Williams v. Providence Hospital

Filing 20

Order granting the 8 MOTION to Dismiss filed by Providence Hospital; denying as moot 17 MOTION to Review Newly Received Evidence filed by Gregory A Williams. The complaint is dismissed without prejudice to plaintiff's ability to file an amended complaint by 3/23/2016, failing which the dismissal of this action will become final without further order of Court. Signed by Chief Judge William H. Steele on 3/2/2016. Copy mailed to Plaintiff. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GREGORY A. WILLIAMS,
Plaintiff,
v.
PROVIDENCE HOSPITAL,
Defendant.

)
)
)
)
) CIVIL ACTION 15-0506-WS-N
)
)
)
)
ORDER

This matter is before the Court on the defendant’s motion to dismiss. (Doc.
8). In response, the plaintiff filed a “motion for non-dismissal” and a “motion to
review newly received evidence.” (Docs. 16, 17). The defendant elected not to
file a reply brief, (Doc. 11), and the motion is ripe for resolution.
The complaint alleges that the plaintiff’s employment was terminated based
on age and retaliation. (Doc. 1). The defendant makes three arguments in support
of its motion, which Court considers in turn.
I. Exhaustion.
“A discriminatory act which is not made the basis for a timely charge is the
legal equivalent of a discriminatory act which occurred before the statute was
passed. ... [I]t is merely an unfortunate event in history which has no present
legal consequences.” United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977).
“Failure to file a timely complaint with the EEOC mandates the dismissal of the
Title VII suit.” Wilson v. Bailey, 934 F.2d 301, 304 n.1 (11th Cir. 1991). What is
true under Title VII is equally true under the ADEA. E.g., Sheffield v. United
Parcel Service, Inc., 403 Fed. Appx. 452, 454 (11th Cir. 2010).

The plaintiff’s charge of discrimination asserted the plaintiff’s belief that he
was “discharged in retaliation for filing [a previous] EEOC complaint.” (Doc. 8-1
at 2).1 The charge checked the boxes for “retaliation” and “disability” and
asserted that the plaintiff was “discriminated and retaliated against in violation of
Title I of the Americans with Disabilities Act amendments Act of 2008.” (Id.).
The defendant argues this language proves the plaintiff did not exhaust his
administrative remedies regarding “his age discrimination and retaliation claims
under the ADEA.” (Doc. 8 at 7).
As a threshold matter, the defendant appears to assume that the plaintiff’s
complaint specifies that the retaliation against him violated the ADEA (or only the
ADEA), but the Court finds the form complaint ambiguous in this regard. It asks
for the statutory basis of a discrimination claim (as to which claim the plaintiff
checked “age”), but it does not ask for the statutory basis of a retaliation claim
(indeed, it does not reference retaliation at all). The plaintiff handwrote
“retaliation” on the form – not in the area addressing the ADEA but in a blank spot
below a listing of prohibited bases of discrimination under Title VII. (Doc. 1 at 2).
At any rate, and for purposes of the exhaustion requirement, what matters is
not simply which boxes the plaintiff checks on the charge or which buzz words he
uses. Instead, “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). The defendant has failed to show
that the EEOC’s investigation of the plaintiff’s charge of “retaliation for filing the
1

“[W]here the plaintiff refers to certain documents in the complaint and those
documents are central to the plaintiff’s claim, then the Court may consider the documents
part of the pleadings for purposes of Rule 12(b)(6) dismissal, and the defendant’s
attaching such documents to the motion to dismiss will not require conversion of the
motion into a motion for summary judgment.” Brooks v. Blue Cross and Blue Shield,
Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). The Court assumes without deciding that, as
the defendant contends, (Doc. 8 at 2 n.1), the plaintiff’s EEOC charge can be considered
under this rule without converting its motion to dismiss into one for summary judgment.
2

EEOC complaint” could not reasonably be expected to reach retaliation against
opposition or participation protected by the ADEA.
As for discrimination, the complaint clearly shifts the alleged basis of the
plaintiff’s termination from disability to age. The defendant asserts that “[t]he
courts have made it clear that disability discrimination claims are different than,
and do not amplify, clarify or more clearly focus, age discrimination claims.”
(Doc. 8 at 7 (internal quotes omitted)). The defendant cites four cases for this
proposition, but none of them actually involved a shift from disability
discrimination to age discrimination (or vice versa). The defendant’s position is
not implausible, but the Court declines to perform the legal research necessary to
support it.
As a final note, the defendant has not accounted for the possibility that, in
addition to the charge itself, the plaintiff may have submitted to the EEOC an
intake questionnaire or other document containing additional information relevant
to the scope of the EEOC investigation that could reasonably be expected. See
Chanda v. Engelhard/ICC, 234 F.3d 1219, 1225 n.36 (11th Cir. 2000) (considering
the plaintiff’s intake questionnaire in assessing the scope of the EEOC
investigation to be reasonably expected).
II. Collateral Estoppel.
The day after this action was filed, the Circuit Court of Mobile County
issued a ruling in the plaintiff’s appeal of the denial of unemployment
compensation benefits. Judge Wood therein found that the plaintiff was
disqualified from receiving benefits because “[t]he preponderance of the evidence
showed that the [plaintiff] voluntarily left his job without good cause connected
with his work.” (Doc. 8-2 at 2).2 The defendant argues that this ruling collaterally
2

The Court may consider this document on motion to dismiss. E.g., Horne v.
Potter, 392 Fed. Apppx. 800, 802 (11th Cir. 2010) (a trial court may take judicial notice
of certain facts without converting the motion into one for summary judgment; such facts
3

estops the plaintiff from attempting to show in this lawsuit that his employment
was terminated involuntarily. (Doc. 8 at 9-13).
“The elements of collateral estoppel are: (1) an issue identical to the one
litigated in the prior suit; (2) that the issue was actually litigated in the prior suit;
(3) that resolution of the issue was necessary to the prior judgment; and (4) the
same parties.” Dairyland Insurance Co. v. Jackson, 566 So. 2d 723, 726 (Ala.
1990).3
In Wal-Mart Stores, Inc. v. Smitherman, 743 So. 2d 442 (Ala. 1999), the
Alabama Supreme Court addressed collateral estoppel in the context of a lawsuit
claiming the plaintiff was discharged for seeking workers’ compensation benefits.
The Court held that the lawsuit was barred by the administrative determination in
the unemployment compensation proceedings that the plaintiff was discharged for
misconduct. Id. at 443-44, 448.
The first element of collateral estoppel was satisfied because both cases
involved the issue of the reason for the plaintiff’s termination. In the first
proceeding, termination for job-related misconduct results in a partial
disqualification for benefits; in the second proceeding, termination in retaliation
for seeking workers’ compensation benefits is an element of the claim. 743 So. 2d
include documents in a prior case involving the plaintiff, as these are public records not
subject to reasonable dispute).
3

While federal law governs the collateral estoppel effect of a prior federal ruling,
“[s]tate law governs whether or not a state court judgment bars a subsequent federal
diversity action.” Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499, 1503 (11th Cir.
1984); accord Hicks v. Quaker Oats Co., 662 F.2d 1981 (former 5th Cir. 1981) (“Were
we concerned with the collateral estoppel effects of a prior state court determination, we
would use the state’s law of collateral estoppel ….”).
When the prior proceeding was an administrative proceeding, “the parties [must
have] had an adequate opportunity to litigate the issues in the administrative proceeding.”
Ex parte Smith, 683 So. 2d 431, 433 (Ala. 1996) (internal quotes omitted). Because
collateral estoppel in this case is asserted on the basis of a judicial ruling made de novo,
Ala. Code § 7-4-95, the Court need not consider the adequacy of the administrative
proceedings.

4

at 445-46. The second element was satisfied because the issue was actually
litigated in the first proceeding, with the referee finding that “‘[t]he evidence
indicates [Smitherman] was discharged for making a derogatory and profane
remark about a superior’ and that ‘her actions constitute misconduct committed in
connection with her work.’” Id. at 447. And the third element was satisfied
because the plaintiff could be partially disqualified from receiving benefits only if
the reason for his termination was misconduct. Id. The Alabama Supreme Court
confronted a “virtually indistinguishable” set of facts in Wal-Mart Stores, Inc. v.
Hepp, 882 So. 2d 329, 332 (Ala. 2003), engaged in the same analysis, and came to
the same conclusion. Id. at 333-35.4
The first three elements of collateral estoppel are plainly established here.
Both the state action and this action involve the issue of whether the plaintiff was
involuntarily terminated, and the state action actually resolved that issue.
Resolution of whether the plaintiff was terminated was necessary to the state court
decision denying unemployment compensation benefits, because an employee
who leaves his job voluntarily and without good cause is disqualified from
receiving such benefits. (Doc. 8-2 at 2 (citing Ala. Code § 25-4-78(2)).5 Thus, a
finding that the plaintiff voluntarily quit was a necessary predicate to the state
court’s denial of benefits.6

4

Smitherman and Rogers were overruled in part on other grounds in Ex parte
Rogers, 68 So. 3d 773 (Ala. 2010). The Rogers Court rejected Smitherman and Hepp
only to the extent those cases suggest that the employee, rather than the employer, bears
the burden of proof regarding disqualification for unemployment compensation benefits
based on misconduct. Id. at 776-77, 781. Their analysis of collateral estoppel remains
intact.
5

This is the holding of Avery v. Beverly Health & Rehabilitation Services, Inc.,
902 So. 2d 704, 709-10 (Ala. Civ. App. 2004).
6

The state court ruling that the plaintiff quit his job is irreconcilable with his
present insistence that he was fired. “The worker is collaterally estopped from making
the assertion, in her retaliatory-discharge action, that she was ‘terminated’ from her
employment because when DIR determined that the worker had voluntarily quit her
5

The defendant’s argument, however, falters in its treatment of the fourth
element of collateral estoppel. In Smitherman and Heck, where the prior
proceeding was the administrative phase of the unemployment compensation
process, the parties were exactly the same in the two proceedings. Here, the
defendant is Providence Hospital, while in the plaintiff’s judicial appeal of the
adverse ruling in the administrative phase, the sole defendant was the “State Board
of Appeals (Alabama Department of Labor).” (Doc. 8-2 at 2).
“A number of decisions by this Court have indicated that the ‘same parties’
requirement is not strictly enforced if the party raising the defense of collateral
estoppel, or the party against whom it is asserted, is in privity with a party to the
prior action.” Dairyland, 566 So. 2d at 726. “The test for determining if two
parties are in privity focuses on identity of interest.” Id. The defendant announces
that its interests and those of the governmental defendant in the state action “were
aligned,” (Doc. 8 at 12), but without performing any legal analysis, or offering any
legal authority, in support of its ipse dixit. The Court’s brief review suggests that
Alabama law is far too complex for the satisfaction of this element of collateral
estoppel to be demonstrated by raw conclusion. As with exhaustion, the
defendant’s position may not be implausible, but it is unsupported, and the Court
will not endeavor to supply the deficiency.
The Court also notes that the plaintiff has appealed Judge Wood’s ruling.
(Doc. 17 at 1, 24). The defendant, however, has not addressed the effect of that
development on collateral estoppel analysis. For this reason as well, its motion for
dismissal on this ground must be denied.

employment, it necessarily determined that she had not been ‘terminated.’” Avery, 902
So. 2d at 710.
6

III. 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),7 which rule provides that “[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 ….” While Rule 8 establishes a
regime of “notice pleading,” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512,
513-14 (2002), it does not 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).
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. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2009). 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.” Iqbal, 129 S. Ct. at 1949. “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
7

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2009).
7

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).
The complaint’s factual rendition reads in its entirety as follows: “I was
terminated under the Older Workers Benefits Protection Act. I was not given the
right to have papers looked at when requested to have them looked at by an
attorney before signature.” (Doc. 1 at 3). The Court agrees with the defendant’s
assessment that “[t]his single statement offers no facts whatsoever in support of
plaintiff’s claims that he was discriminated against and/or retaliated against.”
(Doc. 8 at 8). The complaint does not contain express or inferential allegations
concerning every element of any claim for discrimination or retaliation, nor does it
contain sufficient factual allegations to make it plausible that he is the victim of
actionable discrimination or retaliation.8
Because the amended complaint fails to satisfy Rule 8(a)(2), it is subject to
dismissal under Rule 12(b)(6) for failure to state a claim. However, before an
action is dismissed with prejudice for failure to state a claim, a pro se plaintiff
must be given an opportunity to amend the complaint if a more carefully drafted
version might state a claim. E.g., Lee v. Alachua County, 461 Fed. Appx. 859, 860

8

In his two motions, the plaintiff has made a number of factual assertions, some
(though not all) of which appear to be related to the claims asserted in his complaint. The
adequacy of the complaint, however, must be measured by what the plaintiff has alleged
in that document, not by what he has asserted in resisting the defendant’s motion to
dismiss. E.g., Frank v. Lake Worth Utilities, 464 Fed. Appx. 802, 804 (11th Cir. 2012)
(because, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim of relief that is plausible on its face, … we must
limit our analysis to the allegations contained in Frank’s complaint”) (internal quotes
omitted).
8

(11th Cir. 2012); Schmitt v. United States Office of Personnel Management, 403
Fed. Appx. 460, 462 (11th Cir. 2010).9
As the plaintiff has previously been warned:
All litigants, including those representing themselves, “shall be
bound by, and must comply with, all Local Rules of this Court, as well
as the Federal Rules of Civil … Procedure, unless excused by court order.”
Civil L.R. 83.5(a). Moreover, “both the Supreme Court and [the Eleventh
Circuit] have concluded that a [litigant’s] pro se status in civil litigation
generally will not excuse mistakes he makes regarding procedural rules.”
Nelson v. Barden, 145 Fed. Appx. 303, 311 n.10 (11th Cir. 2005); accord
Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (“[W]e … have
required [pro se litigants] to conform to procedural rules.”) (internal quotes
omitted); cf. United States v. Hung Thien Ly, 646 F.3d 1307, 1315 (11th Cir.
2011) (“[I]gnorance is no hidden virtue; a pro se [criminal] defendant must
follow the rules of procedure ….”). The plaintiff is cautioned to familiarize
himself with, and to follow, the applicable rules.

(Doc. 11 at 1 n.1). The plaintiff ignores this warning at his peril.
Moreover, “even in the case of pro se litigants … a court [does not have]
license to serve as de facto counsel for a party, [citation omitted], or to rewrite an
otherwise deficient pleading to sustain an action ….” GJR Investments, Inc. v.
County of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998). The plaintiff must
adequately comply with pleading rules or face dismissal of this action without
discovery or consideration of the merits.
For the reasons set forth above, the defendant’s motion to dismiss is
granted, and the plaintiff’s motion for non-dismissal is denied. The plaintiff’s
motion to review newly received evidence is denied as moot.10 The complaint is
9

Because it appears the statute of limitations would bar the plaintiff from filing
another lawsuit asserting the same claims should this action be dismissed without
prejudice, the Court assumes that such a dismissal would effectively be with prejudice.
10

Embedded in this motion is a “request that the federal and state governments
investigate this complaint and if found to be with merit, that they proceed with federal
and state criminal charges against the individuals involved in this unemployment
compensation scam.” (Doc. 17 at 3). It is not the office of a federal court in a civil case
to direct law enforcement to conduct criminal investigations. Brennan v. Aulls, 1987 WL
38439 at *1 (6th Cir. 1987); Stewart v. Warden, 2012 WL 141476 at *1 n.1 (D. Md.
9

dismissed, without prejudice to the plaintiff’s ability to file and serve an
amended complaint on or before March 23, 2016, failing which the dismissal of
this action will become final without further order of Court.
DONE and ORDERED this 2nd day of March, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

2012); Fleming v. Lackawanna County, 2010 WL 424626 at *1 (M.D. Pa. 2010). The
request, construed as a motion for such relief, is therefore denied.
10