Hardmon v. U L Coleman

Filing 18

MEMORANDUM RULING granting 15 Motion to Dismiss. Plaintiff is given leave to amend his complaint and name a proper defendant to this lawsuit by February 7, 2019. If he fails to do so, Plaintiff's claims will be dismissed without prejudice. Signed by Judge Elizabeth E Foote on 1/10/2019. (crt,Keifer, K)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
_____________________________________________________________________________
MARCUS ANTHONY HARDMON

CASE NO.: 5:17-CV-01118

VERSUS

JUDGE ELIZABETH FOOTE

U.L. COLEMAN
MAGISTRATE JUDGE HAYES
______________________________________________________________________________
MEMORANDUM RULING
Now before the Court is a Motion to Dismiss [Record Document 15] filed by Defendant
U.L. Coleman who seeks to dismiss this suit pursuant to Federal Rule of Civil Procedure 12(b)(1),
12(b)(5), and 12(b)(6). Plaintiff Marcus Hardmon has filed an Opposition. [Record Document 17].
For the reasons discussed below, Defendant’s Motion to Dismiss [Record Document 15] is
GRANTED.
BACKGROUND
Plaintiff Marcus Hardmon, appearing pro se, filed a complaint in this Court under Section
706(f) of the Civil Rights Act of 1964. Record Document 1. Plaintiff filed his complaint using a
pre-made form for pro se litigants who seek to file Title VII claims. The complaint itself contains
very little information. Aside from his signature, date, address, the name of the defendant, and the
signatures of two witnesses, the only information Plaintiff provides is that he filed a charge with
the Equal Employment Opportunity Commission (“EEOC”) and that the EEOC sent him a “rightto-sue” letter. Id. Plaintiff left blank the sections of the form where he was directed to describe the
employment practices about which he was complaining and identify the relevant parties, indicate
whether he disagrees with the EEOC’s finding in his case, and give any other relevant information.
See id. Plaintiff included twenty-four pages of attachments with his complaint. Record Document

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1-2. These attachments include a Louisiana Commission on Human Rights intake form (pp. 1–6),
several pages of text that appear to be a narrative written by Plaintiff about the incidents of which
he complains (pp. 7–15), information from several different websites about legal drugs that can
cause a positive drug test for THC (pp. 16–20), and a document entitled “Dismissal and Notice of
Rights” from the EEOC stating that it was closing its file on this matter and giving Plaintiff a right
to sue (pp. 21–24). See id. Plaintiff alleges that he was discriminated against because of his race,
sex, age, and religion. Id. at 2.
As best the Court can tell from Plaintiff’s attachments to his complaint, he was the
maintenance supervisor at Northgate Square Apartment 1 in Bossier City, Louisiana when his
employment was terminated. Id. at 1–2. Plaintiff states that his employment was terminated on
November 24, 2015, because of “an alleged failed drug test.” Id. at 7. He claims that the failed
drug test was in error and that he passed a second drug test later that same day. Id. Plaintiff contends
that certain legal medications he was taking to treat headaches and allergies caused him to test
positive for THC. Id. at 13. Furthermore, Plaintiff claims that his supervisors knew he was taking
these medications and that he needed to take them because he had been working in apartments that
contained black mold. Id. at 3, 8, & 13.
Plaintiff’s main argument appears to be that his termination represents an unfair
employment practice. He is black and is aware of a similarly situated white employee who either
failed or refused to take a drug test. Id. at 7. Plaintiff explains that a white employee, Matthew
Thomas (“Thomas”), hit someone’s Corvette with his truck in 2015 and refused to go to “work

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In the administrative documents he provides, Plaintiff lists Northgate Square Apartment as his
employer. However, in the narrative of events that he provides, Plaintiff refers to his employer as
U.L. Coleman without explanation for the change.
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care” 2 because he knew he would fail the drug test. Id. at 10. Plaintiff claims that Thomas told
other employees on multiple occasions that he smoked marijuana and did cocaine, and that he had
a relationship with maintenance director Jeff Roach (“Roach”). Id. It appears that Thomas was
initially fired because of this incident, but Plaintiff states that Roach got Thomas his job back
shortly thereafter. Id. Plaintiff also claims that he was replaced by a younger, white employee
named Mike, who was close with Plaintiff’s supervisor Lindsay Caldwell (“Caldwell”). Id. at 15.
According to Plaintiff, Caldwell intentionally did not report an incident where Mike jumped from
a ladder and hurt his leg at work, so that Mike would not have to go to “work care.” Id. Finally,
Plaintiff claims that U.L. Coleman applied fees and provided services to tenants in an inconsistent
manner based on race and that U.L. Coleman did not hire black managers because “Mr. Coleman
does not trust a black manager to be over his apartment complex . . . .” Id. at 11 & 14.
Plaintiff also makes several complaints about his working conditions and injuries he
sustained on the job. He complains that he had to use his personal vehicle to drive around the
apartment complex even though the other twelve properties had golf carts. Id. at 2 & 13. Plaintiff
claims that he had to work in apartments that contained black mold and was “brushed off” by
management when he raised health concerns about the mold. Id. at 3. He had to miss work on
November 11, 2015, because his eyes and nose were swelling due to his allergies. Id. at 8. He
returned the next day and informed his supervisors that he would be taking allergy medication to
treat the swelling. Id. He also informed Caldwell that his eyes had been swollen and burning more
since he had been doing work in apartments with black mold in them. Id.

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From the information Plaintiff provides, it appears that employees are required to go to “work
care” and take a drug test after they have an accident on the job. See Record Document 1-2, pp.
10, 14, & 15.
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On November 20, 2015, Plaintiff cut his left ring finger while replacing a sink drain in one
of the apartments. Id. Plaintiff states that since this injury, he has had trouble pulling, climbing,
lifting, carrying things, and scratching, that he has sharp pains and numbness from his finger tip to
his shoulder, and that he may never be able to wear his wedding ring again. Id. at 3. On November
23, 2015, Plaintiff was moving a stove at work when he injured his left shoulder and lower back.
Id. at 9. It appears from Plaintiff’s narrative that his employment was terminated when he failed a
drug test following this incident. See id. at 14. Plaintiff states that he can no longer lift his left arm
over his head, has trouble dressing, and performs tasks slowly because of the pain and stiffness in
his back and shoulder. Id. at 9. He also states that since he has been fired, doctors will no longer
see him to treat his finger, back, or arm. Id.
Defendant U.L. Coleman filed the instant motion to dismiss, claiming that Plaintiff has
failed to effect proper service, failed to exhaust his administrative remedies, and failed state a claim
upon which relief can be granted. Record Document 15. Defendant claims that Plaintiff has failed
to perfect service in accordance with Federal Rule of Civil Procedure 4. Record Document 15-2,
pp. 10–11. Defendant argues that this Court does not have subject matter jurisdiction over
Plaintiff’s claim because Plaintiff has failed to exhaust his administrative remedies as required
under Title VII. Id. at 13. Finally, Defendant claims that Plaintiff has failed to state a claim against
U.L. Coleman because he fails to state the elements of a prima facie Title VII claim and because
he fails to make claims against U.L. Coleman personally. 3 Id. at 15–16.

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Defendant argues that Plaintiff has sued an individual, U.L. Coleman, but has failed to make
any allegations relating to him. Record Document 15-1, p. 16. This ruling does not address
whether Plaintiff intended to sue U.L. Coleman as an individual rather than the business entity
known by that name.
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LAW AND ANALYSIS
Although Defendant has brought motions to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1), 12(b)(5), and 12(b)(6), this ruling will focus on the motion to dismiss pursuant
to Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
1. Lack of Subject Matter Jurisdiction
Defendant argues that Plaintiff’s claims should be dismissed under Rule 12(b)(1) for lack
of subject matter jurisdiction because Plaintiff has not exhausted his administrative remedies.
Record Document 15-1, p. 12. Defendant claims that when a plaintiff has not exhausted his
administrative remedies, a federal court does not have subject matter jurisdiction over a Title VII
case. Id. at 13. The Court acknowledges that Plaintiff is required to exhaust his administrative
remedies against U.L. Coleman before he can pursue an employment discrimination claim in
federal court. Taylor v. Books A Million, Inc., 296 F.3d 376, 378–79 (5th Cir. 2002). However, the
Court does not agree with Defendant’s position that a failure to exhaust administrative remedies
represents a jurisdictional issue.
Fifth Circuit case law contains conflicting authority on the question of whether the
exhaustion of EEOC administrative remedies is a jurisdictional issue in Title VII cases. Baker v.
McHugh, 672 Fed. App’x 357, 369 (5th Cir. 2016). Defendant acknowledges this conflicting
authority and concedes that this Court may choose to address the exhaustion issue under Rule
12(b)(1) for lack of subject matter jurisdiction or under Rule 12(b)(6) for failure to state a claim.
Record Document 15-1, p. 13 n.2. The most recent Fifth Circuit decisions on this matter have held
that Title VII’s exhaustion requirement is not a jurisdictional requirement but merely a
precondition to filing suit. Davenport v. Edward D. Jones & Company, L.P., 891 F.3d 162, 169

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(5th Cir. 2018); Stroy v. Gibson ex rel. Dep’t of Veterans Affairs, 896 F.3d 693, 698 (5th Cir.
2018); Baker v. McHugh, 672 Fed. App’x 357, 361 (5th Cir. 2016). At this stage of the
proceedings, the Court will analyze the administrative exhaustion issue under Rule 12(b)(6).
2. Failure to State a Claim Upon Which Relief Can Be Granted
a. 12(b)(6) Standard
In order to survive a motion to dismiss brought under Federal Rule of Civil Procedure
12(b)(6), a plaintiff must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 678. The court must accept as true all of the factual
allegations in the complaint in determining whether plaintiff has stated a plausible claim. See Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); In re Katrina Canal Breaches Litig., 495
F.3d 191, 205 (5th Cir. 2007). However, a court is “not bound to accept as true a legal conclusion
couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). If a complaint
cannot meet this standard, it may be dismissed for failure to state a claim upon which relief can be
granted. Iqbal, 556 U.S. at 678–79. A court does not evaluate a plaintiff’s likelihood for success,
but instead determines whether plaintiff has pleaded a legally cognizable claim. United States ex
rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 376 (5th Cir. 2004). A dismissal under
12(b)(6) ends the case “at the point of minimum expenditure of time and money by the parties and
the court.” Twombly, 550 U.S. at 558.

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b. Title VII Exhaustion
A Title VII plaintiff exhausts his administrative remedies when he files a timely charge
with the EEOC and receives a statutory notice of the right to sue. Taylor, 296 F.3d at 379 (citing
Dao v. Auchan Hypermarket, 96 F.3d 787, 788–89 (5th Cir. 1996)). Plaintiff indicates in his
complaint that he has exhausted his administrative remedies. Record Document 1. However, the
documents that he submitted along with his complaint reflect that his administrative complaints
were lodged against Northgate Square Apartment, not U.L. Coleman. Record Document 1-2, pp.
1, 5, & 23. The EECO issued a right to sue letter against Northgate Square Apartment, not U.L.
Coleman. Id. at 22. In the narrative pages Plaintiff submitted, he refers to his employer as U.L.
Coleman but alleges no relationship between U.L. Coleman and Northgate Square Apartment. See
Record Document 1-2, p. 13. In his opposition to the motion to dismiss, Plaintiff fails to address
this discrepancy. Record Document 17, p. 1. Rather, he merely states that he will prove that U.L.
Coleman engages in discrimination, harassment, and unfairness and then in the next sentence,
Plaintiff states that he worked at Northgate Square Apartment during the events of this case. Id.
The Court cannot assume that a connection exists between Northgate Square Apartment and U.L.
Coleman or that the exhaustion of administrative remedies against Northgate Square Apartment
constitutes the exhaustion of administrative remedies against U.L. Coleman. As such, Plaintiff has
failed to fulfill one of the preconditions for bringing a Title VII claim. Stroy, 896 F.3d at 698.
3. Leave to Amend
Because Plaintiff is proceeding pro se, the Court will give him an opportunity to amend his
complaint in order to name a proper defendant to this lawsuit. See Bazrowx v. Scott, 136 F.3d 1053,
1054 (5th Cir. 1998). Plaintiff is given until February 7, 2019, to file an amended complaint that
names as defendant a party against whom Plaintiff is entitled to proceed under Title VII. If Plaintiff

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fails to file an amended complaint by February 7, 2019, the Court will issue a judgment dismissing
all claims in this suit without prejudice and will direct the clerk of court to close this case without
further notice.
If Plaintiff files an amended complaint, he is advised that he must serve the amended
complaint upon the proper defendant in accordance with Federal Rule of Civil Procedure 4.
CONCLUSION
For the reasons stated above, Defendant’s Motion to Dismiss [Record Document 15] is
GRANTED. Plaintiff is given leave to amend his complaint and name a proper defendant to this
lawsuit by February 7, 2019. If he fails to do so, Plaintiff’s claims will be dismissed without
prejudice.
THUS DONE AND SIGNED in Shreveport, Louisiana on this _____ day of January,
10th
2019.
________________________________
ELIZABETH ERNY FOOTE
UNITED STATES DISTRICT JUDGE

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