Armour v. Allied Universal

Filing 4

ORDER TO SHOW CAUSE. IT IS THEREFORE ORDERED that Plaintiff's Motion to Proceed Without Prepayment of Fees (ECF 3) is granted. IT IS FURTHER ORDERED that, on or before August 3, 2017, Plaintiff shall show good cause, in writing, to the District Judge as to why her case should not be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. IT IS FURTHER ORDERED that the Clerk's office is directed to withhold issuing waiver of summons of service to Defendant until further order of this Court. Signed by Magistrate Judge Gerald L. Rushfelt on 7/20/2017. Mailed to pro se party Sheila Armour by regular and certified mail; Certified Tracking Number: 7016 2070 0000 1868 2703. (hl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHEILA LARAINE ARMOUR,
Plaintiff,
v.

Case No. 17-2258-CM-GLR

ALLIED UNIVERSAL,
Defendant.

ORDER TO SHOW CAUSE
Plaintiff has filed a Motion to Proceed Without Prepayment of Fees (ECF 3). Based on
the information provided by Plaintiff in her Motion and Affidavit of Financial Status (ECF 3-1),
the Court finds that Plaintiff has shown an inability to pay the filing fees and a belief that she is
entitled to relief. Thus, the Court concludes that the motion should be granted. As a result, her
Complaint1 (ECF 1) is subject to screening under 28 U.S.C. § 1915(e)(2). As explained more
fully below, the Court orders Plaintiff to show good cause, in writing, to the District Judge as to
why her Complaint should not be dismissed for failure to state a claim upon which relief may be
granted.
SCREENING
A.

Background
Plaintiff Sheila Armour, proceeding pro se, alleges a claim of employment

discrimination, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.,
against her former employer, Defendant Allied Universal. Plaintiff filed an almost identical suit
1

When filing this case, Plaintiff submitted to the Court both a form Employment Discrimination Complaint
(ECF 1) and a form Civil Complaint (ECF 1-2). In such an instance, the Court’s standard procedure is to file the
Employment Discrimination form complaint as the operative Complaint, which it did here. However, because Ms.
Armour’s form Civil Complaint contains additional or different factual allegations, the Court filed the form Civil
Complaint as an attachment to her Complaint. The Court construes both as Plaintiff’s Complaint.

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against Universal Protection Service.2 In both cases, Plaintiff claims that Defendant retaliated
against her and that she was not offered compensation for her work injury on account of her
African-American ethnicity. The only material difference between Plaintiff’s suits3 is that here
she also alleges racial harassment, stating:
I was made to feel that I would not have any support with this because everyone
would claim they never got injured. They denied my workers compensation
claim and completely disregarded my injuries. I was verbally attacked and made
to feel like an outsider.4
Plaintiff seeks monetary damages in the amount of $5,000,000 for her physical injury (burns,
damage to organs, and potential face lift) and her emotional injury (discrimination and distress),
and she seeks an apology.
B.

Failure to State a Claim
Under 28 U.S.C. § 1915(e)(2)(B), a court, after granting leave to proceed in forma

pauperis, must screen a Complaint to determine whether the case should be dismissed because
“the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.”
In determining whether a case must be dismissed for failure to state a claim under
§ 1915(e)(2)(B)(ii), courts employ the same standard applicable to determining a motion to
dismiss under Fed. R. Civ. P. 12(b)(6).5 To survive a motion to dismiss under Fed. R. Civ. P.
12(b)(6), a complaint must present factual allegations, assumed to be true, that “raise a right to

2

See Case No. 17-2227-DDC-GLR. In August 2016, AlliedBarton Security Services and Universal
Services of America, of which United Protection Service is a subsidiary, merged to become Allied Universal. See
Allied Universal, http://www.aus.com/media-center/press-releases/view-press-release/articleid/996/new-allieduniversal-officially-launched-to-lead-security-and-facility-services-industries (last visited June 29, 2017). Plaintiff
tacitly acknowledges the merger in her Charge of Discrimination to the EEOC (ECF 1-1 at 1).
3

Compare ECF 1 at 3 with ECF 1 at 3 in Case 17-2227.

4

ECF 1 at 4.

5

Kay v. Bemis, 500 F.3d 1214, 1217–18 (10th Cir. 2007) (citations omitted).

2

relief above the speculative level” and must contain “enough facts to state a claim to relief that is
plausible on its face.”6 “[T]he complaint must give the court reason to believe that this plaintiff
has a reasonable likelihood of mustering factual support for these claims.”7 The plausibility
standard does not require a showing of probability that a defendant has acted unlawfully, but
requires more than “a sheer possibility.”8 “[M]ere ‘labels and conclusions,’ and ‘a formulaic
recitation of the elements of a cause of action’ will not suffice; a plaintiff must offer specific
factual allegations to support each claim.”9 Finally, the Court must accept the nonmoving
party’s factual allegations as true and may not dismiss on the ground that it appears unlikely the
allegations can be proven.10
The Supreme Court has explained the analysis as a two-step process. For the purposes of
a motion to dismiss, the court “must take all the factual allegations in the complaint as true, [but]
we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’”11 Thus,
the court must first determine if the allegations are factual and entitled to an assumption of truth,
or merely legal conclusions that are not entitled to an assumption of truth.12 Second, the court
must determine whether the factual allegations, when assumed true, “plausibly give rise to an
entitlement to relief.”13 “A claim has facial plausibility when the plaintiff pleads factual content

6

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).

7

Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).

8

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

9

Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Twombly, 550 U.S. at

555).
10

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

11

Id.

12

Id. at 679.

13

Id.

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that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”14
Courts construe pro se filings liberally, but they do not “assume the role of advocate.”15
Additionally, “dismissal of a pro se complaint for failure to state a claim is proper only where it
is obvious that the plaintiff cannot prevail on the facts [s]he has alleged and it would be futile to
give [her] an opportunity to amend.”16
A complaint alleging employment-based discrimination, retaliation, or harassment under
Title VII must “make at least minimal factual allegations on every element of the claim.”17
“Vague references to discrimination, retaliation, or harassment without any indication that the
alleged misconduct was motivated by [race] or another category protected by Title VII will be
insufficient to support an employment-based claim.”18 To state a claim of retaliation under Title
VII, an employee must allege she suffered a materially adverse employment decision “because
[s]he has opposed any practice made an unlawful employment practice by [Title VII], or because
[s]he has made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under [Title VII].”19
As to Plaintiff’s claims of retaliation and workers compensation, the Court incorporates
the findings and conclusions in its Report and Recommendation in Plaintiff’s other case.20 The
14

Id. at 678.

15

Yang v. Archuleta, 525 F.3d 925, 927 (10th Cir. 2008) (citing Ledbetter v. City of Topeka, Kan., 318 F.3d
1183, 1187–88 (10th Cir.2003)); Curley v. Perry, 246 F.3d 1278, 1281 (10th Cir. 2001).
16

Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007); Curley v. Perry, 246 F.3d 1278, 1281–82 (10th Cir.

17

Sims v. Wyandotte Cty./Kan. City, Kan., 120 F. Supp. 2d 938, 967 (D. Kan. 2000).

2001).
18

Rivera v. Sw. Bell Tel. Co., No. 13-1039-RDR, 2013 WL 2319395, at *2 (D. Kan. May 28, 2013) (citing
Anderson v. Acad. Sch. Dist. 20, 122 F. App’x 912, 916 (10th Cir. 2004)).
19

Semsroth v. City of Wichita, 548 F. Supp. 2d 1203, 1210 (D. Kan. 2008) (quoting 42 U.S.C. § 2000e-

3(a)).
20

See ECF 5 in Case 17-2227-DDC-GLR.

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Court thus turns to the only remaining claim that is unique to this case: racial harassment in the
workplace. Plaintiff states that, because she complained about being electrocuted, two coworkers racially harassed her, a supervisor attempted to write her up on several occasions, and
that she believes she has “been subjected to different terms and conditions because of her race.”21
Plaintiff provides no more detail to support an allegation of discrimination. She does not explain
what the two co-workers said or did that constitutes racial harassment. Similarly, her allegation
that her supervisor attempted to write her up on several occasions also lacks a connection to her
race. Like her other case,22 Plaintiff has not alleged any facts supporting her Title VII claims, or
any other apparent claim that could be brought in this Court. Unlike her other case, however, the
Court does not believe Plaintiff cannot allege any set of facts to proceed with her racial
harassment claim; rather, she simply has not done so here.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Proceed Without
Prepayment of Fees (ECF 3) is granted.
IT IS FURTHER ORDERED that, on or before August 3, 2017, Plaintiff shall show
good cause, in writing, to the District Judge as to why her case should not be dismissed pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.
IT IS FURTHER ORDERED that the Clerk’s office is directed to withhold issuing
waiver of summons of service to Defendant until further order of this Court.
Dated in Kansas City, Kansas, this 20th day of July, 2017.

s/Gerald L. Rushfelt
Gerald L. Rushfelt
United States Magistrate Judge

21

ECF 1-1 at 1; ECF 1-2 at 3–4.

22

See also ECF 5 in Case 17-2227-DDC-GLR.

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