Cross et al v. Florida Department of Corrections
Filing
119
OPINION AND ORDER granting in part and denying in part 84 Defendant's Motion to Dismiss. Count II of Plaintiff's Third Amended Complaint is dismissed. The motion is otherwise denied. See Opinion and Order for details. Signed by Judge John E. Steele on 3/13/2014. (MAB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MELINDA NEAL-MYERS,
Plaintiff,
v.
Case No: 2:11-cv-654-FtM-29DNF
FLORIDA
DEPARTMENT
CORRECTIONS,
OF
Defendant.
OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss the Third Amended Complaint (Doc. #84) filed on
August 26, 2013.
Plaintiff filed a Memorandum in Response to
Defendant's Motion to Dismiss (Doc. #90) on September 9, 2013.
I.
On November 10, 2011, plaintiff Melinda Neal-Myers (NealMyers or plaintiff) and Ashley Cross (Cross) filed a six-count
Complaint against the Florida Department of Corrections (FDOC or
defendant).
(Doc. #1.)
Defendant filed a motion to dismiss, and
in response, plaintiff and Cross filed an Amended Complaint. (Doc.
#16.)
Thereafter, defendant filed a second motion to dismiss.
(Doc. #18.)
On July 9, 2012, the Court dismissed two of the counts
in the Amended Complaint without prejudice and provided another
opportunity to amend.
(Doc. #27.)
On August 9, 2012, plaintiff
and Cross filed a Second Amended Complaint (Doc. #28) and defendant
filed another motion to dismiss (Doc. #29).
On October 17, 2012, the parties notified the Court that they
had
successfully
mediated
the
administratively closed the case.
claims
and
(Doc. #35.)
the
Court
Defendant filed a
Motion to Enforce the Settlement as to Neal-Myers (Doc. #38) on
October 26, 2012, and Cross filed a Notice of Voluntary Dismissal
(Doc. #39) on November 1, 2012.
On November 5, 2012, Neal-Myers’s
counsel filed a motion to withdraw as her attorney.
(Doc. #40.)
On November 14, 2012, the Court denied defendant’s motion to
enforce the settlement but granted counsel’s request to withdraw
from the case. 1
prejudice.
The Court also dismissed Cross’s claims with
(Doc. #43.)
The case was re-opened on the same day.
The Court issued an Opinion and Order on April 18, 2013,
regarding
Complaint.
defendant’s
Motion
(Doc. #62.)
to
Dismiss
the
Second
Amended
The Court dismissed Count I of the
complaint, but granted plaintiff leave to file a third amended
complaint.
Plaintiff filed a Third Amended Complaint on August
14, 2013, asserting four claims against the FDOC.
In support
thereof, plaintiff alleges as follows:
1Plaintiff
eventually hired a different attorney to represent
her in this matter.
2
Plaintiff, an African American, was employed as a state
correctional officer at the DeSoto Correctional Institution in
Arcadia, Florida from on or about June 1, 2001, until on or about
April 28, 2011.
Plaintiff satisfactorily performed all of her job
duties at all relevant times.
In or about July 2010, Lieutenant
Carrie Rector (Lt. Rector) assumed a supervisory position and used
her
authority
in
a
discriminatory
manner
by
treating
white
correctional officers more favorably than their African American
counterparts.
The disparate treatment by Lt. Rector included the
assignment of more favorable duties to white employees, including
duties where such employees sat on the perimeter of the facility
and did not have to interact with inmates.
In September 2010,
plaintiff complained to Lt. Rector about the disparate treatment,
but was reprimanded by Lt. Rector’s supervisor for questioning her
authority.
On or about October 2, 2010, Lieutenant Tucker (Lt. Tucker),
a white supervisor, provided plaintiff with contradictory orders
regarding preparation for the next shift.
Shortly thereafter, Lt.
Tucker called plaintiff into an office where he and Lt. Rector
were present.
Lt. Tucker then began yelling and blaming Cross,
also an African American, for the manner in which she prepared for
the next shift without providing plaintiff an opportunity to
explain her actions.
He then went on to complain about “you
people” and “people like you”, referring to African Americans.
3
The
following
day
Cross
complained
about
Lt.
Tucker’s
discriminatory and hostile behavior and joined plaintiff in a
discussion
with
Sergeant
Whittaker
regarding
treatment received by white employees.
the
preferential
Later that day, plaintiff
and another African American correctional officer were having a
conversation outside one of the buildings at the facility when
they were informed to disperse at Lt. Tucker’s direction.
It was
customary for white officers in similar circumstances to carry on
with their conversations without intervention or criticism.
Plaintiff, Cross, and the other African-American correctional
officer were later told that there were issues with them gathering
and were directed to attend a meeting with Lt. Rector, Captain
Kilgo (Lt. Rector’s white supervisor), and two white sergeants.
Lt. Rector informed the African American officers that they were
called to the meeting because she was having issues with the three
of them.
When plaintiff asked why they were being spoken to
together, Lt. Rector immediately began to scream that plaintiff
was calling her a racist and referred to plaintiff’s discussion
with Sergeant Whittaker regarding claims of disparate treatment.
Plaintiff then stated that she believed the meeting was racially
motivated.
Plaintiff and Cross met with the warden on the following day
to discuss their complaint of racial discrimination.
During the
meeting, Cross was specifically asked if she intended to file a
4
complaint related to the racial discrimination, to which she
replied
in
the
affirmative.
Both
plaintiff
and
Cross
were
subsequently transferred to different locations, and on October 6,
2010,
Cross
was
terminated
due
to
her
complaints
of
racial
discrimination.
For the next five months, plaintiff diligently performed her
duties and had no difficulty with her supervisors.
On or about
January 31, 2011, plaintiff filed a Charge of Discrimination with
the Equal Employment Opportunity Commission (EEOC).
On March 7,
2011, the warden notified plaintiff in writing that she would be
terminated.
Plaintiff continued to perform her duties while
waiting for final action on her termination.
In April 2011, plaintiff learned that an assignment with a
more suitable shift with the same or similar duties as her current
shift would soon open up due to the retirement of a co-worker.
Plaintiff
asked
the
warden
if
she
could
be
assigned
to
the
position, but the warden informed her that he had already decided
to give the position to a white co-worker with less seniority.
Such a decision was against the policy and practice of the DeSoto
Correctional Institution.
Plaintiff filed a grievance regarding
the warden’s decision on April 18, 2011.
on April 28, 2011.
Plaintiff was terminated
The stated reason for the termination was
plaintiff’s conduct in the October 2010 incident.
5
The Third Amended Complaint sets forth four counts under Title
VII of the Civil Rights Act of 1964. Count I asserts that defendant
retaliated against her for the October protest.
In Count II,
plaintiff alleges that she racially discriminated against when she
requested assignment to the more favorable shift.
Count III sets
forth a claim of retaliation for the filing of an EEOC charge and
Count IV asserts a claim for retaliation based on the filing of
the grievance in April 2011.
Defendant now seeks dismissal of
Counts I, II, and IV.
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
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).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted).
To survive dismissal, the factual allegations
must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”
Id. at 555.
See also Edwards v.
Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more
than
accusation.”
an
unadorned,
Ashcroft
v.
This requires
the-defendant-unlawfully-harmed-me
Iqbal,
(citations omitted).
6
556
U.S.
662,
678
(2009)
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,”
v.
Berzain,
omitted).
654
F.3d
1148,
1153
(11th
Cir.
2011)
Mamani
(citations
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent
with
a
facially plausible.”
“Factual allegations that are merely
defendant’s
liability
fall
short
of
being
Chaparro v. Carnival Corp., 693 F.3d 1333,
1337 (11th Cir. 2012) (internal quotation marks and citations
omitted).
Thus, the Court engages in a two-step approach: “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 679.
III.
Defendant asserts that Count I is subject to dismissal because
there
is
insufficient
temporal
proximity
between
the
alleged
protected activity in October 2010 and plaintiff’s termination.
In order to state a claim for retaliation under Title VII, the
plaintiff must allege that (1) she engaged in statutorily protected
expression; (2) she suffered an adverse employment action; and (3)
the adverse action was causally related to the protected activity.
7
Webb-Edwards v. Orange Cnty. Sheriff’s Office, 525 F.3d 1013, 1028
(11th Cir. 2008) (citing Wideman v. Wal-Mart Stores, Inc., 141
F.3d 1453, 1454 (11th Cir. 1998)). To show causation, “a plaintiff
must show that the decision-makers were aware of the protected
conduct, and that the protected activity and the adverse actions
were not wholly unrelated.” Shannon v. BellSouth Telecomms., Inc.,
292 F.3d 712, 716 (11th Cir. 2002).
To do this, a plaintiff may
rely on the temporal proximity between the statutorily protected
activity and the adverse employment action, but the temporal
proximity must be “very close” if no other facts establishing
causation are alleged.
Thomas v. Cooper Lighting, Inc., 506 F.3d
1361, 1364 (11th Cir. 2007).
The Eleventh Circuit has held that
a three-moth interval between the protected expression and the
adverse employment action, without more, it too long to establish
causation.
Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1182
(11th Cir. 2010).
Here,
plaintiff
alleges
that
the
warden’s
discriminatory
treatment in April is evidence of a causal connection between her
opposition
to
racial
discrimination
termination in April 2011.
terminated
due
to
her
in
October
2010
and
her
It is also alleged that plaintiff was
conduct
in
the
October
2010
incident.
Because the allegations suggest that there is a connection between
the incident in October 2010 and plaintiff’s termination, the Court
8
finds
that
plaintiff
has
adequately
alleged
causation.
Accordingly, defendant’s motion to dismiss Count I is denied.
IV.
Defendant asserts that Counts II and IV on the Third Amended
Complaint should be dismissed because they exceed the scope of and
are unrelated to the charge of discrimination plaintiff filed with
the EEOC.
Before filing a Title VII action, a plaintiff must
exhaust her administrative remedies by filing a charge with the
EEOC.
Green v. Elixir Indus., Inc., 152 F. App’x 838, 840 (11th
Cir. 2005).
“The purpose of this exhaustion requirement is that
the [EEOC] should have the first opportunity to investigate the
alleged discriminatory practices to permit it to perform its role
in
obtaining
efforts.”
voluntary
compliance
and
promoting
conciliation
Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279
(11th Cir. 2004) (internal quotation marks and citations omitted).
It follows that a “plaintiff’s judicial complaint is limited by
the
scope
of
the
EEOC
investigation
which
can
reasonably
expected to grow out of the charge of discrimination.”
be
Gregory,
355 F.3d at 1280 (citing Alexander v. Fulton Cnty. Ga., 207 F.3d
1303, 1332 (11th Cir. 2000)).
Judicial claims that “amplify,
clarify, or more clearly focus” the allegations in the EEOC charge
are
permitted,
but
the
plaintiff
cannot
allege
new
acts
of
discrimination. Id. at 1279-80. Nonetheless, the Eleventh Circuit
9
has noted that the scope of an EEOC charge should not be strictly
interpreted.
Id. at 1280.
Defendant asserts that the claims arising out of the warden’s
refusal to assign plaintiff to a new shift exceed the scope of the
charge
plaintiff
filed
with
the
EEOC.
The
Court
disagrees.
Plaintiff’s charge of discrimination states, in relevant part,
that:
[M]y employer has treated me in a disparate manner with
regard to procedures, policies and actions which
adversely impacted me, as well as other African-American
employees in regard to the terms and conditions of our
employment when compared to other non-Black employees.
Such disparate treatment and harassment included, among
other things, racially hostile acts and comments,
different standards regarding job performance and roles
applied towards black employees, different standards
with regard to promotional opportunities and extremely
biased scrutiny and disciplinary action.
(Doc. #16-2.)
Plaintiff also describes her encounter with Lt.
Rector in October 2010 and her subsequent transfer.
The charge
further indicates that the alleged racial discrimination was an
ongoing problem because plaintiff checked the “continuing action”
box on the EEOC form.
(Id.)
The Court finds that Counts II and IV of the Third Amended
Complaint
amplify
the
allegations
of
the
ongoing
racial
discrimination identified in the charge filed with the EEOC on
January 31, 2011.
The EEOC could reasonably be expected to
investigate the warden’s decision regarding the shift assignment
because the charge states that her employer, not just Lt. Rector,
10
continuously
engaged
in
racial
discrimination
and
applied
different standards to African American employees regarding job
performance and promotions.
reason
for
plaintiff’s
Furthermore, an investigation of the
transfer
could
reasonably
lead
to
an
investigation of the subsequent employment decisions regarding
plaintiff.
Because the April events are a continuation of the
racial discrimination disclosed in plaintiff’s charge with the
EEOC, the Court finds that Counts II and IV do not exceed the scope
of the charge.
V.
Defendant next asserts that Count II is subject to dismissal
because plaintiff has failed to allege any adverse employment
action.
The
Court
agrees.
In
order
to
state
a
claim
for
discrimination under Title VII, a plaintiff must allege that she
suffered “a serious and material change in the terms, conditions,
or privileges of employment.”
Davis v. Town of Lake Park, Fla.,
245 F.3d 1232, 1239 (11th Cir. 2001).
Here, plaintiff alleges
that the warden refused to transfer her to a more favorable shift
either because of her complaint of racial discrimination in October
2010, her formal complaint with the EEOC, or because of some racial
animus.
(Doc. #83, ¶ 33.)
It is also alleged that the warden’s
refusal to assign her to the more favorable shift was a concurring
cause of her termination.
11
The denial of a transfer to a position with similar duties is
the adverse action alleged in Count II, not her termination.
Although plaintiff alleges that the conduct is a concurring cause
of her termination, the denial of the assignment did not result in
a serious and material change in her employment.
defendant’s
motion
to
dismiss
Count
II
of
the
Therefore,
Third
Amended
Complaint is granted.
VI.
Finally, defendant asserts that Count IV should be dismissed
because plaintiff has failed to allege retaliatory conduct as a
matter of law and has failed to allege that she engaged in
protected conduct.
Defendant
contends
that
plaintiff
was
notified
of
her
termination on March 7, 2011; thus, the alleged adverse employment
activity occurred before the filling of the grievance on April 18,
2011.
In response, plaintiff asserts that the termination was not
finalized until the requirements of Fla. Stat. § 110.227(5)(a)
were satisfied and she received notice of her actual termination.
The statute provides that:
A career service employee who . . . is subject to . . .
dismissal shall receive written notice at least 10 days
prior to the date the action is to be taken. Subsequent
to such notice, and prior to the date the action is to
be taken, the affected employee shall be given an
opportunity to appear before the agency or official
taking the action to answer orally or in writing the
charges against him or her.
12
Fla. Stat. § 110.227(5).
According to the statute, the date that
plaintiff was provided notice was not the date of her termination;
therefore, the Court will consider April 28, 2011, to be the date
of plaintiff’s termination.
Because the date of her termination
was later than the date the grievance was filed, the Court finds
that plaintiff has adequately alleged adverse employment action.
Defendant also asserts that plaintiff has failed to allege
protected conduct because the grievance procedure used does not
cover
discrimination.
To
engage
in
protected
activity,
the
employee must, “at the very least, communicate her belief that
discrimination is occurring to the employer.”
Demers v. Adams
Homes of Nw. Fla., Inc., 321 F. App’x 847, 852 (11th Cir. 2009)
(internal quotations and citations omitted).
utilized
the
wrong
procedure
to
complain
Plaintiff may have
of
discrimination;
however, it does not negate the fact that she communicated her
belief that discrimination is occurring to her employer.
Because
plaintiff
of
has
alleged
that
she
informed
her
employer
the
discriminatory conduct, defendant’s motion to dismiss Count IV is
denied.
Accordingly, it is now
ORDERED:
1.
Defendant’s
Motion
to
Dismiss
the
Third
Amended
Complaint (Doc. #84) is GRANTED in part and DENIED in part.
13
Count
II of plaintiff's Third Amended Complaint is dismissed. The motion
is otherwise denied.
DONE AND ORDERED at Fort Myers, Florida, this
March, 2014.
Copies:
Counsel of record
14
13th
day of
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