Coles v. Post Master General United States Postal Services

Filing 24

ORDER denying Defendant's Motion to Dismiss Doc. 15 . Signed by Judge Roy B. Dalton, Jr. on 2/27/2015. (JMW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

ARMANDA COLES,

Plaintiff,
v.

Case No. 6:14-cv-845-Orl-37DAB

POST MASTER GENERAL UNITED
STATES POSTAL SERVICES,

Defendant.
ORDER

This cause is before the Court on the following:
1. Defendant’s Motion to Dismiss Amended Complaint (Doc. 15), filed
November 21, 2014; and
2. Plaintiff’s Response to Motion to Dismiss (Doc. 17), filed December 13, 2014.
Upon consideration, the Court finds that Defendant’s Motion is due to be denied.
BACKGROUND
Plaintiff, an African American female over the age of forty (see Doc. 13, ¶ 16), filed
this employment discrimination suit against her employer, the U.S. Postal Service
(“USPS”) on May 30, 2014. (See Doc. 1.) On November 7, 2014, she filed an Amended
Complaint alleging “violations of her civil rights as set forth in Title VII of the Civil Rights
Acts of 1964 and the Age Discrimination [in Employment] Act.” (Doc. 13, p. 1.). She
brings the following three claims: (1) a discrimination claim based on disparate treatment

(id. ¶¶ 15–21); (2) a retaliation claim based on the fact that “she complained about past
acts of discrimination” (id. ¶¶ 22–27); and (3) a claim for “retaliation based upon race and
age” because she was “subjected to a hostile work environment” (id. ¶¶ 28–35). In
support, she pleads the following: (1) she had previously been unlawfully terminated after
filing an Equal Employment Opportunity Commission (“EEOC”) complaint against
Defendant, but as a result of the EEOC process, she was reinstated to her Mail Handler
position (id. ¶ 7); (2) her immediate supervisor was observed “searching [her] vehicle
without permission to do so from her or any proper authority,” and the Manager of
Distribution Operations (“MDO”) “stood by and watched as one of her direct reports
committed [this] illegal act” (id. ¶¶ 7–8); (3) she was issued an Investigative Interview for
“alleged attendance problems” even though she “did in fact submit the required leave
paper work,” which “had a chilling effect on the decision to file future EEO Complaints”
(id. ¶ 13); and (4) despite receiving a favorable bid assignment based upon her seniority,
she was “required to work the culling bed” outside of her bid assignment, and “[o]ther non
African Americans [sic] and other employees not over forty were not required to work
outside of their bid assignment” (id. ¶ 14).
Defendant moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
(See Doc. 15.) Plaintiff opposes. (Docs. 17.) The matter is now ripe for the Court’s
adjudication.
STANDARDS
Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain “a
short and plain statement of the claim.” In considering a motion to dismiss, the Court limits
its “consideration to the well-pleaded factual allegations, documents central to or

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referenced in the complaint, and matters judicially noticed.” La Grasta v. First Union Sec.,
Inc., 358 F.3d 840, 845 (11th Cir. 2004). The factual allegations in the complaint must
“state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). In making this plausibility determination, the Court must accept the
factual allegations as true; however, this “tenet . . . is inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A pleading that offers mere “labels and
conclusions” is therefore insufficient. Twombly, 550 U.S. at 555.
DISCUSSION
Defendant moves to dismiss Plaintiff’s Amended Complaint in its entirety, arguing
that “Plaintiff continues to base her claims on ‘threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements’ that ‘do not suffice’ under the
federal rules.” (Id. at 1–2 (quoting Ashcroft, 556 U.S. at 678).). The Court disagrees.
Plaintiff has sufficiently, if somewhat inartfully, pled factual allegations to support the
elements of each cause of action.
I.

Disparate Treatment
It is unlawful for an employer “to discriminate against any individual with respect to

her compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). To
succeed on a claim for discrimination based on disparate treatment, Plaintiff must prove:
(1) she is a member of a protected class; (2) she was qualified for her employment
position; (3) she suffered an adverse employment action; and (4) she was replaced by a
person outside her protected class or treated less favorably than a similarly situated
comparator outside of her protected class. Maynard v. Bd. of Regents, 342 F.3d 1281,

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1289 (11th Cir. 2003).
Defendant’s primary argument for dismissal of Plaintiff’s disparate treatment claim
is that she has not adequately alleged an adverse employment action. “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 . . . as viewed by a reasonable person in the circumstances.” Davis v. Town
of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001).
Defendant relies on Davis, where the court stated that:
an employee alleging a loss of prestige on account of a
change in work assignments, without any tangible harm, will
be outside the protection afforded by Congress in Title VII’s
anti-discrimination clause—especially where, as here, the
work assignment at issue is only by definition temporary and
does not affect the employee’s permanent job title or
classification.
245 F.3d at 1245; (see also Doc. 15, p. 7). The present case is distinguishable from Davis.
The Davis plaintiff was the only African American police officer in the Town of Lake Park
and he was eventually selected to serve as an officer-in-charge (“OIC”). Davis, 245 F.3d
at 1235. The court found that the plaintiff did not suffer a “material change in his regular
work assignments” when he was temporarily removed from the OIC position because:
(1) OIC is an “ephemeral designation” that was not a permanent feature of his job
responsibilities as a police officer; (2) “it [was] not clear that actual additional
responsibilities of serving as OIC were substantial”; (3) the OIC duties were assumed only
on a part-time basis; and (4) “he served as OIC on subsequent occasions after each
instance when he was removed.” Id. at 1244. In contrast, Plaintiff alleges that she won a
bid and was able to obtain a favorable job assignment that did not require her to work the

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culling belt, yet, since her first EEOC complaint, she was required to work the culling belt
for over two years up until the time she filed the EEOC complaint that lead to this action.
(See Doc. 13, ¶¶ 14, 18.) Taking these allegations as true and viewing them in the light
most favorable to Plaintiff, see Ashcroft, 556 U.S. at 678, it is plausible that her job
assignment is a permanent position and her two plus years of work at the culling belt was
more than a “temporary removal” from her position. See Davis, 245 F.3d at 1235
(considering the permanency of position and the temporariness of the change in duties).
Plaintiff has sufficiently pled factual allegations that, taken as true, satisfy each
element of a disparate treatment claim. First, Plaintiff alleges that she is a member of not
just one but three protected classes—she is African American, she is a woman, and she
is over forty years old. (See Doc. 13 ¶ 16.) Second, Plaintiff adequately alleges that she
is qualified for the position, which is supported by the factual allegations that she
“performed the duties of the position for over 28 years,” “has over forty years of total
government service,” and throughout her career she has “acquired a considerable
amount of training, experience and knowledge which has enabled her to perform her job
as a highly functioning employee.” (Id. ¶ 17.) Third, Plaintiff’s delineates how she suffered
adverse employment action: (1) her private vehicle was searched based on unfounded
accusations and no other employee’s vehicles were searched (id. ¶ 7–8, 18); and (2) she
has “been required to work an assignment that is not part of her bid assignment” (id. ¶ 18)
despite the fact that she has seniority over several other employee’s (id.), “she
successfully bid for a desirable job assignment” that does not require her to work the
culling belt (id. ¶¶ 14, 18), and other employees were not required to work outside of their
bid assignment (id. ¶ 14). Lastly, Plaintiff sufficiently pleads that she was treated less

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favorably than a similarly situated comparator outside her protected class, see Maynard,
342 F.3d at 1289, by alleging that: (1) no other employees, including a Hispanic male,
Hispanic female, and white male, had their vehicles searched (id. ¶ 11, 18); and (2) other
non-African Americans and employees over forty were not required to work outside of
their bid assignment (id. ¶¶ 14, 18, 19).
II.

Title VII Retaliation
Under 42 U.S.C. § 2000e-3(a), it is unlawful for an employer to retaliate or

discriminate against an employee because she “has opposed any practice made an
unlawful employment practice by [Title VII], or because [s]he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under
this subchapter.” The elements of a Title VII retaliation claim are: (1) Plaintiff engaged in
a protected activity; (2) her employer took adverse action against her; and (3) there is a
causal connection between the protected activity and the adverse action. Weeks v.
Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002).
Defendant argues that Plaintiff did not state a cause of action for retaliation under
Title VII because she did not suffer an adverse employment action as a result of the
alleged retaliatory acts and, even if she did, “she fails to allege facts sufficient to allow the
reasonable inference there was a ‘but for’ causal relationship between the protected
activity and the adverse employment action.” (See Doc. 15, p. 9.) The Court disagrees.
Albeit disjointedly, Plaintiff has adequately alleged each element of a Title VII
retaliation claim. She alleges that: (1) “she had participated in a protected activity in the
past,” that is, she previously filed a different EEOC complaint against Defendant which
culminated in her being unlawfully terminated; (2) as a result of that EEOC process, she

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was reinstated to her position; and (3) “[s]ubsequent to her reinstatement, Management
and [a person against whom she filed the first EEOC complaint] . . . subjected her to a
series of harassing acts—[most significantly, requiring her to work outside of job
assignment for several years (see Doc. 13, ¶ 14)]—that are acts of retribution for her
participation in protected activity.” (See Doc. 13, ¶¶ 7, 23, 24.) Going forward, Plaintiff will
indeed be required to show a but-for causal connection between the protected activity
and the adverse employment action, see University of Texas Southwestern Medical
Center v. Nassar, 133 S.Ct. 2517, 2534 (2013), but she need not do so at this stage of
the pleadings, see Benton v. Crane Merchandising Systems, Inc., No. 1:12-cv-185,
2013 WL 6081767, at *4 (M.D. Ga. Nov. 19, 2013) (“Plaintiff need not plead facts that
would be required for a prima facie case on a motion for summary judgment.”). Thus,
Plaintiff’s allegations are sufficient to “state a claim to relief that is plausible on its face”
and survive a motion to dismiss. See Twombly, 550 U.S. at 570.
III.

Hostile Work Environment
Title VII is further violated “[w]hen 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.” Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). To state a claim for hostile work environment,
Plaintiff must allege that: (1) she belongs to a protected group; (2) she has been subject
to unwelcome harassment; (3) the harassment was based on a protected characteristic
of the employee; (4) the harassment was sufficiently severe or pervasive to alter the terms
and conditions of employment and create a discriminatorily abusive working environment;
and (5) the employer is responsible for such environment under either a theory of

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vicarious or direct liability. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276
(11th Cir. 2002).
Defendant asserts that Plaintiff failed to state a claim for hostile work environment
because “none of the four incidents Plaintiff claims, whether considered individually or as
a group, are sufficiently severe or pervasive that they affected a term or condition of
employment.” (Doc. 15, p. 14.) The Court disagrees.
The “severe or pervasive” requirement “contains both an objective and a subjective
component.” Miller, 277 F.3d at 1276. In evaluating the objective severity of the
harassment, the Court considers, inter alia: (1) the frequency of the conduct; (2) the
severity of the conduct; (3) whether the conduct is physically threatening or humiliating,
or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with
the employee’s job performance. The Court finds that Plaintiff sufficiently alleges that
Defendant and its employers’ conduct unreasonably interfered with her job performance:
it “denied [her] a preferred shift assignment that she was entitled to work . . . for a period
of about two years.” (See Doc. 13, ¶ 33.)
Defendant does not contest any other element of Plaintiff’s hostile work
environment claim; therefore, having found that Plaintiff sufficiently alleged the contested
element, the Court finds that Defendant’s Motion is due to be denied. 1
CONCLUSION
Accordingly, it is hereby ORDERED that Defendant’s Motion to Dismiss Amended
Complaint (Doc.15) is DENIED.

1

All other arguments in the Motion (Doc. 15) not specifically addressed in this
Order are rejected.

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DONE AND ORDERED in Chambers in Orlando, Florida, on February 27, 2015.

Copies:
Counsel of Record

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