Shields v. Bates et al
Filing
26
ORDER granting 10 Motion to Dismiss for the reasons set out in the order. A judgment will be entered in a separate docket entry to follow. Signed by District Judge Daniel P. Jordan III on August 25, 2014. (SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
DIANE SHIELDS
PLAINTIFF
V.
CIVIL ACTION 3:13-cv-715-DPJ-FKB
DIANE BATES, SARI BENNETTE,
and THE ORCHARD, LTD
DEFENDANTS
ORDER
This employment-discrimination case is before the Court on Defendants’ motion to
dismiss [10]. Plaintiff Diane Shields is proceeding pro se and filed a response [13]. The Court
has liberally construed the complaint, as clarified by Shields’s response.
I.
Facts and Procedural History
Diane Shields was employed as a Licensed Practical Nurse by Defendant The Orchard,
LTD and worked at a nursing home called the Arbor. During Shields’s employment, Defendant
Dianne Bates was the Assistant Director of the Arbor, and Defendant Sari Bennette was the
Nurse Manager. Shields’s main allegation is that her and other black employees’ schedules were
changed to accommodate white nurses’ requests to change their own schedules. She alleges that
these changes occurred with little to no notice and took the form of both increasing and
decreasing her hours. Shields claims she ultimately complained to Bates, “who responded in a
defensive manor [sic] toward Plaintiff and walk [sic] away.” Pl.’s Resp. [13] at 3. Shields also
alleges that she was forced to work on a demanding unit as white nurses worked on less
demanding units and were permitted rest periods. Additionally, white nurses were permitted to
snack at the nurses station, but Shields was told she could not eat anything at the nurses station.
See id. at 3–5.
Shields filed a charge of race discrimination with the Equal Employment Opportunity
Commission on March 13, 2012. Proceeding pro se, she then filed this complaint on November
15, 2013, alleging discrimination and violation of her civil rights and seeking $50,000 in
damages for physical, mental, and emotional distress and “[f]inancial [d]ifficulty.” Compl. [1] at
3–4. Defendants filed a motion to dismiss under Rule 12(b)(6). Shields responded but also
requested and was granted thirty days to find an attorney and file a supplemental response. She
requested more time to retain an attorney and was granted an additional thirty days to file a
supplemental response. That time period expired on July 17, and no attorney has entered an
appearance on Shields’s behalf nor has any supplemental response been filed.
Shields’s complaint fails to identify the statute under which she is seeking relief. But her
EEOC charge of discrimination claims a violation of Title VII, and her response states that she
brings this action under Title VII. So the Court will consider her complaint as alleging a
violation of Title VII. Her response also mentions “injunctive relief under 42 U.S.C.” Resp.
[13] at 1. Given Shields’s pro se status, the Court will interpret this statement as alleging a
violation of 42 U.S.C. § 1981, which also prohibits race discrimination in employment.
II.
Standard of Review
To overcome a Rule 12(b)(6) motion, a plaintiff must plead “enough facts to state a claim
to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “Factual allegations must be
enough to raise a right to relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations and footnote
omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
2
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
In this case, Shields is proceeding pro se. “It is well-established that ‘pro se complaints
are held to less stringent standards than formal pleadings drafted by lawyers.’” Taylor v. Books A
Million, Inc., 296 F.3d 376, 378 (citing Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir. 1981)).
“However, regardless of whether the plaintiff is proceeding pro se or is represented by counsel,
‘conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice
to prevent a motion to dismiss.’” Id. (citing S. Christian Leadership Conference v. Supreme
Court of the State of La., 252 F.3d 781, 786 (5th Cir. 2001) (additional citation omitted)).
III.
Analysis
Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for
an employer . . . to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). Section 1981 race-discrimination claims are
analyzed under the same legal framework applicable to Title VII cases. See Turner v. Kan. City
S. Ry. Co., 675 F.3d 887, 891 n.2 (5th Cir. 2012) (citing Lawrence v. Univ. of Tex. Med. Branch
at Galveston, 163 F.3d 309, 311 (5th Cir. 1999)).
The plaintiff must first establish a prima facie case of discrimination by showing (1) she
is a member of a protected class, (2) she was qualified for the position at issue, (3) she was the
subject of an adverse employment action, and (4) she was replaced by someone outside the
protected class, or in the case of disparate treatment, she was treated less favorably than similarly
situated employees under nearly identical circumstances. See Lee v. Kan. City S. Ry., 574 F.3d
3
253, 259 (5th Cir. 2009); Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 513 (5th
Cir. 2001); see also McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Preliminarily, Defendants argue for dismissal of the claims against Bates and Bennett
because there is no individual liability under Title VII. “Individuals are not liable under Title VII
in either their individual or official capacities.” Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376,
381 n.1 (5th Cir. 2003) (citing Smith v. Amedisys Inc., 298 F.3d 434, 448–49 (5th Cir. 2002)).
Shields’s Title VII claims against Bates and Bennette are therefore dismissed with prejudice.
Defendants then argue that Shields fails to make out a prima facie case because she does
not allege that she was subject to an adverse employment action. In the context of a Title VII
discrimination claim, “adverse employment actions include only ultimate decisions such as
hiring, granting leave, discharging, promoting, or compensating.” McCoy v. City of Shreveport,
492 F.3d 551, 559 (5th Cir. 2007). Shields’s allegations of changes in her hours, assignment to a
demanding unit, and a prohibition on snacking at the nurses station do not qualify as adverse
employment actions because they are not ultimate decisions. See Benningfield v. City of Hous.,
157 F.3d 369, 377 (5th Cir. 1998) (“Merely changing [an employee’s] hours, without more, does
not constitute an adverse employment action.”); Prewitt v. Continental Auto., 927 F. Supp. 2d
435, 453–54 (W.D. Tex. 2013) (finding that transfer to another section of the plant was not an
adverse employment action); Baker v. Fedex Ground Package Sys., Inc., Civil Action No. 043401, 2008 WL 559567, at *3–4 (E.D. La. Feb. 26, 2008) (finding that being required to work
4
extended hours did not constitute adverse employment action).1 She has therefore failed to state
a claim for discrimination based on an adverse employment action.
The Court also liberally construes Shields’s response as an amended complaint. Her
response reads like she is trying to state a hostile-work-environment claim. Without deciding
that she has stated such a claim in her response, the Court finds that any hostile-workenvironment claim would be due for dismissal for failure to exhaust administrative remedies.
“Although EEOC claims are construed somewhat broadly to ‘protect[ ] unlettered lay persons
making complaints’, that broad construction extends ‘as far as, but no further than, the scope of
the EEOC investigation which could reasonably grow out of the administrative charge.’”
Vicknair v. La. Dep’t of Pub. Safety and Corr., 555 F. App’x 325, 331 (5th Cir. 2014) (quoting
Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir. 1993)). The key question is “whether the
charge ‘stated sufficient facts to trigger an EEOC investigation and to put an employer on notice
1
A plaintiff who resigns may also satisfy the adverse-employment-action requirement by
alleging constructive discharge by one of two means: “First, she can offer evidence that the
employer made her working conditions so intolerable that a reasonable employee would feel
compelled to resign. Second, an employee can prove constructive discharge with evidence that
she was given an ultimatum requiring her to choose between resignation and termination.”
David v. Pointe Coupee Parish Sch. Bd., 247 F.3d 240, 2001 WL 43530, at *2 (5th Cir. 2001)
(quotations and citations omitted). While Shields states that schedule changes caused “some
black nurses [ ] to quit/resign,” Pl.’s Resp. [13] at 2, she never alleges—either in her EEOC
charge, complaint, or response—that she herself resigned as a result of the working conditions.
See Raj v. La. State Univ., 714 F.3d 322, 330 (5th Cir. 2013) (“A constructive discharge claim is
based on a plaintiff’s actual resignation, without which no discharge—constructive or
otherwise—has occurred (citations omitted)). Defendants state that she resigned in April 2012,
but Shields never mentions this resignation in connection with her allegations of the working
conditions. And the resignation occurred after Shields filed her EEOC complaint on March 10,
2012, so the EEOC complaint does not mention the resignation or otherwise put Defendants on
notice of a constructive-discharge claim. To the extent she alleges a constructive-discharge claim
here, that claim would be due for dismissal for failure to exhaust administrative remedies. See
Vicknair v. La. Dep’t of Pub. Safety and Corr., 555 F. App’x 325, 331 (5th Cir. 2014) (citing
Pacheco v. Mineta, 448 F.3d 783, 788–89 (5th Cir. 2006)).
5
of the existence and nature of the charges.’” Id. (quoting Simmons-Myers v. Caesars Entm’t
Corp., 515 F. App’x 269, 272 (5th Cir. 2013) (internal citations omitted)). Shields’s EEOC
charge states that she is “being subjected to disparate terms and conditions of employment with
respect to having [her] working hours reduced and having [her] work schedule changed with very
little notice.” Pl.’s Compl. [1], Ex. 1 at 3. It goes on to say that “[w]hite employees’ work
schedules are often accommodated at the expense of black employees, some of whom are forced
to quit their jobs due to having their hours reduced and having their schedules changed with little
or no notice.” Id. The charge never mentions the word harassment nor does it allege that the
environment was hostile, offensive, or abusive. See Hernandez v. Yellow Transp., Inc., 670 F.3d
644, 651 (5th Cir. 2012), cert. denied, 133 S. Ct. 136 (2012) (describing a hostile-workenvironment claim as requiring harassment that is “sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.” (quotation
omitted)). A hostile-work-environment investigation could not reasonably grow from the facts
stated in Shields’s EEOC charge.
The Court has liberally construed Shields’s complaint and response and finds that she has
failed to state a claim of race discrimination under Title VII against The Orchard or under 42
U.S.C. § 1981 against The Orchard or the individual defendants. When a claim is dismissed on
these grounds under Rule 12(b)(6), a plaintiff should have the opportunity to assert her claim
properly. See Hart v. Bayer Corp., 199 F.3d 239, 247 n.6 (5th Cir. 2000). Dismissal is therefore
without prejudice to Shields’s right to file a properly stated claim for relief.
6
IV.
Conclusion
For the foregoing reasons, Defendants’ motion to dismiss [10] is granted. Shields’s Title
VII claims against The Orchard are dismissed without prejudice; her § 1981 claims against The
Orchard, Bates, and Bennette are dismissed without prejudice; and her Title VII claims against
Bates and Bennette are dismissed with prejudice. A separate judgment will be entered in
accordance with Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED this the 25th day of August, 2014.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?