Whiteheall v. United Parcel Service

Filing 14

OPINION AND ORDER granting 11 Motion to Dismiss without prejudice. Signed by Judge Rudy Lozano on 10/22/2013. (rmn)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ANTHONY WHITEHEAD,

)
)
)
)
)
)
)
)
)
)

Plaintiff,

VS.
UNITED PARCEL SERVICE,
Defendant.

CAUSE NO. 2:12-CV-388

OPINION AND ORDER
This matter is before the Court on Defendant UPS’ Motion to
Dismiss, filed on July 16, 2013.
below, the motion is GRANTED.

For the reasons set forth

This case is DISMISSED without

prejudice.

BACKGROUND
Pro
this

se

civil

Plaintiff,
action

Anthony

against

Whitehead

United

Parcel

(“Whitehead”),
Service

filed

(“UPS”)

on

September 25, 2012, pursuant to Title VII of the Civil Rights
Act

of

1964.

According

to

the

employee of UPS for over 23 years.

complaint,

Whitehead

(Comp. ¶ 1, pg. 3).

was

an

He was

injured on the job on March 26, 2008, and was not able to return
to work until the following March due to surgery and therapy.
(Comp. ¶ 4, pg. 3).

Starting in August of 2009, and ending in

June of 2011, Whitehead reported many work-related conditions to

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Mark

Johnson

supervisors.

(“Johnson”)

and

Mike

(Comp. ¶ 5, pg. 3).

Nicalou

(“Nicalou”),

his

Among those issues were poor

load conditions, packages not loaded securely, and failure to
make safety a priority when working in dangerous neighborhoods.
Id.
Johnson called Whitehead “stupid” in October of 2009, and an
“idiot” in September of 2010.

(Comp. ¶ 6, pg. 3-4).

Nicalou

told Whitehead in March of 2010 that “[t]here is nothing wrong
with your load there is something wrong with you.”
pg. 4).

(Comp. ¶ 6,

Whitehead believes that Johnson and Nicalou were biased

against him and “used company policies, rules and regulation to
intimidate, harass, and discriminate against” him.

Id.

In May

of 2011, Whitehead filed a charge of discrimination with the
EEOC.

(Comp. ¶ 5, pg. 3).

Finally, in June of 2011, Whitehead

was fired by Johnson and Nicalou.

(Comp. ¶ 6, pg. 4).

On July 12, 2013, the Clerk of Court sent a notice to
Whitehead explaining that he had failed to serve UPS within 120
days and that his failure to do so “shall, in the discretion of
the court, be sufficient to warrant dismissal of the action,
without prejudice, for failure to complete process pursuant to
Rule 4(m) of the Federal Rules of Civil Procedure.”

(DE #4).

The notice also stated that, if there was no action taken by
June 27, 2013, the matter would be brought to the attention of
this Court.

On June 25, 2013, Whitehead executed service on
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UPS. (DE #6).
UPS responded to the complaint with the instant motion to
dismiss.

UPS argues that dismissal is required pursuant to

Federal Rule of Civil Procedure (“FRCP”) 4(m) and FRCP 12(b)(5)
because plaintiff did not serve UPS within the allowed time.
UPS also argues that dismissal is required pursuant to FRCP
12(b)(6) for failure to state a claim.

Additionally, UPS asks

for reasonable attorneys’ fees and costs.
This Court ordered Whitehead to file a response to UPS'
motion on or before August 30, 2013.
response.

Whitehead did not file a

The motion is therefore ripe for adjudication.

DISCUSSION
In determining the propriety of dismissal under Federal Rule
of Civil Procedure 12(b)(6), the Court must accept all facts
alleged

in

inferences
Johnson

in

v.

complaint

the

complaint
the

Rivera,
is

not

light
272

as

true

most

F.3d

required

and

draw

all

reasonable

to

the

plaintiff.

favorable

519,
to

520

(7th

contain

Cir.

2001).

detailed

A

factual

allegations, but it is not enough merely that there might be
some conceivable set of facts that entitles the plaintiff to
relief.

Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65

(2007), abrogating in part Conley v. Gibson, 355 U.S. 41, 45-46
(1957).

A plaintiff has an obligation under Rule 8(a)(2) to
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provide the grounds of his entitlement to relief, which requires
more than labels and conclusions.

Id. at 1965.

A Rule 12(b)(6)

motion to dismiss should be granted if the complaint fails to
include sufficient facts to state a claim for relief that is
plausible on its face.

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

(2009).

Factual allegations, taken as true, must be enough to

raise

right

a

to

relief

above

the

speculative

level.

Id.

Moreover, a plaintiff may plead himself out of court if the
complaint includes allegations that show he cannot possibly be
entitled to the relief sought.

Jefferson v. Ambroz, 90 F.3d

1291, 1296-97 (7th Cir. 1996).
Title

VII

discriminating

prohibits
“against

employers
any

from

individual

firing
with

or

otherwise

respect

to

his

compensation, terms, conditions, or privileges of employment,
because

of

such

national origin.

individual’s

race,

color,

religion,

See 42 U.S.C. §§ 2000e–2(a)(1).

sex,

or

A plaintiff

alleging discrimination may prevail either by producing direct
evidence of discrimination, or by utilizing the indirect burdenshifting

method

familiarized

by

McDonnell

Douglas

Corp.

Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1972).

v.
See

Arizanovska v. Wal-Mart Stores, Inc., 682 F.3d 698, 702 (7th
Cir. 2012).
a

Using the direct method, a plaintiff can prevail on

discrimination

claim

if

he

produces

“either

direct

or

circumstantial evidence that would permit a jury to infer that
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discrimination motivated an adverse employment action.”

Diaz v.

Kraft Foods Global, Inc., 653 F.3d 582, 587 (7th Cir. 2011).

A

Plaintiff proceeding under the indirect method, on the other
hand,

must

provide

evidence

that:

(1)

he

is

a

member

of

a

protected class; (2) he was meeting the employer’s legitimate
employment expectations; (3) he suffered an adverse employment
action;

and

(4)

similarly

situated

employees

protected class were treated more favorably.

outside

of

the

Naficy v. Illinois

Dept. of Human Services, 697 F.3d 504, *5 (7th Cir. 2012).
Whitehead’s

complaint

asserts

no

facts

construed as direct evidence of discrimination.

that

could

be

And, even under

the indirect method of proof, his complaint fails to allege
facts

that,

if

true,

would

support

a

prima

facie

case.

Whitehead has not even named the protected class that he belongs
to.

Likewise, he has not alleged that his performance met his

employer's legitimate expectations or that others not in his
protected class received more favorable treatment.
Whitehead’s harassment claim fairs no better.

A plaintiff

wishing to sustain a Title VII harassment claim must prove that
the workplace harassment is “so severe and pervasive that it
altered the terms and conditions of plaintiff’s employment” and
a

link

between

protected class.

the

adverse

treatment

and

the

plaintiff's

See Coffman v. Indianapolis Fire Dept., 578

F.3d 559, 564 (7th Cir. 2009).
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Again, Whitehead’s failure to

identify his protected class requires dismissal.

Additionally,

the workplace conditions that Whitehead described were not “so
severe and pervasive as to alter the terms and conditions of
plaintiff's employment.”
2009).

Coffman, 578 F.3d 559, 564 (7th Cir.

As the Supreme Court stated in Faragher v. City of Boca

Raton, the standards are “sufficiently demanding to ensure that
Title VII does not become a 'general civility code.'”

Faragher

v. City of Boca Raton, 524 U.S. 775, 788 (1998)(citing Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998).

Even

taking all Whitehead's allegations as true, he has not alleged
that

his

workplace

environment

would

satisfy

the

criteria

established in Coffman.
Even if Whitehead’s claims had not failed for the reasons
noted above, it appears that many of his allegations would be
time-barred.

See 42 U.S.C. § 2000e-5(e)(1); Racicot v. Wal-Mart

Stores, Inc., 414 F.3d 675, 677 (7th Cir. 2005)(Complaints for
unlawful employment practices must be filed with the correct
agency within 300 days of the alleged misconduct).
The
Whitehead

Court

notes

refers

to

that,

in

the

Johnson

and

body

of

Nicalou

his
as

complaint,
defendants.

Whitehead utilized an employment discrimination complaint form
provided by the Clerk’s Office.

Neither Johnson nor Nicalou are

listed as defendants in the caption.
the

complaint,

there

is

a

place
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In the first sentence of
for

a

plaintiff

to

list

defendants.

Whitehead listed only UPS.

there is a section titled “Parties.”
only UPS as a defendant.

Also on the first page,
Again, Whitehead lists

Accordingly, the complaint will not be

construed as naming either Johnson or Nicalou as defendants.
However, the Court notes that, even if these individuals had
been properly named as defendants, the complaint would still be
dismissed in its entirety for failure to state a claim.
Because Whitehead has failed to state a claim of Title VII
discrimination or harassment, this Court grants UPS’ Motion to
Dismiss.1

Request for Attorneys’ Fees and Costs
UPS

requests

attorneys’

fees

support of the motion to dismiss.

and

costs

in

its

brief

in

The request is not supported

by any citation to legal authority.

The request is DENIED with

leave to refile.

Any future request for attorneys’ fees must

include

to

citations

relevant

law

that

would

authorize

the

requested award.

1

The Court has considered UPS’ request for dismissal pursuant to FRCP 4(m). The Court notes that the notice
issued by this Court’s Clerk’s Office on June 12, 2013, indicated that, if Whitehead took no action by June 27, 2013,
the matter would be brought to the attention of the Court. Whitehead served UPS on June 25, 2013. Service was
completed well outside of the 120 days permitted by Rule 4(m). Nevertheless, based on the Clerk’s Office’ notice,
which Whitehead may have construed as an extension of time, and the fact that this case must be dismissed under
12(b)(6) even in the absence of a violation of FRCP 4(m), the Court declines to rule on UPS’ argument that the case
should be dismissed under Rule 4(m).

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CONCLUSION
For the set forth above, the UPS’s motion to dismiss is
GRANTED.

This case is DISMISSED without prejudice.

DATED: October 22, 2013

/s/RUDY LOZANO, Judge
United States District Court

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