Edwards v. American Red Cross et al
Filing
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ORDER granting 7 Motion to Dismiss for Failure to State a Claim; granting 13 Motion to Dismiss for Failure to State a Claim. This action is dismissed in its entirety with prejudice. Signed by Senior Judge Graham Mullen on 12/27/12. (Pro se litigant served by US Mail.)(ssh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTREN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:12CV493-GCM
MARGARET A. EDWARDS,
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Plaintiff,
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Vs.
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AMERICAN RED CROSS, DELORES
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SMALLS and DIANNA D. TRIPLETT,
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Defendants.
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____________________________________)
ORDER
This matter is before the court upon the Defendants’ Motion to Dismiss Plaintiff’s
Amended Complaint. The pro se Plaintiff has filed a response in opposition and Defendants
have filed a Reply.
Plaintiff’s original Complaint consisted of an incomplete pro se complaint form provided
by the Court and numerous pages of attachments relating to her claim for unemployment benefits, an
OSHA complaint she filed, and prior charges of discrimination she filed with the Equal Employment
Opportunity Commission (the “EEOC”). Plaintiff attempts to assert claims under Title VII of the
Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000 et seq., (“Title VII”) for race and religion
discrimination and for retaliation in response to prior charges of discrimination that she filed with the
EEOC. Plaintiff filed her Amended Complaint on October 3, 2012, which purports to incorporate all
of her original Complaint.
Plaintiff was employed by the Defendant American Red Cross as a phlebotomist from
August 25, 2005 through her termination on April 12, 2012. On March 26, 2012, Plaintiff filed
an EEOC charge alleging retaliation and claiming that she has been treated differently by her
employer for filing an earlier charge of race discrimination in November of 2009. She alleges
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specifically that the Red Cross impeded her “access to attend therapy sessions” by assigning her
to work at another Red Cross location on certain days. Her therapy sessions were appointments
with a “licensed massage therapist.”
In April 2012, Plaintiff filed civil complaints for No-Contact Orders for Stalking or
Nonconsensual Sexual Conduct against her co-workers in Mecklenburg County District Court
because, according to Plaintiff, “[her] co-workers damaged items and products in [her] work
area.” [Doc. 1-1 at 3; Doc. 1-2 at 2–4; see also Doc. 12 ¶ 18.] Thereafter, the Red Cross placed
Plaintiff on leave with pay pending the resolution of her no-contact order applications. [Doc. 1-1
at 3; Doc. 12 ¶ 19.] During Plaintiff’s leave, the Red Cross discovered evidence that Plaintiff
had violated company policy by “making threats of workplace violence” against her co-workers.
[Doc. 1-1 at 3; Doc. 12 ¶ 20.] Accordingly, the Red Cross terminated Plaintiff’s employment on
April 19, 2012. [Id.] The state court summarily dismissed each of Plaintiff’s civil complaints
against her co-workers. [Doc. 12 ¶ 18.]
Following her termination, Plaintiff filed another charge of discrimination with the
EEOC on April 23, 2012 (the “April 2012 Charge”). [Doc. 1-1 at 3; Doc. 12 ¶ 23.] In the April
2012 Charge, Plaintiff asserted that she believed that she had been placed on leave and
terminated because she had filed prior charges of discrimination. [Doc. 1-1 at 3.] In her
Amended Complaint, Plaintiff specifically alleges that the Red Cross terminated her employment
because she had filed the November 2009 Charge: “[Plaintiff] was in fact discharged as
retaliation for Plaintiff filing the original EEOC complaint.” [Doc. 12 ¶ 21.] Plaintiff’s Amended
Complaint vaguely identifies other allegedly retaliatory conduct, such as “various harassments
and arbitrary confrontations [Id. ¶ 17]. She believes that this treatment is connected to the
November 2009 employment actions,” [Id. ¶ 14] “harassment and reprisals” [Id. ¶¶ 15, 18] and
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threats and confrontations [Id. ¶ 17]. She believes that this treatment is connected to the
November 2009 Charge [Doc. 12 ¶¶ 14, 21] and her correspondence with Red Cross
management in March 2012 about “procedural and safety issues” in her workplace. [Id. ¶¶ 16,
17.]
Defendants have moved to dismiss Plaintiffs’ Amended Complaint for failure to state a
claim pursuant to Rule 12(b)(6). Although courts generally hold a pro se complaint to a less
stringent standard, “a pro se plaintiff must still allege facts that state a cause of action to survive a
motion to dismiss.” White v. Bailey, No. 1:00CV01017, 2001 WL 293665, *2 (M.D.N.C. Feb. 13,
2001). When considering a motion to dismiss pursuant to Rule 12(b)(6), the court must construe
the complaint in the light most favorable to the plaintiff. Giarratano v. Johnson, 521 F.3d 298,
302 (4th Cir. 2008). However, the court need not accept legal conclusions drawn from the facts,
unwarranted inferences, unreasonable conclusions, or arguments. Id. The plaintiff must plead
Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
Ms. Triplett was Plaintiff’s supervisor, and Ms. Smalls was the Human Resources
Manager during Plaintiff’s employment with the Red Cross. It is well-established law in the
Fourth Circuit “that supervisors are not liable in their individual capacities for Title VII
violations.” Lissau v. Southern Food Serv., Inc., 159 F.3d 177, 181(4th Cir. 1998). Here,
because Plaintiff has not and cannot allege that either Ms. Smalls or Ms. Triplett was her
employer during her tenure at the Red Cross, her claims against Ms. Smalls and Ms. Triplett
must be dismissed with prejudice.
In her March 2012 Charge and her April 2012 Charge, Plaintiff identified only one basis of
discrimination in each: “Retaliation.” [Doc. 1-1 at 3, 4.] In both Charges, Plaintiff explicitly and
exclusively alleged that the Red Cross had taken certain actions against her in retaliation for her prior
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charges of discrimination. [Id.] In neither charge did Plaintiff allege that any other form of
discrimination had occurred or was occurring. [Id.] “Before a plaintiff has standing to file suit under
Title VII, he must exhaust his administrative remedies by filing a charge with the EEOC.” Bryant v.
Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002). A plaintiff may only advance such claims that
are “reasonably related to her EEOC charge and can be expected to follow from a reasonable
administrative investigation.” Smith v. First Union Nat’l Bank, 202 F.3d 234, 247–48 (4th Cir. 2000).
Plaintiff has sought to assert claims of discrimination that were not identified in either the March
2012 Charge or the April 2012 Charge. And, because Plaintiff’s sole claim in those charges was for
retaliation, Fourth Circuit law establishes that an administrative investigation of claims for race or
religion discrimination could not have reasonably been expected to occur. Plaintiff’s claims for
discrimination are limited to the only ground identified in both her March 2012 Charge and her April
2012 Charge: retaliation. Even if Plaintiff had exhausted her administrative remedies , nothing in or
attached to the Complaint makes any reference to race or religious discrimination other than the
boxes checked in Plaintiff’s original form complaint. There are no facts in the Complaint stating
claims for discrimination based on race or religion. Accordingly, her claims for race and religion
discrimination are hereby dismissed.
The Court now turns to the only potentially actionable claim Plaintiff could have, that of
retaliation. Plaintiff’s Amended Complaint specifically alleges that the Red Cross decided to
terminate Plaintiff’s employment in April 2012 because of her November 2009 Charge. [Doc.
12 ¶ 21.] The Amended Complaint alleges no other facts showing any causal connection
between the November 2009 Charge and Plaintiff’s termination nearly two and a half years later.
“A lengthy time lapse between the employer becoming aware of the protected activity
and the alleged adverse employment action . . . negates any inference that a causal connection
exists between the two.” Dowe v. Total Action Against Poverty, 145 F.3d 653, 657 (4th Cir.
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1998) (holding that a time period of three years between the protected activity and adverse
employment action negated any inference of causation). In Causey v. Balog, 162 F.3d 795, 803
(4th Cir. 1998), for example, the Fourth Circuit held that the passage of thirteen months between
the plaintiff’s initial charge of discrimination and his termination was “too long to establish
causation absent other evidence of retaliation.” The Fourth Circuit has recently affirmed that a
retaliation claim should be dismissed at the pleadings stage if the allegations show a substantial
length of time between the protected activity and adverse employment action. See Hart v.
Hanover County Sch. Bd., No. 11-1619, 2012 WL 4842041 (4th Cir. Oct. 12, 2012) (affirming
dismissal of complaint and citing cases where periods of thirteen and twenty months negated an
inference of causation). In this case, the greater than two-year gap between the protected activity
and allegedly retaliatory conduct is greater than that in Causey and comparable to that in Dowe.
The Amended Complaint does not allege any other facts that provide any inference of causation
between Plaintiff’s EEOC charge and her termination nearly two and a half years later. That
length of time, in combination with the absence of any other facts bearing on causation, makes
the retaliation claim in the Amended Complaint facially deficient. Because Plaintiff’s Amended
Complaint lacks facts showing any causal connection between Plaintiff’s protected activity and
her termination, her claim for retaliation based on her termination must be dismissed.
In addition, Plaintiff’s allegations do not identify any adverse action other than her
termination. In her Amended Complaint, Plaintiff complains of various and vague “harassments
and reprisals” by the Red Cross. She believes many of them were in reaction “to an email/letter
Plaintiff forwarded to various [Red Cross] Supervisory personnel outlining procedural and safety
issues” in the workplace. [Doc. 12 ¶ 16.] To the extent that the treatment about which Plaintiff
protests was caused by her complaints about workplace procedure and safety, they do not
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constitute protected activity under Title VII because they do not relate to unlawful
discrimination. Even if the conduct related to her November 2009 EEOC Charge, none of it is
adverse action under Title VII. To demonstrate an adverse action under Title VII’s retaliation
provisions, “a plaintiff must show that a reasonable employee would have found the challenged
action materially adverse, which in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted). “An employee’s
decision to report discriminatory behavior cannot immunize that employee from
those petty slights or minor annoyances that often take place at work and that all employees
experience.” Id.
To the extent that Plaintiff has attempted to base her retaliation claim on conduct other
than her termination, that conduct does not qualify as an “adverse action.” Plaintiff’s vague
allegations that she was “treated differently” or “harassed,” do not identify any adverse action
under Title VII, and at most identify “petty slights or minor annoyances” for which Title VII
provides no relief. Even if “harassment” could rise to the level of retaliatory conduct, Plaintiff’s
Amended Complaint provides no facts to support these conclusory statements. Plaintiff’s
Amended Complaint makes only passing reference to the allegations in her March 2012 Charge.
[Doc. 12 ¶ 27.] Assuming her Amended Complaint could be construed to incorporate that
charge, it too identifies no adverse action. The only detriment Plaintiff alleges from her alleged
periodic assignment to work at a different Red Cross location—which she does not allege were
outside the scope of her normal job duties—was her inability to attend “therapy” sessions.
Plaintiff does not allege, however, that she had any right to work near her massage
therapist. To the extent that the Red Cross ever extended Plaintiff such a gratuitous benefit,
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which it denies, the withdrawal of that benefit does not constitute retaliation. See A Soc’y
Without a Name v. Virginia, 655 F.3d 342, 350 (4th Cir. 2011) cert. denied, 132 S. Ct. 1960
(2012) (“And retracting a gratuitous promise does not amount to a discriminatory act or an
adverse action.”). Moreover, Title VII’s anti-retaliation provisions do not impose on the Red
Cross an obligation to provide Plaintiff assistance in obtaining benefits outside the scope of her
employment. See Pueschel v. Peters, 340 F. Appx. 858, 861 (4th Cir. 2009) (holding that an
employer’s refusal to assist the plaintiff incompiling information for her worker’s compensation
application was not an adverse action because the plaintiff had no entitlement to such assistance).
Accordingly, even if Defendant’s occasional assignment of Plaintiff to work at different facilities
diminished her ability to attend her massage appointments, it was not an adverse action under
Title VII.
For the foregoing reasons, each of Plaintiff’s claims fail as a matter of law. Accordingly,
this action should be dismissed in its entirety with prejudice pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
Signed:
December
27,
2012
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