Gomiller v. Greenwood Leflore Hospital et al

Filing 22

ORDER granting 3 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Debra M. Brown on 11/15/2023. (lgm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
QUNTELLER GOMILLER

PLAINTIFF

V.

NO. 4:23-CV-75-DMB-JMV

GREENWOOD LEFLORE HOSPITAL,
DIRECTOR OF HUMAN RESOURCES
MARGARET BUCHANAN, and
JOHN DOES 1-5

DEFENDANTS

OPINION AND ORDER
Greenwood Leflore Hospital and Margaret Buchanan move to dismiss Qunteller
Gomiller’s race discrimination and retaliation claims for failure to state a claim upon which relief
can be granted. Because Gomiller failed to plead sufficient facts to maintain such claims, the
motion to dismiss will be granted but Gomiller will be allowed to seek leave to amend the
complaint as to certain claims.
I
Procedural History
On April 27, 2023, Qunteller Gomiller filed a complaint in the United States District Court
for the Northern District of Mississippi against Greenwood Leflore Hospital (“GLH”), Director of
Human Resources Margaret Buchanan, and John Does 1‒5. Doc. #1. The complaint contains four
counts: (1) “Title VII - Racial Discrimination” (Count I), (2) “Title VII - Retaliation” (Count II),
(3) “42 U.S.C. § 1981 - Intentional Race Discrimination” (Count III), and (4) “42 U.S.C. § 1981 Retaliatory Discharge” (Count IV).

Id. at PageID 5‒7.

Gomiller seeks declaratory relief,

compensatory and punitive damages, and “attorney’s fees, costs, and expenses of litigation.” Id.
at PageID 7‒8.

On June 27, 2023, GLH and Buchanan jointly filed a motion to dismiss Gomiller’s
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. #3. The motion is fully
briefed. Docs. #4, #11, #16.
II
Standard
To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, “a complaint must
present enough facts to state a plausible claim to relief. A plaintiff need not provide exhaustive
detail to avoid dismissal, but the pleaded facts must allow a reasonable inference that the plaintiff
should prevail.” Mandawala v. Ne. Baptist Hosp., 16 F.4th 1144, 1150 (5th Cir. 2021) (internal
citation omitted). Dismissal is proper if the complaint fails to allege the “ultimate elements” of a
claim. See Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016).
In evaluating a motion to dismiss, “[t]he court’s review is limited to the complaint, any
documents attached to the complaint, and any documents attached to the motion to dismiss that
are central to the claim and referenced by the complaint.” Serrano v. Customs & Border Patrol,
975 F.3d 488, 496 (5th Cir. 2020) (quoting Lone Star Fund V (U.S.) LP v. Barclays Bank PLC,
594 F.3d 383, 387 (5th Cir. 2010)). The Court “accept[s] all well-pleaded facts as true and
construe[s] the complaint in the light most favorable to the plaintiff.” Heinze v. Tesco Corp., 971
F.3d 475, 479 (5th Cir. 2020) (citation omitted). But the Court does not accept as true “conclusory
allegations, unwarranted factual inferences, or legal conclusions.” Id. (citations omitted).
III
Factual Allegations
GLH is “a licensed medical facility in Leflore County, Mississippi,” and at all relevant
times, Margaret Buchanan was “employed as [its] Director of Human Resources.” Doc. #1 at

2

PageID 1. Qunteller Gomiller, an African American woman, was hired as a Medical Lab Assistant
at GLH on or about September 30, 2021. Id. at PageID 2.
On September 15, 2022, Gomiller met with Buchanan to “discuss the issue with her ‘red’
hair color.” Id. at PageID 3. During the meeting, Buchanan “rudely stated ‘we don’t do red hair
here. Red hair is not allowed at this hospital’” and “summoned another coworker, Tamara, into
her office to present a current copy of the dress code policy.” Id. Buchanan “highlighted the
portion where it states ‘[e]xtreme hair colors are not permissible,’ and instructed [Gomiller] not to
return to work the next day.” 1 Id. The next day, Gomiller contacted her supervisor to inquire
about returning to work but was informed that “‘as long as [her] hair is red, they’re not allowing
you back.’” Id. Prior to her termination on September 15, Gomiller “had the same hair color for
three (3) consecutive months, without any issue or disciplinary action from any supervising
authority, in relation to the color of her hair,” 2 “had not experienced any negative incidents,” and
had not received “any form of infractions.” Id. at PageID 2–3.
On January 20, 2023, 3 Gomiller filed a charge of discrimination against GLH with the
Equal Employment Opportunity Commission (“EEOC”) alleging that her termination was based
on her race. 4 Id. at PageID 4; Doc. #3-1. 5 She also alleged that “several Black employees … have

1

Gomiller asked for written documentation of the conversation but was refused. Doc. #1 at PageID 3.

“No one in a supervisory position has ever spoken to [Gomiller] about … the color of her hair” and “[s]he was never
afforded the opportunity or option to remedy the issue with her hair color.” Doc. #1 at PageID 3.

2

3
The complaint alleges Gomiller filed an EEOC charge of discrimination on November 1, 2022. See Doc. #1 at
PageID 4. But the EEOC charge attached to the motion to dismiss reflects Gomiller “[d]igitally signed” the EEOC
charge on January 20, 2023. See Doc. #3-1. Because Gomiller attached the same document to her response to the
motion to dismiss, see Doc. #10-1, the Court uses the date of Gomiller’s digital signature.
4
In the EEOC charge, Gomiller states she “was informed that [she] was discharged for violation of company policy
as it relates to extreme hair color” and “believe[s] that [she has] been discriminated against … based on [her] race
(Black).” Doc. #3-1.

“[D]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred
to in the plaintiff's complaint and are central to her claim.” Carter v. Target Corp., 541 F. App’x 413, 416 (5th Cir.
2022) (citation omitted).

5

3

been allowed to wear extreme hair colors … and they are still employed.” Doc. #3-1. On January
27, 2023, the EEOC closed its investigation and issued a Notice of Right to Sue 6 to Gomiller
stating that it “makes no determination about whether further investigation would establish
violations of the statute.” Doc. #1 at PageID 4.
IV
Analysis
In her complaint, Gomiller asserts (1) a Title VII race discrimination claim; (2) a Title VII
retaliation claim, (3) a § 1981 race discrimination claim, and (4) a § 1981 retaliatory discharge
claim. Id. at PageID 5–7. In their motion to dismiss, GLH and Buchanan submit that (1) hair
color is not a protected class under Title VII or 42 U.S.C. § 1981; (2) Buchanan cannot be held
liable individually under Title VII or § 1981; (3) they are not liable for retaliation because Gomiller
did not file a charge of retaliation; and (4) alternatively, Gomiller did not engage in any protected
activity. Doc. #3 at 1.
A. Claims Against GLH
1. Race discrimination claims under Title VII and § 1981
GLH and Buchanan argue Gomiller’s Title VII and § 1981 race discrimination claims
should be dismissed because hair color is not a protected class under either Title VII or § 1981.
Doc. #4 at 3. According to them, “a policy that distinguishes on any [ground other than race] such
as hair color, ‘is related more closely to the employer’s choice of how to run his business than to
equality of employment opportunity.’” Id. (quoting Willingham v. Macon Tel. Pub’g Co., 507

Gomiller alleges the EEOC issued a “determination” on January 27, 2023, and that she filed the complaint within 90
days of her receipt of the Notice of Right to Sue. Doc. #1 at PageID 4. It appears that by “determination” Gomiller
refers to the Notice of Right to Sue because the EEOC issues a Notice of Right to Sue when, as here, it closes an
investigation. See 42 U.S.C. § 2000e-5(f)(1); U.S. Equal Emp. Opportunity Comm’n, Filing a Lawsuit,
https://www.eeoc.gov/filing-lawsuit (last visited Oct. 16, 2023). GLH and Buchanan never challenge whether
Gomiller received a “Notice of Right to Sue” letter. See generally Docs. #3, #4, #16.
6

4

F.2d 1084, 1091 (5th Cir. 1975)). Gomiller responds that because her “Charge of Discrimination
directly references instances where her co-workers were permitted to wear shades of blonde,
orange, grey, and purple,” GLH cannot claim its hair color policy is a matter of how it runs its
business. Doc. #11 at PageID 40. GLH and Buchanan reply that Gomiller’s response concedes
hair color is not a protected class and that neither Gomiller’s complaint nor her charge of
discrimination asserts a claim of disparate treatment based on race. Doc. #16 at 1–2. Regarding
the EEOC charge, GLH and Buchanan submit that “while [Gomiller] did allege in her charge that
others were allowed to wear extreme hair color, she claims that the comparators are African
American.” Id. at 2.
Title VII prohibits employment discrimination based on race, color, religion, sex, or
national origin. Boyd v. Corr. Corp. of Am., 616 F. App’x 717, 720 (5th Cir. 2015). Section 1981
“bars race discrimination in contracting” 7 and is “designed to include a federal remedy against
discrimination in employment on the basis of race.” Adams v. McDougal, 695 F.2d 104, 108 (5th
Cir. 1983) (citing Johnson v. Ry. Exp. Agency, 421 U.S. 454, 459–60 (1975)). Because § 1981
discrimination claims are governed by the same standard as Title VII claims, the Court will
evaluate these claims of Gomiller together. Belton v. GEO Grp., Inc., No. 21-30144, 2021 WL
5832953, at *4 (5th Cir. Dec. 8, 2021); Mitchell v. Mills, 895 F.3d 365, 370 (5th Cir. 2018).
A plaintiff may prove unlawful discrimination through either direct or circumstantial
evidence. Dailey v. Whitehorn, 539 F. App’x 409, 411 (5th Cir. 2013). Where, as here, 8 a plaintiff
relies on circumstantial evidence of race discrimination, her claims are evaluated under the
McDonnell Douglas burden shifting framework. Id. Under that framework, the plaintiff must first

7

Perry v. VHS San Antonio Partners, LLC, 990 F.3d 918, 931 (5th Cir. 2021) (emphasis omitted).

8

See Doc. #11 at PageID 39‒40.

5

establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973). If the plaintiff makes a prima facie case, “the burden shifts to the employer to produce
a legitimate, non-discriminatory reason for the adverse employment action. If the defendant
produces such a reason,” the burden shifts back to the plaintiff to “demonstrate that the defendant’s
proffered reason was a pretext for discrimination.” Boyd v. Miss. Dep’t of Pub. Safety, 751 F.
App’x 444, 448 (5th Cir. 2018) (internal citation omitted).
To establish a prima facie case of race discrimination under Title VII or § 1981, a plaintiff
must show that she
(1) is a member of a protected group; (2) was qualified for the position at issue; (3)
was discharged or suffered some adverse employment action by the employer; and
(4) was replaced by someone outside [her] protected group or was treated less
favorably than other similarly situated employees outside the protected group.
Ernst v. Methodist Hosp. Sys., 1 F.4th 333, 339 (5th Cir. 2021) (citation omitted).
Here, the defendants do not dispute that Gomiller is a member of a protected group, was
qualified for the position, or suffered an adverse employment action. Rather, they argue hair color
is not a protected characteristic and that Gomiller fails to identify replacement or similarly-situated
comparators outside her protected group. Doc. #4 at 3; Doc. #16 at 1–2. The Court agrees. The
complaint does not allege facts regarding any such comparators. And while Gomiller’s EEOC
charge alleges “several Black employees … have been allowed to wear extreme hair colors in
shades of blonde, orange, grey/purple and they are still employed” at GLH, see Doc. #3-1 at
PageID 15 (emphasis added), they are not outside Gomiller’s protected class. Consequently,
Gomiller fails to allege sufficient facts to establish a prima facie case of race discrimination under
Title VII and under § 1981. See Olivarez v. T-mobile USA, Inc., 997 F.3d 595, 600 (5th Cir. 2021)
(affirming dismissal of Title VII discrimination claim because the plaintiff failed to allege facts
indicating less favorable treatment than others similarly situated but outside the protected class);

6

Lyles v. Tex. Alcohol Beverage Comm’n, 379 F. App’x 380, 384 (5th Cir. 2010) (African American
plaintiff replaced by another African American failed to present prima facie case of race
discrimination). So the motion to dismiss will be granted with respect to the race discrimination
claims against GLH.
2. Retaliation claims under Title VII and § 1981
In seeking dismissal of Gomiller’s retaliation claims, GLH and Buchanan argue that
Gomiller failed to exhaust all administrative remedies before filing suit in federal court. Doc. #4
at 4. Specifically, they argue Gomiller’s EEOC charge does not allege retaliation because she “did
not claim retaliation in the box where she was to identify the basis of her claim, and she did not
put any claim of retaliation in the narrative of her EEOC charge.” Id. at 6. In the alternative, GLH
and Buchanan argue Gomiller did not engage in any protected activity. Id.
Gomiller responds that she exhausted her administrative remedies because “the substance
of the allegations in her factual statement and supplemental information [in her EEOC charge]
could reasonably result in an investigation for retaliatory discharge” and that “she engaged in the
protected activity of voicing and filing a complaint.” Doc. #11 at PageID 41, 42. In reply, GLH
and Buchanan contend that the substance of Gomiller’s charge is a “plain and simple race
discrimination claim” and does not contain any claim of retaliation or engagement in protected
activity. Doc. #16 at 3.
A plaintiff in an employment discrimination case must exhaust administrative remedies
before pursuing claims in federal court. Jefferson v. Christus St. Joseph Hosp., 374 F. App’x 485,
489 (5th Cir. 2010). “[E]xhaustion occurs when the plaintiff files a timely charge with the EEOC
and receives a statutory notice of right to sue.” Garcia v. Penske Logistics, LLC, 631 F. App’x
204, 207 (5th Cir. 2015) (citation omitted). A charge is timely when it is filed within 180 days

7

after the alleged unlawful employment practice. 9

42 U.S.C. § 2000e-5(e)(1); Harding v.

Huntington Ingalls Indus., No. 1:15-cv-274, 2015 WL 6812242 at *1 (S.D. Miss. Nov. 5, 2015).
EEOC charges are liberally construed. McClain v. Lufkin Indus., 519 F.3d 264, 273 (5th
Cir. 2008). However, an EEOC charge does not properly exhaust a claim unless the claim “could
have been reasonably … expected to grow out of the charge of discrimination.” Jefferson, 374 F.
App’x at 490 (citation and quotation marks omitted); Pacheco v. Mineta, 448 F.3d 783, 789 (5th
Cir. 2006). Because discrimination and retaliation are distinct claims, the Fifth Circuit has held a
failure to reference a retaliation claim in an EEOC charge for discrimination or allege any facts
putting the EEOC on notice of a retaliation investigation constitutes failure to exhaust the
retaliation claim. Bouvier v. Northrup Grumman Ship Sys., Inc., 350 F. App’x 917, 921 (5th Cir.
2009); Anderson v. Venture Exp., 694 F. App’x 243, 247 (5th Cir. 2017).
Gomiller filed an EEOC charge of discrimination on January 20, 2023—128 days after her
September 15, 2022, termination—and alleges she filed the complaint within 90 days of receiving
the Notice of Right to Sue. See Doc. #3-1; Doc. #1 at PageID 4. However, Gomiller’s EEOC
charge states the basis for discrimination is “[r]ace”—not retaliation—and the narrative portion of
the charge does not describe retaliation. 10 Doc. #3-1. Since Gomiller’s EEOC charge does not

9
U.S. Equal Emp. Opportunity Comm’n, Timeliness, https://www.eeoc.gov/field-office/mobile/timeliness (last
visited Oct. 16, 2023) (“In the State of Mississippi, an individual has 180 days from the date of alleged harm to file a
charge with this office against an employer with 15 or more employees for discrimination based on race, color, national
origin, sex, religion, and/or disability.”).
10

Gomiller’s EEOC charge makes no reference to retaliation. The full text of its narrative portion states:
I was hired on September 30, 2021, as a Medical Lab Assistant. On September 15, 2022, I was
discharged. I was informed that I was discharged for violation of company policy as it relates to
extreme hair color. I believe that I have been discriminated against in violation of Title VII of the
Civil Rights Act of 1964 as amended based on my race (Black). There are several Black employees
who have been allowed to wear extreme hair colors in shades of blonde, orange, grey/purple and
they are still employed. I was allowed to wear my strawberry red hair color for approximately three
months before the HR Director terminated my employment.

Doc. #3-1 (cleaned up).

8

reference her retaliation claims, she has failed to exhaust her administrative remedies for her
retaliation claims. See Bouvier, 350 F. App’x at 921 (EEOC charge of sex discrimination which
did not reference possible claim of retaliation failed to exhaust administrative remedies for
retaliation claim); Anderson, 694 F. App’x at 247 (plaintiff failed to exhaust his administrative
remedies by failing to include retaliation claim in his EEOC charge, either by checking the
retaliation box or describing retaliation). Gomiller’s retaliation claims against GLH are properly
dismissed. 11
B. Buchanan’s Individual Liability
1. Title VII claims
GLH and Buchanan move to dismiss all Title VII claims against Buchanan individually,
arguing that “as a matter of law, [she] is not subject to Title VII liability” because “only
‘employers,’ not individuals acting in their individual capacity who do not otherwise meet the
definition of ‘employers’ can be liable under Title VII.” Doc. #4 at 3 (quoting Grant v. Lone Star
Co., 21 F.3d 649, 652 (5th Cir. 1994) (citation omitted)). In response, Gomiller explicitly concedes
that Buchanan may not be held individually liable under Title VII. 12 Doc. #11 at PageID 40.
Accordingly, these claims against Buchanan will be dismissed.
2. Section 1981 claims
GLH and Buchanan move to dismiss the § 1981 claims against Buchanan individually for
the same reasons they move to dismiss the § 1981 claims against GLH. Doc. #4 at 3, 6. As
explained above, because Gomiller failed to sufficiently allege proper comparators outside her

Because the Court finds Gomiller failed to exhaust all administrative remedies for her retaliation claims, it need not
consider whether she sufficiently pled engagement in a protected activity.

11

In her response memorandum, Gomiller initially states that “Individual Defendant, Margaret Buchanan, is liable for
her misconduct under Title VII and/or 42 U.S.C. § 1981” but later states “Buchanan cannot be held liable individually
under Title VII.” Doc. #11 at PageID 37, 40.

12

9

protected group, her § 1981 race discrimination claim against Buchanan will be dismissed. And
because Gomiller failed to exhaust all administrative remedies for her retaliation claims, the
motion to dismiss the § 1981 retaliation claim against Buchanan will be granted too.
C. Leave to Amend
In her response to the defendants’ motion to dismiss, Gomiller “requests leave to amend
her complaint.” Doc. #11 at PageID 42. The defendants reply that Gomiller should not be granted
leave to amend because leave “may be denied” “when a plaintiff seeks leave to amend in an
opposition pleading and fails to apprise the district court of the facts that would be pleaded in the
amended complaint to cure any deficiencies.” Doc. #16 at 4.
The request to amend in Gomiller’s response is contrary to Local Rule 7(b)(3)(C)’s
provision that “[a] response to a motion may not include a counter-motion in the same document.”
And the defendants are correct that Gomiller’s failure to submit a proposed amended complaint is
fatal to her request for leave to amend. See L.U. Civ. R. 15 (“If leave of court is required under
Fed. R. Civ. P. 15, a proposed amended pleading must be an exhibit to a motion for leave to file
the pleading ….”). However, courts “should provide at least one opportunity to cure pleading
deficiencies before dismissing a case, unless it is clear that the plaintiff[] … [is] unwilling or unable
to amend in a manner that would avoid dismissal.” Dierlam v. Trump, 977 F.3d 471, 478 n. 44
(5th Cir. 2020) (cleaned up). Gomiller has not previously amended her complaint. But she is
unable to amend to avoid dismissal of her retaliation claims because, as explained above, the time
has passed to properly exhaust administrative remedies for those claims by filing an EEOC charge.
See Reece v. Hamm, No. 19-669, 2021 WL 4480989, at *9 (M.D. La. Sept. 29, 2021) (leave to
amend should not be granted because “the Court lacks subject matter jurisdiction absent exhaustion
of administrative remedies.”). Consequently, Gomiller’s retaliation claims against GLH and

10

Buchanan will be dismissed with prejudice. However, Gomiller’s race discrimination claims
against GLH and Buchanan will be dismissed without prejudice with Gomiller given an
opportunity to seek leave to amend them.
V
Conclusion
GLH and Buchanan’s motion to dismiss [3] is GRANTED. The retaliation claims are
DISMISSED with prejudice and the race discrimination claims are DISMISSED without
prejudice. Within fourteen (14) days of the entry of this order, Gomiller may seek leave to amend
her complaint with respect to her race discrimination claims. 13
SO ORDERED, this 15th day of November, 2023.
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE

13
If Gomiller does not seek leave to amend or if the Court ultimately determines amendment would be futile, the
claims will be dismissed with prejudice.

11