Thomas v. Hennepin County Medical Center

Filing 33

MEMORANDUM OPINION AND ORDER denying 22 Defendant's Motion to Dismiss; Plaintiff must file a Third Amended Complaint by February 27, 2015 or the matter will be dismissed at that time (Written Opinion). Signed by Judge Ann D. Montgomery on 02/04/2015. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Markeith C. Thomas,
Plaintiff,
MEMORANDUM OPINION
AND ORDER
Civil No. 14-1842 ADM/HB

v.
Hennepin Healthcare System, Inc.
d/b/a Hennepin County Medical Center,

Defendant.
______________________________________________________________________________
Stephen M. Thompson, Esq., Friederichs & Thompson, PA, Bloomington, MN, on behalf of
Plaintiff.
Martin D. Munic, Esq., Hennepin County Attorney’s Office, Minneapolis, MN, on behalf of
Defendant.
______________________________________________________________________________
I. INTRODUCTION
On January 5, 2015, the undersigned United States District Judge heard oral argument on
Defendant Hennepin Healthcare System, Inc.’s d/b/a Hennepin County Medical Center
(“HCMC”) Motion to Dismiss [Docket No. 22]. Plaintiff Markeith Thomas (“Thomas”) opposes
the motion. For the reasons set forth below, HCMS’s motion is denied.
II. BACKGROUND
Thomas, a Black American, commenced this action pro se on June 9, 2014, alleging
workplace discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et.
seq., occurring between August 18, 2011 and November 5, 2013. Compl. [Docket No. 1] ¶¶ 3, 5,
8, 9. Thomas alleges he was subjected to a hostile work environment as a Protection Officer at
HCMC. Id. ¶ 3. Thomas additionally alleges he experienced sexual harassment, retaliation and
disparate treatment, which resulted in diagnosed anxiety, post traumatic stress disorder, and

depression. Id.
The pro se complaint sets forward seven paragraphs of factual basis for his claims. Id. ¶
10. Five of the paragraphs identify instances of potentially actionable conduct occasioned by
HCMC employees to other HCMC employees or visitors that Thomas witnessed, but not to
Thomas himself. Id. The remaining two paragraphs do allege conduct that Thomas experienced
firsthand. Id. Specifically, Thomas alleges he “[w]itnessed Jacob Barker talk down to black
minority patients. Including myself” and “[w]as sexually harassed in August 2011 by Officer
Gregg Hanson who was later promoted to supervisor.”1 Id.
On June 12, 2014, Magistrate Judge Graham referred the matter to the Federal Bar
Association’s Pro Se Project [Docket No. 4]. Over a month later, on July 15, 2014, and still
acting pro se, Thomas filed an Amended Complaint [Docket No. 8] (“First Amended
Complaint”). The First Amended Complaint restates his claims on the same form Thomas used
previously; however, the First Amended Complaint replaces the previously attached documents
with a series of new documents. Roughly three weeks after HCMC filed an Answer [Docket No.
10], attorney Tammy P. Friederichs filed a Notice of Appearance on behalf of Plaintiff Thomas
[Docket No. 13]. Pursuant to a Stipulation [Docket No. 18], another Amended Complaint
[Docket No. 21] (“Second Amended Complaint”) was filed on October 27, 2014. The Second

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The Complaint included additional documentation supporting Thomas’ claims,
including: 1) a Charge of Discrimination filed with the Minnesota Department of Human Rights;
2) a letter from the Director of Security and Parking addressing Thomas’ allegations of sexual
harassment and racial hostility; 3) a letter from the Director of Security and Parking to Human
Resources personnel discussing Thomas’ allegations of racial discrimination and preferential
treatment; a series of medical records; 4) a memorandum to HCMC security staff from an
outside consulting and training firm tasked with investigating racial issues within the HCMC
Security Department. See Compl. attach. 1.
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Amended Complaint was drafted by Thomas’ attorney.
The Second Amended Complaint alleges discrimination, harassment, retaliation, and
reprisal under Title VII and the Minnesota Human Rights Act (“MHRA”). Second Am. Compl.
¶¶ 19-35. It is alleged that when Thomas began working for HCMC as a Protection Officer on
January 5, 2009, he was subjected to race discrimination and was treated differently than
Caucasian Protection Officers. Id. ¶¶ 11, 13. The discrimination included derogatory racial
comments and slurs that targeted and ridiculed Blacks. Id. ¶ 14. In retaliation for opposing and
reporting the discrimination—which included formal complaints, grievances and a charge with
the EEOC—Thomas alleges he was subjected to adverse working conditions that created a
hostile work environment resulting in forced medical leaves of absences. Id. ¶¶ 15, 16.
In the Spring of 2014, Thomas’ request for a reasonable accommodation was approved
and Thomas began working as a Food Service Worker on April 7, 2014. Compl. attach. 1 at 26.
Shortly thereafter, on June 23, 2014, Thomas tendered a notice of resignation, effective July 7,
2014. Munic Aff. [Docket No. 25] Ex. C. Thomas alleges his resignation was involuntary and
amounts to constructive termination. This suit followed.
III. DISCUSSION
A. Motion to Dismiss Standard of Review
Rule 12 of the Federal Rules of Civil Procedure provides that a party may move to
dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). In considering a motion to dismiss under Rule 12(b)(6), the pleadings are construed in
the light most favorable to the nonmoving party, and the facts alleged in the complaint must be
taken as true. Hamm v. Groose, 15 F.3d 110, 112 (8th Cir. 1994); Ossman v. Diana Corp., 825

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F. Supp. 870, 879-80 (D. Minn. 1993). Any ambiguities concerning the sufficiency of the claims
must be resolved in favor of the nonmoving party. Ossman, 825 F. Supp. at 880.
A pleading must contain “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw a reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009). Determining whether a complaint states a plausible claim for relief is “a context-specific
task that requires the reviewing court to draw on its judicial experience and common sense.” Id.
“But where the well-pleaded facts do not permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged—but not ‘shown’—‘that the pleader is entitled to
relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)).
B. Constructive Termination
Thomas’ claim of constructive termination fails. Although he resigned, Thomas alleges
the discrimination and harassment he suffered amounted to constructive termination. An
employee is constructively terminated only if: 1) his working environment is objectively
intolerable, and 2) either the employer intends to force the employee to quit or it is reasonably
foreseeable that the employer’s actions would cause the employee to quit. Carpenter v. Con-way
Cent. Express, Inc., 481 F.3d 611, 616-17 (8th Cir. 2007).
The allegations of discrimination and harassment center around the conditions Thomas
experienced while working in the Protection Department. Indeed, the Second Amended
Complaint claims Thomas was treated differently than the Caucasian Protection Officers.
Second Am. Compl. ¶ 24. Further evidence connecting the claimed conduct to his employment

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in the Protection Department can be found in the previous pleadings. See, e.g., Am. Compl. ¶
10. Thomas presents no evidence showing that HCMC was engaging in the behavior in an effort
to force him to quit. Further, Thomas himself did not quit until he received a transfer to a
different department in April 2014, after which Thomas does not claim any discrimination or
other actionable conduct occurred. The pleadings bracket the harassing and discriminatory
events between August 18, 2011 and November 5, 2013. Second Am. Compl. ¶ 13. After
receiving an accommodation in April 2014, Thomas did not resign until June 23, 2014, over
seven months after the reported discrimination stopped. There is no causal connection between
when the alleged behavior ceased and Thomas’ transfer to a new position and subsequent
termination. The chronology is too attenuated to sustain a claim of constructive termination.
See Summit v. S-B Power Tool, 121 F.3d 416, 421 (8th Cir. 1997), cert. denied, 523 U.S. 1004
(1998) (noting that quitting must be “a reasonably foreseeable consequence of the employer’s
discriminatory actions.”).
C. Title VII and MHRA Claims
HCMC argues that the Second Amended Complaint fails to allege facts beyond mere
labels and conclusions and is thus insufficient to state a plausible claim for relief. In response,
Thomas argues that the facts sufficiently allege a cause of action that satisfies the requisite
pleading standards.
The Second Amended Complaint’s conclusory allegations fail to plausibly plead a viable
Title VII or MHRA claim. Thomas’ allegations are fatally flawed because they lack identifiable
events or actions to support his claims. Plaintiff cites a recent Eighth Circuit decision for the
proposition that employment based discrimination complaints need not set forward specific facts

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to survive a motion to dismiss. Jones v. City of St. Louis, Mo., 555 Fed.Appx. 641 (8th Cir.
2014) (per curium). The plaintiff in Jones, however, pled more than a conclusion that
discrimination occurred, as Thomas does here. For example, Jones, an African American
electrician, alleged that his supervisor would not accept his health release for a medically-related
work absence but physician statements from his white colleagues were accepted. Id. at 642.
Further, Jones alleged he was required to perform a fit-for-duty evaluation stemming from an
incident involving a vehicle while white workers were not required to do so despite similar
circumstances. Id.
Thomas’ Second Amended Complaint is based solely on conclusions without any context
or narrative. Nevertheless, Thomas’ pro se Complaint and First Amended Complaint indicate
that some actionable conduct may be plausibly alleged. Normally, when an amended complaint
is filed, the original complaint loses any legal effect. See In re Atlas Van Lines, Inc., 209 F.3d
1064, 1067 (8th Cir. 2000). This well-established rule precludes any force the Complaint or the
First Amended Complaint has on the present motion and supports dismissal of this case.
Restraint, however, is warranted when dismissal may extinguish a potentially actionable legal
theory mainly due to its inartful construction. See Foman v. Davis, 371 U.S. 178, 182 (1962)
(noting that, unless evidence of undue delay, bad faith, or dilatory motive is present, leave to
amend should be freely given if the underlying facts or circumstances may be a proper subject of
relief). Using the judicial discretion authorized by Federal Rule of Civil Procedure 15(a)(2),
Thomas will be given until February 27, 2015 to allege a plausible claim or an Order dismissing
this suit will be entered at that time.

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IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Defendant’s Motion to Dismiss [Docket No. 22] is DENIED.
2. Plaintiff must file a Third Amended Complaint by February 27, 2015 or the matter
will be dismissed at that time.
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: February 4, 2015.

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