Windham v. Lynch et al
Filing
28
ORDER granting in part and denying in part 9 Motion to Dismiss. The Court's stay of discovery is lifted. The parties must conduct their Rule 26(f) conference within fourteen days, and they must file an updated Rule 26(f) report within seven days after their conference. Signed by Chief Judge J. Randal Hall on 06/27/2017. (thb)
IN THE UNITED
FOR THE
STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
WAYCROSS
CONNIE L.
WINDHAM,
DIVISION
*
•
Plaintiff,
*
*
JEFF SESSIONS, Attorney
General, UNITED STATES
DEPARTMENT OF JUSTICE, and
FEDERAL BUREAU OF PRISONS,
CV
516-083
*
*
*
*
Defendants.
*
ORDER
In
with
this
the
case,
which
Federal
arises
Bureau
of
out
of
Prisons,
Plaintiff's
Plaintiff
employment
alleges
that
Defendants retaliated against her for testifying against the BOP
in
a
race-discrimination
case
and
that
against her because of her gender.
Plaintiff's
claims,
arguing
(1)
that
Plaintiff
(2)
did not
claim.
motion.
The
Court
GRANTS
supporting
exhaust
that she has not pleaded
she suffered any adverse employment actions,
she has not pleaded facts
discriminated
Defendants move to dismiss
that
all of her administrative remedies,
Defendants
and
(3)
that
her gender-discrimination
IN PART AND DENIES
IN PART
Defendants'
I.
Accepting
the
facts
Background
alleged
in
Plaintiffs
complaint
as
true and viewing the allegations in the light most favorable to
Plaintiff,
as
Martinez,
this
the
480
case
F.3d
are
12.)
From
must,
1043,
as
Federal Bureau of
1
Court
1057
Prisons
Am.
(11th
follows.1
2001
until
in
United
Cir.
Life
2007),
Ins.
v.
facts
the
Co.
of
Plaintiff began working
(the "BOP")
facility
correctional
see
early
Jesup,
in 2001.
2014,
(Doc.
Plaintiff
Georgia.
(See
for
1,
Compl.
worked
id.
M
to
the
an
at
a
12-13,
28. )
In
November
Employment
2013,
Opportunity
coworker,
Rackey
complaint
against
("EEO")
Pasley,
the
skipping
who
opportunities.
alleges,
Wells
"became
intimidate her."
filed
(Id.
SI
supervisor,
Plaintiff and
overtime
testified
investigator
had
BOP.
Plaintiff questioned her
been
Plaintiff
SI
angry"
(Compl.
14. )
SI 21.)
20.)
and
behalf
of
race-discrimination
A
few
Paul Wells,
Pasley when
(Id.
a
on
Equal
days
later,
whether he
had
selecting employees
for
In
response,
"started
Plaintiff
bullying
Around the same time,
her
to
some of
1 Defendants styled their motion as Defendants' "Motion to Dismiss the
Complaint, or in the Alternative Motion for Summary Judgment" (see doc. 9),
and they refer to matters outside the pleadings.
In response, Plaintiff has
filed
with
the
Court
a
number
of
exhibits,
attempting
factual disputes exist to defeat summary judgment.
taken place in this case,
to
show
that
enough
Because no discovery has
the Court treats this motion only as a motion to
dismiss and declines to rely on the majority of the parties' evidence.
As
discussed below, however,
the Court does look beyond the pleadings when
addressing Defendants' argument that Plaintiff failed to exhaust all of her
administrative
remedies.
Plaintiff's
coworkers
25.)
routinely
They
"Gestapo."
Plaintiff
January
times
(Id.
that
it
2014.
in
SI
began
called
26.)
was
(Id.
her
In
Plaintiff
members,
a
28.)
(Id.
The
SI
blower."
that
in
the
"unhappy
2013,
her
BOP
31.)
to
in April,
gift
of
was
new
her
and
whistle
and
facility
two
for example,
filed
Defendants
violation
of
Plaintiff's
this
lawsuit
retaliated
Title
and
VII.
complaint,
administrative
more
a manager
staff
a
whistle-
2016,
September
discriminated
Defendants
arguing
remedies
in
for
that
one
II.
now
she
claim
alleging
against
move
failed
to
and
that
(Doc.
fails to state a claim for the others.
her
to
exhaust
her
Court tests
all
the
416 U.S.
facts
inferences
Court,
232,
9.)
sufficiency of the complaint.
236
in
the
v.
light
Ramsey,
however,
her
complaint
Legal Standard
(1974).
most
312
need not
and construe
favorable
F.3d
the
Scheuer v.
The Court must accept as true
alleged in the complaint
Hoffman-Pugh
The
legal
in
dismiss
In considering a motion to dismiss under Rule 12(b)(6),
Rhodes,
in
ridicule
other
for
St
notified
workplace
inmates
"a
BOP
moved
the
(Id.
camper/'
the
a
then
And
front
names.
(Id^ SI 35. )
Plaintiff
that
whistle
stating
"LT,"
December
continued throughout the moves:
gave
Plaintiff
transferring
SI
January.
calling
1222,
accept
to
the
1225
legal
all
reasonable
plaintiff.
(11th
Cir.
conclusions
as
See
2002).
true,
only well-pleaded facts.
79
complaint
also
accepted as true,
550
Iqbal,
556 U.S.
its
to
face.'"
U.S.
Id.
544,
"factual
570
content
inference
that
alleged."
"probability
must
678-
"contain
at
678
(citing Bell Atl.
(2007)).
the
sufficient
factual
A plaintiff
allows
the
defendant
"The
court
is
but
it
Corp.
is
to
for
standard
asks
for
the
the
is
speaking
denied
alleges
to
her
the
more
overtime
transferred
her,
Defendants
reasonable
akin
than
retaliated
investigator:
opportunities,
and
plead
a
to
a
sheer
Id.
Discussion
that
EEO
Twombly,
misconduct
not
possibility that a defendant has acted unlawfully."
III.
v.
required to
draw
liable
plausibility
requirement,'
Plaintiff
matter,
'state a claim to relief that is plausible
that
Id.
for
662,
(2009).
A
on
Ashcroft v.
that
her
she
that
claims
the
coworkers
BOP
against
that
her
Wells
improperly
ridiculed
her.
Plaintiff also alleges that Defendants discriminated against her
because
of
her
complaint.
They
administrative
Wells
gender.
argue
remedies
Defendants
(1)
that
with
move
to
Plaintiff
did
not
to
her
opportunities,
(2)
that
name-calling
were
denied
her
overtime
reassignments
and
allegations
respect
dismiss
of
Plaintiff's
exhaust
allegations
her
that
Plaintiff's
not
adverse
employment actions,
and (3)
that Plaintiff has failed to plead
any facts supporting her gender-discrimination claim.2
A. Whether Plaintiff Exhausted Her Administrative Remedies
As
noted,
Plaintiff
contends
against her in a number of ways,
to
work
exhaust
did
overtime.
her
not
Wells
administrative
contact
the
denied her
29 C.F.R.
Defendants
EEO
that
Defendants
including by not allowing her
argue
remedies
office
that
for
Plaintiff
this
claim
within
45
days
opportunities
overtime
retaliated
in
did
not
because
she
from
November
the
date
2013.
See
§ 1614.105 (a) (1) .
Before filing suit under Title VII, a federal employee must
exhaust her administrative remedies so that the agency has "the
information
it
needs
to
investigate
and
between the employee and the employer."
F.3d
1322,
1326
quotation
(11th
marks
requirement,
a
contact
45
days
§ 1614.105(a)(1).
within
1999)
omitted).
plaintiff
Counselor within
C.F.R.
Cir.
the
of
part
"initiate
the date of
the
dispute
Crawford v. Babbit,
(citation
As
must
resolve
omitted)
of
contact
the
18 6
(internal
exhaustion
with
the" wrongful
[an
act.
EEO]
29
And when a plaintiff does not initiate
45-day
period,
her
claims
are
typically
In her complaint, Plaintiff requests punitive damages, and Defendants
move to dismiss that request because punitive damages are not recoverable
against government agencies.
Because Plaintiff concedes this point, the
Court
GRANTS
Defendants'
motion
to
dismiss
on
this
issue.
barred.
1242
Ramirez v.
(11th Cir.
According
Sec'y,
U.S.
to
Defendants,
2014,
overtime opportunities.3
on
exhausted
her
forty-five
(doc.
contact
did
days
2),
a
Plaintiff
she
does
until
contact
anyone
from
denied
Defendants'
B. Whether
on
has
not
the
3,
EEO
she
(her
2014.
office
overtime
this
that
because
dispute
March
her
motion
Plaintiff
argues
remedies
office
Wells
contact
the
EEO
Without citing any
precipitating event
but
not
(See Doc. 9-1.)
issue,
of
did
over 100 days after Wells denied her
EEO
after
GRANTS
Plaintiff
administrative
at
the
not
the
days
21
686 F.3d 1239,
2012).
office until March 3,
authority
Dep't of Transp.,
she
timely
"filed
third
that
transfer)"
she
did
Because
until
not
Plaintiff
more
opportunities,
within
than
the
45
Court
issue.
Pleaded
that
She
Suffered
Adverse
Employment Actions
Under
other
Title VII,
things,
employee
hearing"
3
pleadings
in
is
unlawful
made
a
an
against
an
employee
charge,
any manner
under
the
in
an
statute.
On a motion to dismiss,
when
for
discriminate
"has
participated
it
determining
employer
investigation,
U.S.C.
among
because
the
assisted,
testified,
42
to,
or
proceeding,
§ 2000e-3(a).
or
A
the Court may view matters outside the
whether
a
plaintiff
has
exhausted
her
administrative remedies.
See Bryant v. Rich, 530 F.3d 1368, 1373-74 (11th
Cir. 2008).
Indeed, the Court is permitted to make factual findings and
resolve disputes as long as the Court does not reach the merits of a claim.
See
id.
at
1376.
Here,
the
Court
has
reviewed
the
complaint
of
discrimination that Plaintiff filed with the Department of Justice, which
shows
that
Plaintiff
first
contacted the
EEO
office
on March
3,
2014.
(Doc.
9-1.)
But the Court has not resolved any factual disputes because Plaintiff
does not argue that she contacted the EEO office before that date.
plaintiff
asserting
"(1)
that
she
that
she
there
v.
is
some
Lighting,
Defendants
she
contends
an
retaliation
claim
Inc.,
she
employment
between
506
F.3d
action;
the
1361,
two
and
challenge
adverse
whether
employment
suffered adverse
mocked
argue
affect
her
(3)
events.''
1363
(2)
that
Thomas
(11th Cir.
Plaintiff
her
that
employment
for
has
actions.
2007)
employment
testifying
actions
on
Plaintiff's
transfers
conditions
and
that
pleaded
Plaintiff
the BOP transferred her to different facilities and
Defendants
prove
(internal quotation marks omitted).
only
coworkers
must
statutorily protected expression;
relation
suffered
that
VII
adverse
causal
(citation omitted)
that
Title
engaged in
suffered
Cooper
a
when
(1)
(2)
when her
behalf
Pasley.
did
not materially
name-calling
cannot
support a Title VII retaliation claim.
1. Plaintiff s
Transfers
Defendants argue that
Plaintiff's transfers do not support
a retaliation claim because she "cannot demonstrate any serious
or
material
change
to
And citing Davis v.
Cir.
one
2001),
that
quotation
employment . . . ."
Town of Lake Park,
(Doc.
245 F.3d 1232,
9
at
1239
8.)
(11th
they contend that "[a]n adverse employment action is
involves
conditions,
her
or
marks
a
serious
privileges
omitted)
of
and material
change
employment."
(Id.
(emphasis
omitted).)
in
at
But
the
7
terms,
(internal
that
is
no
longer the standard for evaluating adverse employment actions in
retaliation
White,
cases.
548 U.S.
See
53,
68
In Burlington,
Burlington
N.
&
Santa
Fe
Ry.
Co.
v.
(2006).
the Supreme Court held that a plaintiff in a
retaliation case need only prove that she suffered a materially
adverse
action,
which
means
that
the
action
"well
might
have
dissuaded a reasonable worker from making or supporting a charge
of discrimination."
marks
omitted).
Id.
This
(citation omitted)
holding
(internal quotation
"significantly
broaden[ed]"
the
standard for analyzing adverse employment actions in retaliation
cases.
Crawford v.
2008).
Indeed,
Carroll,
529
the Court's
F.3d
holding
961,
974
n.15
(11th Cir.
in Burlington
"strongly
suggests that it is for a jury to decide whether anything more
than
the most
petty
and
should be considered
trivial actions
'materially adverse'
against
. . . ."
an
employee
Id. at
973
n.13.
Plaintiff alleges
in
retaliation
for
that the BOP transferred her three times
testifying
on
behalf
of
Pasley.
these allegations in the light most favorable to
Viewing
Plaintiff,
the
Court is satisfied that Plaintiff has alleged that the transfers
"well
might
have
dissuaded
a
reasonable
supporting a charge of discrimination."
68
is,
(citation omitted)
if
employees
facilities,
they
worker
from making
Burlington,
(internal quotation marks
feared
may
not
being
be
omitted).
transferred
willing
to
548 U.S.
to
testify
or
at
That
different
against
Defendants.
this
Accordingly,
the Court DENIES Defendants'
motion on
issue.
2. Plaintiff's Coworkers'
As
noted,
Plaintiff
Actions
alleges
that,
after
she
testified
to
the EEO investigator, her coworkers began routinely calling her
"LT," "unhappy camper," and "Gestapo."
one
occasion,
whistle
for
contend -
a manager
a
gave
Plaintiff
whistle-blower."
and
Plaintiff
(Compl.
does
SI 26.)
a whistle
and
(Compl.
35.)
dispute
not
SI
-
that
And on
said,
Defendants
Plaintiff
asserting a claim of retaliatory hostile work environment.
Gowski v. Peake,
In
essence,
environment
hostile
on
arises
work
protected
F.3d at
682 F.3d 1299,
a
when
an
1311-12.
under
Thus,
created
showing
that
pervasive."
defendant's
conduct;
conduct
offensive
the
Id.
in
42
the
work
employee
to
for
engaging
§ 2000e-3(a).
courts
In
of
evaluating
Gowski,
"(1)
of
conduct;
the
(4)
or
whether
which
were
the
consider
threatening
and
environment,
complained
severity
utterance;
hostile
a
in
682
a plaintiff must prove that the
work
1312.
physically
See
2012).
an
retaliation
is
to succeed on a retaliation claim based
hostile
at
subjects
U.S.C.
actions
conduct,
(2)
is
a
retaliatory
employer
a hostile work environment,
defendant
(11th Cir.
for
claim
environment
conduct
1311
"a
the
"severe
severity
frequency
(3)
humiliating,
the
requires
conduct
or
of
of
whether
a
or
a
the
the
mere
unreasonably
interferes with the employee's
omitted)
argue
that
"few offensive utterances
pervasive
(Doc.
9
mocked
Id.
(citation
(internal quotation marks omitted).
Defendants
or
job performance."
at
enough
9.)
to
But
because
she
witnessed
a
"few
satisfied
that
Plaintiff's
spoken about
constitute
Plaintiff
testified
offensive
Plaintiff
F.
Supp.
persuaded
that
plausible
hostile
Plaintiff]
2d 270,
[Plaintiff]
against
that
unreasonable
demands,
profanity at
Drew,
280
more
favorably.").
this
often
she
facts
claim
harsh
raised
treating the
and
his
that
Court
is
The Court thus DENIES
she
thus
claim
of
Plaza Constr.
("The Court
make
Plaza
out
is
a
[because
critical,
voice
Caucasian
action."
not
that
against
severe
routinely
plausible
2010)
a
was
See Drew v.
alleged
was
are not
BOP,
a
because
adverse
The
(S.D.N.Y.
Smith
while
the
pleaded
has
and
that
utterances."
discrimination
alleges
employees
alleges
has
fails
materially
retaliatory hostile work environment.
Corp. , 688
claim
and
made
directed
employees much
issue.
C. Whether Plaintiff has Pleaded a
Under Title VII,
or
to
against
discharge
any
any
individual
conditions,
or
individual's
.
it
is
with
privileges
.
. sex
.
.
.
or
respect
of
."
"to
fail
or refuse
otherwise
to
his
employment,
42 U.S.C.
10
motion on
Claim of Gender Discrimination
unlawful
individual,
Defendants'
§
to
to hire
discriminate
compensation,
because
2000e-2(a).
of
terms,
such
In
her
complaint,
"discriminated
(Compl.
about
SI
why
against
47.)
She
she
Plaintiff
Plaintiff
does
thinks
alleges
on
not,
the
basis
however,
Defendants
complaint,
supporting
Defendants'
the
this
Court
discriminated
is
claim.
In
motion to dismiss on this
sum,
Defendants'
the
an updated
Court
motion to
discovery (doc.
Rule 26(f)
unable
27)
to
any
gender."
explanation
against
her
or
the
any
facts
Court
GRANTS
issue.
Conclusion
GRANTS
dismiss.
IN
PART
(Doc.
is LIFTED.
26(f)
her
locate
AND
9.)
report
DENIES
The
Court's
IN
PART
stay of
The parties must conduct their
conference within fourteen days,
Rule
Defendants
And after reviewing
Accordingly,
IV.
of
offer
point to any facts supporting her claim.4
the
that
within
seven
and they must
days
after
file
their
conference.
ORDER ENTERED at Augusta, Georgia this c^/^day of June,
2017.
IIEF
JUDGE
1ITE9 STATES DISTRICT COURT
CRN
4
DISTRICT
OF GEORGIA
In her briefs opposing Defendants' motion, Plaintiff mentions that
she prevailed on a gender-discrimination claim in 2011, but she does not
explain how this prior claim supports her current claim of discrimination.
11
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