Rogers v. Shinseki

Filing 38

ORDER granting in part 15 Motion to Dismiss. Plaintiff's claims for associational disability discrimination under the RehabilitationAct and for racial discrimination under Title VII (based on the non-promotions in 2008) are dismissed with p rejudice. Plaintiff's claim for retaliation is dismissed without prejudice. Plaintiff is advised that she may file an Amended Complaint in compliance with the Court's repleading instructions within twenty-one (21) days of this Order. Failur e to do so may result in dismissal of this action in its entirety. If an Amended Complaint is filed, Defendant shall have twenty-one (21) days to plead or otherwise respond. The Court's previous deadline for the parties to file motions for summary judgment (doc. no. 37) is terminated, and the Court will set a new deadline if and when necessary. Signed by Judge J. Randal Hall on 03/18/2014. (thb)

IN THE UNITED

STATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

JOSEPHINE D.

ROGERS,
*

Plaintiff,

*

v.

ERIC K. SHINSEKI, Secretary,
Department of Veterans Affairs,

CV 112-194

*

Defendant.

ORDER

Presently pending before
to Dismiss.

(Doc.

i s GRANTED

no.

15.)

is

Defendant's

Upon due consideration,

Motion

this motion

IN PART.

I.

A.

the Court

BACKGROUND

Factual Background1

This is an employment discrimination case that arises from
Plaintiff's

employment

as

a

registered

dietician

at

the

Department of Veterans Affairs ("VA") Medical Center in Augusta,
Georgia.

(Compl.

at

5.)

Plaintiff

discriminated against on February 6,

alleges

2009,

that

she

was

due to her husband's

1 For the purpose of this motion, the Court recites and accepts as true
the facts stated in the Complaint.
See Hoffman-Puqh v. Ramsey, 312 F.3d
1222, 1225 (11th Cir. 2002). As a preliminary note, the Complaint contains a

rambling recitation of facts and random excerpts of various documents from
Plaintiff's

administrative

proceedings.

•factual background as best as it can.

The

Court

will

piece

together

a

disability.

(Id.)

It appears that Plaintiff's husband had been

visiting her during work hours.
supervisor,
personal
about

Sheri

Loflin,

questions

her

about

husband's

(Id.)

Plaintiff

(Id.)

Plaintiff's

Loflin

that

her

came

did not

respond to
October

13,

into

her

as

a

union

veteran

could

the

union

2010,

representative's

Ms.

having a frequent,

Loflin

gave

where

"coverage."

was

(Id.

also

short

Ms.

at

6.)

There

in

was

and Ms.

periods

as

of

long as

Loflin did not

suggestions.

(Id.)

involved

union.

Plaintiff

a

(Id.)
letter

On
about

Plaintiff contends

the letter is evidence of "continuous harassment.''

Plaintiff

lived.

told

Plaintiff

personal visitor.

he

her

contacted

(Id.)

her

Loflin asked

lunch breaks,

interfere with her work.

asked

for

visit

and during

and

Ms.

and

and

representative

husband

office

(Id.)

uncomfortable"

approximately five minutes
it

On February 6, 2009, her

her husband.

status

"felt

(Id.)

a

(Id.)

dispute

a

policy

regarding

or

informal

practice where dieticians would cover for each other when out of
the

office.

(See

id.)

On

three

occasions,

down requests to cover for other dieticians.

Plaintiff

(Id.)

turned

Plaintiff

believes she was justified in denying the requests and unfairly

reprimanded by Ms.
was

shown here,"

as

prioritize her work.

Loflin.
she

was

(Id.)
not

She "believe[s]

given an

equal

favoritism

opportunity to

(Id.)

On September 13, 2010, Plaintiff met with Ms. Loflin to get
more information about an assignment.

(Id.

at 7.)

Ms. Loflin

failed to give her the requested information.

did

not

(Id. )

feel
Ms.

adequately

Loflin

prepared

stated

that

to

if

(Id.)

complete

Plaintiff

the

was

Plaintiff

assignment.

uncomfortable

with completing the assignment, Ms. Loflin could not make her do
it.

(Id.)

Following this meeting,

Plaintiff believes

she

retaliated against as shown by the following incidents:

September 13 and 20,

2010,

Ms.

(1)

was

on

Loflin sent Plaintiff emails

asking for a "yes or no" answer to a question; (2) on September
21,

2010,

Plaintiff met with the Chief of Employee

Relations,

Albert Ward, and Mr. Ward did not follow up after the meeting;2
(3)

on

September

27,

2010,

Ms.

Loflin

threatened to

write

Plaintiff up for insubordination when Plaintiff did not give her

a "yes

or no"

answer;

(4)

on September

brought up coverage at a staff meeting,

29,

2010,

and Ms.

Plaintiff

Loflin stated

that it was a personal matter that should not be discussed at

the meeting;

(5)

Ms. Loflin reprimanded Plaintiff for bringing

up coverage at the meeting and discussed Plaintiff in a negative
manner

with

Plaintiff

and Ms.

Loflin

other

employees;

(6)

on

submitted a proposed schedule

Loflin did not respond;

issued

Plaintiff

a

credit

performance
for

the

(7)

30,

2010,

for rotating coverage,

on October 20,

appraisal

tremendous

September

that

amount

of

did
work

2010,

not
she

Ms.

give
did

throughout the year; and (8) by the time Plaintiff had initiated
2 Plaintiff later found out that Mr. Ward communicated with Ms. Loflin

the day after the meeting.
and "not treated fairly."

(Id^ at 8.)
(Id.)

Plaintiff "felt betrayed," "set up,"

an

administrative

(Id.

proceeding,

the

VA

was

working

against

her.

at 7-8.)

On

November

11,

2010,

another

supervisor,

Jean

Yarsawich,

informed Plaintiff that coverage of Plaintiff's area while offduty

was

Loflin,

not

Plaintiff's

however,

that this

used

responsibility.

"administrative

coverage was

Plaintiff's

Loflin "continued to harass"

notes,

force"

been

2010,

under

lipstick smears on it.
(Id.)

her

it

Ms.
appear

(Id.)

Ms.

Plaintiff with threatening emails,

door

and

(Id. at 6.)

On

8.)

to make

hallways.

Plaintiff found a hard-copy of

slipped

bewildered.

at

responsibility.

and tracking Plaintiff down in the

November 23,

had

(Id.

December

had

what

(Id.)

On

an email that

appeared

to

be

Plaintiff was startled and

15,

2010,

Plaintiff

sent

Ms.

Yarsawich an email requesting to be reassigned to a supervisor
other

than

respond.

Ms.

Loflin.

(Id.)

suspension

January

at

On December 17,

for

31,

(Id.

ten

2011,

days

8.)

2010,

without

Plaintiff

alleges

was

(Id.

hired

at

because

8,
she

Plaintiff
Yarsawich.

also mentions

over

Plaintiff

11-12.)
is

for

(Id.)

the

Plaintiff

black and Ms.

alleges

that,

that

she

Similarly,

(Id.

she

at

was

9,

did

not

placed on

13.)

On

"constructively

(Id. at 14.)
back in

2008,

Clinical

believes

Yarsawich

had

Yarsawich

Plaintiff was

pay.

discharged" and "forced to retire."
Plaintiff

Ms.

more

is

she

Ms.

Yarsawich

Manager

position.

was

not

white.

promoted

(Id.

experience

Plaintiff alleges that,

at

than

8.)

Ms.

in 2008,

she had more experience than Ms.

Loflin

(who is white),

and she

believes she was not promoted into Ms. Loflin's position because
of her race.

B.

(Id.

On

Administrative Proceedings

October

Employment
December

to

the

indicating

5,

2010,

the

VA's

that

of

of

Defendant

VA.

she

only

(IcL

claims

of

at

submitted

On

wanted
12.)

On

being

December

7,

2011,

an

21,

a

February

53.)

2.)

2011,

claim

24,

for

On

Plaintiff
a

letter

for

racial

2011,

a

the

VA's

notice

that

investigation

and

(See id. at 11-21.)

Administrative

Law

held an evidentiary hearing on Plaintiff's claims.
35,

at

Equal

Administrative

Plaintiff

accepted

VA's

Management

pursue

sent

others were being denied as untimely.
On

formal

February

to

the

(Id.

a

Resolution

Management
were

contacted

Counselor.

(Id.)

Resolution

her

Plaintiff

("EEO")

Office

discrimination.

Office

2010,

Opportunity

30,

Complaint

some

11-12.)

Procedural History
2.

sent

at 8,

Judge

(Id.

("ALJ")

at 30-

On January 30, 2012, the ALJ entered judgment against

Plaintiff on all her claims.

(IcL at 27-29.)

On March 8, 2012,

the VA entered a final order adopting the ALJ's decision as its
own.

(Id.

at 44-46.)

On April

6,

2012, Plaintiff appealed to

the Equal Employment Opportunity Commission
3,

39-42)

final order.

On

September 27,

(Id^ at 51-56.)

2012,

("EEOC").

(Id.

at

the EEOC affirmed the VA's

On September 29, 2012, Plaintiff

received a right-to-sue notice from the EEOC.
5

(Id. at 3.)

2.

On

Federal Action

December

21,

suit in this Court,

as claims for:

(1)

2012,

Plaintiff,

proceeding

alleging what the Court

pro

se,

filed

liberally construes

associational disability discrimination under

the Rehabilitation Act,3 (2) racial discrimination (based on the

non-promotions in 2008)
(See

Compl.

at

under Title VII,

5-9.)

With

some

and (3)

direction

Plaintiff served Defendant on May 17, 2013.

On

July

17,

the

19,

21,

record

VA's

22),

with

the

Court

Plaintiff's

investigation.

Rehabilitation

remedy

the

directed the parties
Administrative

Court,

no.

case.

(Doc.

no.

for

Act,

federal

discrimination

29

U.S.C.

government

claims.

See

Van

§§

791

employees
Purr

v.

to

16.)

(Doc.
(doc.

supplement

Complaint

and

other

have affected the scope
33.)

Plaintiff

3 Plaintiff used a form Title VII Complaint.
the

the

(See Doc.

Defendant moved to dismiss

informal correspondence which might
the

from

After the parties briefed the motion to dismiss

no. 15.)
nos.

2013,

retaliation.4

et

(Compl. at 1.)

seq.,

provides

asserting

Geithner,

filed

No.

the

However,

the

work-place

of

exclusive

disability

l:ll-CV-227,

2012

WL

2890449, at 1 n.l (N.D. Fla. June 8, 2012) (construing federal employee's pro
se disability discrimination action as falling under the Rehabilitation Act),
report and recommendation adopted. No. l:ll-CV-227, 2012 WL 2890346 (N.D.

Fla. July 16, 2012).
Generally, the Rehabilitation Act utilizes standards
applied under the Americans with Disabilities Act ("ADA"), as well as certain
procedures found in Title VII.
See 29 U.S.C. §§ 791(g), 794(d), 794a(a)(l).
The Rehabilitation Act recognizes claims for discrimination based on the
known disability of family members and other associational relationships.
29
C.F.R. § 1630.8; see, e.g., Walthall v.
2d 1378,

1386

(N.D. Ga.

4 Retaliation
Rehabilitation Act.
U.S.C.

§ 12203(a) .

Fulton Cnty. Sch. Dist., 18 F.

Supp.

1998).

claims are available under both Title
See 42 U.S.C. § 2000e-3(a); 29 U.S.C.

VII
and the
§ 791(g); 42

requested documents in compliance with the Court's Order.5
no.

34.)

The motion to dismiss is now ripe for adjudication.

II.

A.

(Doc.

Motion

-to Dismiss

LEGAL

STANDARD

Standard

In considering a motion to dismiss under Rule 12(b)(6),

the

court tests the legal sufficiency of the complaint,

not whether

the plaintiff will ultimately prevail on the merits.

Scheuer v.

Rhodes,

all

416 U.S.

facts

232,

236

alleged in the

inferences

in

the

(1974).

complaint and construe all

light most

v.

The

however,

need

not

as

only

its

conclusions
Iqbal,

556 U.S.

true,
662,

A complaint

544,

"factual

content

inference

that

alleged."

Id.

F.3d

1222,

accept

to

the

1225

the

well-pled

reasonable

plaintiff.

(11th

Cir.

2002).

complaint's

facts.

See

legal

Ashcroft

v.

(2009).

"contain sufficient

factual

matter,

'to state a claim to relief that is plausible
Id.

550 U.S.

678-79

also must

accepted as true,
on its face.'"

312

favorable

Hoffman-Puqh

court,

Ramsey,

The court must accept as true

570

at

678

(citing Bell Atl.

(2007)).
that

the

The plaintiff is

allows
defendant

"The

Corp.

the

court

is

plausibility

to

liable

Twombly,

required to plead

draw
for

standard

v.

is

the

reasonable

the

misconduct

not

akin

to

a

5 In the Order to supplement the record, the Court directed the parties
to notify the Court within 21 days if there was any objection to the
authenticity of the supplemental documents or the Court's consideration of
those documents at the motion-to-dismiss stage.
date, neither party has filed an objection.

(Doc.

no.

33

at

3.)

To

'probability

requirement,'

but

it

asks

for

more

possibility that a defendant has acted unlawfully."
B.

a

sheer

Id.

Pro Se Pleading Considerations

The
matter

than

Court

pro

recognizes

se.

construed.

that

Therefore,

See GJR Invs.,

F.3d 1359,

1369

(11th Cir.

Plaintiff

her
Inc.

is proceeding

pleadings
v.

Cnty.

1998).

should

be

of Escambia,

However,

this

in this

liberally
Fla.,

132

leniency does

not give a court license to serve as de facto counsel for a pro
se party or to rewrite an otherwise deficient pleading in order
to sustain an action.
to meet

certain essential

F.2d 667,
in

the

670

Pro se litigants are still required
burdens.

(11th Cir. 1990).

Eleventh

Circuit

plaintiff's complaint,
claim,

Id.

that

See

Brown v.

Also, there

"[w]hen

it

Crawford,

906

is a general rule

appears

that

a

pro

se

if more carefully drafted, might state a

the district court should give the pro se plaintiff an

opportunity to amend his complaint instead of dismissing it with
prejudice."
Cir. 2010)
1991)).

Jemison v. Mitchell, 380 Fed. Appx. 904, 907 (11th
(citing Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir.

"Dismissal with prejudice is proper,

however,

if the

pro se plaintiff has indicated that he does not wish to amend
his complaint or if a more carefully drafted complaint could not
state a

valid claim."

Id.

III.

A.

DISCUSSION

Administrative Exhaustion Requirements

"Under

Title

VII

and

the

Rehabilitation

Act,

federal

employees are required to initiate administrative review of any

alleged

discriminatory

or

retaliatory

conduct

with

the

appropriate agency within 45 days of the alleged discriminatory

act."6

Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th Cir. 2008).

"Generally,
the

when the claimant does not initiate contact within

45-day charging period,

the claim is barred for

exhaust administrative remedies."7

failure to

Id.

Further, a plaintiff's judicial complaint is limited by the

scope of the investigation which can reasonably be expected to

grow

out

Crowell,

of

the

administrative

228

F.3d

1305,

exhaustion

requirement

Rehabilitation

Act) .

1312

to

complaint.

(11th Cir.

federal

Judicial

See

2000)

are

v.

(applying

employees'

claims

Mullins

this

claims

under

proper

if

they

"amplify, clarify, or more clearly focus" the allegations in the
administrative
discrimination

complaint,

but

"allegations

are inappropriate."

Thomas v.

of

new

Miami

Health Trust, 369 Fed. Appx. 19, 22 (11th Cir. 2010)

acts

of

Dade Pub.

(quotations

6 "This requirement is not a technicality; rather, it is part and parcel
of the congressional design to vest in the federal agencies and officials
engaged in hiring and promoting personnel primary responsibility for
maintaining nondiscrimination in employment."
Grier v. Sec'y of Army, 799
F.2d 721, 724 (11th Cir. 1986) (quotations omitted).

7 The requirement of timely contact is similar to a statute of
limitations and thus subject to waiver, estoppel, and equitable tolling.
Canaday v. Wynne, No. 5:09-CV-8, 2010 WL 1957512, at *4 (N.D. Fla. Apr. 29,
2010), report and recommendation adopted, 2010 WL 1957505 (N.D. Fla. May 14,
2010).

None of these issues have been raised here.

omitted).

An

administrative

assistance

of

counsel

Gregory

Ga.

Dep't

Cir.

v.

2004)

complaint

should

of

Human

(determining that

be

prepared

construed

Res.,

355

for

the

liberally.

F.3d

EEOC charge

without

1277,

See

1280

racial

and

(11th

sexual

discrimination could reasonably have been expected to give rise

to investigation of retaliation).8
Administrative

bringing

a

discrimination

Goodridge v.
(N.D. Ga.

with

Astrue,

Mar.

20,

particularity

dismiss,

exhaustion

the

No.

City of Brunswick,
Ga.

June 29,

B.

No.

action

condition

in

precedent

federal

to

court.

2008 WL 8691093,

See
at

*l-2

Once a defendant has specifically and

raised

the

bears

condition precedent has

a

1:07-CV-1918,

2008).

plaintiff

is

exhaustion
the

issue

burden

been satisfied.
2:11-CV-119,

of

Id.

in

a

motion

proving

at

*2-3;

2012 WL 2562422,

that

to
the

Scott v.

at *4

(S.D.

2012).

Associational Disability Discrimination Claim

The

Court

has

thoroughly

reviewed

(Doc. no.

34 at 35-43.)

Administrative Complaint.9

Plaintiff's

Plaintiff

8 See also Jerome v. Marriott Residence Inn Barcelo Crestline/AIG,

211

Fed. Appx. 844, 846 (11th Cir. 2006) (determining that pro se plaintiff's
EEOC charge for non-promotion did not reasonably encompass claim for
disparate pay); Wills v. Postmaster Gen., 300 Fed. Appx. 748, 750 (11th Cir.
2008) (determining that pro se plaintiff's racial discrimination claims based
on suspension and
termination were
not reasonably related to racial
harassment claim in EEOC complaint); Woods v. Gen. Motors Acceptance Corp.,
97-0502-CB-S, 1998 WL 757966, at *3-4 (S.D. Ala. May 26, 1998) (determining
that claim of sex discrimination did not reasonably grow out of claims for

racial and disability discrimination), aff'd, 189 F.3d 485 (11th Cir. 1999).

9 The Court may consider facts outside of the pleadings in resolving
motions

to

dismiss

discrimination

claims

for

failure

to

exhaust

administrative remedies where - as here - the parties were given sufficient

opportunity to develop the record.

Tillery v. U.S.
10

Dep't of Homeland Sec,

expressly

alleged

discrimination,

claim

that

sexual

an

wrote
(3)

a

harassment,

harassment,

harassment,

employee

relationships

sexual

with

letter

men,

asked

(2)

concerning

Plaintiff

her

her

her

racial

(See id.)
stated,

questions

supervisor

husband's

color

reprisal,

and religious discrimination.

for

(1)

for

nonsexual

discrimination,
her

claims

inter

alia,

her

past

about

made

visits

Within

comments

to

the

and

office,

her supervisor asked if her husband was a patient at the VA

Medical

Center,

and

(4)

her

husband

is

a

veteran

appointments and friends at the VA Medical Center.
Although

38.)

appointments

Plaintiff

indicated

at the VA Medical Center
status as a patient,

asked about his

that

and

her

that

who

has

(Id. at 37husband

her

had

supervisor

Plaintiff did not indicate

that her husband was disabled within the meaning of the ADA and
Rehabilitation Act.

Moreover,

claim for sexual harassment.

to

trigger

an

these facts were buried within a

This is not reasonably sufficient

administrative

investigation

into

disability

discrimination.

Moreover,
of

on February 3, 2011, Plaintiff sent the VA Office

Resolution

Management

Administrative Complaint.
402 Fed.

Appx.

421,

424

an

amended

(See Doc.

(11th Cir.

2010)

no.

version

34 at 73-82.)

(citing Bryant v.

Rich,

of

her

In the
530 F.3d

1368
(11th Cir.
2008)).
Additionally,
the Court may
consider
the
Administrative Complaint without conversion into a motion for summary

judgment because its authenticity is undisputed and administrative exhaustion
is an essential prerequisite to Plaintiff's federal discrimination action.
See Chesnut v. Ethan Allen Retail,

Inc., No. 3:13-CV-112,

2013 WL 5290123,

at

*3-4 (N.D. Ga. Sept. 20, 2013); Perrymond v. Lockheed Martin Corp., No. 1:09CV-1936, 2010 WL 987218, at *5-6 (N.D. Ga. Feb. 3, 2010).
11

cover

letter,

Plaintiff

complaint

on

Similarly,

on February 21,

Resolution

Management

(Id.

at

come

to

that

I

the

stated:

basis

83-93.)
the

want

race

2011,

only

want

to

(Black)."

file

(Id.

at

the

to

cover

that

file

letter,

the

main

the

the

73.10)

Plaintiff sent the VA Office of

another Amended Administrative

conclusion

only

(Black)."

In

of

"I

Plaintiff

issue

Complaint

is

stated:

Race.

on

the

Complaint.
"I've

Please

basis

note

of

Race

directives,

the

(Id. at 83; see also Compl. at 12.n)

Considering

these

clear

and

unequivocal

scope of the VA's investigation could not reasonably be expected

to

encompass

associational

Therefore,

Plaintiff

remedies.12

Further,

failed

remedies

associational

disability

10 Again,

to

exhaust

discrimination.

her

administrative

because the time to properly exhaust her

administrative

DISMISSED WITH

disability

has

long

since

passed,

discrimination

claim

Plaintiff's
is

hereby

PREJUDICE.

the Court may consider this document without converting the

motion to dismiss.
See supra note 9; see also Judkins v. Saint Joseph's
Coll. of Maine, 483 F. Supp. 2d 60, 62 (D. Me. 2007) (determining that EEOC

charge and other EEOC documents could be considered on a motion to dismiss).
11 Plaintiff included with her judicial Complaint a notice from the VA
Office of Resolution Management's Regional EEO Officer that stated: "[0]n
February 21, 2011, you indicated you only want race (Black) listed as the
basis for the alleged discrimination.
Accordingly, only race will be listed
as the basis for the alleged discrimination."
(Compl. at 12.)
Pursuant to
Federal

Rule

of Civil

Procedure

10(c),

exhibits

to

the

Complaint

constitute

part of the pleadings and may be considered at the motion-to-dismiss stage.
FTC v. AbbVie Products LLC,
12

Given

discrimination

filings,
Plaintiff

the

claim

713 F.3d 54,

Court's

exceeds

63

(11th Cir. 2013).

conclusion

the

that

reasonable

Plaintiff's

scope

of

her

disability

administrative

it is unnecessary to address Defendant's alternative argument that
did

not

initiate

administrative

within 45 days of the discriminatory act.
12

review

of

her

disability

(See Doc. no. 15 at 7.)

claim

C.

Racial Discrimination Claim

Plaintiff alleges that she was not promoted on the basis of
race

in

contact

2008.
the

(Compl.

VA's

EEO

at

8,

11-12,

Counselor

15.)

until

Plaintiff

October

5,

did

2010.

not
This

contact falls well outside the requisite 45-day charging period,
and

the

claim

is

administrative
Accordingly,

Title VII
WITH

barred

remedies.

Plaintiff's

for

Shiver,
claim

for

549

racial

(based on non-promotion in

failure

2008)

F.3d

to

exhaust

at

1344.

discrimination

is

under

hereby DISMISSED

PREJUDICE.

D.

Retaliation Claim

Unlike
the

therefore

the

previous

retaliation

administrative

claim

claims,
is

remedies.

Defendant

barred

Rather,

for

does

not

failure

Defendant

argue that
to

exhaust

contends

that

Plaintiff has failed to state a plausible claim for retaliation.
(See Doc.

no.

of retaliation,
statutorily

15 at 5-6,

7-8.)

"To make a prima facie showing

the plaintiff must show:

protected

conduct;

employment action; and (3)

between the two events."13

(2)

(1) that she engaged in

that

she

suffered

adverse

that there is 'some causal relation'

Alvarez v.

Royal Atl.

Inc., 610 F.3d 1253, 1268 (11th Cir. 2010).

Developers,

Regarding the third

13 Although a Title VII plaintiff need not allege facts sufficient to
make out a prima facie case, she "must provide enough factual matter (taken
as true) to suggest discriminatory retaliation."
Marshall v. Mayor &
Alderman of City of Savannah, Ga., 366 Fed. Appx. 91, 100 (11th Cir. 2010)

(quotations omitted).
"It follows that the plaintiff must allege facts which
suggest that a prima facie case [of retaliation] might be proven." Turner v.
McKesson Corp., No. 2:12-CV-2053, 2013 WL 4727651 (N.D. Ala. Sept. 3, 2013).
13

element,

the protected activity and the adverse action cannot be

"wholly

unrelated."

(11th

Cir.

conduct

2008) .

must

have

McCann
Thus,

preceded

v.
at

Tillman,
a

the

bare

adverse

526

F.3d

minimum,

1370,

the

employment

1376

protected

action,

and

the decision-maker must have been aware of the protected conduct
at the time he or she took the adverse employment action.
accord Williams,
The

basis

Id.;

2013 WL 1130741, at *6.
for

Plaintiff's

retaliation

claim

is

unclear.

Plaintiff alleges that, on September 13, 2010, she had a meetingwith

Ms.

Loflin

about

an

assignment

adequately prepared to complete.

that

she

(Compl. at 7.)

did

not

feel

Plaintiff then

proceeds to chronicle various incidents of alleged retaliation
that followed the meeting during September and October 2010.
(See

id.

at

7-8.)

Critically,

there is no

allegation that

Plaintiff engaged in any protected activity14 at the September
13, 2010 meeting.15

14 See 42 U.S.C. § 2000e-3(a) (defining protected activity under Title
VII); 42 U.S.C. § 12203(a) (defining protected activity under ADA), as
incorporated by 29 U.S.C. § 791(g) (Rehabilitation Act).

15 See Enadeghe v. Ryla Teleservices, Inc., No. 1:08-CV-3551, 2010 WL
481210, at *8-9 (N.D. Ga. Feb. 3, 2010) (determining that pro se plaintiff's

complaints did not constitute protected activity under Title VII's opposition
clause where Plaintiff failed to allege that her underlying complaints about

noise and touching were related to race); Turner v. McKesson Corp., No. 2:12CV-2053, 2013 WL 4727651, at *8-9 (N.D. Ala. Sept. 3, 2013) ("Here, [in
regards to protected activity], plaintiff merely alleged that she complained
to her supervisor about being denied an interview; there is no allegation
that she complained she was being denied an interview because she was white.
...

As defendant has observed, the Amended Complaint itself indicates that

plaintiff could have been complaining because there was personal animosity
between herself and [her manager].

Moreover,

based on the facts alleged,

plaintiff could have been complaining because [the applicant hired] was less
experienced, less educated, an outside hire, or even because plaintiff had
wanted the position herself. Without any allegations that plaintiff was
complaining about racial discrimination, the court cannot find that plaintiff
14

Moreover,

assuming that the protected activity at

Plaintiff's October 5,

Defendant

notes

incidents

occurred

the

is

2010 contact with the VA's EEO Counselor,

that

the
in

majority

September

of

the

2010

alleged

and

retaliatory

cannot

have

(See Doc.

motivated by subsequent protected activity.

7-8.)

issue

been

no.

15 at

The Court agrees that the protected conduct must precede

retaliatory

action.

If

the

October

5,

2010

contact

is

indeed the protected activity at issue, any causal connection to

events in September is temporally impossible.16
adverse employment
2010

performance

January 31,

action at
appraisal,

2011

forced

issue

is

December

retirement,

Further, if the

Plaintiff's October 20,
17,

2010

suspension,

Plaintiff has

or

not alleged

that any decision-maker was aware of Plaintiff's October 5, 2010
contact

with

the

EEO

counselor.

This

is

also

grounds

for

dismissal.17

has

alleged

that

she

engaged

in

any

protected

activity."

(citations

omitted)).

2012)

16 See Uppal v. Hosp. Corp. of Am., 482 Fed. Appx. 394, 397 (11th Cir.
("[Plaintiff] had already lost her emergency room (ER) privileges prior

to sending the July 2008 letter.
Therefore, this initial loss of ER
privileges cannot be causally related . . . .")/ Foster v. Select Med. Corp.,
No.

6:11-CV-1234,

2012

WL

1415499,

*6-7,

*11

(M.D.

Fla.

Apr.

24,

2012)

(dismissing retaliation claim without prejudice where basis of claim was
unclear and pro se plaintiff did not allege that protected conduct preceded
the adverse action).

17

See

Uppal,

482

Fed.

Appx.

at

397

(affirming

district

court's

dismissal of retaliation claim where plaintiff did not "allege that the
decision-maker who deemed her to have voluntarily resigned was aware of the

letter, thus failing to allege any kind of causal relationship between the

protected conduct and the adverse employment action");

Enadeghe,

2010 WL

481210, at *9-10 (granting motion to dismiss retaliation claim because pro se

plaintiff

"d[id]

terminate her in
decisionmaker was

not

identify

the

individual

who made

the

decision

to

her Complaint, and she d[id]
not allege that the
aware that she complained about any discriminatory

conduct").

15

In

basis

summary,

for

activity,

all

the

However,

the

Court

three

is

unable

elements

adverse

of

employment

to

discern

retaliation:

action,

and

least

some possibility that

might

state

a

Accordingly,

PREJUDICE,

claim.

a more

See

Plaintiff's

the

the

Plaintiff drafted the Complaint pro se,

the

protected

causal

380

link.

and there is at

carefully drafted

Jemison,

factual

Fed.

complaint

Appx.

at

907.

retaliation claim is DISMISSED WITHOUT

and the Court will grant

Plaintiff leave to file an

Amended Complaint.
E.

Repleading Instructions

If

Plaintiff chooses to file an Amended Complaint,

carefully

required

plead

by

identified

her

Rule
in

Plaintiff's

claims

8 (a),

this

and

Order.

intentions

Rules

short,

address
"The

and

will

facts to support each claim.

that if

in

the

Court

not

. . .

plain

statements,

pleading
will

scour

no

the

longer

guess

Complaint

for

The Court advises Plaintiff

[her] amended complaint fails to comply with the Federal

and

Local

WL 1415499,

Rules

and

the

issues

addressed

in

can

information,

this

Order,

Foster,

2012

at *11.

Additionally,
she

as

deficiencies

the Court may dismiss this action with prejudice."

if

she must

Plaintiff may only file an Amended Complaint

certify

and

that

belief,

under the circumstances,

"to

the

formed
(1)

it

best

after
is

of

an

[her]

knowledge,

inquiry

reasonable

not being presented for any

improper purpose, such as to harass, cause unnecessary delay, or
16

needlessly
defenses,

increase

the

cost

reversing

existing

factual

law

argument

or

for

contentions

(2)

a

reasonable

discovery."
Finally,

new

evidentiary

the

claims,

modifying,
law;

or

[and]

(3)

or,

if

support

will likely have evidentiary support

opportunity

See Fed.

for extending,

establishing

have

specifically so identified,
after

litigation;

and other legal contentions are warranted by existing

law or by a nonfrivolous

the

of

R. Civ.

for

further

investigation

or

P. 11(b).

in light of the ruling that Plaintiff s claims for

associational disability discrimination under the Rehabilitation
Act

and

for

racial

non-promotions

in

discrimination

under Title

VII

(based on the

are dismissed with prejudice,

2008)

Plaintiff

shall not include these claims in her Amended Complaint,

should

she choose to file one.

IV.

Based
(doc.

no.

upon
15)

the
is

CONCLUSION

foregoing,

GRANTED

IN

Defendant's
PART.

Motion

Plaintiff's

to

Dismiss

claims

for

associational disability discrimination under the Rehabilitation
Act

and

for

racial

non-promotions
Plaintiff's

PREJUDICE.

discrimination under Title

in
claim

Plaintiff

2008)
for

is

are

VII

DISMISSED

retaliation

advised that

is

(based on

WITH

PREJUDICE.

DISMISSED

she may

file

the

WITHOUT

an Amended

Complaint in compliance with the Court's repleading instructions
within twenty-one (21) days of this Order.
17

Failure to do so may

result

in

dismissal

of

this

Amended Complaint is filed,
days

to

deadline

plead

for

(doc. no.

or

the

action

its

entirety.

If

an

Defendant shall have twenty-one (21)

otherwise

parties

in

to

respond.

file

The

motions

37) is hereby TERMINATED,

Court's

for

summary

previous

judgment

and the Court will set a new

deadline if and when necessary.
ORDER
March,

ENTERED

at

Augusta,

Georgia,

this

/O

2014.

HONORABLE JT RANDAL HALL
UNITED /STATES DISTRICT JUDGE
IN

18

DISTRICT

OF GEORGIA

day

of