Avington v. Maxim Staffing Solutions, Agency Inc.

Filing 25

OPINION AND ORDER by Judge John E Dowdell ; dismissing/terminating case (terminates case) ; granting 23 Motion to Dismiss for Failure to State a Claim (Re: 22 Amended Complaint ) (SAS, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
A.V. AVINGTON, JR.,

)
)
Plaintiff,
)
)
v.
)
)
MAXIM HEALTHCARE SERVICES INC. )
d/b/a MAXIM STAFFING SOLUTIONS )
AGENCY, INC.,
)
)
Defendant.
)

Case No. 14-CV-233-JED-PJC

OPINION AND ORDER
I.

Background
The Court previously dismissed plaintiff’s Amended Complaint, in which he attempted to

state several employment discrimination claims against the defendant. Upon plaintiff’s request,
the Court granted plaintiff leave to amend to attempt to state plausible claims for race
discrimination, age discrimination, and retaliation. (See Doc. 21). Plaintiff then filed a Second
Amended Complaint in which he asserts claims for disparate treatment based on race and
retaliation.
In the Second Amended Complaint, plaintiff alleges that he was employed with Maxim
Staffing Solutions beginning November 1, 2012 and that staffing coordinators refused to place
him on the available jobs that he requested. (Doc. 22 at 2). He asserts that the refusal of
“defendants [sic] agents” to assign plaintiff to the jobs he requested “were motivated by racial
bias and prejudice of said agent’s [sic] against the Plaintiff as there was no other justifiable
and/or legitimate business reason for said caucasian agents to refuse to assign the Plaintiff
available jobs open at defendants [sic] business.” (Id.). He filed a grievance on December 15,
2012 with Maxim Staffing Solutions Agency Inc. “in reference to how the Plaintiff was being

overlooked for work after being initially hired in November 2012.” (Id.). He was subsequently
“given regular working hours to include traveling long distance in the State of Oklahoma for
work.” (Id. at 2-3).
For his disparate treatment claim, plaintiff alleges that he was “treated differently than
other Caucasian employees of defendant(s) in relation to work assignments [because he] was
assigned to jobs” in “Claremore and Stillwater” while unspecified “Caucasian employees . . .
were assigned to jobs within the City of Tulsa.” (Id. at 3). At some point, though, he was
assigned to Colonial Manor Nursing facility, within the City of Tulsa, and he properly
performed, but he was given a reason for not being further assigned. That reason was “false and
used as a pretext to force Plaintiff to become frustrated with his job and voluntarily quit.” (Id.).
For his retaliation claim, plaintiff asserts that he repeatedly made phone calls and visits to
Maxim Staffing Solutions Agency, Inc. to determine why he had not been given a job
assignment, and they told him they did not have anything to offer him. (Id. at 4). He then called
the “corporate office” and filed a grievance based on race and age “trying to get some answers as
to why he was being overlooked for job assignments.” (Id.). After his grievance, he was given a
job assignment. He further alleges that he “truthfully knows and verily believes that the only
reason defendants [sic] agents refused to give [him] any job assignments within the City of Tulsa
except for that assignment at Colonial Manor was as an act of punishment and retaliation for
having filed a grievance with the corporate office.” (Id. at 5).
The defendant moves to dismiss for failure to state a claim.
II.

Standards
In considering a Rule 12(b)(6) dismissal motion, a court must determine whether the

plaintiff has stated a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). To

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satisfy this standard, a complaint must provide “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). The standard requires “enough facts to state a claim to relief that is
plausible on its face,” and the factual allegations “must be enough to raise a right to relief above
the speculative level.” Id. at 555-56, 570 (citations omitted).
Pleadings of a pro se plaintiff must be liberally construed and “h[e]ld to less stringent
standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520
(1972). Nevertheless, a district court should not assume the role of advocate, and plaintiff must
“alleg[e] sufficient facts on which a recognized legal claim could be based.” Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991); see also United States v. Pinson, 584 F.3d 972, 975 (10th
Cir. 2009) (“rule of liberal construction [of pro se filings] stops, however, at the point at which
we begin to serve as his advocate.”). “[C]onclusory allegations without supporting factual
averments are insufficient to state a claim on which relief can be based.” Hall, 935 F.2d at 1110.
The liberal construction of pro se pleadings does not transform “vague and conclusory
arguments” into valid claims for relief. Ogden v. San Juan County, 32 F.3d 452, 455 (10th
Cir.1994); see also McNeil v. United States, 508 U.S. 106, 113 (1993). The court “will not
supply additional factual allegations to round out a plaintiff’s complaint or construct a legal
theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-1174 (10th
Cir.1997).
III.

Discussion
To state a claim for disparate treatment racial discrimination, a plaintiff must allege facts

that plausibly show that (1) he is a member of a protected class, (2) he suffered an adverse
employment action, (3) he was qualified for the position, and (4) he was treated less favorably

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than others who were not in the protected class. See Khalik v. United Air Lines, 671 F.3d 1188,
1192 (10th Cir. 2012). A prima facie case of retaliation requires a showing that (1) plaintiff
engaged in protected opposition to discrimination, (2) a reasonable employee would have found
the challenged employer action to be materially adverse, and (3) there is a causal connection
between the protected activity and the materially adverse action.

Somoza v. University of

Denver, 513 F.3d 1206, 1212 (10th Cir. 2008); Fye v. Oklahoma Corp. Comm’n, 516 F.3d 1217,
1227 (10th Cir. 2008) (citation omitted).
Despite an opportunity to amend to provide sufficient allegations to state a claim for
relief, the plaintiff has failed to state any plausible claim for disparate treatment based on race or
for retaliation. The Second Amended Complaint is lacking crucial facts necessary to state any
plausible claim for relief. For instance, plaintiff has not identified a single representative of the
defendant who allegedly made decisions regarding him. Instead, he generally alleges only that
unidentified “staffing coordinators” did not give him every assignment he wanted. For his
disparate treatment claim, he also indicates that he is “aware of at least three separate Caucasian
employees . . . who were assigned to jobs within the City of Tulsa” while he was assigned to
Claremore or Stillwater (see id. at 4), but he does not identify them or otherwise state any
circumstances by which he could plausibly aver that they were similarly situated to him in
employment.
It is also unclear what he is claiming was a materially adverse action. He previously
alleged discriminatory termination, but the Second Amended Complaint does not repeat that
allegation, nor does it contain any other allegation that would state a plausible claim for a
racially discriminatory adverse employment action. Although he asserts that he was initially
assigned to Claremore and Stillwater in the first month after he was hired, he acknowledges that

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he was subsequently assigned to a nursing facility in Tulsa. He alleges that he was provided
some unidentified, false reason for the defendant’s refusal to assign him to additional jobs other
than the one at the Tulsa nursing facility. His allegations in that regard are so vague that they are
nonsensical.
Plaintiff has been unable to provide even the barest of factual allegations that would state
a plausible claim for racial discrimination. In dismissing the prior Amended Complaint, the
Court stated:
For example, Avington has not identified any similarly-situated Caucasian
employees who were treated better than him in job assignments or receipt of jobrelated benefits. Avington has also failed to aver any facts supporting any claim
that he was terminated because of his race. It is not enough to merely allege that
he is African American and was terminated, which is in essence all that he has
factually asserted in his Amended Complaint.
(Doc. 21 at 11). Notwithstanding this guidance, the plaintiff provided even fewer facts in his
Second Amended Complaint, and his allegations are so vague that the Court is unable to glean a
plausible claim, even assuming his factual averments to be true. He has not identified any
employee of defendant that was treated differently. Moreover, his assertion that the defendant
treated Caucasian employees differently by assigning them jobs in Tulsa is inconsistent with his
statement that he was, in fact, assigned to a job in Tulsa.
In response to the dismissal motion, plaintiff provides nothing other than boilerplate legal
citation, without any analysis of his Second Amended Complaint, and multiple statements that he
will appeal any dismissal. He indicates that he “is unaware of the names of other Caucasian
employees whop [sic] were not required to do the things which Plaintiff was required to do or
who were treated differently than himself.” (Doc. 24 at 2-3). Plaintiff has been given an
opportunity to amend to provide some factual predicate that would state a plausible claim, and he
refuses to do so, relying on his right to appeal any dismissal this Court may enter.
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Plaintiff’s allegations also do not state a claim for retaliation, because he has not alleged
facts reflecting any material adverse action taken in response to his alleged engagement in a
protected activity. He actually alleges that, after he complained that he was not receiving
assignments he wanted, the defendant then placed him on a job in Tulsa. His Second Amended
Complaint does not contain any allegations of an adverse employment action taken against him
in retaliation or of any causal connection between his allegedly protected activity and any
purported act of retaliation. His allegations of retaliation are internally contradictory. For
example, he alleges that he “truthfully knows and verily believes that the only reason defendants
agents refused to give [him] job assignments within the City of Tulsa except for that assignment
at Colonial Manor was as an act of punishment and retaliation for having filed a grievance.”
(Doc. 22 at 5). But in the prior paragraph he only indicates that he was given a job assignment
after he complained of discrimination. (Id.).
IV.

Conclusion
For the foregoing reasons, defendant’s motion to dismiss for failure to state a claim is

granted. The dismissal is appropriate, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) (the plaintiff
filed this action in forma pauperis) and under Fed. R. Civ. P. 12(b)(6), because plaintiff has
failed to state a plausible claim for relief. The dismissal is with prejudice because, despite three
attempts at pleading a plausible claim and notwithstanding being provided leave to amend to file
the Second Amended Complaint, the plaintiff has only provided vague, unspecified factual
averments that do not state a plausible claim for relief against the defendant.
SO ORDERED this 30th day of September, 2016.

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