual allegations, but a complaint must
contain “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
When resolving a motion to dismiss, the court must “accept[] the allegations
in the complaint as true and constru[e] them in the light most favorable to the
2
plaintiff.” Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291, 1297 (11th Cir.
2015) (quoting Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) (per curiam)).
Although the court must accept well-pleaded facts as true, the court is “not bound
to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550
U.S. at 555.
When, as here, a plaintiff proceeds pro se, the court must liberally construe
the complaint.
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
“‘[A] pro se
complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.’” Id. (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). Cf. Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do
justice.”).
Still, the court may not “serve as de facto counsel for a party,
or . . . rewrite an otherwise deficient pleading” to “sustain an action.” Campbell v.
Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014) (internal quotations and
citations omitted). In other words, “[o]nce a pro se litigant is in court, [s]he is
subject to the relevant laws and rules of court, including the Federal Rules of Civil
Procedure.” Smith v. Fla. Dept. of Corr., 369 F. App’x. 36, 38 (11th Cir. 2010)
(citing Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989)).
II.
FACTUAL ALLEGATIONS
3
Ms. Blackmore-Jenkins is over 40-years old. (Doc. 11, p. 3). She started
working for Security Engineers in July 2015, and at an unspecified time, Security
Engineers terminated her employment. (Doc. 11, p. 1, ¶ 3; Doc. 11, p. 9).
While she was employed, Ms. Blackmore-Jenkins filed a complaint with
Security Engineers in which she stated that other employees sexually harassed her.
Specifically, Ms. Blackmore-Jenkins “made complaints of sexual comments, visual
displays, actions of sexual intimidation and physical touching in a secluded room.”
(Doc. 11, p. 2, ¶ 4). According to Ms. Blackmore-Jenkins, one month after she
filed her complaint, a co-worker pushed Ms. Blackmore-Jenkins “against the ladies
bathroom door, pressing her body and breast firmly against” Ms. BlackmoreJenkins. (Doc. 11, p. 2, ¶ 5). Ms. Blackmore-Jenkins “immediately wrote a letter
to Human Resources.” (Doc. 11, p. 2, ¶ 5).
In her amended complaint, Ms. Blackmore-Jenkins alleges that one month
after she wrote the letter to human resources:
Captain Adams Jenkins was working Patrol. Captain Jenkins was
lingering in the dispatch office more than usual. I was sitting with my
back facing the copier, the phone was to my left. Captain Jenkins
stood behind my office chair. Moving and pressing against the chair,
caused the chair to swivel to the left. I slid the chair forward to give
him some room and get him off of the chair. With my glasses on, I
dropped my head forward, to pretend I was reading. He used the
dispatch phone to make a call. He continued to stand behind the chair
while talking and consistently rotating and moving the chair. He
rotated the chair to rub his pelvic area with an erected penis against
my arm. I forcefully slid my chair forward. He slid the chair back
toward his and he said, “You Alright.” As if there was enough space
4
between the two of us. As he was proceeding to leave, he stated,
“Stay awake now.” I wrote the complaint and slid it under Mims
door, Joel’s door and placed it under some papers on Marvin’s desk.
(Doc. 11, p. 2, ¶ 6).
Ms. Blackmore-Jenkins also contends that:
Joel Morris, Director of Operations was at work on the late shift.
Marvin Wells was working in dispatch and a Captain was in the
building. He asked to speak to me in the conference room in regards
to the note I left in Human Resources to be submitted to Dan Bottoms.
He yelled, “He didn’t give a f[***] what I recorded.[”] He asked,
“How much do we owe you? Then he stated, what do we you about
$35,000.00, I can give you a check right now.[”] After comments
back and forth I walked out, to go back to the dispatch office. I
stepped in the office to talk and listen. He closed the door and turned
off the light. Immediately, he grabbed me and I stood there and said,
to him. “Let me go, If you don’t believe me I can f[******] handle
my on [sic].” He released me and open[ed] the door. I walked back
into the dispatch office and he told me to go home.
(Doc. 11, p. 2, ¶ 7).
Ms. Blackmore-Jenkins alleges that Security Engineers did not respond to
her complaints of harassment. (Doc. 11, p. 2, ¶ 9). Instead, according to Ms.
Blackmore-Jenkins, after she complained about sexual harassment, Security
Engineers reduced her pay and opportunities to earn overtime. (Doc. 11, p. 6, ¶
10). Security Engineers also posted a picture of Ms. Blackmore-Jenkins in the
office, and employees made gestures toward the picture “as they laughed and
joked.” (Doc. 11, p. 7, ¶ 16).
5
In addition to sexual harassment, Ms. Blackmore-Jenkins complained about
age discrimination and harassment.
(Doc. 11, p. 3, ¶ 6).
Before Security
Engineers terminated her employment, Ms. Blackmore-Jenkins filed a complaint in
which she stated that Security Engineers treated a similarly-situated employee,
Erika Robertson, more favorably than the company treated her. Ms. BlackmoreJenkins’s complaints included, but were not limited to Ms. Robertson’s tardiness,
cell phone use, long lunch breaks, and work performance. (Doc. 11, p. 3). In her
amended complaint, Ms. Blackmore-Jenkins alleges that “Erika Robertson has
falsified her hours and time and made several threats directed and written to
Pamela Blackmore Jenkins.
She was not equally disciplined nor was she
disciplined at all, when compared to Pamela Blackmore Jenkins, for her actions. . .
.” (Doc. 11, p. 3). According to Ms. Blackmore-Jenkins, after her termination,
Security Engineers replaced her with two employees who are under the age of 40.
(Doc. 11, pp. 3-5).
Ms. Blackmore-Jenkins also complained about not being paid for working
hours at different sites and not being paid overtime.
(Doc. 11, p. 8, ¶ 1).
According to Ms. Blackmore-Jenkins, Security Engineers “did not put in [her]
hours worked at each location,” and the company “did not pay overtime for hours
worked.” (Doc. 11, p. 8, ¶ 1).
6
In addition, Ms. Blackmore-Jenkins alleges that she filed a complaint with
the Occupational Safety and Health Administration (OSHA) in which she voiced
“safety concerns regarding patrol vehicles, general safety concerns, reporting a
female (co-worker) that created a hostile work environment and reporting an
employee for operating a vehicle under the influence of alcohol/illegal drug use.”
(Doc. 11, p. 9, ¶ 2). Ms. Blackmore-Jenkins also complained about “operating
vehicles without proper maintenance” which “caused several accidents injuring
employees.” (Doc. 11, p. 9). After Ms. Blackmore-Jenkins filed complaints with
OSHA, she claims that Security Engineers demoted her from dispatcher to security
officer and then terminated her employment with the company. (Doc. 11, p. 9).
Based on these allegations, Ms. Blackmore-Jenkins asserts five claims
against Security Engineers: (1) Title VII sexual harassment; (2) ADEA age
discrimination; (3) Title VII hostile work environment and retaliation; (4) FLSA
wage and hour violations; and (5) OSHA retaliation.
III.
ANALYSIS
A.
OSHA Retaliation
In count five of her amended complaint, Ms. Blackmore-Jenkins alleges that
Security Engineers retaliated against her after she reported unsafe working
conditions to OSHA. Ms. Blackmore-Jenkins’s OSHA retaliation claim fails to
state a claim because OSHA affords her no private right of action.
7
OSHA prohibits an employer from discriminating or retaliating against
employees who file OSHA complaints. See 29 U.S.C. § 660(c)(1) (“No person
shall discharge or in any manner discriminate against any employee because such
employee has filed any complaint or instituted or caused to be instituted any
proceeding under or related to this chapter or has testified or is about to testify in
any such proceeding or because of the exercise by such employee on behalf of
himself or others of any right afforded by this chapter.”). But, according to the
statute, only the Secretary of Labor is authorized to bring suit on behalf of an
employee who claims that an employer has retaliated against her for exercising her
rights under OSHA. 29 U.S.C. § 660(c)(2) provides:
Any employee who believes that he has been discharged or otherwise
discriminated against by any person in violation of this subsection
may, within thirty days after such violation occurs, file a complaint
with the Secretary alleging such discrimination. Upon receipt of such
complaint, the Secretary shall cause such investigation to be made as
he deems appropriate. If upon such investigation, the Secretary
determines that the provisions of this subsection have been violated,
he shall bring an action in any appropriate United States district court
against such person. In any such action the United States district
courts shall have jurisdiction, for cause shown to restrain violations of
paragraph (1) of this subsection and order all appropriate relief
including rehiring or reinstatement of the employee to his former
position with back pay.
29 U.S.C. § 660(c)(2).
In a case that is binding on this court, the former Fifth Circuit Court of
Appeals stated that “[n]owhere in the language of the Act, its legislative history, or
8
in the statutory declaration of purpose and policy in the Act itself is there the
slightest implication that Congress considered OSHA creating a private right of
action for violation of its terms.” Jeter v. St. Regis Paper Co., 507 F.2d 973, 976
(5th Cir. 1975).1 This position is consistent with other courts that have considered
the issue. See e.g., Donovan v. Occupational Safety and Health Review Comm’n,
713 F.2d 918, 926 (2d Cir. 1983) (“[E]mployees have a limited role in the
enforcement of the Act. Under OSHA, employees do not have a private right of
action.”); Solis v. Blue Bird Corp., 404 F. App’x. 412, 413, n.1 (11th Cir. 2010)
(“This action was initiated and litigated by the Secretary of Labor on behalf of [the
former employee] in accordance with the provisions of 29 U.S.C. § 660(c)(2).”);
Perez v. Renaissance Arts and Educ., Inc., 2013 WL 5487097, at *1 (M.D. Fla.
2013) (“There is no private right of action under federal law for a private
employer’s retaliatory discharge under OSHA.”) (citing George v. Aztec Rental
Ctr., Inc., 763 F.2d 184, 186 (5th Cir. 1985)).
Accordingly, the court does hereby DISMISS Ms. Blackmore-Jenkins’s
OSHA retaliation claim.
B.
Remaining Claims
1
In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions of the former Fifth Circuit issued before
October 1, 1981.
9
Security Engineers argues that the court should require Ms. BlackmoreJenkins to re-plead her remaining claims because according to Security Engineers,
the amended complaint does not comply with Rules 8 and 10(b) of the Federal
Rules of Civil Procedure.
Given the liberal standard that applies to pro se
pleadings and the nature of the factual allegations that Ms. Blackmore-Jenkins has
provided in the amended complaint, the court disagrees.
Security Engineers is correct that Ms. Blackmore-Jenkins’s amended
complaint does not comply in every respect with Rule 10(b)’s instruction that “[a]
party must state its claims . . . in numbered paragraphs, each limited as far as
practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b). For instance,
the first two pages of the amended complaint contain separately numbered
paragraphs in chronological order. (Doc. 11, pp. 1-2). The remaining pages of the
amended complaint contain factual allegations under various headings and some
numbered paragraphs that do not appear to follow a consistent format or order.
(Doc. 11, pp. 3-10). Nevertheless, the court finds that Ms. Blackmore-Jenkins has
satisfied the federal pleading standard to provide “a short and plain statement” of
the claims that she asserts against Security Engineers. The claims are clearly
labeled.
(Doc. 11, p. 1 (“Sexual Harassment”); Doc. 11, p. 3 (“The Age
Discrimination in Employment Act”); Doc. 11, p. 6 (“Harassment including
Hostile Work Environment and retaliation”); Doc. 11, p. 8 (“FLSA Hours and
10
Wage”)). And Ms. Blackmore-Jenkins provides sufficient facts—and in many
instances detailed facts—to support each claim. Thus, the court finds that Ms.
Blackmore-Jenkins’s amended complaint is not “so vague or ambiguous” that
Security Engineers “cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e).
In addition, the court finds that the amended complaint sufficiently states claims
for Title VII sexual harassment, ADEA age discrimination, Title VII hostile work
environment and retaliation, and FLSA wage and hour violations.
Accordingly, the court DENIES Security Engineers’s motion for a more
definite statement.
IV.
CONCLUSION
For the reasons stated above, the court GRANTS IN PART AND DENIES
IN PART Security Engineers’s motion to dismiss and motion for a more definite
statement. (Doc. 12).
The Court DISMISSES WITH PREJUDICE Ms. Blackmore-Jenkins’s
OSHA retaliation claim.
Ms. Blackmore-Jenkins’s Title VII sexual harassment, ADEA age
discrimination, Title VII hostile work environment and retaliation, and FLSA wage
and hour claims state plausible claims for relief and will proceed.
Within 14 days of entry of this order, Security Engineers shall file an
answer to the amended complaint.
11
Unless instructed otherwise by this court, the parties shall conduct discovery
consistent with the May 9, 2018 scheduling order. (Doc. 10).
DONE and ORDERED this June 27, 2018.
_________________________________
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?