Moss v. DeKalb County Board of Health

Filing 4

ORDER directing Plaintiff to file an Amended Complaint that contains her age discrimination claim within thirty days of the date of this Order. Plaintiff is ORDERED to make a short and plain statement of her claim against each Defendant. The Court wi ll then review the Amended Complaint for frivolity and determine at that time whether Plaintiff's age discrimination claim should proceed. Plaintiffs other claims are DISMISSED. The Clerk is DIRECTED to mail a copy of this order to Plaintiff at the address listed on the docket. Signed by Judge Richard W. Story on 8/22/2013. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MARIAN T. MOSS,
Plaintiff,
v.
DEKALB COUNTY BOARD OF
HEALTH, DR. SANDRA E.
FORD, HANNA DEMEKE,
ADRIENNE BUCKMIRE, DR.
LESLIE RICHMOND, and
JACQUELINE HILL,
Defendants.

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CIVIL ACTION NO.
1:13-CV-1319-RWS

ORDER
On April 24, 2013, Magistrate Judge Walter E. Johnson entered an Order
[2] permitting Plaintiff to proceed in forma pauperis in this action. The case
was then referred to the undersigned for a frivolity determination. Having
carefully considered the record, the Court enters the following order.
Background
Plaintiff’s Complaint was filed on April 24, 2013 [3]. The Complaint
arises out of Plaintiff’s termination, and she asserts four claims: (1) age
discrimination, (2) retaliation, (3) wrongful termination, and (4) classification

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status. Defendants are the DeKalb County Board of Health and individuals who
appear to be employees of the Board of Health.
Analysis
Pursuant to 28 U.S.C. § 1915(e)(2)(B), “the court shall dismiss the case
at any time if the court determines that . . . the action or appeal (i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.” A claim
is frivolous when it appears from the face of the complaint that the factual
allegations are “clearly baseless” or that the legal theories are “indisputably
meritless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carrol v. Gross,
984 F.2d 393, 393 (11th Cir. 1993).
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a
“short and plain statement of the claim showing that the pleader is entitled to
relief.” While this pleading standard does not require “detailed factual
allegations,” “labels and conclusions” or “a formulaic recitation of the elements
of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Because Plaintiffs are proceeding pro se, their “pleadings are held to a
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less stringent standard than pleadings drafted by attorneys and will, therefore,
be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998). “This leniency, however, does not require or allow courts to
rewrite an otherwise deficient pleading in order to sustain an action.” Thomas
v. Pentagon Fed. Credit Union, 393 F. App’x 635, 637 (11th Cir. 2010).
As to Plaintiff’s age discrimination claim, the Court assumes that
Plaintiff is bringing her claim under the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621-34. The ADEA makes it illegal for an employer
“to discharge any individual or otherwise discriminate against any individual”
because of her age. 29 U.S.C. § 623(a)(1). Unlike other discrimination
statutes, the prohibition against discrimination only applies to some employees,
namely those who “are at least 40 years of age.” Id. § 631(a). To establish a
prima facie case of age discrimination, a plaintiff must show: (1) that she
belonged to a protected class, (2) that she held the proper job qualifications, (3)
that she suffered an adverse employment action, and (4) that her employer
replaced her with someone substantially younger. O’Connor v. Consol. Coin
Caterers Corp., 517 U.S. 308, 313 (1996). In this case, the Court finds that the
Complaint sets forth all the prima facie elements of an age discrimination claim.
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However, Plaintiff asserts that claim only against her supervisor, Adrienne
Buckmire, and arguably against their mutual employer, DeKalb County Board
of Health. As to the other named Defendants, Plaintiff does not set forth factual
allegations in support of an age discrimination claim. However, in deference to
her pro se status, the Court will allow her to re-plead her claims in order to
comply with federal pleading standards.
As to Plaintiff’s retaliation claim, the ADEA provides that it is unlawful
for an employer to discriminate against an employee because that employee
“has opposed any practice made unlawful by this section” or because that
employee “has made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this article.” 29 U.S.C. §
623(d). The Eleventh Circuit has held that the same analysis that applies to the
allocation of burdens of production and to the presentation of circumstantial
proof in Title VII cases also applies to retaliation claims under the ADEA.
Baker v. Sears, Roebuck & Co., 903 F.2d 1515, 1519 (11th Cir. 1990). In
retaliation cases under Title VII, and thus also under the ADEA, a prima face
case of retaliation requires a showing of: (1) participation in actions protected
by the statute, (2) an adverse employment action, and (3) a causal link between
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the protected actions and the adverse employment decision. See Hamm v.
Members of the Bd. of Regents, 708 F.2d 647, 654 (11th Cir. 1983). In this
case, the Complaint does not set forth a protected activity that would have
formed the basis of the adverse employment action here. As such, Plaintiff fails
to state a retaliation claim as a matter or law, and this claim does not survive a
frivolity determination. Plaintiff’s retaliation claim is DISMISSED.

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to Plaintiff’s wrongful termination claim, it appears that wrongful termination is
the adverse employment action that Plaintiff asserts as the basis for her age
discrimination claim. As such, this claim would be subsumed within Plaintiff’s
first claim and does not survive a frivolity determination. The wrongful
termination claim is DISMISSED.
As to Plaintiff’s classification status claim, the Court is unable to
determine what Plaintiff means by the term “classification status.” To the
extent that Plaintiff alleges she was terminated based upon her classification as
“old” [3, at ¶ 8], this claim would also be subsumed within Plaintiff’s age
discrimination claim. As a result, Plaintiff’s status claim does not survive a
frivolity determination and is DISMISSED.

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Conclusion
For the reasons stated above, Plaintiff is ORDERED to file an Amended
Complaint that contains her age discrimination claim within thirty days of the
date of this order. Plaintiff is ORDERED to make a short and plain statement
of her claim against each Defendant. The Court will then review the Amended
Complaint for frivolity and determine at that time whether Plaintiff’s age
discrimination claim should proceed. Plaintiffs other claims are DISMISSED.
The clerk is DIRECTED to mail a copy of this order to Plaintiff at the
address listed on the docket.
SO ORDERED, this 22nd

day of August, 2013.

________________________________
RICHARD W. STORY
United States District Judge

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