Harris-Bethea v. Babcock and Wilcox Technical Services Y-12, LLC (TV2)

Filing 29

MEMORANDUM OPINION AND ORDER that Defendant's Renewed Partial Motion to Dismiss 20 is GRANTED in part and DENIED in part. Accordingly, the following claims are hereby DISMISSED: any discrete claim for discrimination under &# 167; 1981, Title VII, or the ADA arising from workplace drug testing that occurred in October 2009, and any discrete claim for discrimination under Title VII or the ADA arising from workplace drug testing that occurred in October 2010. Signed by Chief District Judge Thomas A Varlan on 3/30/15. (ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
SHANEEKA LEVETTE HARRIS-BETHEA, )
)
Plaintiff,
)
)
v.
)
)
BABCOCK & WILCOX TECHNICAL
)
SERVICES Y-12, LLC,
)
)
Defendant.
)

No.:

3:13-CV-669-TAV-HBG

MEMORANDUM OPINION AND ORDER
This civil case is before the Court on Defendant’s Renewed Partial Motion to
Dismiss [Doc. 20].

Defendant moves the Court to dismiss plaintiff’s claims that

defendant: (1) created a hostile work environment due to harassment on the basis of race
and gender, pursuant to Title VII of the Civil Rights Act of 19641 (“Title VII”); (2)
discriminated against her the basis of disability, pursuant to the Americans with
Disabilities Act of 19902 (“ADA”); (3) discriminated against her on the basis of race,
gender, and disability in connection with workplace drug testing in October 2009 and
October 2010, pursuant to 42 U.S.C. § 1981 (“§ 1981”), Title VII, the ADA; and (4)
created a hostile work environment due to harassment on the basis of race, pursuant to §
1981. Plaintiff has responded in opposition [Doc. 22], and defendant has replied [Doc.
24].
1

42 U.S.C. § 2000e et seq.

2

42 U.S.C. § 12101 et seq.

For the reasons that follow, defendant’s motion will be granted in part and denied
in part. Specifically, the Court will dismiss any discrete claim for discrimination under §
1981, Title VII, or the ADA arising from workplace drug testing that occurred in October
2009, and the Court will dismiss any discrete claim for discrimination under Title VII or
the ADA arising from workplace drug testing that occurred in October 2010.
I.

Background
According to plaintiff’s amended complaint [Doc. 10], plaintiff is an African-

American woman who was employed by defendant as a Wellness Coordinator from
October 2008 to November 21, 2011 [Id. at p. 2, 7–8]. Plaintiff alleges that throughout
her time as an employee, she was discriminated against and harassed because of her race
and gender [Id. at p. 2–9]. She further alleges that she was discriminated against on the
basis of race, gender, and disability during the course of an investigation into her
procurement practices, which culminated in the termination of her employment [Id. at p.
5–10]. Plaintiff also alleges that the termination of her employment violated the Family
and Medical Leave Act (“FMLA”), and that the decision to remove her from her position
was made in retaliation for her exercise of equal employment rights [Id. at p. 7–11].
Plaintiff alleges that on or about October 1, 2009, she was asked by defendant to
undergo a random drug test [Id. at p. 2]. She alleges that, unlike white employees, she
did not receive a courtesy call to remind her about the drug test, and she left work for the
day without having provided the requested drug testing sample [Id. at p. 3]. Later that
day, she received a telephone call from David Wayne Neubauer about having missed the
2

test [Id.]. She offered to return immediately to the testing facility, but her offer was
declined, unlike white employees who had in the past been allowed to provide late
samples [Id.]. Instead, she was required to attend a meeting with one of her supervisors,
Doug LeVan, along with Steve Weaver, during which she was informed that she would
be placed on administrative leave [Id. at 3–4].
On October 20, 2009, Mr. LeVan contacted plaintiff to request that she attend
another meeting, this time with Mr. LeVan, “Ms. Henderson,” and Mr. Weaver, all of
whom are Caucasian [Id.]. At the meeting, plaintiff was informed that she would be
required to undergo a hair follicle test at her expense [Id.].

Plaintiff alleges that

defendant’s policy at the time permitted an employee who had failed a drug test to
request a second test, and if the second test was negative, defendant would pay the cost
[Id.]. Plaintiff alleges that she was not offered any reimbursement for the cost of the hair
follicle test if it came back negative [Id.].
The hair follicle test did come back negative [Id.]. Plaintiff alleges that she was
denied two weeks of pay from the approximately five weeks of work she missed as a
result of being placed on administrative leave [Id.]. Upon returning to work, plaintiff was
required to sign a document in which she admitted to acting “egregiously negligent” for
missing her original drug testing appointment, and she was placed on probation for
twelve months [Id. at p. 4]. Plaintiff filed an ethics complaint with defendant regarding
her treatment in the matter [Id.].

3

In October 2010, near the end of plaintiff’s twelve-month probationary period,
defendant requested that plaintiff undergo another drug test [Id.]. Plaintiff alleges that
during the specimen collection process, the collecting agent required her to “strip naked
from the waist down, spin around in front of said agent, and then urinate into specimen
containers while the agent watched” [Id.]. Plaintiff alleges that this action occurred
twice, and that it violated guidelines for federal workplace drug testing programs [Id.]. It
also resulted in her embarrassment, degradation, and humiliation [Id.]. Plaintiff alleges
that no white male or female employees, including Mr. LeVan, Ms. Henderson, and Mr.
Weaver, were required to undergo such a drug testing procedure [Id.].
In addition to the incidents regarding workplace drug testing, plaintiff alleges that
during the course of her employment, Mr. LeVan referred to women as “bitches” and
asked plaintiff to justify hiring a “fat administrative assistant” who also was female [Id.].
Plaintiff further alleges that throughout the course of her employment, Mr. LeVan
“continually harassed” her “verbally,” and that he required her to violate procurement
and requisition procedures [Id.]. Plaintiff alleges that Mr. LeVan did not act in such a
manner toward his white male employees [Id.].
Plaintiff also alleges that Mr. LeVan failed to act upon his knowledge that one of
plaintiff’s co-workers, “Mr. Lariviere,” “continually harassed her about the height of the
heels on her shoes and any possible violations of the companies [sic] shoe policy” [Id. p.
4–5]. Plaintiff further alleges that unlike her white co-workers, her job duties were
frequently changed without appropriate guidance, training, or continuing education, and
4

that she was excluded from trips intended to provide training and opportunities for
advancement [Id. p. 5].
Regarding the circumstances that ultimately gave rise to the termination of her
employment, plaintiff alleges that at Mr. LeVan’s insistence, she engaged in procurement
practices that violated defendant’s policies in the course of obtaining equipment for
defendant’s new workout facilities [Id. p. 5–7].

Defendant eventually opened an

investigation into those procurement practices [Id. at p. 5–6].
On August 17, 2011, plaintiff’s physician placed her on 20 hours of work per
week under the FMLA due to her anxiety, depression, and sleeplessness [Id. at p. 6–7].
She alleges that defendant was notified of these restrictions on August 18, 2011 [Id. at p.
7]. Plaintiff further alleges that on November 2, 2011, while she was still working on a
part-time basis, she was called into a meeting in which she was given the option of being
demoted to a lesser position or resigning [Id.].

On November 4, 2011, plaintiff’s

physician placed her on full-time leave under the FMLA for two weeks [Id.]. Plaintiff
alleges that defendant was notified of these new restrictions on November 7, 2011 [Id.].
Also on November 4, 2011, plaintiff alleges that she “initially filed and started a
timely charge of discrimination and retaliation” with the Equal Employment Opportunity
Commission (“EEOC”) [Id.]. On that date, plaintiff completed and submitted to the
EEOC a form document entitled “U.S. Equal Employment Opportunity Commission
Intake Questionnaire” (“Intake Questionnaire”) [Doc. 10-1 p. 2–5]. In connection with
her EEOC filing, plaintiff submitted an undated and unsigned three-page document
5

entitled “Response for EEOC Document” [Doc. 10-1 p. 6–8]. The “Response for EEOC
Document” describes in more detail defendant’s alleged discriminatory actions [Doc. 101 p. 6–8]. The EEOC gave defendant notice of plaintiff’s complaint on November 9,
2011 [Doc. 10-3].
Plaintiff alleges that on November 13, 2011, she sent an email to defendant,
advising defendant that she had discovered a considerable wage disparity between herself
and similarly situated Wellness Coordinators [Doc. 10 p. 7]. Plaintiff alleges that on or
about November 18, 2011, defendant received notice that her physician had extended her
full-time FMLA leave to December 19, 2011, because her “medical condition was
exacerbated by the hostile work environment conditions” [Id.].
Plaintiff’s employment was terminated on November 21, 2011 [Id. at p. 7–8]. She
alleges that she was qualified for her position as a Wellness Coordinator based on her
higher education, and that she was capable of performing her essential job functions [Id.
at p. 8]. Plaintiff further alleges that she was replaced by Gary Hall, a white male who is
not disabled [Id.].
On November 29, 2011, plaintiff filed an EEOC form document entitled “Charge
of Discrimination” [Doc. 10-1 p. 1]. The one-page document was signed by plaintiff
“under penalty of perjury” [Id.]. It contains a short narrative regarding defendant’s
investigation into plaintiff’s procurement practices and subsequent decision to remove
her from her position as a Wellness Coordinator [Id.]. In the document, plaintiff checked
the boxes for discrimination based on “race,” “sex,” and “retaliation” [Id.]. She listed
6

August 1, 2011, as the earliest date that discrimination took place, and November 2,
2011, as the latest date that discrimination took place [Id.].
Plaintiff received her right-to-sue letter from the EEOC on August 16, 2013 [Doc.
10 p. 2]. This action followed on November 11, 2013 [Doc. 1].
II.

Legal Standard
Rule 8(a)(2) of the Federal Rules of Civil Procedure sets forth a liberal pleading

standard. Smith v. City of Salem, 378 F.3d 566, 576 n.1 (6th Cir. 2004). It requires only
“‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in
order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (ellipses in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Detailed factual allegations
are not required, but a party’s “obligation to provide the ‘grounds’ of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in
original) (citations omitted).

“Nor does a complaint suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (alteration in original) (quoting Twombly, 550 U.S. at 557)).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must determine whether
the complaint contains “enough facts to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. In doing so, the Court “construe[s] the complaint in
the light most favorable to the plaintiff, accept[s] its allegations as true, and draw[s] all
7

reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476
(6th Cir. 2007) (citation omitted). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly,
550 U.S. at 556). “Determining whether a complaint states a plausible claim for relief
will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679 (citation omitted).
III.

Analysis
Defendant does not seek the dismissal of all of plaintiff’s claims [Doc. 21 p. 18–

19]. Defendant has not asked the Court to dismiss plaintiff’s claims under the FMLA [Id.
at 18]. Defendant also has not asked the Court to dismiss plaintiff’s claims under Title
VII or § 1981 in connection with its decision to remove plaintiff from her position as a
Wellness Coordinator, or its decision to terminate her employment [Id. at p. 18–19].
As grounds for its partial motion to dismiss, defendant submits that plaintiff has
failed to exhaust her administrative remedies for the following claims: (1) “Plaintiff’s
Title VII hostile work environment claim,” (2) “Plaintiff’s Americans with Disabilities
Act claim,” and (3) “Plaintiff’s claims concerning her drug tests” [Doc. 20 p. 1].
Additionally, defendant submits that “[p]laintiff’s claims concerning her drug tests” are
barred by the statute of limitations [Id.]. Finally, defendant submits that plaintiff has
failed to adequately state a claim for relief for the following claims: (1) “Plaintiff’s
claims concerning her drug tests,” and (2) “Plaintiff’s conclusory claim of racial
8

harassment and conclusory claims about other purported discriminatory acts” [Id. at p. 1–
2]. The Court addresses each in turn.
A.

Exhaustion of Administrative Remedies

Before a plaintiff may file an action in federal court under Title VII or the ADA,
she must first exhaust her administrative remedies. See Younis v. Pinnacle Airlines, Inc.,
610 F.3d 359, 361–63 (6th Cir. 2010) (discussing exhaustion under Title VII); Parry v.
Mohawk Motors of Mich., Inc., 236 F.3d 299, 309 (6th Cir. 2000) (discussing exhaustion
under the ADA). The exhaustion requirements under each statute are the same. 42
U.S.C. § 2000e–5 (setting forth the procedures for enforcing Title VII); 42 U.S.C. §
12117(a) (adopting the procedures of 42 U.S.C. § 2000e–5 for ADA claims).
As part of the administrative exhaustion requirements, an aggrieved employee
must file a charge with the EEOC. Younis, 610 F.3d at 361–62. Generally, a plaintiff
may not bring claims in a subsequent civil action that were not included in her EEOC
charge. Id. at 361. “The charge must be ‘sufficiently precise to identify the parties, and
to describe generally the action or practices complained of.’” Id. (quoting 29 C.F.R. §
1601.12(b)).
EEOC charges are “construed liberally, so that courts may also consider claims
that are reasonably related to or grow out of the factual allegations of the EEOC charge.”
Id. at 362 (citing Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 732 (6th Cir.
2006)); see Spengler v. Worthington Cylinders, 615 F.3d 481, 490 (6th Cir. 2010) (citing
Cleveland Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 536 (6th Cir. 2001))
9

(explaining that a liberal construction of an EEOC charge may be appropriate even if the
charge was prepared by an attorney rather than a pro se complainant). Accordingly,
“whe[n] facts related with respect to the charged claim would prompt the EEOC to
investigate a different, uncharged claim, the plaintiff is not precluded from bringing suit
on that claim.”

Younis, 610 F.3d at 362 (alteration in original) (quoting Davis v.

Sodexho, 157 F.3d 460, 463 (6th Cir. 1998)) (internal quotation marks omitted).
1.

The Documents That Constitute Plaintiff’s EEOC Charge

Plaintiff submits that three documents constitute her charge to the EEOC, and she
attaches them “collectively” to her complaint [Doc. 10 p. 7; Doc. 10-1]: (1) the EEOC
“Intake Questionnaire” form, dated November 4, 2011, and signed by plaintiff [Doc. 10-1
p. 2–5]; (2) the undated and unsigned document entitled “Response for EEOC
Document” [Doc. 10-1 p. 6–8];3 and (3) the EEOC “Charge of Discrimination” form,
dated November 29, 2011, and signed by plaintiff “under penalty of perjury” [Doc. 10-1
p. 1]. Plaintiff argues that the Court should consider the content of all three documents
when deciding whether she has exhausted her administrative remedies [Doc. 23 p. 8].
Defendant argues that only the single-page EEOC “Charge of Discrimination” form
constitutes an EEOC charge, and so the Court should consider the content of only that
document [Doc. 21 p. 3–6].

3

Plaintiff suggests in her motion papers that the “Response for EEOC Document” was
submitted in connection with her EEOC “Intake Questionnaire” form [Doc. 23, p. 8]. Defendant
agrees with this characterization of the documents [Doc. 21 p. 3; Doc. 24 p. 2].
10

The Sixth Circuit has already resolved this issue. In Williams v. CSX Transp. Co.,
the Court of Appeals explained that a document submitted to the EEOC must satisfy three
requirements in order to be considered a charge:
[T]he filing (1) must be ‘verified’—that is, submitted under
oath or penalty of perjury, 29 C.F.R. § 1601.3(a); (2) must
contain information that is ‘sufficiently precise to identify the
parties, and to describe generally the action or practices
complained of,’ id. § 1601.12(b); and (3) must comply with
[Fed. Express Corp. v.] Holowecki—that is, an ‘objective
observer’ must believe that the filing ‘taken as a whole’
suggests that the employee ‘requests the agency to activate its
machinery and remedial processes,’ 552 U.S. 389, 398, 402,
128 S. Ct. 1147 [2008].
643 F.3d 502, 509 (6th Cir. 2011). An EEOC “Charge of Discrimination” form, like the
one that plaintiff filed on November 29, 2011, qualifies as an EEOC charge. Id. at 510.
Even initially unverified documents that are written in narrative form may qualify.
When an unverified document that otherwise meets the charge requirements has been
filed with the EEOC, a subsequent filing of a verified document that meets the charge
requirements effectively amends the prior filing to cure its technical defect. Id. at 509
(citing 29 C.F.R. § 1601.12(b)). Thus, the Court of Appeals in Williams found that an
unverified seven-page “Charge Information Form” was an EEOC charge when: (1) a
verified “Charge of Discrimination” form subsequently had been filed with the EEOC;
(2) the “Charge Information Form” identified the plaintiff’s employer and named the
employee who was the alleged offender; and (3) the “Charge Information Form”
contained a statement from the plaintiff that the defendant’s “facility was ‘a very hostile

11

work environment’ and that she ‘fe[lt] that [CSX] owe[d] [her] money damages.” Id. at
509–10 (alterations in original).
In this case, plaintiff’s “Intake Questionnaire” and “Response for EEOC
Document” are substantially the same as the “Charge Information Form” in Williams.
Although neither document was initially verified, plaintiff has alleged sufficient facts—
and defendant does not dispute—that she submitted both documents to the EEOC prior to
filing the verified “Charge of Discrimination” form on November 29, 2011. Therefore,
both documents have been amended by the “Charge of Discrimination” form to cure their
technical defect. Id. at 509.
Additionally, the “Intake Questionnaire” and “Response for EEOC Document”
both identify defendant by name, along with individuals who allegedly were involved in
discriminatory conduct.

For example, Mr. LeVan is mentioned in both documents.

Moreover, plaintiff specifically describes instances of alleged discriminatory conduct in
both documents.
Finally, both documents ask the EEOC to activate its remedial machinery. In the
“Intake Questionnaire,” plaintiff checked box number two on the last page, which states,
in part, “I want to file a charge of discrimination, and I authorize the EEOC to look into
the discrimination that I described above” [Doc. 10-1 p. 5]. In the “Response for EEOC
Document,” plaintiff concludes her three-page narrative by writing, “I would appreciate
the assistance of the EEOC in investigating this issue so that the company and I can come
to an agreeable solution” [Doc. 10-1 p. 8]. Therefore, both the “Intake Questionnaire”
12

and the “Response for EEOC Document” meet the requirements to be considered EEOC
charges.
Defendant argues that Williams is distinguishable from this case because in
Williams, the Court of Appeals analyzed the “Charge of Discrimination” form in addition
to the “Charge Information Form” in order to determine whether the plaintiff had
exhausted her hostile work environment claim. But the Court of Appeals in Williams
expressly held that both of the documents independently qualified as EEOC charges. As
the Court of Appeals explained, “We conclude that Williams’s first EEOC filing, the
‘Charge Information Form,’ is a charge for her claim of a sexually hostile work
environment.” Id. at 509. And later, “We also conclude that Williams’s second EEOC
filing, the ‘Charge of Discrimination,’ is a charge for her claim of a sexually hostile work
environment.” Id. at 510 (emphasis added).
Defendant’s reliance on cases that reach the opposite conclusion of Williams is
misplaced, because those cases neither interpret nor alter the law of this circuit. E.g.,
Green v. JP Morgan Chase Bank Nat’l Ass’n, 501 F. App’x 727, 730–32 (10th Cir.
2012); Williams v. County of Cook, 969 F. Supp. 2d 1068, 1074–77 (N.D. Ill. 2013);
Ahuja v. Detica Inc., 873 F. Supp. 2d 221, 228–31 (D.D.C. 2012).
Finally, the Court’s decision in Davenport v. Asbury, Inc., does not change the
outcome here. 2013 WL 1320696, at *6–12 (E.D. Tenn. March 29, 2013). In Davenport,
the Court concluded that an intake questionnaire did not meet the verification
requirement to be an EEOC charge. Id. The Court’s conclusion was based on the
13

specific circumstances of the case. There, the plaintiff’s subsequently-filed “Charge of
Discrimination” form did not cure the technical defect of her unverified intake
questionnaire, because the “Charge of Discrimination” form had been signed by the
plaintiff’s attorney and therefore was not verified by the plaintiff. Although the plaintiff
had eventually filed a verified “Charge of Discrimination” form, she did not do so until
after she had received her right-to-sue letter and initiated her civil action. Id. at *11–12.
Here, the “Charge of Discrimination” form was signed and verified by plaintiff, and it
was filed prior to the conclusion of the EEOC’s investigation.
Accordingly, the Court will consider the content of all three of plaintiff’s
documents when determining whether she has exhausted her administrative remedies.
2.

Exhaustion of Title VII Hostile Work Environment Claims

Plaintiff has exhausted her administrative remedies with respect to her Title VII
hostile work environment claims. Plaintiff’s “Intake Questionnaire” lists the October
2009 drug testing incident and describes how she was treated differently than a white
male “member of medical staff” when she offered to take a late test [Doc. 10-1 p. 3].
Plaintiff names Mr. LeVan as the “person responsible” for her treatment in connection
with the October 2009 drug testing incident [Id.]. The “Intake Questionnaire” also names
three people who plaintiff anticipated would tell the EEOC, respectively, that “unfair
treatment has occurred,” that Mr. LeVan “has a history of racist behavior,” and that Mr.
LeVan “has a history of discriminatory behavior” [Id. at p. 5]. Plaintiff checked boxes

14

for discrimination on the basis of race and gender in both the “Charge of Discrimination”
form and the “Intake Questionnaire” [Id. at p. 1, 3].
Additionally, although plaintiff’s “Response for EEOC Document” primarily
focuses on the circumstances surrounding defendant’s investigation into her procurement
practices, it nevertheless notes the existence of a hostile work environment. Plaintiff
writes that she informed one of defendant’s investigators that “I felt I had been
discriminated against and subjected to a hostile environment at Y-12 several times in the
past and was not comfortable being interviewed alone” [Id. at p. 6]. Plaintiff also alleges
that Mr. LeVan refused to approve plaintiff’s trips to conferences or workshops, when he
would approve such trips for white employees [Id. at p. 7–8]. And plaintiff alleges that
Mr. LeVan refused to address a co-worker’s harassment of plaintiff regarding a “shoe
policy issue” [Id.].
The factual allegations in plaintiff’s EEOC charges are sufficient to prompt an
EEOC investigation into whether defendant created a hostile work environment due to
harassment on the basis of race or gender.

Therefore, plaintiff has exhausted her

administrative remedies regarding her Title VII hostile work environment claims.
3.

Exhaustion of ADA Claims

Plaintiff also has exhausted her administrative remedies for her ADA claim. In
her complaint, plaintiff alleges that defendant violated the ADA when it terminated her
employment because of her alleged disability [Doc. 10 p. 8]. She specifies that her
disability is sleeplessness, anxiety, and depression [Id.].
15

Defendant correctly notes that plaintiff did not check the boxes for disability
discrimination in her “Charge of Discrimination” form or “Intake Questionnaire” [Doc.
10-1 p. 1, 3]. Nor did she complete the questions in the “Intake Questionnaire” that ask
for details regarding alleged disability discrimination [Id. at p. 4].
Nevertheless, plaintiff’s EEOC charges are not devoid of information regarding
disability discrimination.

In the “Intake Questionnaire,” plaintiff checked the box

indicating that she has a disability, writing “chronic anxiety/depression” underneath [Id.
at p. 2]. Additionally, in the “Response for EEOC Document,” plaintiff indicates that she
informed defendant’s investigators of her alleged disability prior to her termination:
Due to the stress of this situation and the exacerbation of my
current medical condition (for which I was already on FMLA
for part-time work), I proceeded to see my treating physician
on Friday, November 4, 2011[,] who removed me from work
until a follow-up appointment on November 18, 2011. I
informed Ms. Bishop by phone of my physician’s
recommendation and thus did not meet with [her] on that
Monday.
[Id. p. 6]. Considering that plaintiff’s employment was terminated a few weeks after she
allegedly informed defendant’s investigators of her medical condition, the factual
allegations in plaintiff’s EEOC charges are sufficient to prompt the EEOC to investigate
whether plaintiff was discriminated against on the basis of disability. Therefore, plaintiff
has exhausted her administrative remedies with respect to her ADA claim.
4.

Exhaustion of Claims Concerning Plaintiff’s Drug Tests

Although defendant states in its motion to dismiss that plaintiff failed to exhaust
her administrative remedies for “claims concerning plaintiff’s drug tests,” the Court can
16

find no briefing of this argument in defendant’s motion papers. Therefore, the Court
concludes that the argument has been waived. McPherson v. Kelsey, 125 F.3d 989, 995–
96 (6th Cir. 1997).
In any event, plaintiff does not need to exhaust her administrative remedies in
order to bring claims under § 1981. Williams, 643 F.3d at 510 n.3. And, as discussed
below, any discrete claim for discrimination under Title VII arising from the drug tests in
October 2009 and October 2010 would be time-barred. Therefore, it is not necessary for
the Court do decide whether plaintiff has exhausted her administrative remedies for
claims “concerning [her] drug tests.”
B.

Statute of Limitations

Defendant next argues that the “claims concerning plaintiff’s drug tests” are
barred by the statute of limitations. Specifically, defendant argues that any claim under
Title VII or the ADA arising from the drug testing incidents in October 2009 and October
2010 is time-barred, and any claim under § 1981 arising from the October 2009 drug
testing incident is time-barred. Plaintiff responds that “the events surrounding the drug
testing are timely as component acts of her hostile work environment claim” [Doc. 23 p.
10].
1.

Statute of Limitations under Title VII and the ADA

In order for a civil claim to be timely under Title VII or the ADA, a plaintiff must
have filed a charge raising that claim with the EEOC within 180 days of the
discriminatory act, or within 300 days of the discriminatory act if proceedings were first
17

initiated with a State or local agency. 42 U.S.C. § 2000e–5(e)(1) (Title VII); 42 U.S.C. §
12117(a) (ADA); see Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980) (finding that the
statute of limitations begins running when a discriminatory act occurs rather than when
its effects are felt).
In this case, the drug testing incidents in October 2009 and October 2010 were
discrete acts. See Russell v. Ohio Dept. of Admin. Servs., 302 F. App’x 386, 390 (citing
E.E.O.C. v. Penton Indus. Publ’g Co., 851 F.2d 835, 838 (6th Cir. 1988)) (giving an
example of a continuing violation as unequal pay that continues to be paid unequally);
see also E.E.O.C. v. United States Steel Corp., 2012 WL 3017869, at *7 (W.D. Penn.
July 23, 2012) (finding that workplace drug tests are discrete acts). Plaintiff brought her
first EEOC charge on November 4, 2011, more than 300 days after the last drug testing
incident occurred in October 2010. Consequently, any discrete claim of discrimination
arising from the drug testing incidents in October 2009 or October 2010 under Title VII
or the ADA would be time-barred.
Nevertheless, the drug testing incidents may serve as evidence in support of
plaintiff’s hostile work environment claims.

“A hostile work environment claim is

composed of a series of separate acts that collectively constitute one ‘unlawful
employment practice.’” National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117
(2002) (quoting 42 U.S.C. § 2000–5(e)(1)). “It does not matter, for purposes of the
statute, that some of the component acts of the hostile work environment fall outside the
statutory time period.” Id. “Provided that an act contributing to the claim occurs within
18

the filing period, the entire time period of the hostile environment may be considered by a
court for the purposes of determining liability.” Id.
In this case, plaintiff’s hostile work environment claims cover the entire period of
her employment. Plaintiff alleges that she was “continually harassed” by Mr. LeVan,
who treated her differently than white male employees in the types of comments he
would make to her and also in requiring her to violate procurement and requisition
procedures [Doc. 10 p. 4]. Indeed, it was these violations that plaintiff alleges ultimately
led to her termination [Id. p. 5–8]. Plaintiff also alleges that Mr. LeVan referred to
women as “bitches” “[d]uring the course of” her employment [Id. p. 4].
Plaintiff was removed from her Wellness Coordinator position on November 2,
2011, and her employment was terminated on November 21, 2011 [Doc 10 p. 7–8]. She
brought her EEOC charges in the same month [Doc. 10-1 p. 1, 5]. Therefore, her hostile
work environment claims are timely and may rely on the October 2009 and October 2010
drug testing incidents as evidence of a hostile work environment.
2.

Statute of Limitations under § 1981

There is a four-year statute of limitations for claims brought under § 1981. Jones
v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382–83 (2004). Plaintiff filed her complaint
on November 11, 2013. Therefore, any claim arising from the October 2009 drug testing
incident is time-barred. Any claim arising from the drug testing incident in October 2010
is not time-barred under § 1981. Plaintiff’s hostile work environment claim due to

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harassment on the basis of race is not time-barred under § 1981 for the same reasons that
it is not time-barred under Title VII.
C.

Failure to State a Claim

Defendant moves to dismiss, for failure to state a claim, plaintiff’s claim for
discrimination arising from the October 2010 drug testing incident and her hostile work
environment claim due to harassment on the basis of race under § 1981 [Doc. 21 p. 16–
18]. Because plaintiff’s claim for discrimination arising from the October 2010 drug
testing incident may only proceed under § 1981, defendant’s argument is limited to the
claims that plaintiff has brought under § 1981. Nevertheless, the Court’s analysis would
be the same if applied to plaintiff’s hostile work environment claim due to harassment on
the basis of race under Title VII. See Barrett v. Whirlpool Corp., 556 F.3d 502, 512 (6th
Cir. 2009) (“[W]e review § 1981 claims under the same standard as Title VII claims.”).4
1.

Claim for Discrimination Based upon the October 2010 Drug
Testing Incident

To prevail on a claim for discrimination under § 1981, plaintiff must show that
defendant discriminated against her because of her race. 42 U.S.C. § 1981; see Barrett,
556 F.3d at 511–12. At the pleadings stage, plaintiff need only state a plausible claim for
relief, with “plausibility” occupying “that wide space between ‘possibility’ and
‘probability.’” Keys v. Humana, Inc., 684 F.3d 605, 610 (6th Cir. 2012) (citing Iqbal,

4

Defendant does not argue that plaintiff’s hostile work environment claim due to
harassment on the basis of gender under Title VII should be dismissed for failure to state a claim
[see Doc. 21 p. 16 n.8], and the Court would find that plaintiff has stated a facially plausible
claim to relief on that claim.
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556 U.S. at 678). “If a reasonable court can draw the necessary inference from the
factual material stated in the complaint, the plausibility standard has been satisfied.” Id.
Plaintiff has met this requirement. By way of providing context for the October
2010 drug testing incident, plaintiff alleges that she was treated differently than white
employees after inadvertently missing a drug test in October 2009 [Doc. 10 p. 3]. Among
the people involved in deciding the consequences of plaintiff’s missed drug test was her
white supervisor, Mr. LeVan, who she alleges treated her differently than white
employees throughout her employment [Id. at p. 3–4]. Plaintiff filed an ethics complaint
as a result of the disparate treatment she allegedly received in connection with her missed
drug test [Id. at p. 4].
Regarding the October 2010 incident that is the subject of her § 1981
discrimination claim, plaintiff describes how she was twice required to provide a urine
sample in full view of an unnamed agent [Id.]. Plaintiff alleges that this procedure
differed from the procedure for collecting testing samples that was applied to white
employees, including Mr. LeVan [Id.].

Plaintiff further alleges that the procedure

violated federal guidelines for workplace drug testing programs [Id.]. And she alleges
that the incident was embarrassing, degrading, and humiliating [Id.].
Defendant argues that plaintiff has not alleged any facts to support a finding that
she was treated differently than employees who were similarly situated to her, that is,
employees who were on probation for having missed a drug test. But “the mere existence
of an ‘eminently plausible’ alternative, lawful explanation for a defendant’s allegedly
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unlawful conduct is not enough to dismiss an adequately pled complaint because
pleadings need only be ‘plausible, not probable.’” HDC, LLC v. City of Ann Arbor, 675
F.3d 608, 613 (6th Cir. 2012) (quoting Watson Carpet & Floor Covering, Inc. v. Mohawk
Indus., Inc., 648 F.3d 452, 458 (6th Cir. 2011)).
Accepting plaintiff’s allegations as true, and viewing them in the light most
favorable to her, the Court finds that plaintiff has stated a facially plausible claim to
relief.
2.

Hostile Work Environment Claim Under § 1981

To prevail on her hostile work environment claim due to harassment on the basis
of race under § 1981, plaintiff must show that she was required to work in a
“discriminatorily hostile or abusive environment.” Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)). In other
words, plaintiff must show that her workplace was “permeated with ‘discriminatory
intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the
conditions of [her] employment and create an abusive working environment.’”

Id.

(quoting Vinson, 477 U.S. at 65, 67) (internal citations omitted).
Defendant argues that the Sixth Circuit’s unpublished decision in Ross v. Mich.
State Univ. Bd. of Trs. provides the “elements” that plaintiff “must set forth” in her
complaint in order to state a claim for relief:
In order to establish a prima facie claim of a racially hostile
work environment, Ross must demonstrate the following: (1)
he is a member of a protected class; (2) he was subjected to
unwelcomed racial harassment; (3) the harassment was based
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on race; (4) the harassment had the effect of unreasonably
interfering with his work performance; and (5) MSU is liable.
2012 WL 3240261, at *3 (6th Cir. June 20, 2012).
To the extent that Ross can be read as suggesting a pleading standard rather than
simply taking into account the elements from which a trier of fact may infer a hostile
work environment, the decision stands in tension with the Sixth Circuit’s published
decision in Keys, 684 F.3d at 608–10. Keys held that the prima facie case standard for
discrimination claims, set forth in McDonnell Douglas, does not apply at the pleadings
stage. 684 F.3d at 609 (citing Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510–14
(2002)); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). The
Court of Appeals explained that applying the prima facie case standard for discrimination
claims at the pleadings stage would impermissibly narrow the “plausibility” pleading
standard. Id. (citing HDC, 675 F.3d at 614).
Similarly, the Court concludes that a plaintiff need not specifically plead each of
the prima facie case factors for a hostile work environment claim in order to state a
facially plausible claim to relief. Rather, it is enough for a plaintiff to plead sufficient
facts from which “a reasonable court can draw the necessary inference” that the
defendant is liable for creating a hostile work environment. See Keys, 684 F.3d at 610.
Plaintiff has done so here. As previously discussed, plaintiff has alleged that
defendant’s employees, including a supervisor, engaged in discriminatory actions
beginning with the drug testing incident in October 2009 [Doc. 10 p. 2–4]. Plaintiff
alleges that she once again was discriminated against when she was subjected to a
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degrading drug testing procedure in October 2010 [Id. at 4]. These drug testing incidents
frame the harassing comments and discriminatory behavior that plaintiff claims she was
subjected to throughout her employment [id. at 4–5], including her exclusion from
training opportunities and Mr. LeVan’s insistence that plaintiff violate workplace
procurement procedures when he did not require the same of white employees [id. at 4–
8]. Viewing these incidents and circumstances as a whole, it is reasonable to infer that
plaintiff’s workplace was permeated with discriminatory intimidation, ridicule, and insult
sufficiently severe to alter the conditions of her employment and create an abusive
working environment. Therefore, plaintiff has stated a facially plausible claim to relief.
IV.

Conclusion
For these reasons, Defendant’s Renewed Partial Motion to Dismiss [Doc. 20] is

GRANTED in part and DENIED in part. Accordingly, the following claims are
hereby DISMISSED: any discrete claim for discrimination under § 1981, Title VII, or
the ADA arising from workplace drug testing that occurred in October 2009, and any
discrete claim for discrimination under Title VII or the ADA arising from workplace drug
testing that occurred in October 2010.
IT IS SO ORDERED.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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