Jacobs v. Alorica
Filing
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---ERRONEOUSLY FILED IN ERROR-DUPLICATE--OPINION and ORDER ADOPTING 5 Final Report and Recommendation; OVERRULING the 7 Objections; IT IS FURTHER ORDERED that Plaintiff's Title VII and Title VIIretaliation claims are DISMISSED pursuant to 28 U.S.C. § 1915(e)(2). Plaintiff'sstate law defamation claim is DISMISSED WITHOUT PREJUDICE. Signed by Judge William S. Duffey, Jr. on 3/31/2016. (adg) Modified on 4/1/2016 (bdb).
Because the allegations in her complaint were conclusory, and because she failed
to plead facts to state a plausible claim under Title VII or for defamation, on
April 2, 2015, the Magistrate Judge ordered Plaintiff to file, within fourteen (14)
days, an amended complaint addressing the deficiencies noted in the Order, and
complying with the Federal Rules of Civil Procedure. ([2] (the “April 2nd
Order”)).
On April 14, 2015, Plaintiff filed her Amended Complaint [4]. The
Amended Complaint is a form complaint used for Title VII claims. The Amended
Complaint is nearly identical to Plaintiff’s original complaint, except that it fails to
include the statement of claim and factual allegations that appear in the original
complaint, and instead includes a three-page statement that challenges the
Magistrate Judge’s findings in her April 2nd Order. Plaintiff argues that the
Magistrate Judge “misconstrued” her claims, (Am. Compl. at 10-12), and again
presents conclusory allegations that she was harassed and discriminated against on
the basis of her race and treated differently because of her “allergies,” (id. at
10-11).
On April 22, 2015, the Magistrate Judge issued her R&R. In it, she found
that Plaintiff’s race-based claims fail, because her Amended Complaint, like her
original complaint, fails to allege any facts indicating that unlawful race
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discrimination was the reason for any alleged adverse actions, or assert any other
facts tending to show that racial animus motivated Defendant. (R&R at 3-4). The
Magistrate Judge found that Plaintiff’s Title VII retaliation claim fails because her
Amended Complaint does not allege that any of Plaintiff’s internal complaints
were based on a protected characteristic. (Id. at 7). The Magistrate Judge
recommended that the Court decline to exercise supplemental jurisdiction over
Plaintiff’s remaining state law defamation claim, and that the Court dismiss that
claim without prejudice. (Id. at 9).
On June 5, 2015, Plaintiff filed her Objections. Plaintiff states that she did
not receive the R&R until May 29, 2015. (Obj. at 1). Plaintiff argues that she
“gave factual allegations to support her Title VII claim for Harassment, Racism,
Defamation and Retaliation,” and argues that the Magistrate Judge “did not
liberally construe the Plaintiff’s allegations.” (Id.). Plaintiff claims that “white HR
managers discriminated against her” by “refusing to grant [her] the right to a
hearing per company policy which is a right of all employees,” and “refusing to
grant her request for a new supervisor in spite of the supervisor’s unlawful actions
against [her.]” (Id. at 1-2). She argues that she stated “she is treated
inappropriately due to her having allergies,” and compares this to a case in
California in which a plaintiff was isolated and treated “indifferently [sic] due to
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his” having AIDS. (Id. at 2). Plaintiff argues that “[t]he court deemed harassment
per Title VII as sexual only. Per Title VII any verbal or physical harassment is
also sufficient cause for a Title VII claim. The Plaintiff stated that she experienced
physical harassment while in her chair on several occasions.” (Id.).
Plaintiff next argues that the Magistrate Judge erred in “trying to link the
Plaintiff’s allegations of racism and harassment as one entity. I am experiencing
both racism and harassment at the job.” (Id.). Finally, she argues that the
Magistrate Judge erred in her “interpretation of Retaliation. The Plaintiff was
retaliated against as a result of submitting a claim to the EEOC. That is a Title VII
violation. The retaliation included defamation of Plaintiff [sic] record and
unwarranted write ups by supervisor.” (Id.).
II.
DISCUSSION
A.
Legal Standard
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams
v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge
“shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C.
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§ 636(b)(1). If no party has objected to the report and recommendation, a court
conducts only a plain error review of the record. United States v. Slay, 714 F.2d
1093, 1095 (11th Cir. 1983) (per curiam). Though Plaintiff’s Objections were
untimely, the Court, in its discretion, performs its de novo review.
B.
Analysis
Because Plaintiff proceeds in forma pauperis, the Court is required to
conduct a frivolity review under 28 U.S.C. § 1915(e)(2). A court must dismiss a
complaint filed in forma pauperis if at any time the court determines the action is
frivolous or malicious or that it fails to state a claim on which relief can be granted.
28 U.S.C. § 1915(e)(2)(B)(i)-(ii). “Failure to state a claim under
§ 1915(e)(2)(B)(ii) is governed by the same standard as dismissal for failure to
state a claim under Fed. R. Civ. P. 12(b)(6).” Wilkerson v. H&S, Inc., 366 F.
App’x 49, 51 (11th Cir. 2010) (citing Mitchell v. Farcass, 112 F.3d 1483, 1490
(11th Cir. 1997)). Under this standard, “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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that
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the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556).
Review for frivolousness, on the other hand, “‘accords judges not only the
authority to dismiss a claim based on an indisputably meritless legal theory, but
also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.’” See
Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (quoting
Neitzke v. Williams, 490 U.S. 319, 327 (1989)). A claim is frivolous when it “has
little or no chance of success,” that is, when it appears “from the face of the
complaint that the factual allegations are ‘clearly baseless’ or that the legal theories
are ‘indisputably meritless.’” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993)
(quoting Neitzke, 490 U.S. at 327).
Plaintiff filed her Amended Complaint pro se. “A document filed pro se is
to be liberally construed, and a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation marks
omitted). Nevertheless, a pro se plaintiff must comply with the threshold
requirements of the Federal Rules of Civil Procedure. See Beckwith v. Bellsouth
Telecomms. Inc., 146 F. App’x 368, 371 (11th Cir. 2005). “Even though a pro se
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complaint should be construed liberally, a pro se complaint still must state a claim
upon which the Court can grant relief.” Grigsby v. Thomas, 506 F. Supp. 2d 26,
28 (D.D.C. 2007). “[A] district court does not have license to rewrite a deficient
pleading.” Osahar v. U.S. Postal Serv., 297 F. App’x 863, 864 (11th Cir. 2008).
The Court considers each of Plaintiff’s claims in turn.
1.
Title VII Discrimination Claims
Plaintiff appears to allege a disparate treatment claim of race discrimination
under Title VII. (Am. Compl. at 6, 14). “Disparate treatment can constitute illegal
discrimination when ‘an employer has treated a particular person less favorably
than others because of a protected trait.’” Uppal v. Hosp. Corp. of Am., 482 F.
App’x 394, 396 (11th Cir. 2012) (quoting Ricci v. DeStefano, 557 U.S. 557, 577
(2009)). “Although a plaintiff need not satisfy the McDonnell Douglas [v. Green,
411 U.S. 792 (1973)] framework at the pleading stage in order to state a claim of
disparate treatment, the ‘ordinary rules for assessing the sufficiency of a complaint
[still] apply.’” Id. (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511
(2002)). “‘Although a Title VII complaint need not allege facts sufficient to make
out a classic McDonnell Douglas prima facie case, it must provide enough factual
matter (taken as true) to suggest intentional . . . discrimination.’” Bowers v. Bd. of
Regents of the Univ. Sys. of Ga., 509 F. App’x 906, 910 (11th Cir. 2013) (internal
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quotations omitted) (quoting Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d
955, 974 (11th Cir. 2008)). “The analysis of a disparate treatment claim is the
same whether that claim is brought under Title VII, § 1981, or § 1983.” Hopkins
v. St. Lucie Cnty. Sch. Bd., 399 F. App’x 563, 565 (11th Cir. 2010).
Plaintiff alleges that “[a]ll white authority to which Plaintiff has rendered her
complaint[s of race discrimination] have basically called her a liar by stating her
accusations are not true with no investigation of the matter . . . .” (Am. Compl. at
12). Plaintiff alleges that she experiences “verbal harassment all the day long
about [her] sexuality, incest, education, whoredom, past jobs, childhood, stealing
and etc.” (Id. at 10). She claims that she experiences “consistent harassment at the
workplace” due to her “allergies.” (Id.). She states she is “an African American
female being denied company rights guaranteed to all employees that request it.”
(Id.). She claims her supervisors made false allegations that she “was not washing
[her] hands after using the bathroom,” and that those allegations caused her to be
“denied employment” for “positions in other states.” (Id.).
The Magistrate Judge determined that “none of the alleged harassment
purports to be based on [Plaintiff’s] race,” and concluded that Plaintiff failed to
state a plausible claim of race discrimination under Title VII. (R&R at 4).
Plaintiff objects, arguing that “white HR managers discriminated against her” by
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“refusing to grant [her] the right to a hearing per company policy which is a right
of all employees,” and “refusing to grant her request for a new supervisor in spite
of the supervisor’s unlawful actions against [her.]” (Obj. at 1-2).
Plaintiff’s allegations, however, do not support that she was discriminated
against on the basis of her race. The fact that her supervisors are white, standing
alone, is insufficient to support her claim. Likewise, her conclusory assertion that
she is “an African American female being denied company rights guaranteed to all
employees that request it,” (Am. Compl. at 10), is, on its own, insufficient to
support a claim of discrimination. See, e.g., Taunton v. BLG Logistics, Inc., No.
14-cv-1672-KOB, 2015 WL 2402971, at *2 (N.D. Ala. May 20, 2015) (“[G]eneral,
conclusory allegations of race discrimination without specific facts to give the
court and Defendant notice regarding upon what that claim is based . . . do not
meet the standards of pleading that the Supreme Court set forth in Iqbal and
Twombly.”); Hale v. Mingledorff, No. 2:13-CV-0228-RWS, 2014 WL 7012772, at
*13 (N.D. Ga. Dec. 11, 2014) (“Plaintiff’s conclusory allegations are insufficient
to state a claim of race discrimination.”).1 Plaintiff does not offer any additional
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The Magistrate Judge also found that Plaintiff’s allegations are insufficient
to state a viable claim of race-based hostile environment. (R&R at 5 n.2).
“Although a plaintiff need not plead a prima facie case of hostile work
environment in the complaint,” McKeithan v. Boarman, 803 F. Supp. 2d 63, 69
(D.D.C. 2011); see also Henderson v. JP Morgan Chase Bank, N.A., 436 F. App’x
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allegations to support her claim of race discrimination. Plaintiff’s objections are
overruled, and her Title VII race discrimination claim is dismissed.2
2.
Title VII Retaliation Claim
Plaintiff alleges that her employer retaliated against her after she complained
about her discrimination. To discriminate against an employee “because of [the
employee's] race, color, religion, sex, or national origin” is an “unlawful
employment practice” under Title VII. 42 U.S.C. § 2000e-2(a). Title VII generally
prohibits retaliation against an employee for opposing “unlawful employment
practices” or participating in the investigation of “unlawful employment practices.”
See id.; 42 U.S.C. § 2000e-3(a); McCann v. Tillman, 526 F.3d 1370, 1375 (11th
935, 937 (11th Cir. 2011), she must still plead sufficient facts to show that her
work environment was “permeated with discriminatory intimidation, ridicule, and
insult,” that was “sufficiently severe or pervasive” to have altered the terms,
conditions, or privileges of her employment, see Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993); Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th
Cir. 2002). Plaintiff argues that the Magistrate Judge erred in “trying to link the
Plaintiff’s allegations of racism and harassment as one entity. I am experiencing
both racism and harassment at the job.” (Obj. at 2). The Magistrate Judge
addressed Plaintiff’s harassment claim, and denied it. The Court agrees with the
Magistrate Judge’s determination, because Plaintiff failed to allege any facts to
show she suffered any harassment or discrimination on the basis of her race.
Plaintiff’s objections are overruled.
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Plaintiff’s objection that “[t]he court deemed harassment per Title VII as
sexual only,” (Obj. at 2), is nonsensical. The Magistrate Judge addressed
Plaintiff’s Title VII race discrimination claim, and Plaintiff did not allege sex
discrimination under Title VII. Plaintiff’s objection is overruled.
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Cir.2008). To state a claim under Title VII based on retaliation, the plaintiff must
allege facts sufficient to show that she suffered a materially adverse employment
action because she complained about an “unlawful employment practice.” See
Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002).
Plaintiff states she sent “a letter to Corporate” in which she complained
about “false allegations about [her] sanitation and inappropriate behavior on the
job” regarding “not washing [her] hands after using the bathroom.” (Am. Compl.
at 10). She alleges that she reported “consistent harassment at the workplace” to
chief Human Resources Manager, Karen Cook,” and Ms. Cook “did nothing and
denied that anything was happening” because Ms. Cook, a “white female, only
listens to supervisors and other employees[’] complaints about me.” (Id. at 10).
She states that she received a new supervisor, Dylisha McDonald, “and the
retaliation due to [her] letter to corporate began immediately.” Plaintiff claims the
retaliation consisted of Ms. McDonald and Ms. Cook stating that Plaintiff was a
“health hazard” and accused her of “vomiting and gagging while at my desk.” (Id.
at 11). She states she was “treated differently because [she] has allergies.” (Id.).
She claims that these accusations “are due to [her] complaints to corporate and HR
about the discrimination, harassment (physical and verbal) and retaliation . . . .”
(Id. at 11-12).
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The Magistrate Judge found that Plaintiff failed to state a plausible claim of
retaliation under Title VII, because Plaintiff did not allege that her internal
complaints involved a protected characteristic under Title VII. Plaintiff’s
allegation that she complained she was “treated differently because [she] has
allergies,” (Am. Compl. at 11), is insufficient to support a Title VII retaliation
claim because having allergies is not a protected characteristic under Title VII.
See Coutu v. Martin Cty. Bd. of Cty. Comm’rs, 47 F.3d 1068, 1074 (11th Cir.
1995) (“Unfair treatment, absent discrimination based on race, sex, or national
origin, is not an unlawful employment practice under Title VII.” (emphasis in
original)).
Plaintiff argues that the Magistrate Judge erred in her “interpretation of
Retaliation. The Plaintiff was retaliated against as a result of submitting a claim to
the EEOC. That is a Title VII violation. The retaliation included defamation of
Plaintiff [sic] record and unwarranted write ups by supervisor.” (Obj. at 2).
Contrary to Plaintiff’s assertion in her Objections, her Amended Complaint does
not contain any allegations that her employer, because of her EEOC complaint,
retaliated against her by defaming her and writing her up. In fact, the Amended
Complaint does not contain any allegations regarding Plaintiff’s employer’s
reaction to the EEOC complaint at all. Plaintiff filed her EEOC Complaint in
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December 2014, (Am. Compl. at 14), and her Amended Complaint does not
contain any allegations that her employer took any specific “retaliatory” actions
after December 2014. Plaintiff’s generalized allegations that no one investigated
her complaints and that various employees stopped responding to her complaints,
(see Am. Compl. at 10), are “more of a minor slight than a materially adverse
action.” Davidson-Nadwodny v. Wal-Mart Assocs., Inc., Civil Action No. CCB07-2595, 2010 WL 1328572, at *8 n.6 (D. Md. Mar. 26, 2010) (citing Burlington
N. & Sante Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). Plaintiff’s objections are
overruled, and her Title VII retaliation claim is dismissed.
3.
Defamation Claim
Plaintiff asserts a defamation claim based on “false allegations about [her]
sanitation and inappropriate behavior on the job.” (Am. Compl. at 10, 11).
Because Plaintiff failed to allege any viable federal claims, the Magistrate Judge
recommended that the Court decline to exercise supplemental jurisdiction over
Plaintiff’s remaining state law defamation claim, and that the Court dismiss that
claim without prejudice. (Id. at 9). The Court agrees. See Carnegie-Mellon Univ.
v. Cohill, 484 U.S. 343, 350 (1988); Scarfo v. Ginsberg, 175 F.3d 957, 962 (11th
Cir. 1999). Plaintiff’s defamation claim is dismissed without prejudice.
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III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Objections to the R&R [7] are
OVERRULED.
IT IS FURTHER ORDERED that Magistrate Judge Russell G. Vineyard’s
Final Report and Recommendation [5] is ADOPTED.
IT IS FURTHER ORDERED that Plaintiff’s Title VII and Title VII
retaliation claims are DISMISSED pursuant to 28 U.S.C. § 1915(e)(2) . Plaintiff’s
state law defamation claim is DISMISSED WITHOUT PREJUDICE.
SO ORDERED this 31st day of March, 2016.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
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