Herard v. UAB Hematology/Oncology et al

Filing 31

MEMORANDUM OPINION AND ORDER. Signed by Judge Madeline Hughes Haikala on 6/4/21. (MRR, )

FILED
2021 Jun-04 PM 04:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

BETTY HERARD,
Plaintiff,
v.
UNIVERSITY OF ALABAMA AT
BIRMINGHAM,

}
}
}
}
}
}
}
}
}

Case No.: 2:19-CV-02130-MHH

Defendant.
MEMORANDUM OPINION AND ORDER
In this employment case, plaintiff Betty Herard is proceeding pro se, meaning
without the assistance of an attorney. She alleges that the University of Alabama at
Birmingham violated Title VII of the Civil Rights Act of 1964 and the Age
Discrimination in Employment Act. (Doc. 5). Pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, the Board of Trustees for the University of
Alabama has asked the Court to dismiss Ms. Herard’s amended complaint for failure
to state a claim upon which relief can be granted. (Doc. 11). 1 For the reasons stated
in this opinion, the Court grants the Board’s motion to dismiss.

1

Ms. Herard names “UAB” as the defendant in her amended complaint. (Doc. 5, p. 1). The proper
name of the defendant is the Board of Trustees for the University of Alabama. Therefore, the
Court will refer to the Board as the defendant in this matter.
1

MOTION TO DISMISS STANDARD
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). A Rule
12(b)(6) motion to dismiss tests the sufficiency of a complaint against the “liberal
pleading standards set forth by Rule 8(a)(2).” Erickson v. Pardus, 551 U.S. 89, 94
(2007). 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). “Generally, to survive a [Rule 12(b)(6)] motion to dismiss and meet the
requirement of FED. R. CIV. P. 8(a)(2), a complaint need not contain ‘detailed factual
allegations,’ but rather ‘only enough facts to state a claim to relief that is plausible
on its face.’” Maledy v. City of Enterprise, 2012 WL 1028176, *1 (M.D. Ala. March
2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)).
“Specific facts are not necessary; the statement need only ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.’” Erickson, 551
U.S. at 93 (quoting Twombly, 550 U.S. at 555).
“Thus, the pleading standard set forth in Federal Rule of Civil Procedure 8
evaluates the plausibility of the facts alleged, and the notice stemming from a
complaint’s allegations.” Keene v. Prine, 477 Fed. Appx. 575, 583 (11th Cir. 2012).
“Where those two requirements are met … the form of the complaint is not
significant if it alleges facts upon which relief can be granted, even if it fails to
2

categorize correctly the legal theory giving rise to the claim.” Keene, 477 Fed. Appx.
at 583.
This is particularly true with respect to pro se complaints. Courts must
liberally construe pro se complaints. Erickson, 551 U.S. at 94. “‘[A] pro se
complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.’” Erickson, 551 U.S. at 94. (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)); see also Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998) (“Pro se pleadings are held to a less stringent standard
than pleadings drafted by attorneys and will, therefore, be liberally construed.”). 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 in order to sustain an action.” Ausar-El ex. rel. Small, Jr. v. BAC
(Bank of America) Home Loans Servicing LP, 448 Fed. Appx. 1, 2 (11th Cir. 2011)
(internal quotations and citations omitted).
When evaluating a Rule 12(b)(6) motion to dismiss, a district court accepts as
true the allegations in the complaint and construes the allegations in the light most
favorable to the plaintiff. See Brophy v. Jiangbo Pharms. Inc., 781 F.3d 1296, 1301
(11th Cir. 2015). Therefore, the Court construes all factual allegations and the
reasonable inferences from those allegations in the light most favorable to Ms.
Herard.
3

FACTUAL ALLEGATIONS
Betty Herard is a Black Haitian-American woman, and she is over 40 years
old. (Doc. 5, p. 1, ¶ 1). On February 11, 2019, UAB hired Ms. Herard as a Clinical
Trials Administrator in the Hematology/Oncology Department. (Doc. 5, p. 1, ¶ 1).
Ms. Herard alleges that she “endured several discriminatory and disparaging
statements against [her] national origin, age[,] and race.” (Doc. 5, p. 1, ¶ 2). These
statements included, “I need to know my place in the South,” “My credentials have
me believing I have overcome,” and “I need to be planning my retirement at my age
as opposed to applying for a doctorate program.” (Doc. 5, p. 1, ¶ 2). Ms. Herard
does not allege who made these statements, when the statements were made, or
whether the statements were made to her or another individual. Drawing reasonable
inferences from this allegation in Ms. Herard’s favor, the Court infers that other
UAB employees directed these comments to Ms. Herard.
In her EEOC charge, Ms. Herard explained that at some point between April
and May 2019, she asked Dr. Julie Kanter, an Associate Professor in UAB’s
Hematology/Oncology Department, how to pursue a pay increase. (Doc. 5, p. 4).
After Dr. Kanter told Ms. Herard that she could not help her with her wages, Ms.
Herard spoke with a representative in UAB’s Human Resources Department. (Doc.
5, p. 4). Ms. Herard alleges that Dr. Kanter was upset “because allegedly I went
over her head.” (Doc. 5, p. 4).
4

On June 20, 2019, Dr. Kanter gave Ms. Herard a verbal warning for
unsatisfactory job performance and misconduct, and Ms. Herard was put on a
Performance Improvement Plan. (Doc. 5, p. 4). Ms. Herard denied the reported
misconduct and asked Human Resources to remove the write-up from her file, which
the HR representative refused to do. (Doc. 5, p. 4). Ms. Herard sought early transfer
to a different position to address her financial concerns, but Dr. Kanter extended Ms.
Herard’s probationary period, preventing a transfer. (Doc. 5, p. 4). On August 9,
2019, Ryan Outman, UAB’s Division Administrator for the Hematology/Oncology
Department, gave Ms. Herard a written warning and a letter requesting her
resignation to avoid an extension of the probationary period. (Doc. 5, p. 4). Ms.
Herard “was coerced under distress to resign [her] position effective October 31,
2019.” (Doc. 5, pp. 4–5).
Ms. Herard indicated in her September 2019 EEOC charge that she believed
she was discriminated against because of race, national origin, and age and that she
was retaliated against in violation of Title VII and the Age Discrimination in
Employment Act of 1967. (Doc. 5, pp. 4–5).
After receiving a right to sue letter from the EEOC, Ms. Herard timely filed
this federal lawsuit against UAB Hematology/Oncology, Dr. Kanter, Mr. Outman,
Emily Warner, and Dr. Ayesha Bryant for violations of Title VII and the ADEA.
(Doc. 1). Ms. Herard filed an amended complaint against only UAB on March 17,
5

2020. (Doc. 5). The Board of Trustees for the University of Alabama then filed its
motion to dismiss this action. (Doc. 11). 2
ANALYSIS
In the discussion that follows, the Court first addresses Ms. Herard’s
allegations of race and national origin discrimination under Title VII and then turns
to the doctrine of Eleventh Amendment immunity as it pertains to Ms. Herard’s
ADEA claim against the Board.
A. Title VII

2

In her response to the Board’s motion to dismiss, Ms. Herard describes facts that she did not
include in her complaint, amended complaint, or September 2019 EEOC charge about hostile
treatment from colleagues in UAB’s Anesthesiology Department in 2018, predating Ms. Herard’s
employment in UAB’s Hematology/Oncology Department. (Doc. 29, p. 7). Because the Court
must determine whether the factual allegations in Ms. Herard’s amended complaint are sufficient
to state a claim against the Board, the Court has not accounted for the new factual allegations in
Ms. Herard’s opposition to the Board’s motion to dismiss.
Were those facts included in Ms. Herard’s amended complaint as the basis for additional claims
against the Board, the Board would be able to challenge the additional claims as unexhausted
because Ms. Herard did not complain about the conduct of employees in UAB’s Anesthesiology
Department in her September 2019 EEOC charge. To the extent that Ms. Herard might attempt to
rely on a November 2018 or April 2019 EEOC charge that she mentions in her opposition brief
but has not placed in the record to establish exhaustion, claims based on conduct that allegedly
occurred while she worked in UAB’s Anesthesiology Department in 2018 likely would be
untimely. See 29 C.F.R. § 1626.7(a); see also Hipp v. Liberty National Life Ins. Co., 252 F.3d
1208, 1214 n. 2, 1220 (11th Cir. 2001) (explaining that plaintiffs in “non-deferral” states, which
are those states that do not have “state entities authorized to grant or seek relief for victims of . . .
discrimination,” must file their charges of discrimination within 180 days of the allegedly
discriminatory acts).
To the extent that Ms. Herard mentions the conduct of employees in another UAB department as
evidence of the discriminatory intent of employees in UAB’s Hematology/Oncology Department,
the Court need not consider those allegations at this stage of the litigation because Ms. Herard did
not allege those facts in her amended complaint.
6

Under Title VII, it is unlawful for an employer “to discriminate against any
individual with respect to his 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). Reading her original complaint, amended
complaint, and EEOC charge together liberally, Ms. Herard asserts claims for
disparate treatment, harassment or a hostile work environment, and retaliation in
violation of Title VII.
Disparate Treatment
Ms. Herard contends that she suffered from discrimination because of her race
and national origin. Ms. Herard alleges that Dr. Kanter refused to help her pursue a
pay raise and that she was coerced by a member of UAB’s Hematology/Oncology
Department into resigning from her position after she spoke to a UAB Human
Resources representative about a pay raise. (Doc. 5, pp. 4–5).
To state a claim for disparate treatment under Title VII, an employee must
“provide enough factual matter to plausibly suggest intentional discrimination.”
Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1253 (11th Cir. 2017). At a minimum, a
Title VII plaintiff must allege that “‘(1) the defendant took an adverse employment
action against [her]; and (2) [a protected characteristic] was a motivating factor for
the defendant’s adverse employment action.’” Quigg v. Thomas Cnty. Sch. Dist.,

7

814 F.3d 1227, 1239 (11th Cir. 2016) (quoting White v. Baxter Healthcare Corp.,
533 F.3d 381, 400 (6th Cir. 2008)); see 42 U.S.C. § 2000e–2(m).
Ms. Herard has not adequately alleged facts that support her assertion that the
Board intentionally discriminated against her based on her race or national origin.
For factual allegations to support a claim of disparate treatment under Title VII, the
facts must concern different treatment based on a protected characteristic of the
plaintiff. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998)
(holding that Title VII does not set forth “a general civility code for the American
workplace”); Gupta v. Florida Bd. of Regents, 212 F.3d 571, 583 (11th Cir. 2000),
abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53 (2006) (holding that “[i]nnocuous statements or conduct, or boorish ones that do
not relate to the sex [or another protected characteristic] of the actor or of the
offended party (the plaintiff),” are not actionable under Title VII).
Here, Ms. Herard alleges that Dr. Kanter was unwilling to help her pursue a
pay raise, but Ms. Herard does not allege that Dr. Kanter was in a position to help
her get a pay raise or that Dr. Kanter helped other employees get raises but refused
her because she is a Black Haitian-American. Ms. Herard has not alleged that Dr.
Kanter made discriminatory statements to her or to others about her. At most, Ms.
Herard’s allegations concerning Dr. Kanter evidence a lack of collegiality and
possible retaliation because Ms. Herard went over Dr. Kanter’s head, but there is no
8

allegation concerning Dr. Kanter that suggests that Ms. Herard’s race or national
origin motivated Dr. Kanter’s conduct.
Accordingly, the Court will dismiss Ms. Herard’s Title VII claim for disparate
treatment.
Harassment/Hostile Work Environment
To the extent that Ms. Herard asserts a Title VII claim for harassment or a
hostile work environment, that claim also fails on the facts alleged. Title VII
prohibits an employer from maintaining a “‘workplace . . . permeated with
‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citation
omitted). Unlike disparate treatment claims that involve discrete acts, “[a] hostile
work environment claim depends on ‘a series of separate acts that collectively
constitute one unlawful employment practice.’” Chambliss v. Louisiana–Pacific
Corp., 481 F.3d 1345, 1349 n. 1 (11th Cir.2007) (quoting Nat'l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 117 (2002)) (internal quotations omitted). To establish a
Title VII claim for hostile work environment, a plaintiff must show:
“(1) that [s]he belongs to a protected group; (2) that [s]he has been
subject to unwelcome harassment; (3) that the harassment must have
been based on a protected characteristic of the employee, such as
national origin; (4) that the harassment was sufficiently severe or
pervasive to alter the terms and conditions of employment and create a
discriminatorily abusive working environment; and (5) that the
9

employer is responsible for such environment under either a theory of
vicarious or of direct liability.”
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). The
severe or pervasive element has two components: the plaintiff must subjectively
perceive the conduct as hostile or abusive, and the conduct must be objectively
hostile or abusive. Miller, 277 F.3d at 1276. Under the objective prong, courts
consider “(1) the frequency of the conduct; (2) the severity of the conduct; (3)
whether the conduct is physically threatening or humiliating, or a mere offensive
utterance; and (4) whether the conduct unreasonably interferes with the employee’s
job performance.” Miller, 277 F.3d at 1276.
With respect to Title VII, Ms. Herard alleges that someone remarked that she
“need[ed] to know her place in the South” and that her credentials had her believing
that she had “overcome.” These remarks are race-based and derogatory, but without
more, they do not suffice to support a hostile work environment claim under Miller
because Ms. Herard has not explained who made the statements, how often the
statements were made over the six-month period that she worked at in UAB’s
Hematology/Oncology Department, or how the statements impacted her work.
On the record before the Court, Ms. Herard has not pleaded facts that indicate
that that she suffered from severe or pervasive race-based or national-origin based
hostile conduct. Therefore, the Court will grant the Board’s motion to dismiss
regarding Ms. Herard’s Title VII hostile work environment claim.
10

Retaliation
Ms. Herard alleges in her September 2019 EEOC charge that Dr. Kanter
retaliated against her because Ms. Herard “went over her head” to ask someone in
Human Resources how she could obtain a pay raise. (Doc. 5, pp. 4–5). After Ms.
Herard spoke with the HR representative, Dr. Kanter allegedly gave Ms. Herard a
verbal warning for unsatisfactory job performance and extended Ms. Herard’s
probationary period, which prevented Ms. Herard from transferring to a more
lucrative position.

(Doc. 5, pp. 4–5).

Then, Mr. Outman in UAB’s

Hematology/Oncology Department gave Ms. Herard a letter in which she was asked
to resign. (Doc. 5, pp. 4–5).
To state a claim of retaliation under Title VII, “a plaintiff must first show (1)
that ‘she engaged in statutorily protected activity,’ (2) that ‘she suffered an adverse
action,’ and (3) ‘that the adverse action was casually related to the protected
activity.’” Gogel v. Kia Motors Mfg. of Georgia, Inc., 967 F.3d 1121, 1134–35 (11th
Cir. 2020) (citing Jefferson v. Sewon Am., Inc., 891 F.3d 911, 924 (11th Cir. 2018));
see also Bryant v. Jones, 575 F.3d 1281, 1307–08 (11th Cir. 2009). A plaintiff
alleging a retaliation claim under Title VII “must establish that his or her protected
activity was a but-for cause of the alleged adverse action by the employer.” Uni. of
Texas SW Med. Center v. Nassar, 570 U.S. 338, 362 (2013). “In other words, ‘a
11

plaintiff must prove that had she not [engaged in the protected conduct], she would
not have been fired.’” Gogel, 967 F.3d at 1135 (quoting Jefferson, 891 F.3d at 924).
An employee engages in statutorily protected activity “if (1) ‘[she] has
opposed any practice made an unlawful employment practice by this subchapter’
(the opposition clause) or (2) ‘[she] has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
subchapter’ (the participation clause).” Clover v. Total. Sys. Servs., Inc., 176 F.3d
1346, 1350 (11th Cir. 1999) (quoting 42 U.S.C. § 2000e-(3)(a)). As to the latter test,
Ms. Herard has not alleged in her complaint, her amended complaint, or her
September 2019 EEOC charge that she made a charge or participated in a Title VII
proceeding.
To state a claim for retaliation based on opposition conduct, a plaintiff must
establish both that she subjectively believed the employer was engaged in unlawful
employment practices when she opposed the conduct and that her belief was
objectively reasonable. See Little v. United Techs., Carrier Transicold Div., 103
F.3d 956, 960 (11th Cir. 1997). Ms. Herard has not alleged that she took steps to
oppose race or national origin discrimination at UAB that prompted Dr. Kanter to
retaliate against her. Again, Ms. Herard’s allegations concerning Dr. Kanter have
nothing to do with race, and Ms. Herard has not alleged in her complaints or in her
current EEOC charge that she complained to someone at UAB about the race-based
12

statements that she heard while working in UAB’s Hematology/Oncology
Department. 3
Because Ms. Herard has not alleged that Dr. Kanter or someone else at UAB
retaliated against her for protected conduct, the Court will grant the Board’s motion
to dismiss as to her retaliation claim.
B. Age Discrimination in Employment Act
Ms. Herard alleges that she was discriminated against because of her age in
violation of the Age Discrimination in Employment Act when she was told that she
needed to be planning her retirement “at [her] age as opposed to applying for a
doctorate program.” (Doc. 5, p. 1, ¶ 2). The Board argues that under the Eleventh
Amendment, it is immune from Ms. Herard’s ADEA claim. (Doc. 11, pp. 16–17).
The ADEA “prohibits employers from ‘fail[ing] or refus[ing] to hire or to
discharge any individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because
of such individual’s age.’” Ashkenazi v. S. Broward Hosp. Dist., 607 Fed. Appx.

Again, in her brief in opposition to the Board’s motion to dismiss, Ms. Herard describes EEOC
charges that pre-date the September 2019 EEOC charge in which Ms. Herard exhausted her current
claims. (Doc. 5, p. 4; Doc. 29, p. 7). Ms. Herard analogizes her treatment in UAB’s Hematology
Department to her previous experiences in UAB’s Anesthesiology Department. (Doc. 29, pp. 7–
9). Even if information concerning other EEOC charges appeared in Ms. Herard’s current
complaint and was properly before the Court, Ms. Herard has not alleged that anyone in UAB’s
Hematology Department was aware of her complaints about conduct in UAB’s Anesthesiology
Department such that actions taken in the Hematology Department might be viewed as retaliation
for complaints that Ms. Herard made concerning UAB employees in UAB’s Anesthesiology
Department.
3

13

958, 961 (11th Cir. 2015) (quoting 29 U.S.C. § 623(a)(1)); see also Sims v. MVM,
Inc., 704 F.3d 1327, 1331–32 (11th Cir. 2013). The ADEA provides to individuals
who are at least 40 years of age a cause of action against their employers for
employment discrimination based on the individuals’ age. 29 U.S.C. § 623.
But public employers like the Board may be immune from these claims. The
Eleventh Amendment states:
The Judicial power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against one of
the United States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.
U.S. CONST. amend. XI. The Eleventh Amendment shields unconsenting states from
private suits in federal courts, which means plaintiffs ordinarily cannot sue states in
federal court for money damages. States and state agencies are entitled to Eleventh
Amendment immunity for ADEA claims. See Kimel v. Fla. Bd. of Regents, 528
U.S. 62, 91–92 (2000). In Alabama, boards of trustees for public universities are
agents of the State. See Shuler v. Board of Trustees of Uni. Of Ala., 480 Fed. Appx.
540, 544 (11th Cir. 2012) (holding that the Board of Trustees for the University of
Alabama is entitled to Eleventh Amendment Immunity from ADEA claims).
The Board, as an agent of the state of Alabama, is immune from Ms. Herard’s
ADEA claim because the Board is entitled to Eleventh Amendment immunity.
Therefore, the Court will dismiss Ms. Herard’s ADEA claim against the Board.

14

CONCLUSION
For the reasons stated above, the Court grants the Board’s motion to dismiss.
The Court dismisses Ms. Herard’s Title VII claims against the Board without
prejudice for failure to state a claim and dismisses her ADEA claim against the
Board with prejudice because the Board is immune from the claim.
DONE and ORDERED this June 4, 2021.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

15