Nurse v. Teleperformance Inc. et al
Filing
30
ORDER granting 11 Motion to Dismiss Plaintiff's ADEA claim and dismissing Plaintiff's Title VII claim sua sponte. The Court dismisses both claims with prejudice. The Clerk is directed to terminate all pending motions and close this case. Signed by Judge J. Randal Hall on 07/08/2016. (thb)
IN THE UNITED STATES DISTRICT COURT
FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA
DIVISION
RONALD A. NURSE,
*
*
*
v,
*
TELEPERFORMANCE, INC.,
VERONICA WEST, and TRACEE
JOHNSON.
*
l:15-cv-94
*
Defendants.
*
*
*
*
ORDER
Presently before the Court is Defendants' motion to dismiss
Plaintiff's Amended Complaint for failure to state an ADEA claim
under
Federal
Additionally,
Rule
of
Civil
on May 16,
Procedure
2016,
12(b)(6).
(Doc.
11.)
the Court informed the parties
that it was considering the sua sponte dismissal of Plaintiff's
Title VII claims for failure to state a claim.
Order
gave
Plaintiff
opposition to dismissal,
an
opportunity
which he did.
to
(Doc.
file
a
27.)
That
brief
in
Having now been fully
briefed on both claims, the Court GRANTS Plaintiff's motion and
its
sua
PREJUDICE.
sponte
motion
and DISMISSES
Plaintiff's
claims
WITH
I.
BACKGROUND
A. Procedural History
On June 25,
se Complaint
West,
to
2015,
against
and Tracee
proceed in
denied
his
Plaintiff Ronald A.
Defendants Teleperformance,
Johnson.
(Doc.
forma pauperis.
motion
Nurse
and
1.)
(Doc.
directed
Plaintiff
2.)
filed his pro
Inc.,
Veronica
filed a
motion
The Magistrate
Plaintiff
to
file
an
Judge
amended
complaint and a new motion to proceed in forma pauperis.
4.)
Soon
after,
Plaintiff
renewed his motion.
under
the
(Docs.
heading
5,
and
Fourteenth
Constitution.
6.)
"Jurisdiction
jurisdiction under 42 U.S.C.
Eighth
filed
(Doc.
Discrimination
in
§ 621 et seq.
5
In
and
Amended
his
Complaint
and
Amended Complaint,
Venue,"
Plaintiff
alleged
§ 1983 based on violations of the
Amendments
at
an
(Doc.
2.)
the
Plaintiff
on
the
Act
Amended
of
1967
United
also
cited
Complaint,
("ADEA"),
States
the
Age
(Id.)
Based
Employment
to
U.S.C.
Magistrate
the
29
Judge
granted Plaintiff's motion to proceed in forma pauperis.
7 at 1.)
The Magistrate
claim because
Judge dismissed
Plaintiff's
(Doc.
§ 1983
he did not plead "any facts demonstrating
Defendants
acted
under
Plaintiff
"arguably
color
stated
treatment under Title VII.
of
a
state
viable
law,"
claim
but
for
found
that
that
disparate
42 U.S.C. § 2000e-2 (a) (1)."
(IdJ
The
Magistrate
Judge
never
addressed
the
viability
of
Plaintiff's ADEA claim.
Defendants subsequently appeared in this case and filed the
presently
motion
pending
does
not
ADEA claim.
motion
to
address
On May 16,
dismiss.
Plaintiff's
2015,
(Doc.
Title
11.)
VII
Defendants'
claim,
only his
the Court notified Plaintiff that
it was considering the sua sponte dismissal of Plaintiff's Title
VII
disparate-treatment
claim.
(Doc.
27.)
Subsequently,
Plaintiff and Defendants provided briefs in opposition to and in
support of dismissal,
requirements
Puerto Rico,
been met,
of
respectively.
Jefferson
Inc.,
(Docs. 28-29.)
Fourteenth
Assocs.
695 F.2d 524, 526-27
the Court's
sua
v.
(11th Cir.
sponte motion and
The notice
Wometco
de
1983),
having
Defendants'
motion
to dismiss are now ready for adjudication.
B. The Amended Complaint's Allegations
For
some
time
before
March
14,
2015,
Defendant
Teleperformance, Inc. employed Plaintiff at its Augusta, Georgia
call
center.
employed
(Compl.,
Defendants
center.
(Id.)
Doc.
Veronica
In
1
at
West
general,
2.)
and
Teleperformance
Tracee
Johnson
Defendant
alleges
also
at the
that
Teleperformance conspired with Veronica West and Tracee Johnson
to
discriminate
specifically,
and
harass
Plaintiff.
(Id.
at
2-3.)
More
Plaintiff alleges that he was the only employee
whom supervisors wrote up and threatened with termination when
his machine malfunctioned, even though all employees' machines,
including the
at
2.)
female
employees'
Additionally,
repeatedly
"accus[ed]
Plaintiff
him
coaxing a supervisor to
machines,
of
malfunctioned.
alleges
Defendants
allegations,"
false
that
ultimately
level a false charge against
resulting in his termination.
(Id. at 2-3.)
alleges
being
that
Defendants
"are
(Id.
sued
In sum,
for
Plaintiff
Plaintiff
misfeasance
and
misandry because they abused their authority and took advantage
[of]
their
mistreat
cruel
power
plaintiff
14, 2015.
to
every
neglect,
day"
abuse,
from March
discriminate,
14,
2014
until
and
March
(Id^ at 3.)
II.
Under Federal
Rule
LEGAL STANDARD
of Civil
Procedure
8(a)(2),
a complaint
must contain "a short and plain statement of the
claim showing
that
the
the pleader is entitled to relief" to give
defendant
fair notice of both the claim and the supporting grounds.
Atl. Corp.
v. Twombly,
defendant's
plaintiff's
to raise
Rule
12(b)(6)
complaint must
a right
those facts must
its
face."
550 U.S. 544, 555
to
motion
relief
factual
therefore,
above the speculative
550 U.S.
attacked by a Rule 12(b)(6)
detailed
dismiss,
To survive a
include enough "factual
"state a claim to
Twombly,
to
(2007).
at
relief that
570.
Bell
is
Although
a
allegations
level,"
and
plausible on
a complaint
motion need not be buttressed by
allegations,
the
plaintiff's
pleading
obligation
formulaic
not
"requires
recitation
do."
more
Id.
than
at
an
accusation."
of
than
the
555.
The
Ashcroft
Rule
the same time,
and
of
a
conclusions,
cause
8 pleading
of
and
action
a
will
standard "demands
the-defendant-unlawfully-harmed-me
v.
556 U.S.
labels
elements
unadorned,
(quoting Twombly,
At
more
Iqbal,
556
U.S.
662,
678
(2009)
at 555).
a complaint should not be
dismissed for
failure to state a claim "unless it appears beyond a doubt that
the
plaintiff
can
entitle
him to
(1957);
see
2011
WL
prove
relief."
also
Cnty.
F.2d
1171,
must
accept
construe
Bd.
1174
all
at
true
(11th Cir.
all
circumstances
Gibson,
v.
Ga.
Co.,
Sept.
Marshall
1993)).
facts
At
in
in
the
Hoffman-Pugh v. Ramsey,
41,
45-46
1:ll-cv-2747,
27,
this
would
U.S.
No.
Cnty.
alleged
inferences
355
that
2011)
Gas
Dist.,
stage,
the
(citing
the
992
Court
complaint
light
most
and
favorable
312
F.3d 1222,
1225
are
held to
less
2002) .
Further,
stringent
(N.D.
Cir.
reasonable
to the plaintiff.
of
Statebridge
Educ.
(11th
as
v.
*2
of
set
Conley v.
Kabir
4500050,
Marshall
no
"[a]lthough pro
standard
than
se pleadings
pleadings
filed
by
lawyers
a
and
are
generally construed liberally, Alba v. Montford, 517 F.3d 1249,
252
(11th Cir.
2008)
. . . , this liberal construction does not
give a court license to serve as de facto counsel for a party,
or
to
rewrite
an
otherwise
deficient
pleading
in
order
to
sustain an action."
Giles v. Wal-mart Distribution Ctr.,
App'x 91, 93 (11th Cir. 2008)
359 F.
(internal quotations omitted).
III.
ANALYSIS
A. Plaintiff's Title VII Claim
As
an
initial
accusations
engaged
matter,
that
in
race,
Plaintiff's
Defendants,
gender,
and
briefs
particularly
age
complaint
Adding
(Doc.
by
15 at 2-3.)
adding
allegations
discrimination,
cv-2649,
2011
plaintiff's
Federal
of
WL
Rule
claim
for
in
allegations
in
Corp.,
829
F.2d
could
have
relationship
the
the
Court
1563,
so.");
Marshall
366 F.
App'x 91,
the
v.
her
Mayor
violated
O.C.G.A.
§ 10-
of
his
to
dismiss,
J. P. Turner
(N.D.
to
Ga.
amend
15.
briefs.
pre-1979
his
the
17,
of
(11th Cir. 2010)
not
City
of
under
states
a
factual
Georgia
because
mean
A
allegations
1987)("That
not
1:09-
for purposes
the
Coon v.
is
2011).
complaint
factual
claims
briefs.
No.
Complaint
and
Cir.
does
& Alderman
May
Amended
See
(11th
& Co.,
Accordingly,
considers
charge
body
motion
Complaint
1570
197 9
101
a
Plaintiff s
Plaintiff's
to
is
Amended
pleaded
*5
Procedure
whether
relief,
contained
course
of Civil
determining
at
the
to
Brown v.
1882522,
proper
in
response
plainly inappropriate."
and
A plaintiff may not amend his
allegations
"in
many
Teleperformance,
the Georgia Fair Business Practices Act of 1975,
1-390 et seq.
contain
that
Pac.
plaintiff
of
their
she
Savannah,
did
Ga.,
("The fact that Marshall
could
have
amended
claims
pleaded
complaint,
^present'
her
but
Title
did
within
not,
her
retaliation
does
not
claim
The
in
her
render
somehow
complaint.")
course, consider the arguments
Title VII provides
VII
her
Court
does,
in Plaintiff's briefs.
that it
is unlawful
for an employer to
discriminate against an employee because of the employee's
See
42
U.S.C.
§
2000e-2 (a) (1) .
claim under Title VII,
matter
(taken
as
to
discrimination.
See Davis v.
F.3d
(11th
955,
555).
out
The
974
complaint
Cir.
because
McDonnell
Terrace
a
2008)
allege
Twombly,
facts
not
789
506,
550
511
1245-46
at
make
(citing
"This is
framework
a pleading requirement."
1239,
to
Id.
(2002)).
516
U.S.
sufficient
burden-shifting
F.3d
gender
Consol.,
Douglas prima facie case."
Douglas's
Found.,
^enough factual
intentional"
(quoting
sex.
disparate-treatment
Coca-Cola Bottling Co.
Sorema N.A., 534 U.S.
evidentiary standard,
Hamlin
state
suggest'
"need not
a classic McDonnell
Swierkiewicz v.
To
a complaint "must provide
true)
of
is
an
Surtain v.
(11th Cir.
2015)
(citing Swierkiewicz, 534 U.S. at 510).
According to the Amended Complaint,
Defendants conspired to
fire Plaintiff by having a supervisor level
against
him.
An
investigation,
cleared him of the charge,
but
a false
Plaintiff contends,
accusation
would have
Defendants refused to scrutinize
the evidence.
Viewed
in
the
light
most
favorable
to
Plaintiff,
this
allegation suggests that Defendants fired Plaintiff based on a
false
accusation
while
knowing
the
accusation
was
false.
Notably absent from Plaintiff's Complaint is any suggestion that
Defendants
fired
him
because
of
his
gender.
"Title
VII
is
neither a general civility code nor a statute making actionable
the ordinary tribulations of the workplace."
Lake
Park,
contrary,
245
F.3d
"[t]o
be
1232,
1238
actionable
(11th
under
Davis v.
Cir.
Title
Town of
2001).
VII,
On
the
the
harassing
conduct or the adverse employment action must be because of the
employee's
protected
Jacobs
Biando,
v.
(emphasis
characteristic,
592
added).
F.
Appfx
Plaintiff's
in
this
838,
Amended
841
case
[gender]."
(11th
Complaint
Cir.
2014)
alleges
Teleperformance fired him based on a false accusation,
that
but does
not allege that the real reason was that he is male.
Even
liberally
construed,
the
only
factual
allegation
the Amended Complaint that concerns gender at all is that,
employees'
machines—including
employees-malfunctioned,
those
operated
allegation
1 The
uncoupled
Court
from,
suggests
notes
for
George,
24 F.
that
that
Defendants
a mere
example,
Supp.
a
write-up
change
3d 1254,
1264
"numerous courts have concluded that
of
termination
do
not
constitute
Medearis v. CVS Pharmacy,
affTd sub nom.
Medearis v.
female
in
(Compl. at 2.)1
treated
or negative
job
duties,
benefits does not constitute an adverse employment action.
v.
when
Plaintiff was "the only employee being
written up and threatened to be fired daily."
This
by
in
92 F.
CVS
(M.D.
Ga.
2014).
Plaintiff
evaluation
hours,
or
See Mason
Similarly,
*[v]erbal reprimands and threats
adverse
employment
actions.'"
Supp. 3d 1294, 1312
Pharmacy,
Inc.,
No.
(N.D.
Ga. 2015),
15-11605,
2016 WL
1273475 (11th Cir. Apr. 1, 2016); Mistretta v. Volusia County Depft of
Corrections,
61 F. Supp. 2d 1255, 1260 (M.D. Fla. 1999).
8
differently than all other employees,
to,
the
female
plausible
employees.
inference
construing
the
of
event
Therefore,
sex
as
additional
allegations
Plaintiff's
including,
does
discrimination.
sex
termination.
it
but not limited
not
Moreover,
discrimination,
that
connect
See
this
Jacobs,
support
592
there
even
are
occurrence
F.
App'x
a
at
no
to
841
(affirming the dismissal of a disparate-treatment claim in part
due
to
based
the
comment
Plaintiff
then
absence
did
fired
to
connecting
allegations
the
not
him
of
complained-of
allege
because
that
he
general,
conduct).
Defendants
is
a
male.
Simply
falsely
See
race-
accused
id.
put,
and
Accordingly,
Plaintiff's disparate treatment claim must be dismissed.
To
the
extent
that
Plaintiff's
states a sexual-harassment claim,
allege
that he belongs to a protected group;
subject
harassment
was
harassment
to
was
sexual-harassment
unwelcome
based
on
sexual
the
sufficiently
arguably
such a claim fails for similar
To
been
a
Complaint
reasons.
(1)
state
Amended
claim,
(2)
harassment;
Plaintiff's
severe
Plaintiff
or
must
that he has
(3)
that
the
to
pervasive
the
(4)
sex;
that
alter
the
terms and conditions of employment and create a discriminatorily
abusive
working
Teleperformance
1238,
1245
environment;
liable.
(11th Cir.
and
(5)
See Mendoza v.
1999)
a
basis
Borden,
for
Inc.,
holding
195
F.3d
(en banc).
"The paradigm of sexual harassment as federally prohibited
employment
discrimination
occurs
when
an
employee's
expressed
terms of employment,
such as salary or continued employment,
are
conditioned upon compliance with the employer's sexual demands."
Id.
pro
This form of harassment is "traditionally described as quid
quo
harassment."
Id.
"Absent
such
explicit
discrimination," a plaintiff must demonstrate that a defendant's
conduct
is
conditions
"sufficiently
of
[the
victim's]
working
environment."
Vinson,
477
conduct
U.S.
was
employee's
severe
57,
Id.
67
terms
and
(quoting Meritor
severe
or
Sav.
of
that
(2)
should be
the
Circuit
considered:
severity
physically
utterance;
of
(4)
the
conduct;
or
whether
(3)
conduct
with the employee's job performance."
Here,
Plaintiff's
Amended
to
abusive
FSB
v.
alter
includes
an
a
the Supreme Court
following
frequency of
whether
humiliating,
the
Bank,
the
Id. at 124 6.
identified the
"(1)
the
threatening
and
have
an
employment
With respect to the objective component,
Eleventh
alter
create
pervasive
subjective and an objective component."
and the
to
"Establishing that harassing
conditions
or
pervasive
employment
(1986)).
sufficiently
or
or
the conduct;
the
a
factors
conduct
is
mere
offensive
unreasonably
interferes
Id.
Complaint
is
absent
any
allegations of harassment "sufficiently severe or pervasive" as
to alter the
conditions of his employment.
Winter Park Hous. Auth.,
See
486 F. App'x 771, 774
Tagliaferri v.
(11th Cir. 2012)
(allegations that "defendant photographed [plaintiffs] outside,"
"set up [a] video camera at [plaintiffs'] bedroom window once",
10
and
"interrupted
severe
App'x
or
their
pervasive
911,
913
plaintiff's
conversations
under
(11th
Cir.2006)
claim that
sixteen
conduct over four years
conduct
at
offensive
issue
Mendoza);
with
Mitchell
(per
men"
v.
specific
were
Pope,
curiam)
(rejecting
instances
of
F.3d at
and
1247-48
sufficiently
plaintiff,
severe
on
three
"crass"
Though
occasions
the
defendant
Plaintiff
the conduct,
component).
the
1246
the
working
that
not
told
employer
is
the
followed
not
the
harassment
was
sufficiently allege
frequent,
the
the
severity of
(describing the
job performance.
four factors to
See Mendoza,
the objective
Because the Amended Complaints fails to allege that
conditions
relief
does
alleges
interfered with his
harassment
abusive
where
conduct
whether he was physically threatened or humiliated,
or whether it
the
pervasive
employer's
Mendoza,
and made sniffing noises while staring at her).
Amended Complaint
F.3d at
the
and "juvenile"
"I'm getting fired up," rubbed against her,
her around,
195
(holding that an
or
F.
offensive
attempted to touch or actually touched the plaintiff);
195
189
not
constituted sexual harassment where the
consisted primarily of
utterances
other
is
was
of
"sufficiently
[the
victim's]
environment,"
plausible
severe
on
it
its
or
pervasive
employment
does
face."
not
and
"state
Twombly,
to
alter
create
a
550
an
claim
to
U.S.
at
570.
Whether a disparate-treatment or a sexual-harassment claim,
Plaintiff's Amended Complaint fails to state a claim for relief
11
under
Title
Plaintiff's
VII.
The
Title VII
Court,
sua
sponte,
makes
an
at 2.)
To state a claim
acting
DISMISSES
claims.
B. Plaintiff's ADEA Claim
Plaintiff's
Amended
reference to the ADEA.
Complaint
(Amended Compl.
for relief under the ADEA,
unexplained
a plaintiff must allege "(1)
that he
was a member of the protected group of persons between the ages
of
forty
and
seventy;
(2)
employment
action;
filled
position
that
and
that
the
discharged;
which he
was
135
1428,
F.3d
(3)
(4)
that
rejected."
1432
that
a
[s]he
he
was
he
was
substantially
sought
Cir.
or
qualified
Turlington v.
(11th
subjected
1998).
younger
from
to
adverse
person
which
he
was
the
job
for
do
Atlanta
to
Gas
Light
Alternatively,
to
Co.,
the
extent Plaintiff alleges a hostile-work-environment claim under
ADEA,2 he must show that "(1)
he belongs to a protected group;
(2)
he was subjected to unwelcome harassment;
(3)
was
based on
group;
his
membership
in
a protected
the harassment
(4)
it
was
severe or pervasive enough to alter the terms and conditions of
employment and create a hostile or abusive work environment; and
2 "The Eleventh Circuit has never decided in a published opinion
whether a hostile work environment claim is cognizable under . . . the
ADEA."
Hollingsworth v.
QfReilly Auto.
Stores,
Inc.,
No.
4:13-cv-
01623, 2015 WL 412894, at *12 (N.D. Ala. Jan. 30, 2015) (citing
(citing E.E.Q.C. v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d
1244, 1249 n.7 (11th Cir. 1997).
For purposes of this motion, the
Court assumes such a claim is viable.
12
(5)
[Defendants
are]
responsible
theory of either vicarious
Ground
Freight,
quotations
683
omitted)
F.3d
or
for
direct
1283,
environment claim under 42 U.S.C.
(11th
of
Defendants
who
replaced him in
Plaintiff's
West
his
Amended
harassed
Amended
him
and
caused
Johnson,
him
all
is
that
to
2012)
of
or
a
the
Likewise,
In
Complaint
Jones
v.
a
UPS
(internal
hostile
work
the ages of his coworkers,
reference
age.
under
§ 1981 and Title VII).
position.
Complaint
suffered because of his
Plaintiff's
and
Cir.
elements
Plaintiff has not pled his age,
ages
environment
liability."
1292
(describing the
the
that
any
at
women
his
no
of
anyone
point
does
discrimination
respects,
lose
age
he
the gravamen of
at
Teleperformance
job.
In
short,
the
Court is at a loss to see an ADEA Claim in the Amended Complaint
or understand what motivated
ADEA,
29 U.S.C.
Plaintiff
to
include
a
reference
to
§ 621 et seq.
Because Plaintiff failed to allege any facts giving rise to
a claim under ADEA,
which
relief
Defendants'
may
his
be
Complaint
granted.
Defendants'
DISMISSES
The
to
state
Court,
a
claim upon
therefore,
GRANTS
motion to dismiss this claim.
IV.
For
fails
the
reasons
motion
Plaintiff's
CONCLUSION
discussed
to
dismiss
Title
VII
13
above,
the
Plaintiff's
claim
sua
Court
ADEA
sponte.
GRANTS
claim
The
and
Court
DISMISSES
both
claims
WITH
PREJUDICE.
The
Court
DIRECTS
the
Clerk to TERMINATE all pending motions and CLOSE THIS CASE.
/\
ORDER ENTERED at Augusta, Georgia, this
day of July,
2016.
)AL HALL
'STATES DISTRICT JUDGE
1ERN
14
DISTRICT
OF GEORGIA
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