Grissett v. H.J. Baker Bros.

Filing 38

Order granting 31 MOTION to Dismiss the amended complaint filed by H.J. Baker Bros. This action is dismissed with prejudice, subject to the plaintiff's right to file a second amended complaint by 10/16/2015. Signed by Chief Judge William H. Steele on 9/30/2015. Copy mailed to Plaintiff. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ROBERT GRISSETT, JR.,

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) CIVIL ACTION 15-0072-WS-C
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Plaintiff,
v.
H.J. BAKER BROS., etc.,
Defendant.

ORDER
This matter is before the Court on the defendant’s motion to dismiss the
amended complaint. (Doc. 31). The plaintiff has filed a response and the
defendant a reply, (Docs. 36, 37), and the motion is ripe for resolution.1 After
careful consideration, the Court concludes the motion is due to be granted.
BACKGROUND
The original complaint attempted to assert claims for retaliation under Title
VII and OSHA, as well as state tort and contract claims. The Court granted the
defendant’s motion to dismiss the complaint but granted the plaintiff leave to file
an amended complaint. (Doc. 29).
The amended complaint identifies a single cause of action: a Title VII
claim for hostile work environment. (Doc. 30). The defendant raises two
arguments in support of dismissal: (1) failure to exhaust administrative remedies;
and (2) failure to state a claim. (Doc. 31).

1

The plaintiff’s response says only that the motion to dismiss has been mooted by
his filing of an amended complaint. (Doc. 36). The plaintiff, however, has filed no
pleading (nor sought leave to do so) since he filed the amended complaint that is the
subject of the defendant’s motion. The defendant’s motion to dismiss that complaint
therefore cannot be moot.

DISCUSSION
I. Failure to Exhaust Administrative Remedies.
“[A] plaintiff’s judicial complaint is limited by the scope of the EEOC
investigation which can reasonably be expected to grow out of the charge of
discrimination.” Gregory v. Department of Human Resources, 355 F.3d 1277,
1280 (11th Cir. 2004) (internal quotes omitted); accord Mullins v. Crowell, 228
F.3d 1305, 1312 (11th Cir. 2000). The plaintiff’s EEOC charge includes
allegations of “racist remarks made at that plant,” (Doc. 1 at 5), which would
appear to suggest a potentially hostile work environment. The defendant, which
acknowledges neither the governing legal test nor these allegations, (Doc. 31 at 24), has not applied the test to those allegations or engaged in the sometimes subtle
analysis required to evaluate such issues. The Court will not develop or support
an exhaustion argument on the defendant’s behalf.
II. Failure to State a Claim.
To survive dismissal under Rule 12(b)(6), a complaint must first satisfy the
pleading requirements of Rule 8(a)(2). Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). “A pleading that states a claim for relief 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 8 establishes a regime of “notice pleading.”
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 513-14 (2002). It does not,
however, eliminate all pleading requirements.
First, the complaint must address all the elements that must be shown in
order to support recovery under one or more causes of action. “At a minimum,
notice pleading requires that a complaint contain inferential allegations from
which we can identify each of the material elements necessary to sustain a
recovery under some viable legal theory.” Wilchombe v. TeeVee Toons, Inc., 555
F.3d 949, 960 (11th Cir. 2009) (emphasis and internal quotes omitted).

2

Pleading elements is necessary, but it is not enough to satisfy Rule 8(a)(2).
The rule “requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do” to satisfy that rule. Twombly, 550
U.S. at 555. There must in addition be a pleading of facts. Though they need not
be detailed, “[f]actual allegations must be enough to raise a right to relief above
the speculative level ....” Id. That is, the complaint must allege “enough facts 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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard … asks for
more than a sheer possibility that the defendant has acted unlawfully,” and
“[w]here a complaint pleads facts that are merely consistent with a defendant’s
liability, it stops short of the line between possibility and plausibility of
entitlement to relief.” Id. (internal quotes omitted). A complaint lacking
“sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face” will not “survive a motion to dismiss.” Id. But so long as
the plausibility standard is met, the complaint “may proceed even if it strikes a
savvy judge that actual proof of those facts is improbable, and that a recovery is
very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotes omitted).
As noted, the plaintiff’s claim is for hostile work environment. “To plead
that claim [the plaintiff] was required to allege that: (1) he belongs to a protected
group; (2) he was subjected to unwelcome harassment; (3) the harassment was
based on his membership in the protected group; (4) it was severe or pervasive
enough to alter the terms and conditions of employment and create a hostile or
abusive working environment; and (5) the employer is responsible for that
environment under a theory of either vicarious or direct liability.” Edwards v.
Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010). The Eleventh Circuit has, in
several unpublished opinions, indicated that, to satisfy Twombly and Iqbal, a
complaint must set forth facts plausibly suggesting that the hostile environment
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experienced by the plaintiff was sufficiently severe and/or pervasive to satisfy the
fourth element.2 The defendant argues the amended complaint fails to attain this
standard. (Doc. 31 at 5).
The amended complaint alleges the following regarding the defendant’s
conduct towards the plaintiff (who is black): (1) falsely accusing him of forging
and falsifying a transportation document; (2) placing him on leave (suspension)
with pay; (3) terminating him (the only black office employee) and replacing him
with a white male; (4) failing or refusing to take prompt remedial action in
response to his complaints of being suspended and fired; and (5) failing or
refusing to take prompt remedial action in response to the discrimination, hostile
work environment and harassment of its managers. (Doc. 30).
“Discrete acts such as termination … must be challenged as separate
statutory discrimination and retaliation claims” and cannot be considered part of a
hostile work environment claim. McCann v. Tillman, 526 F.3d 1370, 1378-79
(11th Cir. 2008). Under McCann, the plaintiff cannot complain of his termination
or suspension under a hostile-work-environment rubric. Nor can he rest his claim
on the allegation of forgery that allegedly prompted his termination and
suspension. Freeman v. City of Riverdale, 330 Fed. Appx. 863, 865-66 (11th Cir.
2009) (false accusations leading to termination had to be asserted as part of a
separate termination claim, not as part of a hostile work environment claim). This
leaves for consideration only the final two items on which the plaintiff relies.
“A hostile work environment claim under Title VII is established upon
proof that the workplace is 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.” Miller v.
2

Glover v. Donahoe, ___ Fed. Appx. ___, 2015 WL 5438229 at *4 (11th Cir.
2015); Palmer v. McDonald, ___ Fed. Appx. ___, 2015 WL 4978778 at *4 (11th Cir.
2015); Jacobs v. Biando, 592 Fed. Appx. 838, 841-42 (11th Cir. 2014); Alhallaq v. Radha
Soami Trading, LLC, 484 Fed. Appx. 293, 296 (11th Cir. 2012); Wilkerson v. H&S, Inc.,
438 Fed. Appx. 769, 770 (11th Cir. 2011).
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Kenworth, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (internal quotes omitted).
Simply failing to respond to the plaintiff’s complaints of being placed on leave
and being fired is not intimidating, ridiculing or insulting, much less to such a
severe degree as to alter the terms and conditions of employment. And failing to
correct a hostile work environment that does not exist cannot itself create a hostile
work environment.
The amended complaint does state that the defendant “created a hostile
work environment.” (Doc. 30 at 2). “That broad statement, however, is merely a
‘formulaic recitation of the elements’ of a [Title VII] claim and, standing alone,
does not satisfy the pleading standard of … Rule 8.” Edwards, 602 F.3d at 1301
(quoting Twombly, 550 U.S. at 555). “An introductory conclusion cannot take the
place of factual allegations in stating a plausible claim for relief.” Id.
III. Amendment.
The defendant proposes that this action be dismissed without leave to
amend because this is the pro se plaintiff’s second effort and his “opportunities to
fix his deficient pleadings should not be unlimited.” (Doc. 31 at 6). The
defendant cites no authority in support of its implicit “one amendment” rule, and it
offers no reason why such a rule should be crafted for or employed in this case.
Certainly the reporters are filled with examples of pro se litigants receiving more
than one opportunity to file a viable complaint.3
CONCLUSION
For the reasons set forth above, the defendant’s motion to dismiss is
granted. This action is dismissed with prejudice, subject to the plaintiff’s right

3

See, e.g., Moody v. City of Delray Beach, 609 Fed. Appx. 966 (11th Cir. 2015)
(discussing pro se plaintiff’s second amended complaint); Peavey v. Black, 476 Fed.
Appx. 697 (11th Cir. 2012) (same); Mickens v. Tenth Judicial Circuit, 181 Fed. Appx.
865 (11th Cir. 2006) (same).
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to file a second amended complaint on or before October 16, 2015, failing which
final judgment will be entered in favor of the defendant and against the plaintiff.4
DONE and ORDERED this 30th day of September, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

4

The plaintiff should not assume he will be provided any additional opportunities
to file a viable complaint. For example, in each of the cases cited in note 3, supra, the
Eleventh Circuit affirmed the trial court’s refusal to permit the pro se plaintiff to file a
third amended complaint.
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