Scott v. City of Brunswick

Filing 47

ORDER granting 38 Motion to Dismiss. The Clerk is directed to close the case and Enter Final Judgment in favor of Defendant on all claims. Signed by Chief Judge Lisa G. Wood on 6/29/2012. (csr)

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ALBERT J. SCOTT,
Plaintiff,
vs.
CITY OF BRUNSWICK,

Defendant.

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CV 211-119

ORDER

Presently before the Court is Defendant City of Brunswick's
("City") Motion to Dismiss. Dkt. No. 38. For the reasons
stated below, the City's motion is GRANTED.

BACKGROUND
Plaintiff Albert Scott ("Scott" or "Plaintiff") was an
employee of the City of Brunswick during all times relevant to
this case. Scott's Complaint' arises from a dog fracas that
occurred on January 26, 2010. On that day, Scott's fourteenIn actuality, Plaintiff filed a application for the appointment of an
attorney, with a number of documents attached, describing the nature of
Plaintiff's claims. The Clerk's office, the Court, and the parties have all
treated the Plaintiff's application as a complaint, and no one involved has
objected to treating it so. For the remainder of this Order, the Court will
refer to Plaintiff's initial filing as his "Complaint."
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year-old daughter took the family dog for a walk. During the
walk, Scott's daughter was confronted by two dogs belonging to a
neighbor. The neighbor's dogs began scuffling with the Scotts'
dog. Scott heard the commotion while he was "working out on his
home gym," and ran to the aid of his daughter and their dog.
When Scott approached, the other dogs fled. Compl. 12. Scott's
dog suffered minor injuries.
Scott called the police and an animal control officer was
sent to Scott's address. Scott and the animal control officer,
Mickey Senior, walked to the home of Anthony Albenze, the
offending dogs' owner. At some point, a code enforcement
officer, Leon Davis, also arrived at Albenze's home. Senior,
the animal control officer, informed Albenze that the dogs
should be kept contained. Scott claims Albenze became
belligerent. Scott and Albenze exchanged heated words, and
Scott decided it was best if he returned home. Senior remained
and explained to Albenze that he needed to maintain control of
his dogs.
Several minutes later, after Senior and Davis left the
scene, Albenze decided to walk to Scott's home, and proceeded to
write down information about Scott's vehicle. Again, the two
exchanged heated words. After Albenze left, Scott called the
police again. This time a police officer, Officer Franklin, was
dispatched, and apparently spoke to Albenze. According to
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Scott, Franklin came back to Scott's house and told him that
Albenze had a bad attitude, and that Scott should consider
pursuing a restraining order. Nothing more happened that day.
At some point during the following days, Albenze sent a written
complaint to the Brunswick Mayor and a City Commissioner.
Compl. at 20.
Several days later, on February 4, 2010, Brunswick Human
Resources Director, Bonnie Roberts ("Roberts") called Plaintiff
about the incident. Roberts explained that she had received a
written complaint about Scott. Roberts scheduled a meeting with
Plaintiff for the next day regarding an employment orientation
and to discuss the Albenze incident. Later that day, Plaintiff
went to the Brunswick police station and asked for any police
reports relating to the January 26 incident. It appears that no
report was generated on January 26, so a police lieutenant on
duty wrote down Scott's account of the events and documented it
on a "Crime Incident Report." Compl. 27-28.
The next day, February 5, 2010, Plaintiff met with Roberts
about the incident. Roberts gave Plaintiff a copy of the
written complaint and Plaintiff gave Roberts the Crime Incident
Report from the previous day. According to Plaintiff, Roberts
then picked up the phone, called an unknown number, and asked
the unknown person who answered to discontinue any investigation
into the dispute between Albenze and Scott.
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The only relevant event after the February 5, 2010 meeting
appears to be that Plaintiff sent a response letter to the
Brunswick Mayor. Plaintiff indicates in the Complaint that he
did not receive a response from the Mayor. The remainder of the
Complaint consists of a string of exhortations and criticisms
regarding the shortcomings of the Brunswick sanitation division.
Plaintiff discusses, in great detail, his frustration with
staffing levels in the sanitation department, dissatisfaction
with furloughs, and fears that the department will be
privatized. Plaintiff does not connect any of these concerns to
the events of January 26, 2010 or his interactions with Bonnie
Roberts.
Plaintiff, proceeding pro

Se,

filed this lawsuit on July

21, 2011 against the City of Brunswick, Georgia. The Complaint
is forty-seven pages long and contains numerous documents. The
first document is an application for the appointment of an
attorney, which was denied. Dkt. No. 7. Along with the
application, Plaintiff provided various documents from the Equal
Employment Opportunity Commission ("EEOC") and documents
submitted by Plaintiff to the EEOC. Plaintiff also included
Albenze's letter to the Mayor, and his own response letter to
the mayor. Plaintiff included incident reports associated with
the January 26, 2010 incident, emails to the NAACP, and email
strings with Roberts.
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Reduced to its core, Plaintiff's Complaint is that the
City's Director of Human Resource, Bonnie Roberts, called the
Brunswick Police Department and told them to stop investigating
the dispute between Scott and Albenze. Plaintiff seems to
contend that Roberts stopped the investigation in order to
protect Albenze because Albenze is Caucasian and Plaintiff is
African-American. Plaintiff seems to believe that Roberts, by
asking the Police Department to discontinue any investigations,
was attempting to protect Albenze from a potential civil lawsuit
by Plaintiff. The City now moves to dismiss Plaintiff's suit.
LEGAL STANDARD
"A pleading that states a claim for relief must contain
* a short and plain statement of the claim showing that the
pleader is entitled to relief." Fed. R. Civ. P. 8. Here,
Plaintiff is proceeding pro Se, and pro se pleadings are "to be
liberally construed" and held to a "less stringent standard"
than those drafted by a lawyer. Erickson v. Pardus, 551 U.S.
89, 94 (2007). However, the latitude given to pro se litigants
does not eliminate the requirement that they conform to
procedural rules. Moton v. Cowart, 631 F.3d 1337, 1340 n.2
(11th Cir. 2011)
Where a defendant challenges a complaint for failing to
adequately state a claim upon which relief can be granted, the
court should apply a "two-pronged approach" in analyzing the
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complaint. See Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283,
1290 (11th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009) in resolving a motion to dismiss pursuant to Fed. R.
Civ. P. 12(b) (6)). First, the court should "eliminate any
allegations in the complaint that are merely legal conclusions."
Id. This first prong excludes "threadbare recitals of a cause
of action's elements, supported by mere conclusory statements."
Iqbal, 556 U.S. at 678. Second, the court should assume that
all well-pleaded factual allegations are true "and then
determine whether [those allegations] plausibly give rise to an
entitlement to relief." Am. Dental Ass'n, 605 F.3d at 1290. In
determining plausibility, the court should "draw on its
experience and common sense." Igbal, 129 S.Ct. at 1950.
Moreover, it is proper for the court to infer " 'obvious
alternative explanation[s]' which suggest lawful conduct rather
than the unlawful conduct the plaintiff[s] would ask the court
to infer." Am. Dental Ass'n, 605 F.3d at 1290 (quoting Igbal
and relying on Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007)). Ultimately, if the plaintiffs have not "nudged their
claims across the line from conceivable to plausible, their
complaint must be dismissed." Id. at 1289 (quoting Twombly, 550
U.S. at 570). Furthermore, '"[n]o action alleging an violation
of Title VII may be brought unless the alleged discrimination
has been made the subject of a timely-filed EEOC charge."

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Lambert v. Ala. Dept. of Youth Servs., 150 F. App'x 990, 993
(11th Cir. 2005) (holding that district court properly dismissed
plaintiff's claims given that plaintiff's claims were not
contained in a timely-filed EEOC charge).
DISCUSSION

Plaintiff fails to state the legal basis for his claim.
However, Plaintiff did initiate this lawsuit in conjunction with
a request for the appointment of an attorney, pursuant to §
706(f) of the Civil Rights Act of 1964. Moreover, Plaintiff
alleges that his employer engaged in conduct which harmed him,
based on his race. Consequently, the Court's best estimation of
Plaintiff's cause of action is that he believes that the City of
Brunswick violated Title VII of the Civil Rights Act through
Bonnie Robert's conduct.
The Defendant moves to dismiss Plaintiff's Complaint based
on two arguments. First, Defendant argues that Plaintiff's
claims are barred because he failed to timely file an EEOC
complaint. Second, Defendant argues that Plaintiff has failed
to plead a claim upon which relief may be granted.
I. Failure to File a Timely EEOC Complaint
"Before a potential plaintiff may sue for discrimination
under Title VII, [he] must first exhaust [his] administrative
remedies. The first step down this path is filing a timely
charge of discrimination with the EEOC." Wilkerson v. Grinnell
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Corp., 270 F.3d 1314, 1317 (11th Cir. 2001) (citing Crawford v.
Babbitt, 186 F.3d 1322, 1326 (11th Cir. 1999) and (Alexander v.
Fulton Cnty., 207 F.3d 1303, 1332 (11th Cir. 2000)). In order
for the charge to be timely, a plaintiff must file an EEOC
charge for intentional discrimination within 180 days of the
adverse employment action. See 42 U.S.C. § 2000e-5(e)(1);
Watson v. Blue Circle, Inc., 324 F.3d 1252, 1258 (11th Cir.
2003) ("Because Georgia is a non-deferral state, [plaintiff] was
required to file a Charge of Discrimination within 180 days of
the alleged unlawful employment action.").
In its Answer, Defendant stated as its Second Defense that
the "plaintiff's complaint is barred because of the plaintiff's
failure to timely file a charge with the Equal Employment
Opportunity Commission." Answer 2, Dkt. No. 8. Defendant
asserts again in the instant motion to dismiss that Plaintiff
failed to file a timely charge with the EEOC. Mot. Dismiss. 7,
Dkt. No. 38. The latest date of any conduct related to
Plaintiff's claims is February 10, 2010. Therefore, Plaintiff
would have needed to file his EEOC Charge within 180 days after
the relevant conduct. Defendant argues that the documents
submitted with Plaintiff's Complaint show that Plaintiff filed
his EEOC charge on June 17, 2011, far outside the 180 day
window. Accordingly, Defendant argues that Plaintiff's claims
are barred as untimely under 42 U.S.C. § 2000e-5(e)(1).
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Plaintiff responds that he actually filed an EEOC charge
sometime in 2010, but that the EEOC "decided to (re)assign
[Plaintiff] a second claim number in early 2011." Dkt. No. 40,
at 2 (emphasis in original). In fact, Plaintiff made this same
argument in his "Counter to Defense," filed in response to
Defendant's Answer. Dkt. No. 9. In that Counter to Defense,
Plaintiff provided documents showing that he initiated contact
with the EEOC in early 2010. Those documents show that
Plaintiff contacted the EEOC's Atlanta District Office in March,
2010, which then transferred his case to the Savannah Local
Office. Dkt. No. 9, at 6 (dated March 1, 2010) . The Savannah
Local Office directed Plaintiff to complete a questionnaire.
Id. at 7 (dated April 23, 2010). Upon receipt of the completed
questionnaire, the Savannah Local Office informed Plaintiff that
his allegations "failed to show discrimination based on [the]
issues that the EEOC covers." Id. at 8 (dated June 17, 2010).
That communication informed Plaintiff that although the EEOC
felt that it had no authority to process Plaintiff's complaint,
Plaintiff still had a right to insist on filing a charge with
the EEOC - though, that charge needed to be filed within 180
days of the date of the violation. As the letter indicated, any
potential charge would likely be dismissed, and then Plaintiff
would be given a right to sue letter. Plaintiff's documentation

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shows no further interaction with the EEOC until June 17, 2011
when he filed his actual charge.
Plaintiff seems to believe that by "touching base" with the
EEOC he satisfied the exhaustion of remedies requirement set
forth in 42 U.S.C. § 2000e-5(e)(1).

Dkt. No. 40, at 1.

Plaintiff is mistaken. Plaintiff needed to file a charge of
discrimination with the EEOC within 180 days of the alleged
violation. However, he did not file a charge until nearly
eighteen months later. While there are some limited occasions
where completing a questionnaire might be taken into account for
determining the exhaustion of remedies, those cases are limited.
See Francois v. Miami Dade Cnty., Port of Miami, 432 F. App'x
819, 822 (11th Cir. 2011) (holding, in part, that it was
unnecessary to consider a questionnaire for the purpose of
determining exhaustion of remedies where the questionnaire was
not verified, the questionnaire stated that it was not
considered a charge, and the plaintiff filed an actual timely
charge). Plaintiff has not presented any reason why this case
should fall in that limited group.
Furthermore, once a defendant asserts that a plaintiff has
failed to satisfy the preconditions to a Title VII action, it is
the plaintiff's burden to prove that those preconditions have
been satisfied. See Jackson v. Seaboard Coast Line R. Co., 678
F.2d 992, 1010 (11th Cir. 1982); Shuford v. City of Montqomer
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2011 WL 1375297, at *11 (M.D. Ala. Apr. 12, 2011); Goodridge v.
Astrue, 2008 WL 8691093, at *2 (N.D. Ga. 2008); Lambert v.
Georgia-Pacific Corp., 38 Fair Empl. Prac. Cas. (BNA) 745, at
*2-3 (S.D. Ga. 1985). Here, Plaintiff has failed to demonstrate
that he has met the conditions precedent to filing a Title VII
action. Plaintiff has not shown that he exhausted his
administrative remedies prior to filing this suit. Accordingly,
Plaintiff's Title VII claims are dismissed.

II. Failure to State a Claim for Intentional Discrimination
Plaintiff appears to assert either a disparate treatment
claim or a hostile work environment claim. Defendant argues
that Plaintiff has not set forth a plausible claim for relief
under either theory, even assuming all of Plaintiff's facts as
true.
A. Disparate Treatment
"To make out a prima facie case of racial discrimination a
plaintiff must show (1) [he] belongs to a protected class; (2)
[he] was qualified to do the job; (3) [he] was subjected to
adverse employment action; and (4) [his] employer treated
similarly situated employees outside [his] class more
favorably." Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir.
2008). Defendant argues that Plaintiff's Complaint fails
completely to identify any adverse employment action.
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The adverse employment action element requires that a
plaintiff "show a serious and material change in the terms,
conditions, or privileges of employment. Moreover, the
employee's subjective view of the significance and adversity of
the employer's action is not controlling; the employment action
must be materially adverse as viewed by a reasonable person in
the circumstances." Davis v. Town of Lake Park, Fla., 245 F.3d
1232, 1240 (11th Cir. 2001). Here, Plaintiff has not pled a
single fact indicating that he was subjected to an adverse
employment action. Based on Plaintiff's Complaint, and all
briefing, Plaintiff is still employed with the City of Brunswick
as the sanitation division director. He has pointed to no
change in his terms, conditions, or privileges of employment.
Plaintiff has simply not asserted any factual basis for
disparate treatment claim, because none of the facts alleged
even hint at an adverse employment action. Plaintiff's
disparate treatment claim is dismissed.

B. Hostile Work Environment
In regards to Plaintiff's hostile work environment claim,
Defendant argues that Plaintiff has not pled any severe or
pervasive harassment, or for that matter any racial comments.
In order to state a plausible claim of intentional
discrimination based on a hostile work environment, a plaintiff
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must demonstrate that '(1) he belongs to a protected group; (2)
he was subjected to unwelcome harassment; (3) the harassment was
based on his membership in the protected group; (4) it was
severe or pervasive enough to alter the terms and conditions of
employment and create a hostile or abusive working environment;
and (5) the employer is responsible for that environment under a
theory of either vicarious or direct liability." Edwards v.
Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010) (dismissing
plaintiff's hostile work environment claim as speculative, where
the complaint stated, without more, that plaintiff was Caucasian
and harassing coworkers were Hispanic or Latino). Plaintiff
claims that Roberts took steps to intervene in an investigation
by the Brunswick Police Department because Plaintiff is AfricanAmerican and Albenze is Caucasian. That is the full extent of
Plaintiff's allegations that race was the motivating factor in
this case. Plaintiff has not shown that any .harassment or
racially charged conduct occurred in his workplace. Plaintiff
pleads no facts showing that any person exhibited any racial
hostility or that any conduct could reasonably be inferred to be
racially motivated. Consequently, Plaintiff's hostile work
environment claim is dismissed.
CONCLUSION
Plaintiff has not asserted a plausible claim for relief
under either a hostile work environment theory or a disparate
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treatment theory. Plaintiff has completely failed to show that
he suffered any adverse employment action or that he was
subjected to severe or pervasive harassment. For those reasons,
Defendant City of Brunswick's Motion to Dismiss is GRANTED. The
Clerk is directed to close the case and ENTER FINAL JUDGMENT in
favor of Defendant on all claims.

SO ORDERED,

this 29th day of June, 2012.

ax^q
ir-I SA

ODAY OOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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