Readus v. Roeck et al

Filing 18

MEMORANDUM OPINION AND ORDER 10 HMR's motion to Dismiss,is GRANTED as to the disparate treatment claim (Count I), and DENIED as to the retaliation claim (Count II), Count I is DISMISSED WITHOUT PREJUDICE; Readus's motion for extension, [1 3], and HMR's motion to stay, 16 , are MOOT; the current motion for leave, 17 , is DENIED as futile; The parties are directed to file their Rule 26(f) report as directed in the Uniform Initial Order, doc. 12 at 12. Signed by Judge Abdul K Kallon on 06/27/2017. (KBB)

FILED
2017 Jun-27 PM 02:20
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
SENEKA CASTRELL READUS,
Plaintiff,

v.
HMR VETERAN SERVICES, et al.,
Defendants.

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Civil Action Number
5:16-cv-02060-AKK

MEMORANDUM OPINION AND ORDER
Seneka Castrell Readus alleges claims of race discrimination (Count I) and
retaliation (Count II) in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq. (“Title VII”), against HMR Veteran Services and HMR of
Alabama, Inc. (collectively, “HMR”).

Doc. 9.

Presently before the court is

HMR’s motion to dismiss, which is fully briefed, docs. 10; 14; and 15, and ripe for
review. 1 For the reasons stated below, the motion is due to be granted solely as to
Count I.
I.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not require ‘detailed factual
1

MOOT.

Readus’s motion for extension, doc. 13, and HMR’s motion to stay, doc. 16, are

allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere “labels and conclusions”
or “a formulaic recitation of the elements of a cause of action” are insufficient.
Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). “Nor does
a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (citing Twombly, 550 U.S. at 557).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief can be granted. “To 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
(citations and internal quotation marks omitted). A complaint states a facially
plausible claim for relief “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. (citation omitted). The complaint must establish “more
than a sheer possibility that a defendant has acted unlawfully.” Id.; see also
Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to
relief above the speculative level.”). Ultimately, this inquiry is a “context-specific
task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.
2

II.

RELEVANT FACTS 2

Readus, who is African-American, worked for HMR as a nursing supervisor.
Doc. 9 at 3–4. At issue here are remarks made by the Director of Nursing, Troy
Roeck, including a reference to Readus’s children as “little monkeys” when he
invited Readus’s family to his home for a social visit, and a false statement “that
[Readus] was a single parent with three children.” Id. at 4. Shortly after Readus
complained to HMR’s corporate office about the remarks, Roeck and
Administrator Belinda Schrimsher purportedly “took away [Readus’s] onshift
privileges.” Id. at 5. Readus alleges that she has “suffered great mental and
emotional anguish due to [these] actions and had to undergo surgery as a result of
the increased stress.” Id.
III.

ANALYSIS

In Count I, Readus pleads a claim for race discrimination. 3 Specifically,
Readus contends that HMR discriminated against her by revoking her half shift

2

The plaintiff’s allegations are presumed true for purposes of Fed. R. Civ. P. 12(b)(6).
See Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (quoting GSW, Inc. v.
Long Cnty., 999 F.2d 1508, 1510 (11th Cir. 1993)) (“When considering a motion to dismiss, all
facts set forth in the plaintiff’s complaint ‘are to be accepted as true and the court limits its
consideration to the pleadings and exhibits attached thereto.’”).
3

Although Readus characterized Count I in the amended complaint as one based on a
“racially discriminatory work environment,” see doc. 9 at 5, and provided argument in her
response brief appearing to support a hostile environment claim, see, e.g., doc. 14 at 10
(“Roeck’s statement was racially derogatory harassment, which was severe and pervasive.”),
Readus claims nonetheless that “Plaintiff’s race discrimination claim is clearly one of racial
discrimination in Plaintiff’s workplace, and not a hostile work environment claim,” see id. at 12.
3

and onshift privileges after she complained about what she perceived as Roeck’s
racially discriminatory remarks. Doc. 9 at 5. To succeed on a disparate treatment
claim, Readus must show that she belongs to a protected class, was qualified,
suffered an adverse employment action, and that HMR treated a similarly situated
employee outside of her protected class more favorably. See Flowers v. Troup Cty.
Sch. Dist., 803 F.3d 1327, 1336 (11th Cir. 2015). In an attempt to make this
showing, Readus contends in her brief that she “suffered adverse employment
action by being mistreated severely to the point of having to undergo surgery due
to the severe stress brought on by the events during her tenure [with HMR].” Doc.
14 at 6. 4 The court cannot, however, consider this or other allegations in her brief
because the “scope of review [of a motion to dismiss] must be limited to the four
corners of the complaint.” Speaker v. U.S. Dept. of Health and Human Servs. Ctrs.
for Disease Control and Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010).
Based on the amended complaint, the only adverse employment action
Readus alleges is that HMR denied her onshift and half shift privileges. Doc. 9 at
6. Moreover, to show purported disparate treatment, she alleges that “[o]ther RN
Supervisors who did not complain about discrimination have not had their onshift

In light of Readus’s clear statement that she is not pursuing a hostile environment claim, the
court will analyze solely the disparate treatment construction of the claim.
4

Readus also states in her brief that she was “no longer assisted by her supervisors as she
was informed that she could not ask them for assistance after she complained and her onshift
privileges were taken away.” Doc. 14 at 6.
4

and half shift privileges taken away.” Id. These contentions, however, fall short of
alleging an adverse action or disparate treatment based on race.
For example, although Readus states the loss of onshift and half shift
privileges, she does not specify the economic loss, if any, or loss of employment
rank or status due to these actions. “Although an adverse employment action need
not be an ultimate employment decision, such as termination, failure to hire or
demotion, it must meet a ‘threshold level of substantiality.’”

Grimsley v.

Marshalls of MA, Inc., 284 F. App’x 604, 608 (11th Cir. 2008) (quoting Davis v.
Town of Lake Park, 245 F.3d 1232, 1238–39 (11th Cir. 2001)). Stated differently,
“[a]lthough evidence of ‘direct economic consequences’ is not always required, ‘to
prove adverse employment action in a case under Title VII’s anti-discrimination
clause, an employee must show a serious and material change in the terms,
conditions or privileges of employment.’” Grimsley, 284 F. App’x at 608 (quoting
Davis, 245 F.3d at 1238–39) (emphasis in Grimsley). No such showing is made in
the amended complaint. Moreover, Readus does not indicate whether the “other
RN Supervisors who did not complain about discrimination [and who] have not
had their onshift and half shift privileges taken away,” doc. 9 at 6, are individuals
outside of her protected class. 5 Put simply, as currently pleaded — and in the

5

Readus’s opposition brief identifies Kim Gordon and Sabrina Reed as “two similarly
situated Caucasians outside of [her] protected class who were treated more favorably.” Doc. 14
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proposed amendment, 6 the allegations do not rise to an adverse action and do not
establish that Readus was treated differently than persons outside of her protected
class. Therefore, the disparate treatment claim (Count I) is due to be dismissed
without prejudice.
Transitioning now to Count II, Readus alleges that HMR retaliated against
her after she complained about the “little monkeys” comment by telling her that
she could “no longer work half shifts” and that “she could no longer contact [them]
about issues with the facility and that she should be able to handle issues at night
on her own.” Doc. 9 at 6–7. HMR argues that Readus’s complaint about the “little
monkeys” remark was not protected activity, 7 because Readus’s belief that the
remark was racially discriminatory was “objectively unreasonable.” Doc. 10 at 17

at 14. However, the “scope of review [of a motion to dismiss] must be limited to the four
corners of the complaint,” Speaker, 623 F.3d at 1379.
6

Readus filed a motion for leave to amend after the completion of the briefing of the
motion to dismiss. Doc. 17. The proposed amendment does not address any of the deficiencies
cited here that warrant the dismissal of her disparate treatment claim. Moreover, the new
allegations — i.e., that HMR altered the “terms and conditions of her employment” by denying
her request to transfer to a part time day shift but “allowed Kim Gordon, a caucasian employee,
to work the day shift when she returned from medical leave,” doc. 17-1 at 6, and that HMR
failed to address the “disruptive” and “undermin[ing]” actions of “a caucasian nurse named
Sabrina Reed,” whom Readus supervised, see doc. 17-1 at 16 — as currently pleaded fail to rise
to the adverse employment action necessary for a disparate treatment claim. Therefore, to allow
Readus one final opportunity to perhaps properly plead a disparate treatment claim, the current
motion for leave, doc. 17, is DENIED as futile.
7

“A prima facie case of retaliation under Title VII requires the plaintiff to show that: (1)
she engaged in an activity protected under Title VII; (2) she suffered an adverse employment
action; and (3) there was a causal connection between the protected activity and the adverse
employment action.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).
6

(citing Little v. United Technologies, 103 F.3d 956, 960 (11th Cir. 1997)) (it is not
sufficient for a plaintiff “to allege [her] belief [that the employer was engaged in
unlawful employment practices] was honest and bona fide; the allegations and
record must also indicate that the belief, though perhaps mistaken, was objectively
reasonable”). In light of the long history of the use of the ape slur towards people
of African descent,8 the court respectfully disagrees with HMR that an employee
complaining about the alleged remark here, even if mistaken, “is not activity
protected by Title VII.” Doc. 10 at 17. To the contrary, consistent with Little, the
history of the slur makes Readus’s complaint objectively reasonable. Accordingly,
Readus’s retaliation claim survives.
IV.

CONCLUSION AND ORDER

In light of the foregoing, HMR’s motion to dismiss, doc. 10, is GRANTED
as to the disparate treatment claim (Count I), and DENIED as to the retaliation
claim (Count II). Count I is DISMISSED WITHOUT PREJUDICE. The parties

8

See Jones v. UPS Ground Freight, 683 F.3d 1283, 1297 (11th Cir. 2012) (quoting
United States v. Jones, 159 F.3d 969, 977 (6th Cir. 1998)) (“‘Given the history of racial
stereotypes against African-Americans and the prevalent one of African-Americans as animals or
monkeys, it is a reasonable — perhaps even an obvious — conclusion that’ the use of monkey
imagery is intended as a ‘racial insult’ where no benign explanation for the imagery appears.”).
See also Green v. Franklin Nat’l Bank, 459 F.3d 903, 911 (8th Cir. 2006) (“To suggest that a
human being’s physical appearance is essentially a caricature of a jungle beast goes far beyond
the mere unflattering; it is degrading and humiliating in the extreme.”) (internal quotation marks
omitted).
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are directed to file their Rule 26(f) report as directed in the Uniform Initial Order,
doc. 12 at 1–2.
DONE the 27th day of June, 2017.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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