Evans v. Georgia Regional Hospital et al
REPORT AND RECOMMENDATIONS dismissing with prejudice re 1 Complaint, denying re 2 MOTION to Appoint Counsel filed by Jameka K. Evans. Objections to R&R due by 9/23/2015. Signed by Magistrate Judge G. R. Smith on 9/9/2015. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
JAMEKA K. EVANS,
Case No. CV415-103
GEORGIA REGIONAL HOSPITAL,
REPORT AND RECOMMENDATION
Proceeding pro Se, Jameka K. Evans filed this action against her
ex-employer, the Georgia Regional Hospital, plus three individuals, for
violating Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §
2000e, et seq.'
Doe. 1 at 1. She moves for leave to file this case in forma
pauperis ("IFP") and for appointment of counsel. Doe. 2. Finding her
Title VII prohibits discrimination with respect to an employee's "compensation,
terms, conditions, or privileges of employment because of such individual's race, color,
religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). It thus makes it unlawful for
to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions or privileges of employment, because of such individual's race, color,
religion, sex, or national origin.
42 U.S.C. § 2000e-2(a)(1) (emphasis added).
indigent, the Court grants her IFP motion (doe. 2) and addresses her
"counsel" motion below. Doc. 2. It will now screen her case under 28
U.S.C. § 1915(e)(2)(B)(ii), which requires a district court to dismiss an IFP
complaint "at any time" it is determined to fail to state a claim for relief.
See Hamzah v. Woodmans Food Mkt., Inc., 2014 WL 1207428 at * 1 (W.D.
Wis. Mar. 24, 2014).
A. Substantive Claim
A complaint must contain "enough facts to state a claim to relief
that is plausible on its face." Bell Ati. Corp. v. Twombly, 550 U.S. 544, 570
(2007). In other words, Evans' factual allegations must enable the Court
"to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). She
also must plead a Title VII prima facie case establishing that: (1) she is a
member of a protected class; (2) she was subjected to an adverse
employment action; (3) her employer treated similarly situated employees
outside of her protected class more favorably than she was treated; and (4)
the employment action was causally related to the protected status.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
Evans alleges that, during her 2012-2013 employment 2 with the
hospital as a "security officer," she was "targeted [by her supervisor] for
termination" because she was perceived as gay and, while she did not
broadcast her sexuality, "it is evident that I identify with the male gender
because I presented myself visually (male uniform, low male haircut,
shoes, etc.)." Doc. 1 at 3; see also doe. 2 at 4.
She claims that her
supervisors harassed her because of her perceived homosexuality, and she
was otherwise "punished because my status as a gay female did not
conform to my department head's. . . gender stereotypes associated with
women. This caused a great strain on me and created a hostile work
environment. Chief [Charles] Moss also appointed/promoted a less
qualified person I with no prior security experience as my direct
supervisor." Doe. 1 at 4 (footnote added). Evans "left the job
Her Complaint asserts she worked there from "8/1/12 - 10/11/13." Doc. 1 at 3. No
untimeliness finding (i.e., that she took too long after any complained-of acts to file her
EEOC complaint) is reflected in the EEOC's January 22, 2015, Right to Sue letter.
Doc 1-1 at 9. See Russell v. City of Mobile, 2013 WL 1567372 at *4 (S.D. Ala. Apr. 12,
2013) ("A charge not made within 180 days of the alleged discriminatory action
becomes time barred. 42 U.S.C. § 2000e5(e)(1).").
She does not specify that person's gender or sexual orientation.
Id. at 3. She wants the named defendants to "be held
liable [for discriminating against her] based on [her] sex as a gay female in
violation of Title VII. . . ." Id. at 5.
Evans is alleging discrimination on the basis of her homosexuality
(gay female) and gender non-conformity (appearing "male").' "Although
the Eleventh Circuit has not addressed this issue, every court that has
While the Court construes pro se complaints liberally, it cannot raise theories of
recovery for, or plug holes in, legal arguments raised by litigants. Boles v. Riva, 565
F. App'x 845, 846 (11th Cir. 2014) ("[E]ven in the case of pro se litigants this leniency
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.") (quotes and cite omitted);
Sec'y, Fla. Dep't of Corr. v. Baker, 406 F. App'x 416, 422 (11th Cir. 2010). Evans has
accompanied her complaint with an EEOC right to sue letter (hence, she evidently has
exhausted, as Title VII commands, her administrative remedies); a one-page
handwritten EEOC-stamped-received complaint; and her own typed materials and
emails covering the 2013-2014 period. Doc. 1-1.
Significantly, however, none of these materials recount discriminatory acts based
on gender, homosexuality, or sexual orientation. And, although Evans does not
disclose any details of the EEOC's investigation here, she is reminded of the
administrative consistency doctrine. McIntyre v. Aurora Cares, LLC, 2011 WL
2940939 at * 2 (S.D. Ala. July 21, 2011); see also Russell, 2013 WL 1567372 at *8 ;
Tillery v. ATSI, Inc., 2003 WL 25699080 at * 1 (N.D. Ala. Apr. 14, 2003) ("As a general
rule, a Title VII plaintiff cannot bring claims in a lawsuit that were not included in her
EEOC charge. . . . [A]llowing a complaint to encompass allegations outside the ambit
of the predicate EEOC charge would frustrate the EEOC's investigatory and
conciliatory role, as well as deprive the charged party of notice of the charge.") (quotes
and cite omitted); see also id. ("[T]he claims that may be alleged in a judicial complaint
are limited by four boundaries: (i) the specific claims alleged in the underlying EEOC
charge; (ii) those claims which are like or reasonably related to those alleged in the
underlying charge; (iii) the scope of the EEOC investigation that can reasonably be
expected to grow out of the charge of discrimination; and (iv) those discriminatory acts
which were in fact considered during the EEOC's investigation." (quotes and footnotes
done so has found that Title VII . . . was not intended to cover
See, e.g., Simonton v. Runyon, 232
discrimination against homosexuals.
F.3d 33 5 35 (2d Cir. 2000) ('The law is well-settled in this circuit and in all
others to have reached the question that Simonton has no cause of action
under Title VII because Title VII does not prohibit harassment or
discrimination because of sexual orientation.')."
Arnold v. Heartland
Dental, LLC, - F. Supp. 3d -, 2015 WL 1456661 at * 5 (M.D. Fla. Mar.
See also Fredette v. BVP Mgmt. Assocs., 112 F.3d 1503, 1510
(11th Cir. 1997) (noting, in a same-sex harassment case: "We do not hold
that discrimination because of sexual orientation is actionable").
Other courts have held that homosexuality is not a "protected class"
within the meaning of Title VII, which means any substantive
discrimination claims based on it fail as a matter of law.
Harder v. New
York, - F. Supp. 3d ___, 2015 WL 4614233 at * 5 (N.D.N.Y. Aug. 3,
2015) (state employee failed to establish prima facie case of disparate
In Arnold, however, the plaintiff stated such a claim -- under state law. Id. at * 5
(claims by female who identified as a gender non-conforming female homosexual, that
employer's discriminatory actions were related to her gender non-conforming status,
rather than her sexual orientation, were sufficient to allege sex discrimination, as
required to state claims for hostile work environment and disparate treatment under
state civil rights act). Also, Arnold cited to a comparator, id., while Evans does not.
treatment, hostile work environment, or constructive discharge under
Title VII through allegations that his roommate/coworkers continued
comments to staff and residents at training academy where they resided
and at their first work assignment created the false impression that he
was homosexual; perceived sexual orientation was not a protected class);
Hively v. Ivy Tech Cmty. College, 2015 WL 926015 at *3 (N.D. Ind. Mar. 3,
2015) ("[S]exual orientation is not recognized as a protected class under
Title VII"). So while same-sex harassment
(e.g., a homosexual
supervisors advances upon a same-sex employee), can be actionable under
Title VII, 6 Title VII discrimination claims based upon the plaintiffs
sexual orientation or perceived sexual orientation are not.
WL 1245355 at * 7 (collecting cases); see also id. ("In sum, there is no
support for plaintiffs claim that Title VII gives rise to protection for
discrimination based upon a supervisor's perception that she is a
Finally, to say that an employer has discriminated on the basis of
gender non-conformity is just another way to claim discrimination based
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998) ("[S]ex
discrimination consisting of same-sex sexual harassment is actionable under Title
VII"); Stevens v. Ala. Dep't of Corr., 2015 WL 1245355 at * 7 (N.D. Ala. Mar. 18, 2015).
on sexual orientation. To inflict an adverse employment action (unfair
discipline, denied promotion, etc.) because a male is too effeminate or a
female too masculine is to discriminate based on sexual orientation
("gender nonconformity"), which is reflected in the gender image one
presents to others -- that of a male, even if one is biologically a female.
Hence, Evans' allegations about discrimination in response to
maintaining a male visage also do not place her within Title Vii's
protection zone, even if labeled a "gender conformity" claim, because it
rests on her sexual orientation no matter how it is otherwise
Cf. Thomas v. Osegueda, 2015 WL 3751994 at *4 (N.D.
Ala. June 16, 2015) (applying analogous federal housing law principles to
conclude that while gay sexual stereotyping cases "often involve
harassment that is offensive, relief for 'sex' discrimination is narrowly
limited and expanding such protections further would 'require action by
Other courts have similarly rejected gender non-conformity claims stemming from
a plaintiffs homosexuality. See Anderson v. Napolitano, 2010 WL 431898 at *6 (S.D.
Fla. Feb. 8, 2010) (rejecting implication that all homosexual men fail to comply with
male stereotypes because they are homosexual, stating "that would mean 'that every
case of sexual orientation discrimination [would] translate into a triable case of gender
stereotyping discrimination, which would contradict Congress's decision not to make
B. Retaliation Claim
Evans also raises a retaliation claim. Doe. 1 at 5. Retaliation is
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees . . . because he has
opposed any practice made an unlawful employment practice by this
42 U.S.C. § 2000e-3(a) (emphasis added). A plaintiff must plead a prima
facie case: "(1) that she engaged in protected conduct and (2) suffered an
adverse employment action that was (3) causally connected to the
Stevens, 2015 WL 1245355 at * 10 (citing Bolivar
v. Univ. of Ga. Survey and Research, 2012 WL 4928893 at * 8 (M.D. Ga.
Oct. 16 ) 2012) and Taylor v. Runyon, 175 F.3d 861, 868 (11th Cir. 1999)).
Evans alleges that on one occasion a supervisor "repeatedly shut the
door on me without giving me the opportunity to move." Doe. 1 at 5
(here she cites a state ethics code and insists that such behavior violated
it). "Also, by me going to HR chief Moss was trying [sic] to find ways of
sexual orientation discrimination cognizable under Title VII"), cited in Arnold, 2015
WL 1456661 at * 7; see also Zachary R. Herz, Price's Progress: Sex Stereotyping And Its
Potential For Antidiscrimination Law, 124 YALE L.J. 396, 430 (2014) ("courts have
generally frowned on attempts to read conduct that is neither universal to a group nor
limited to its members as functionally equivalent to a protected Title VII status. . . .").
terminating me, this is evidence of retaliation. This information is from
Sgt. Harvey Pegue who worked closely with Chief Moss."
Id. Moss "did
everything he could to terminate me including several notices. He went
as far as stating to Sgt. Pegue of getting rid of me [sic] because I had too
much information of wrong during [sic] by him in the department."
at 4 (citing to emails furnished with her complaint).
The problem for Evans is that she has failed to allege that she
opposed "an unlawful employment practice" and the retaliators knew that
(and retaliated against her because of her "protected activity"). As noted
above, it is simply not unlawful under Title VII to discriminate against
homosexuals or based on sexual orientation. Hence, Evans fails to meet
the causation element:
The plaintiff has the obligation to show a causal connection by
showing "that the decision makers were aware of the protected
activity and the protected activity and the adverse action were not
wholly unrelated." Bass v. Board of County Comm'rs., Orange
County, 256 F.3d 1095, 1119 (11th Cir. 2001) (overturned on other
grounds). The causal link requirement is to be construed broadly,
and. . . "a plaintiff need only show that the protected activity and
the adverse action were not wholly unrelated." Brungart v.
Bellsouth Telecommunications, Inc., 231 F.3d 791, 799 (11th
Cir.2000) (quoting Clover v. Total Sys. Servs., Inc., 176 F.3d 1346,
1354 (11th Cir. 1999)). However, to meet even this low threshold of
proof of causation, the plaintiff must offer some evidence from
which a jury could infer that the protected activity caused the
adverse employment action.
Stevens, 2015 WL 1245355 at *10. But there evidently was no protected
activity here. Again, plaintiff was complaining about an employment
practice (homosexual or sexual orientation discrimination) that is not
unlawful under Title Vu 8 As explained by another district court:
Although Title VII does not prohibit sexual orientation
discrimination, it arguably does prohibit retaliation against persons
who file charges of discrimination based on a reasonable, good-faith
(albeit mistaken) belief that the complained-of practice was
prohibited. Clark County School Dist. v. Breeden, 532 U.S. 268, 270
(2001), citing 42 U.S.C. § 2000e-3(a). Theoretically, an employee
who mistakenly believes that federal law prohibits discrimination on
the basis of sexual orientation and files a complaint of
discrimination on that ground might contend that he nevertheless
engaged in protected conduct under Title VII. In such
circumstances, the critical question would appear to be whether the
employee's mistaken belief as to the reach of Title VII was
reasonable. Nevertheless, this Court is aware of no authority
adopting this proposition, and indeed, there is some caselaw to the
That court reasoned:
Here, Hamzah has alleged an adverse employment action -- termination -- and
has alleged that his termination was due to the complaints he filed, but has not
alleged that those complaints opposed a practice that is unlawful under Title
VII and has not been specific as to other possible claims. Rather, he simply
alleges that he filed internal complaints about "various forms of harassment."
Particularly since Hamzah has specifically alleged some harassment based on
sexual preference -- which is not prohibited by Title VII -- his broad claim of
retaliation is not enough by itself to make his Title VII claim plausible.
Hamzah, 2014 WL 1207428 at * 5.
contrary. See Hamner v. St. Vincent Hosp., 224 F.3d 701, 707 (7th
Cir. 2000); see also Howell v. North Central College, 331 F.Supp.2d
660, 663-64 (N.D.Ill. 2004) (applying Title IX).
Cunningham v. City of Arvada, 2012 WL 3590797 at *1 (D. Cob. 2012);
see also Hamner, 224 F.3d at 707 ("The plaintiff must not only have a
subjective (sincere, good faith) belief that he opposed an unlawful
practice; his belief must also be objectively reasonable, which means that
the complaint must involve discrimination that is prohibited by Title
VU."). "Because [Evans] has not alleged that she put [her employer] on
notice of a violation of [Title VII], she [also] has failed to allege that she
engaged in statutorily protected expression."
Arnold, 2015 WL 1456661,
Additionally, Evans also sues three individuals -- Charles Moss, Lisa
Clark and Jamekia Powers, doe. 1 at 1, 3 -- but Title VII permits suits only
against a plaintiffs employer, not against co-employees or supervisors in
their individual capacity.
Bryant v. Dougherty Cnty. Sch. Sys., 382 F.
App'x 914, 916 n. 1 (11th Cir. 2010); Fuist v. Thompson, 2009 WL 4153222
at * 3-4 (S.D. Ohio Nov. 20, 2009) ("Supervisory employees are not
typically proper defendants under Title VII because they do not fall within
the definition of 'employer."). Hence, the Court advises that her case
against those defendants be dismissed with prejudice.
In that Evans has pled no actionable claim nor seems likely to, her
case should be DISMISSED WITH PREJUDICE with no
"second-chance" amendment option.
Langlois v. Traveler's Ins. Co., 401
F. App'x 425, 426-27 (11th Cir. 2010) (even though IFP's litigant's pro se
complaint failed to state basis for federal jurisdiction and failed to state a
claim, and she failed to seek leave to amend her complaint, nevertheless
she should have been afforded an opportunity to amend deficiencies prior
to dismissal, where no undue time had elapsed, no undue prejudice could
be shown, and the record revealed some potential claim-resuscitation).
Nor has she shown exceptional circumstances to warrant the appointment
of counsel, so her motion to that end is DENIED. 9 Doc. 2.
Congress passed 28 U.S.C. § 1915(e)(1), which basically authorizes a judge to
"pressure an attorney to work for free." Williams v. Grant, 639 F. Supp. 2d 1377,
1381 (S.D. Ga. 2009) (noting the "professional compulsion" lurking behind a judge's 28
U.S.C. § 1915(e)(1) request); Nixon v. United Parcel Serv., 2013 WL 1364107 at * 2 n. 3
(M.D. Ga. Apr. 3, 2013). Even at that, a judge may do so "only in exceptional
circumstances." Heinisch v. Bernardini, - F. Supp. 3d. -' 2015 WL 159058 at * 1
(S.D. Ga. Jan. 12, 2015) (quoting Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999)).
Evans has not only failed to state a claim here, but there may also be some knock-out
punches that otherwise drain her case of any vitality (her claims may be untimely, if
SO REPORTED AND RECOMMMENDED, this
UNITED S TES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
not defective merely because she failed to raise them before the EEOC, see supra notes
3,4 & 5).
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