Cochran v. The Southern Company

Filing 16

ORDER granting 8 Motion to Dismiss. This action is dismissed without prejudice. Signed by Chief Judge William H. Steele on 6/3/2015. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MYRA COCHRAN,

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Plaintiff,
v.
THE SOUTHERN COMPANY d/b/a
ALABAMA POWER,
Defendant.

CIVIL ACTION 14-0569-WS-N

ORDER
This matter comes before the Court on defendant’s Motion to Dismiss (doc. 8). The
court-ordered briefing schedule having expired, the Motion is now ripe.
I.

Background.
In a Complaint (doc. 1) filed on December 16, 2014, plaintiff, Myra Cochran, by and

through counsel, purported to bring a claim under 42 U.S.C. § 1981 against defendant, The
Southern Company d/b/a Alabama Power. The well-pleaded factual allegations of the Complaint
reflect that Cochran is employed by Alabama Power and that she raised multiple complaints to
Alabama Power “concerning discriminatory treatment she was receiving on the job,” culminating
in an EEOC Charge of Discrimination. (Doc. 1, ¶ 4.) The Complaint further alleges that, after
Cochran filed her EEOC Charge, Alabama Power “has engaged in a pattern of retaliatory
behavior,” including having her work “unduly scrutinized, criticized and disrupted by her
supervisors.” (Id., ¶ 5.) On the basis of these factual allegations, Cochran purports to assert a §
1981 retaliation claim against Alabama Power.
Alabama Power filed a Motion to Dismiss the Complaint for failure to state a claim upon
which relief can be granted. The premise of the Motion is that the Complaint in its present form
fails to state an actionable claim under § 1981 because it identifies neither protected activity nor
a materially adverse action, such that the Complaint does not pass muster under the Twombly /
Iqbal pleading standard. On April 29, 2015, Magistrate Judge Nelson entered an Order (doc. 10)
specifying that Cochran must file her response to the Motion to Dismiss on or before May 13,

2015. That date came and went without Cochran either responding to the Motion or requesting
an enlargement of time.1 In light of these circumstances, the Motion to Dismiss is properly taken
under submission at this time.
II.

Analysis.
As an initial matter, the Court recognizes that Cochran’s failure to file any response to the

Motion to Dismiss neither constitutes a legal abandonment of her Complaint nor authorizes the
reflexive granting of said Motion without scrutiny of its merits. See, e.g., Gailes v. Marengo
County Sheriff’s Dep’t, 916 F. Supp.2d 1238, 1243-44 (S.D. Ala. 2013) (explaining that “the
Court will not treat a claim as abandoned merely because the plaintiff has not defended it in
opposition to a motion to dismiss,” but that “the Court will review the merits of the defendant’s
position” instead).2 That said, Cochran’s omission is at her peril. The Court cannot and will not
fill in the blanks with arguments she could have raised but did not.
Defendant’s Motion to Dismiss posits that the Complaint fails to state a claim upon
which relief can be granted; therefore, it is properly analyzed under Rule 12(b)(6), Fed.R.Civ.P.
To withstand Rule 12(b)(6) scrutiny and satisfy Rule 8(a), a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face,” so as to “nudge[ ][its] claims across the line
from conceivable to plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct.
1955, 167 L.Ed.2d 929 (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
1

On May 29, 2015, after the briefing schedule had expired and the Motion to
Dismiss had already been taken under submission, plaintiff requested leave to file an out-of-time
response. The Court granted plaintiff leave to do so, subject to the strict limitation that any
response to the Motion to Dismiss must be filed on or before June 1, 2015 (the date requested by
plaintiff) “[g]iven the extreme tardiness of plaintiff’s response.” (Doc. 15.) Despite this
accommodation, the June 1 deadline passed with no filing by plaintiff.
2

See also Stone v. URS Energy & Const., Inc., 2015 WL 777682, *2 (N.D. Ala.
Feb. 24, 2015) (“Mr. Stone’s failure to file any opposition does not automatically mean that the
[Rule 12] Motion is due to be granted.”); Church v. Accretive Health, Inc., 2014 WL 7184340,
*7 n.10 (S.D. Ala. Dec. 16, 2014) (“the Court declines to equate plaintiff’s failure to respond [to
a motion to dismiss] with waiver or abandonment of those claims”); Branch Banking and Trust
Co. v. Howard, 2013 WL 172903, *1 (S.D. Ala. Jan. 16, 2013) (plaintiff’s “lack of response to
the Rule 12(b)(6) Motion does not trigger the kneejerk granting of such Motion on an
abandonment theory”).

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misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009) (citation omitted). “This necessarily requires that a plaintiff include factual allegations
for each essential element of his or her claim.” GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d
1244, 1254 (11th Cir. 2012). Thus, minimum pleading standards “require [ ] 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. As the Eleventh Circuit has explained, Twombly / Iqbal principles
require that a complaint’s allegations be “enough to raise a right to relief above the speculative
level.” Speaker v. U.S. Dep’t of Health and Human Services Centers for Disease Control and
Prevention, 623 F.3d 1371, 1380 (11th Cir. 2010) (citations omitted). “To survive a 12(b)(6)
motion to dismiss, the complaint does not need detailed factual allegations, ... but must give the
defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”
Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010) (citations and internal quotation marks
omitted).
There is no question that “42 U.S.C. § 1981 encompasses claims of retaliation.” CBOCS
West, Inc. v. Humphries, 553 U.S. 442, 457, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008). However,
the law is clear that “in order to constitute statutorily protected activity capable of supporting a §
1981 retaliation claim, an employee’s complaint must reasonably convey that she is opposing
discrimination based specifically upon race, versus some other type of discrimination or injustice
generally.” Willmore-Cochran v. Wal-Mart Associates, Inc., 919 F. Supp.2d 1222, 1234 (N.D.
Ala. 2013).3 As Alabama Power observes, the Complaint does not allege that Cochran’s EEOC

3

See also Jimenez v. Wellstar Health System, 596 F.3d 1304, 1311 (11th Cir. 2010)
(“As with other statutory retaliation claims, such a claim under § 1981 requires that the protected
activity involve the assertion of rights encompassed by the statute.”); Pennington v. City of
Huntsville, 261 F.3d 1262, 1265 n.1 (11th Cir. 2001) (“A plaintiff cannot make a claim of
retaliation based on religion under § 1981.”); Little v. United Technologies, Carrier Transicold
Div., 103 F.3d 956, 961 (11th Cir. 1997) (affirming dismissal of § 1981 retaliation claim because,
inter alia, “we conclude that [plaintiff] failed to allege that the discrimination at issue was related
to his race”); Adams v. Cobb County School Dist., 242 Fed.Appx. 616, 620 n.6 (11th Cir. June 15,
2007) (noting that § 1981 “prohibits an employer from retaliating against its employee as a
response to the employee’s complaint of race-based discrimination”); Page v. Winn-Dixie
Montgomery, Inc., 702 F. Supp.2d 1334, 1355 (S.D. Ala. 2010) (“The Court is thus left with no
evidence (or even argument) by plaintiff on summary judgment that she ever engaged in
statutorily protected activity (i.e., that she ever took any action to oppose race discrimination) for
§ 1981 retaliation purposes.”); Hegre v. Alberto-Culver USA, Inc., 508 F. Supp.2d 1320, 1337
(Continued)
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Charge or her “multiple complaints to Defendant concerning discriminatory treatment” were
based on race, as opposed to some other type of discrimination or injustice. If Cochran did not
complain about adverse treatment on the basis of race, then she did not engage in protected
activity for purposes of § 1981. Nothing in the Complaint, as presently framed, would support a
reasonable inference that Cochran’s internal complaints or her EEOC Charge were grounded in
allegations of race discrimination; therefore, her pleading does not state a plausible claim for §
1981 retaliation, and falls short under a Twombly / Iqbal analysis.4
Furthermore, the Complaint does not identify adequate facts to support the “materially
adverse action” element of Cochran’s claim. It is well-settled that a plaintiff alleging a § 1981
retaliation claim must show, among other things, that “he suffered a materially adverse action.”
Butler v. Alabama Dep’t of Transp., 536 F.3d 1209, 1212-13 (11th Cir. 2008). “An action is
materially adverse if it might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1259 (11th
Cir. 2012) (citation and internal quotation marks omitted). Cochran’s vague and conclusory
allegations about having her work “unduly scrutinized, criticized and disrupted” fail to set forth a
plausible claim for § 1981 retaliation, inasmuch as such activities are generally held legally
inadequate to constitute a materially adverse action. See, e.g., Davis v. Town of Lake Park, Fla.,

n.11 (S.D. Ga. 2007) (“because § 1981 is concerned with racial discrimination in the making and
enforcement of contracts, no retaliation claim will lie unless the retaliation is leveled against the
plaintiff due to his race”) (citation and internal quotation marks omitted); Braswell v. Allen, 586
F. Supp.2d 1297, 1310 (M.D. Ala. 2008) (“Section 1981 prohibits an employer from retaliating
against its employee in response to the employee’s complaint of race-based discrimination.”).
4

This conclusion is bolstered by the contents of Cochran’s EEOC Charge, which
Alabama Power has attached to its Motion to Dismiss as Exhibit A. The Court may properly
consider this exhibit in adjudicating the Rule 12(b)(6) Motion because it is referenced in and
central to Cochran’s Complaint, and Cochran has not disputed its authenticity. See Speaker, 623
F.3d at 1379 (“In ruling upon a motion to dismiss, the district court may consider an extrinsic
document if it is (1) central to the plaintiff’s claim, and (2) its authenticity is not challenged.”)
(citation omitted). This EEOC Charge reflects that Cochran complained of sex, age, and
disability discrimination, and retaliation, but lacks any allegation or suggestion that Alabama
Power had ever treated her or anyone else unfairly on the basis of race.

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245 F.3d 1232, 1241 (11th Cir. 2001) (“criticisms of an employee’s job performance – written or
oral – that do not lead to tangible job consequences will rarely form a permissible predicate”).5
As it stands, then, Cochran’s Complaint pleads no facts raising a plausible inference that
either (i) she engaged in protected activity within the ambit of 42 U.S.C. § 1981, or (ii) Alabama
Power took materially adverse action against her. At most, her Complaint raises a speculative
claim for relief under the anti-retaliation prong of § 1981. That is not sufficient to comport with
the governing Twombly / Iqbal pleading standard.
III.

Conclusion.
For all of the foregoing reasons, defendant’s Motion to Dismiss (doc. 8) is granted

pursuant to Rule 12(b)(6), Fed.R.Civ.P. Because the Court cannot rule out the possibility that
Cochran might be able to state a claim with a more carefully crafted complaint, this action is
dismissed without prejudice. A separate judgment will enter.
DONE and ORDERED this 3rd day of June, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

5

See also Harbuck v. Teets, 152 Fed.Appx. 846, 848 (11th Cir. Oct. 12, 2005)
(where plaintiff complained that “she has been subject to heightened scrutiny since her
deposition in her previous EEOC complaint,” concluding that “[t]he actions about which
Harbuck complains do not constitute an adverse employment action”); McKitt v. Alabama
Alcoholic Beverage Control Bd., 2013 WL 5406804, *17 (M.D. Ala. Sept. 25, 2013) (finding
that “increased scrutiny, new office rules, or lateral transfer” did not constitute “a materially
adverse employment action for a retaliation claim,” but rather amounted to nothing more than
“petty slights, minor annoyances, and simple lack of good manners”) (citations omitted);
Flowers v. City of Tuscaloosa, 2013 WL 625324, *24 (N.D. Ala. Feb. 14, 2013) (“Increased
scrutiny of an employee’s job performance in the wake of protected activity may be evidence of
a retaliatory motive, in connection with a claim that the employe[r] thereafter terminated or
disciplined an employee, ostensibly for work misconduct. … Such monitoring, however, has
generally been deemed not actionable in itself.”) (citations omitted); Workneh v. Pall Corp., 897
F. Supp.2d 121, 135 (E.D.N.Y. 2012) (“Increased responsibilities and excessive scrutiny,
without more, do not constitute an adverse employment action.”); Kavanaugh v. Miami-Dade
County, 775 F. Supp.2d 1361, 1370 (S.D. Fla. 2011) (“The verbal counseling Plaintiff received
… does not rise to the level of an adverse employment action because verbal counseling, alone,
is neither adverse nor actionable.”); Chappell v. School Bd. of City of Virginia Beach, 12 F.
Supp.2d 509, 517 (E.D. Va. 1998) (“snubs and unjust criticisms do not amount to retaliatory
conduct”) (citation omitted).

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