Long v. Sanders et al
Filing
19
ORDER granting 14 Motion to Dismiss. Ordered by Judge Clay D. Land on 06/23/2011. (CGC) ***
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
VERLITA LONG,
*
Plaintiff,
*
vs.
*
MERIAL LIMITED et al.,
*
Defendants.
Case No. 3:11-CV-001 (CDL)
*
O R D E R
Plaintiff, Verlita Long, who is proceeding pro se, asserts
employment discrimination claims against her former employer and
co-workers pursuant to Title VII of the Civil Rights Act of
1964,
as
42 U.S.C.
amended,
§
1981
42
(Ҥ
U.S.C.
§
1981”),
2000e
and
et
the
seq.
Age
(“Title
VII”),
Discrimination
in
Employment Act of 1967, as amended, 29 U.S.C. § 623 (“ADEA”).1
Presently pending before the Court is Defendant Merial Limited‟s
(“Merial”)
Complaint
Amended
(ECF
No.
Motion
to
Dismiss
14).
Merial
Plaintiff's
contends
that
Amended
Plaintiff‟s
Amended Complaint should be dismissed with prejudice because (1)
Plaintiff did not exhaust her administrative remedies concerning
her Title VII claim, (2) her Amended Complaint fails to state a
claim for age and race discrimination, and (3) Plaintiff‟s age
1
While plaintiff does not refer specifically to the ADEA in her
Amended Complaint, she does assert a claim of age discrimination.
Plaintiff did reference the ADEA in her initial charge filed with the
Equal Employment Opportunity Commission.
discrimination
claim
is
untimely.
The
Court
finds
that
Plaintiff‟s Amended Complaint fails to state a claim for age and
race
discrimination.
Therefore,
the
Court
need
not
address
Defendants‟ alternative arguments in favor of dismissal.
Plaintiff‟s
failure
to
shifting
state
a
allegations
claim
in
of
both
discrimination
her
original
Given
and
and
her
amended
Complaints, the Court is not inclined to give Plaintiff leave to
amend her Complaint further.
Dismiss
is
granted,
and
Accordingly, Merial‟s Motion to
Plaintiff‟s
Amended
Complaint
is
dismissed in its entirety, with prejudice.
MOTION TO DISMISS STANDARD
When considering a 12(b)(6) motion to dismiss, the Court
must
accept
complaint
as
and
true
all
facts
set
forth
limit
its
consideration
to
in
the
the
plaintiff's
pleadings
and
exhibits attached thereto. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949,
959
(11th
Cir.
2009).
“To
survive
a
motion
to
dismiss,
a
complaint must contain sufficient factual matter, accepted as
true, to „state a claim to relief that is plausible on its
face.‟”
Ashcroft
v.
Iqbal,
129
S.
Ct.
1937,
1949
(2009)
(quoting Twombly, 550 U.S. at 570). The complaint must include
sufficient factual allegations “to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 555. “[A] formulaic
recitation of the elements of a cause of action will not do[.]”
2
Id. Although the complaint must contain factual allegations that
“raise
a
reasonable
expectation
that
discovery
will
reveal
evidence of” the plaintiff's claims, id. at 556, “Rule 12(b)(6)
does not permit dismissal of a well-pleaded complaint simply
because „it strikes a savvy judge that actual proof of those
facts is improbable,‟”
Watts v. Fla. Int'l Univ., 495 F.3d
1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 556).
BACKGROUND
Plaintiff filed this action against her former employer,
Merial,
Burger
and
two
Merial
employees,
Nick
(collectively “Defendants”).
Sanders
and
Valeria
According to Plaintiff‟s
Amended Complaint, Defendants discriminated against Plaintiff by
wrongfully terminating her employment.
9.
Plaintiff
generally
alleges
in
Am. Compl. ¶ 4, ECF No.
conclusory
fashion
that
Defendants discriminated against her based on her race and age.
Id. ¶¶ 6-9.
Plaintiff does not allege any specific facts to
support
conclusion.
her
She
simply
asserts
that
“[t]he
defendants‟ discriminatory behavior towards the African-American
and older employees at this plant led to a scheme to have the
plaintiff
wrongfully
accused
and
terminated
from
her
employment.” Id. ¶ 9.
The alleged discrimination occurred on August 3, 2010.
¶
8.
Plaintiff
originally
filed
a
charge
with
the
Id.
Equal
Employment Opportunity Commission (“EEOC”) regarding Defendants‟
3
alleged
discriminatory
conduct
on
September
23,
2010.
Mot. To Dismiss Ex. 1, Pl.‟s EEOC Charge, ECF No. 14-2.
EEOC
charge,
Plaintiff
Plaintiff
received
a
only
alleged
right-to-sue
October 5, 2010. Am. Compl. ¶ 11.
Complaint
on
January
3,
2011,
age
Defs.‟
In her
discrimination.
letter
from
the
Id.
EEOC
on
Plaintiff filed her original
asserting
that
she
had
been
discriminated against on the basis of race and gender; she did
not allege age discrimination.
See generally Compl., ECF No. 1.
On March 14, 2011, Defendants filed a motion to dismiss for
failure to state a claim, relying primarily upon Plaintiff‟s
failure to exhaust her administrative remedies (i.e., file a
timely charge of race and sex discrimination with the EEOC)
before proceeding in her action. Defs.‟ Mot. To Dismiss, ECF No.
7.
Pursuant to Federal Rule of Civil Procedure 15(a)(1)(B) and
eighteen
days
after
receiving
Defendants‟
original
motion
to
dismiss, Plaintiff filed her Amended Complaint on April 1, 2011.
In
her
Amended
Complaint,
Plaintiff
resurrects
her
age
discrimination claim, reasserts her race discrimination claim,
and abandons her sex discrimination claim.
See generally Am.
Compl.
DISCUSSION
Defendants contend that Plaintiff‟s Amended Complaint fails
to state a claim for race discrimination and age discrimination.
4
As discussed below, the Court agrees and therefore finds it
unnecessary to address Defendants‟ alternative arguments.
I. Plaintiff's Failure to State a Claim for Race Discrimination
Title VII makes it unlawful for an employer “to discharge
any
individual,
or
otherwise
to
discriminate
against
any
individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual‟s race
[.]”
42
U.S.C.
2000e-2(a)(1).
Section
1981
prohibits
discrimination in the making and enforcement of contracts.
U.S.C. § 1981.
race
42
In the employment context, the same analysis
applies to claims under both Title VII and § 1981.
See Rice-
Lamar v. City of Ft. Lauderdale, Fla., 232 F.3d 836, 843 n. 11
(11th
Cir.
2000).
Under
both
statutes,
a
plaintiff
must
establish that her employer discriminated against her because of
her race.
To state a claim for race discrimination, Plaintiff
must allege sufficient facts in her Complaint from which the
Court can reasonably conclude that her claim of discrimination
is
plausible,
speculative,
discovery
that
and
will
discrimination.
she
that
reveal
has
a
a
right
reasonable
evidence
to
relief
that
expectation
supporting
is
exists
her
not
that
claim
of
See Ashcroft, 129 S. Ct. at 1949; see also
Twombly, 550 U.S. at 555-56.
Plaintiff‟s
discrimination.
Complaint
She
has
fails
to
alleged
5
state
no
a
facts
claim
for
showing
race
direct
evidence
allege
of
racial
facts
discrimination.
demonstrating
She
has
circumstantial
also
failed
evidence
of
to
race
discrimination, such as: “(1) [s]he was a member of a protected
class; (2) [s]he was qualified for the job; (3) [s]he suffered
an adverse employment action; and (4) [her] employer treated
similarly situated employees outside the protected class more
favorably.” Hopkins v. St. Lucie Cnty. Sch. Bd., 399 F. App‟x
563, 565 (11th Cir. 2010)
(per curiam)
(quoting
Crawford v.
Carroll, 529 F.3d 961, 970 (11th Cir. 2008)).
Both
conclusory
the
Complaint
allegations
and
the
that
Amended
Complaint
make
engaged
in
Defendants
“discriminatory behavior” that led to a “scheme to have the
plaintiff
wrongfully
accused
and
terminated
employment.” Compl. ¶ 9; Am. Compl. ¶ 9.
from
her
Plaintiff does not,
however, allege any facts describing the discriminatory behavior
or the scheme.
the
Court
Moreover, Plaintiff alleges no facts from which
could
reasonably
infer
that
Defendants
treated
similarly situated employees outside Plaintiff‟s protected class
more favorably, or that she was replaced by anyone outside her
protected class.
Her conclusory allegations do not demonstrate
that she has stated a claim that is plausible on its face or
that her claim for relief rises above the speculative level.
She certainly alleges no facts from which one could reasonably
6
conclude
that
discovery
may
reveal
evidence
of
her
claim.
Therefore, Plaintiff‟s race discrimination claims are dismissed.
II. Plaintiff's Failure to State a Claim for Age Discrimination
Under the ADEA, it is unlawful for an employer to terminate
or otherwise discriminate against an employee because of the
employee‟s
age.
29
U.S.C.
§
623(a)(1).
Similar
to
her
allegations of race discrimination, Plaintiff alleged no facts
that
would
Likewise,
constitute
Plaintiff
direct
alleged
evidence
no
facts
of
age
that
circumstantial evidence of age discrimination.
discrimination.
would
constitute
She has failed
to allege that: (1) she was a member of a protected age group;
(2) she was qualified for the job from which she was discharged;
(3) she was discharged; and (4) she was treated less favorably
than a similarly situated individual outside her protected age
class or her former position was filled by a younger individual.
Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000)
(en banc); accord Johnson v. Atlanta Indep. Sch. Sys., 137 F.
App‟x 311, 314 (11th Cir. 2005) (per curiam).
As with her race claims, Plaintiff alleges in conclusory
fashion
that
Defendants
engaged
in
“discriminatory
behavior”
that led to a “scheme to have the plaintiff wrongfully accused
and terminated from her employment.” Am. Compl. ¶ 9.
Plaintiff
does not allege any specific facts demonstrating that she has a
plausible
claim
for
age
discrimination
7
that
rises
above
the
speculative
level,
and
her
allegations
do
not
suggest
discovery may reveal evidence of age discrimination.
that
Therefore,
she has failed to state a claim for age discrimination under the
ADEA.
CONCLUSION
Based
Dismiss
on
(ECF
the
No.
foregoing,
14)
is
Defendants‟
granted,
and
Amended
Motion
Plaintiff's
to
Amended
Complaint is dismissed in its entirety, with prejudice.
The
Court declines to sua sponte grant Plaintiff another opportunity
to
amend
prejudice.
2008)
(per
her
Complaint
before
dismissing
her
claims
with
See Rance v. Winn, 287 F. App‟x 840, 842 (11th Cir.
curiam)
(finding
no
error
when
district
court
dismissed pro se plaintiff‟s complaint with prejudice without
sua sponte granting him leave to amend).
IT IS SO ORDERED, this 23rd day of June, 2011.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
8
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