Dorsey v. Management & Training Corporation et al

Filing 7

ORDER granting 2 Motion to Dismiss Signed by Honorable David C. Bramlette, III on 11/22/2016 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JOSEPH G. DORSEY

PLAINTIFF

VS.

CIVIL ACTION NO. 5:16-cv-40(DCB)(MTP)

MANAGEMENT & TRAINING CORPORATION;
ED O’BANION; and ALLEN CHAPMAN

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the Court on defendants Management &
Training Corporation, Ed O’Banion, and Allen Chapman’s Motion to
Dismiss (docket entry 2).

Having carefully considered the motion

and the plaintiff’s response, the memoranda of the parties and the
applicable law, and being fully advised in the premises the Court
finds as follows:
The

Complaint

in

this

case

was

initially

filed

by

the

plaintiff in the Circuit Court of Wilkinson County, Mississippi, on
April 26, 2016, and removed to this Court by the defendants’ Notice
of Removal of May 11, 2016.

The defendants now move to dismiss

this action pursuant to Federal Rule of Civil Procedure 12(b)(6).
As grounds, the defendants show that the plaintiff, who is not an
attorney, is attempting to bring claims on behalf of two businesses
and eleven individuals in addition to himself.

The plaintiff, on

behalf of himself, alleges discrimination under Title VII and the
ADA

against

his

employer,

Management

&

Training

Corporation

(“MTC”). The defendants’ motion to dismiss raises as a defense the
plaintiff’s failure to exhaust his administrative remedies.

Pursuant to Rule 12(b)(6), a defendant is entitled to have a
case filed against it dismissed if the plaintiff “fail[s] to state
a claim upon which relief can be granted.” A dismissal pursuant to
Rule 12(b)(6) is “appropriate when the plaintiff has not alleged
‘enough facts to state a claim to relief that is plausible on its
face’ and has failed to ‘raise a right to relief above the
speculative

level.’”

True

v.

Robles,

571

F.3d

412

(5th

Cir.

2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570
(2007)). “To survive a motion to dismiss, a compliant must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009)(quoting Twombly, 550 U.S. at 570).
A

claim

is

deemed

to

be

plausible

on

its

face

if

the

“plaintiff pleads factual content that allows the court to draw the
reasonable

inference

misconduct alleged.”

that

the

defendant

is

liable

for

Id. (citing Twombly, 550 U.S. at 556).

the
A

plaintiff is required to plead more than the mere possibility that
the defendant acted unlawfully in order to survive a motion to
dismiss.

Id.

Instead, a plaintiff must plead facts that are

sufficient enough to state a plausible claim for relief.

Iqbal,

129 S.Ct. at 1949.
A Rule 12(b)(6) motion seeks to dismiss claims on the basis of
a “dispositive issue of law.”

Brown v. Crawford County, Ga., 960

F.2d 1002, 1010 (11th Cir. 1992)(citing Executive 100, Inc. v.

2

Martin County, 922 F.2d 1536, 1539 (11th Cir.), cert. denied, 502
U.S. 810 (1991)). In other words, a Rule 12(b)(6) motion tests the
legal sufficiency of the pleadings.

5A Charles A. Wright & Arthur

R. Miller, Federal Practice and Procedure, § 1356 at 294 (1990).
The rule serves the purpose of “allowing the court to eliminate
actions that are factually flawed in their legal premises and
destined to fail, and thus to spare litigants the burdens of
unnecessary pretrial and trial activity.”

Advanced Cardiovascular

Sys., Inc. v. Scimed Life Sys., Inc., 988 F.2d 1157 (Fed. Cir.
1993).

An action is “fatally flawed” in its legal premise and

“destined to fail,” and therefore should be dismissed, where “a
successful affirmative defense appears clearly on the face of the
pleadings.” Ellis v. Miss. Dep’t of Health, 2008 WL 2007153, at *2
(N.D. Miss. May 8, 2008)(citing Clark v. Amoco Prod. Co., 794 F.2d
967, 970 (5th Cir. 1986) and Kaiser Aluminum & Chem. Sales, Inc. v.
Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), cert.
denied, 459 U.S. 1105 (1983)).
“{I}n federal court, a party can represent himself or be
represented
nonlawyer.”

by

an

attorney,

but

cannot

be

represented

by

a

Gonzales v. Wyatt, 157 F.3d 1016, 1021 (5th Cir.

1998)(internal citations omitted).

To the extent the plaintiff

purports to represent two businesses and eleven individuals other
than himself, those businesses and individuals must be dismissed.
As for plaintiff Dorsey’s individual claims, he is alleging

3

discrimination under Title VII and the ADA regarding his employment
with MTC.

The law is clear that a plaintiff must exhaust his

remedies with the Equal Employment Opportunity Commission (“EEOC”)
before seeking judicial remedies in federal court.

As United

States District Judge Daniel P. Jordan III explained in a recent
opinion:
Plaintiffs asserting employment-discrimination claims
under Title VII are required to exhaust their
administrative remedies before seeking judicial relief in
federal court. Taylor v. Books A Million, Inc., 296 F.3d
376, 378–79 (5th Cir. 2002). “Exhaustion occurs when the
plaintiff files a timely charge with the EEOC and
receives a statutory notice of right to sue.”
Id.
(citing Dao v. Auchan Hypermarket, 96 F.3d 787, 788–89
(5th Cir. 1996)). Title VII provides that an individual
must file their civil action within ninety days of
receiving a right-to-sue letter issued by the EEOC. Id.;
42 U.S.C. § 2000e–5(f)(1); see also Pinkard v. PullmanStandard, a Div. of Pullman, Inc., 678 F.2d 1211, 1215
(5th Cir. 1982)(“Before instituting a Title VII action in
federal district court, a private plaintiff must ...
receive statutory notice of the right to sue the
respondent named in the charge.”).
This requirement is strictly construed, Taylor, 296 F.3d
at 379, and courts have routinely dismissed cases in
which the plaintiff did not allege that they received a
right-to-sue letter or failed to present evidence that
such a letter had issued. See, e.g., Hall v. Ouachita
Parish Corr. Center, No. 07-2187, 2008 WL 724230, at *2
(W.D. La. Mar. 17, 2008)(dismissing Title VII claim for
failure to exhaust administrative remedies where
plaintiff did not offer evidence of a right-to-sue letter
and did not allege that he had received such a letter);
Shabazz v. Texas Youth Com’n, 300 F. Supp. 2d 467, 471
(N.D. Tex. 2003)(same); Dao v. Auchan Hypermarket, No. H95-2619, 1995 WL 902483, at *2 (S.D. Tex. Dec. 5, 1995),
aff’d 96 F.3d 787 (5th Cir. 1996)(dismissing ADA claim
for failure to exhaust where plaintiff did not allege
that she filed a charge with the EEOC or that she
obtained a right-to-sue letter prior to filing suit).

4

Banks v. Hazlehurst City Sch., 2016 WL 2654369, at *3 (S.D. Miss.
May 4, 2016). The exhaustion requirement applies to both Title VII
and ADA claims.

Dao, 96 F.3d at 788-89.

The plaintiff has also failed to state a claim against the
individual defendants because neither of them was his “employer”
for purposes of Title VII and the ADA.

Wellington v. Texas

Guaranteed, 2014 WL 2114832, at *7 (W.D. Tex. May 20, 2014).
The plaintiff has not alleged that he received a right-to-sue
letter, and he has failed to present evidence that such a letter
has issued.

Therefore, dismissal of the plaintiff’s individual

employment discrimination claims is also appropriate.

Because the

dismissal is based on failure to exhaust administrative remedies,
it shall be without prejudice.

See Banks, 2016 WL 2654369, at *4.

Accordingly,
IT IS HEREBY ORDERED that defendants Management & Training
Corporation, Ed O’Banion, and Allen Chapman’s Motion to Dismiss
(docket entry 2) is GRANTED;
A Final Judgment, dismissing this action without prejudice,
shall follow.
SO ORDERED, this the 22nd day of November, 2016.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

5