Cox v. Colsa Corporation

Filing 47

MEMORANDUM OPINION and ORDER as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 08/06/14. (SPT )

FILED
2014 Aug-06 AM 11:38
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ANGELA K. COX,
Plaintiff,
vs.
COLSA CORPORATION,
Defendant.

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Civil Action No. CV-13-S-2121-NE

MEMORANDUM OPINION AND ORDER
Plaintiff, Angela K. Cox, who is proceeding pro se, filed a complaint on
November 23, 2013, against defendant Colsa Corporation (“Colsa”), her former
employer.1 Plaintiff failed to delineate specific counts or causes of action in her
complaint. Even so, it appeared that she intended to assert claims of employment
discrimination and/or retaliation against Colsa, along with a state-law claim of
defamation.2

1
2

Doc. no. 1.

See id. at ECF 17–18, 24. “ECF is the acronym for Electronic Case Filing, a filing system
that allows parties to file and serve documents electronically.” Atterbury v. Foulk, No. C-07-6256
MHP, 2009 WL 4723547, *6 n.6 (N.D. Cal. Dec. 8, 2009). Bluebook Rule 7.1.4 allows citation “to
page numbers generated by the ECF header.” Wilson v. Fullwood, 772 F. Supp. 2d 246, 257 n.5 (D.
D.C. 2011) (citing The Bluebook: A Uniform System of Citation R.B. 7.1.4, at 21 (Columbia Law
Review Ass’n et al. eds., 19th ed. 2010)). Even so, the Bluebook recommends “against citation to
ECF pagination in lieu of original pagination.” Wilson, 772 F. Supp. 2d at 257 n.5. Thus, unless
stated otherwise, this court will cite to the original pagination in the parties’ pleadings. When the
court cites to pagination generated by the ECF header, it will, as here, precede the page number with
the letters “ECF.”

The factual allegations of plaintiff’s complaint were voluminous, wide-ranging,
and repetitive, but after several readings it ultimately became clear that she was, in
essence, complaining about two specific incidents: i.e., that she had been subject to
and “experienced a hostile working environment when [her] Program Manager[,]
Mike Whitlock[,] screamed, yelled[,] and pointed his finger in [her] face several
time[s] since [she began her] employment with Colsa Corporation”; and that, “[o]n
August 14, 2012[,] . . . plaintiff [received] a letter in the mail stating that [she had
been] involuntarily terminated due to falsified time sheets . . . .”3 Plaintiff alleged
that she lost her security clearance as a result of her termination, and that she has been
unable to find similar employment.4 Plaintiff further alleged that she was fired in
retaliation for her complaining to the Human Resources Department about Mike
Whitlock’s “rude and intimidati[ng] behavior,” because she reported “illegal activity
by Mike Whitlock when he asked for a false signature by Brenda Cooper,” and
because she “witnessed Mike Whitlock and his assistant . . . in an unethical
relationship.”5
It is important to note that none of the statements from plaintiff’s complaint
that are quoted in the immediately preceding paragraph alleged that Mike Whitlock’s
3

Id. at ECF 2, 15 (alterations and ellipses supplied).

4

See id. at ECF 15–16.

5

See, e.g., id. at ECF 6, 19–20, 24 (alterations and ellipses supplied).
2

behavior related in any way to characteristics that are protected by any of the federal
employment discrimination statutes: e.g., race, color, religion, sex, national origin,
age, disability, or family status. The confusion was not resolved by the attachment
to plaintiff’s complaint — i.e., a copy of the “Right to Sue” letter mailed to plaintiff
by the Equal Employment Opportunity Commission (“EEOC”) — because plaintiff
had neglected to attach a copy of the most important document: that is, the charge
of discrimination that she had filed with the EEOC.
Plaintiff filed a series of frivolous discovery motions between February 7 and
June 4, 2014, all of which were denied.6 In the process of reviewing those motions,
however, it became clear that plaintiff’s complaint failed to state a federal claim upon
which relief could be granted. Consequently, the court ordered plaintiff to show
cause why her complaint should not be dismissed.7
Plaintiff responded to that order with a pleading that classified her complaint
as attempting to state a “disability claim” under the Americans with Disabilities Act
6

See, e.g., doc. no. 11 (“Plaintiffs’ [sic] Motion to Compel Defendants to Produce Initial
Disclosures”); doc. no. 13 (Order denying motion to compel); doc. no. 18 (plaintiff’s motion to strike
the declaration of Catherine S. McDonald); doc. no. 23 (plaintiff’s motion to strike defendant’s
response to her motion to strike the declaration of Catherine S. McDonald); doc. no. 24 (plaintiff’s
motion for default judgment against Colsa Corporation and her second motion to compel); doc. no.
25 (Order denying all motions to strike); doc. no. 26 (Order denying plaintiff’s motion for default
judgment and plaintiff’s second motion to compel); doc. no. 31 (plaintiff’s third motion to compel);
doc. no. 33 (Order denying plaintiff’s third motion to compel); doc. no. 34 (plaintiff’s motion for
sanctions and second request for default judgment); doc. no. 35 (Order denying plaintiff’s motion
for sanctions and request for default judgment).
7

Doc. no. 36 (June 5, 2014 Order to Show Cause).
3

of 1990 (“ADA”), 42 U.S.C. § 12101 et seq.8 That responsive pleading stated that
plaintiff was “a qualified individual with a disability,” and alleged that plaintiff’s
supervisor, Mike Whitlock, “would frequently call attention to the Plaintiff’s
limitations,” and subjected her to “harassment, mockery of the Plaintiff’s disability,
unrelenting teasing, [and] unwelcome and hurtful jokes.”9
After reviewing plaintiff’s response to the show-cause order, this court ordered
her to file both an amended complaint incorporating those new facts and causes of
action, and a copy of the complaint she had filed with the EEOC.10
Plaintiff filed her amended complaint on June 25, 2014.11 That pleading added
four new defendants, all of whom were persons employed by the original defendant,
Colsa Corporation: i.e., Mike Whitlock, in both his individual capacity and his
official capacity as plaintiff’s supervisor; Susan Phillips, in her individual capacity;
Catherine McDonald, in her individual capacity; and Felicia Jefferson, in her
individual capacity and also in her official capacity as plaintiff’s supervisor.12 The
amended complaint asserted seven causes of action: i.e.,
(i)

“discrimination” against plaintiff on the basis of her disability,

8

See doc. no. 37 (Plaintiff’s June 12, 2014 Response to Show Cause Order), at ECF 1–2.

9

Id. at ECF 2, 6 (alterations supplied).

10

Doc. no. 38 (Order dated June 16, 2014).

11

Doc. no. 40 (“Plaintiffs’ [sic] First Amended Original Complaint”).

12

Id. ¶¶ 9–13.
4

under “Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. 2000e-16, and the Civil Rights Act of 1991, 42 U.S.C.
1981a,” as well as “the Americans with Disabilities Act of 1990”
(Count One);13
(ii)

“Retaliation” under Title VII (Count Two);14

(iii)

“Wrongful Termination” (Count Three);15

(iv)

“Breach of Good Faith and Fair Dealing” (Count Four);16

(v)

“Defamation” under “Article II - Sec 6-5-186” (Count Five);17

(vi) “Deceit and Misrepresentation” under “Title 6, Article 8, Section
6-5-101-103” (Count Six);18 and,
(vii) “Intentional Infliction of Emotional Distress” (Count Seven).19
The action now is before the court on the motion to dismiss filed by defendant
Colsa Corporation.20 The remaining individual defendants have not responded to the
amended complaint because they have not yet been served. Nevertheless, in the
interests of judicial economy, this court will consider, sua sponte, whether plaintiff
has stated a claim upon which relief can be granted by a United States District Court
13

See id. ¶ 14.

14

See id. ¶¶ 45–47.

15

See id. ¶¶ 48–54.

16

See id. ¶¶ 55–68.

17

See doc. no. 40 (“Plaintiffs’ [sic] First Amended Original Complaint”) ¶¶ 69–73.

18

See id. ¶¶ 74–79.

19

See id. ¶¶ 80–86.

20

Doc. no. 42 (Defendant’s Motion to Dismiss); see also doc. no. 45 (Supplement to Colsa’s
Motion to Dismiss).
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under federal statutes against any of the defendants.
I. STANDARDS OF REVIEW
Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss a
complaint for, among other reasons, “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). This rule must be read together with Rule 8(a),
which requires that a pleading contain only a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While that
pleading standard does not require “detailed factual allegations,” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 550 (2007), it does demand “more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citations omitted). As the Supreme Court stated in Iqbal:
A pleading that offers “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action will not do.” [Twombly,
550 U.S., at 555]. Nor does a complaint suffice if it tenders “naked
assertion[s]” devoid of “further factual enhancement.” Id., at 557.
To survive a motion to dismiss founded upon Federal Rule of
Civil Procedure 12(b)(6), [for failure to state a claim upon which relief
can be granted], a complaint must contain sufficient factual matter,
accepted as true, to “state a claim for relief that is plausible on its face.”
Id., at 570. 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. Id., at 556. The
plausibility standard is not akin to a “probability requirement,” but it
asks for more than a sheer possibility that a defendant has acted
unlawfully. Ibid. Where a complaint pleads facts that are “merely
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consistent with” a defendant’s liability, it “stops short of the line
between possibility and plausibility of ‘entitlement to relief.’” Id., at
557 (brackets omitted).
Two working principles underlie our decision in Twombly. First,
the tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions. Threadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements, do not suffice. Id., at 555 (Although for the purposes of a
motion to dismiss we must take all of the factual allegations in the
complaint as true, we “are not bound to accept as true a legal conclusion
couched as a factual allegation” (internal quotation marks omitted)).
Rule 8 marks a notable and generous departure from the hyper-technical,
code-pleading regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.
Second, only a complaint that states a plausible claim for relief survives
a motion to dismiss. Id., at 556. Determining whether a complaint
states a plausible claim for relief will, as the Court of Appeals observed,
be a context-specific task that requires the reviewing court to draw on
its judicial experience and common sense. 490 F.3d, at 157-158. But
where the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged — but it
has not “show[n]” — “that the pleader is entitled to relief.” Fed. Rule
Civ. Proc. 8(a)(2).
In keeping with these principles a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because they
are no more than conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations. When there are well-pleaded
factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.
Iqbal, 556 U.S. at 678–79 (emphasis added).
“‘Pro se pleadings are held to a less stringent standard than pleadings drafted

7

by attorneys’ and are liberally construed.” Bingham v. Thomas, 654 F.3d 1171, 1175
(11th Cir. 2011) (quoting Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998)).
II. DISCUSSION
As an initial matter, it must be noted that plaintiff’s response in opposition to
Colsa’s motion to dismiss is subtitled “Plaintiff’s Request to Second Amended
Complaint [sic].”21 Even so, the body of the pleading fails to contain a specific
request to amend plaintiff’s complaint yet again. Accordingly, to the extent that
plaintiff’s responsive pleading was intended to state a request to file a second amended
complaint, the “motion” is due to be denied.
A.

Failure to Exhaust Administrative Remedies
Colsa argues that plaintiff’s complaint should be dismissed for failure to exhaust

administrative remedies.22 The timely filing of an EEOC charge of discrimination
within 180 days of the alleged discriminatory act is a condition precedent to bringing
suit under either Title VII of the Civil Rights Act of 1964, as amended, or the
Americans with Disabilities Act. See 42 U.S.C. § 2000e-5(e)(1) (requiring claimant
to submit a charge of discrimination to the EEOC within 180 days “after the alleged
21

Doc. no. 46 (“Affirmation of Plaintiff in Opposition to Defendant’s Motion to Dismiss
First Amended Complaint[,] Plaintiff’s Request to Second Amended Complaint [sic][, and]
Plaintiff’s Response to Supplement to Colsa’s Motion to Dismiss” (alterations supplied)).
22

See doc. no. 45 (Supplement to Colsa’s Motion to Dismiss) ¶¶ 4–6.
8

unlawful employment practice occurred”); 42 U.S.C. § 12117(a) (providing, among
other things, that the “procedures set forth in section[] . . . 2000e-5 . . . of this title
shall be the . . . procedures this subchapter provides to . . . any person alleging
discrimination on the basis of disability” (alteration and ellipses supplied)); see also,
e.g., Maynard v. Pneumatic Products Corp., 256 F.3d 1259, 1262 (11th Cir. 2001)
(per curiam) (“An ADA plaintiff has the burden of proving all conditions precedent
to filing suit, including the condition that he timely filed with the EEOC.”) (citation
omitted); Zillyette v. Capital One Financial Corp., 179 F.3d 1337, 1339 (11th Cir.
1999) (“It is settled law that, under the ADA, plaintiffs must comply with the same
procedural requirements to sue as exist under Title VII of the Civil Rights Act of
1964.”).
Furthermore, following receipt of a “Right to Sue” notice from the EEOC, the
complaint that a plaintiff files in federal court “‘is limited by the scope of the EEOC
investigation which can reasonably be expected to grow out of the charge of
discrimination.’” Gregory v. Georgia Department of Human Resources, 355 F.3d
1277, 1280 (11th Cir. 2004) (quoting Alexander v. Fulton County, 207 F.3d 1303,
1332 (11th Cir. 2000), and citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460
(5th Cir. 1970)). The proper inquiry is whether plaintiff’s judicial complaint “was like
or related to, or grew out of, the allegations contained in her EEOC charge.” Gregory,
9

355 F.3d at 1280.
Plaintiff’s original EEOC charge, filed on November 14, 2012, alleged
discrimination based on “Retaliation” and “Other,” but did not allege discrimination
or retaliation based upon a disability.23 In fact, nothing in plaintiff’s EEOC charge
referenced or alluded to any disability on the part of plaintiff.24 Instead, she charged
that she had been discriminated against “because [she] saw Mr. Whitlock do illegal
activities and have an office affair.”25 Upon reviewing plaintiff’s EEOC charge,
therefore, it is clear that her newly asserted claims that she was discriminated and
retaliated against on the basis of a disability far exceed the scope of her original EEOC
complaint.
In short, because plaintiff failed to file an EEOC charge of discrimination or
retaliation on the basis of an alleged disability within 180 days after the alleged
unlawful employment practice occurred, her ADA claims are procedurally barred and
must be dismissed. See, e.g., Maynard, 256 F.3d at 1262; see also E.E.O.C. v. Summer
Classics, Inc., 471 F. App’x 868, 869–70 (11th Cir. 2012) (“[P]rior to filing a claim
for discrimination under the ADA, a plaintiff must first file a charge of discrimination
with the EEOC. Failure to file the charge within 180 days of the alleged unlawful
23

See doc. no. 44 (“[Response to] Order for Original EEOC Complaint”), at ECF 3.

24

See id. at ECF 5–6.

25

Id. at 6 (alteration supplied).
10

employment practice bars the claim.” (alteration supplied) (citations omitted)).
To the extent that plaintiff’s amended complaint purports to assert claims of
discrimination and retaliation under Title VII, those claims are not based on any
characteristic protected by that civil rights statute. See 42 U.S.C. § 2000e-5(e)(1); see
also, e.g., Gilchrist v. Bolger, 733 F.2d 1551, 1553 (11th Cir. 1984) (“Title VII only
proscribes employment discrimination on the basis of race, color, religion, sex, or
national origin.”). Accordingly, plaintiff again fails to state a claim upon which relief
may be granted.
Even though it is not clear whether plaintiff intended to assert claims of
discrimination and retaliation against the individual defendants named in her amended
complaint, the arguments of Colsa as to why those counts should be dismissed against
it for plaintiff’s failure to exhaust her administrative remedies apply with equal force
to the individual defendants. Accordingly, the discrimination and retaliation claims
alleged in Counts One and Two are due to be dismissed in favor of all defendants.
B.

Plaintiff’s Supplemental State Law Claims
While Counts One and Two assert federal claims, Counts Three through Seven

of plaintiff’s amended complaint assert various state-law claims against some or all
of the defendants.26 This court declines to exercise supplemental jurisdiction over
26

See doc. no. 40 (“Plaintiff’s First Amended Original Complaint) ¶¶ 48–86. Though Count
Seven (Intentional Infliction of Emotional Distress) is clearly asserted against all defendants, it is
11

those claims. See 28 U.S.C. § 1367(c) (“The district courts may decline to exercise
supplemental jurisdiction over a [state-law] claim if . . . the district court has dismissed
all claims over which it has original jurisdiction . . . .” (alteration and ellipses
supplied)).
III. CONCLUSION
In accordance with the foregoing, it is ORDERED that defendant Colsa’s
Motion to Dismiss is GRANTED, and Counts One and Two of plaintiff’s amended
complaint are DISMISSED in favor of all defendants with prejudice. Counts Three,
Four, Five, Six, and Seven of the amended complaint are likewise DISMISSED, but
without prejudice, in order to provide plaintiff an opportunity to refile her claims in
an appropriate state court, should she choose to do so. Plaintiff’s “Request to [File a]
Second Amended Complaint” is DENIED. Costs are taxed to plaintiff. The Clerk is
directed to close this file.
DONE and ORDERED this 6th day of August, 2014.

______________________________
United States District Judge

ambiguous, at best, as to which of the remaining counts are asserted against which defendants.
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