Marchand v. Smith & Nephew
Filing
11
ORDER granting in part and denying in part 7 Motion to Dismiss for Failure to State a Claim. Signed by Judge S. Thomas Anderson on 3/27/13. (Anderson, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
KAREN D. MARCHAND,
)
)
Plaintiff,
)
)
v.
)
No. 11-2621-STA-cgc
)
SMITH & NEPHEW,
)
)
Defendant.
)
______________________________________________________________________________
ORDER GRANTING IN PART, DENYING IN PART DEFENDANT’S MOTION TO
DISMISS
______________________________________________________________________________
Before the Court is Defendant Smith & Nephew’s Motion to Dismiss for Failure to State
a Claim (D.E. # 7) filed on May 11, 2012. To date, Plaintiff Karen D. Marchand, who is
proceeding pro se, has not responded to Defendant’s Motion.1 For the reasons set forth below,
the Motion is GRANTED in part, DENIED in part.
BACKGROUND
On July 21, 2011, Plaintiff filed a Pro Se Complaint alleging retaliatory discharge in violation
of Title VII. (Pro Se Complaint D.E. # 1). The pleadings allege that Defendant terminated
Plaintiff’s employment on September 9, 2010, after Plaintiff questioned the propriety of a
relationship between one of her direct reports and the vice-president of Plaintiff’s department.
Plaintiff alleges that her direct report had previously made complaints of unfair treatment against
1
The Court further notes that Plaintiff failed to appear for the scheduling conference
before the United States Magistrate Judge on March 21, 2013.
1
Plaintiff. The Pro Se Complaint further alleges that Plaintiff was a 20-year employee of Defendant
and that Defendant terminated another 34-year employee on the same day Plaintiff was dismissed.
Plaintiff attached to her Pro Se Complaint a copy of her charge of discrimination (D.E. # 1-1) in
which Plaintiff stated that Defendant informed Plaintiff she was being dismissed for violation of the
company’s ethics code and company policy. Plaintiff asserts in her charge of discrimination that she
was discharged on the basis of her age (45) in violation of the Age Discrimination in Employment
Act (“ADEA”). The charge of discrimination does not mention retaliation, and Plaintiff left the box
on the form marked “retaliation” unchecked.
In its Motion to Dismiss, Defendant argues that Plaintiff’s Pro Se Complaint fails to state any
claim for relief. Defendant argues that even though Plaintiff has alleged retaliation in her pleadings,
Plaintiff failed to exhaust such a claim by first filing an EEOC charge. Plaintiff’s EEOC charge
never referred to retaliation and indicated only Plaintiff’s claim that Defendant dismissed her because
of her age. Even if Plaintiff had properly pursued administrative remedies for her retaliation claim,
Plaintiff has failed to plead that she engaged in protected activity. Plaintiff only alleges that she
spoke out about a relationship between another Smith & Nephew employee and a vice-president at
the company. Such activity is not protected under Title VII. Therefore, Defendant contends that
Plaintiff’s Pro Se Complaint fails to state a claim for retaliation.2
STANDARD OF REVIEW
A defendant may move to dismiss a claim “for failure to state a claim upon which relief can
2
At the conclusion of its memorandum, Defendant moves “the Court to dismiss any [sic]
Plaintiff’s Complaint for failing to state a claim upon which relief can be granted and for
improper service.” Id. at 7. Other than this passing reference to improper service, Defendant
fails to develop any argument in support of the request to dismiss on these grounds. Therefore,
the Court declines to address the issue here.
2
be granted” under Federal Rule of Civil Procedure 12(b)(6). When considering a Rule 12(b)(6)
motion, the Court must treat all of the well-pled allegations of the complaint as true and construe all
of the allegations in the light most favorable to the non-moving party.3 As a general rule, “[t]o avoid
dismissal under Rule 12(b)(6), a complaint must contain either direct or inferential allegations with
respect to all material elements of the claim.”4 However, legal conclusions or unwarranted factual
inferences need not be accepted as true.5 “[A] formulaic recitation of the elements of a cause of
action will not do.”6
Under Rule 8(a) of the Federal Rules of Civil Procedure, a complaint need only contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.”7 Although this
standard does not require “detailed factual allegations,” it does require more than “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action.”8 In order to survive a
motion to dismiss, the plaintiff must allege facts that, if accepted as true, are sufficient “to raise a
right to relief above the speculative level” and to “state a claim to relief that is plausible on its face.”9
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
3
League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007).
4
Wittstock v. Mark a Van Sile, Inc., 330 F.3d 889, 902 (6th Cir. 2003).
5
Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987).
6
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
7
Fed. R. Civ. P. 8(a)(2); Erickson v. Pardus, 551 U.S. 89, 93 (2007).
8
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Twombly, 550 U.S. at 555. See also
Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009).
9
Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570.
3
the reasonable inference that the defendant is liable for the misconduct alleged.”10
ANALYSIS
The Court holds that Plaintiff’s Pro Se Complaint fails to state a claim for retaliation.
Defendant first argues that Plaintiff failed to exhaust her administrative remedies by filing a charge
with the EEOC alleging retaliation. It is well-established that exhaustion of administrative
requirements is a precondition to filing a Title VII suit.11
A plaintiff’s failure to exhaust
administrative remedies in a timely manner is an affirmative defense, and the defendant bears the
burden of pleading and proving this failure.12 “A motion to dismiss can be premised on an
affirmative defense, however, if the plaintiff’s own allegations show that a defense exists that legally
defeats the claim for relief.”13 The Sixth Circuit has held that a district court does not err in
dismissing a discrimination claim based on a failure to file a charge with the EEOC.14 At the same
time, “an EEOC charge filed by lay complainants should be liberally construed because they are
unschooled in the technicalities of the law and proceed without counsel.”15 Furthermore, “the
judicial complaint must be limited to the scope of the EEOC investigation reasonably expected to
10
Iqbal, 556 U.S. at 678.
11
McFarland v. Henderson, 307 F.3d 402, 406 (6th Cir. 2002).
12
Lockett v. Potter, 259 F. App’x 784, 786 (6th Cir. 2008).
13
Marsh v. Genentech, Inc., 693 F.3d 546, 554-55 (6th Cir. 2012) (quoting 5B Charles
Alan Wright, Arthur Miller, Mary Kay Kane & Richard Marcus, Federal Practice & Procedure §
1357 at 713 (3d ed. 2004)) (internal quotations marks omitted).
14
E.g. Lockett, 259 F. App’x at 786.
15
Tisdale v. Fed. Exp. Corp., 415 F.3d 516, 527 (6th Cir. 2005) (internal citations and
quotation marks omitted).
4
grow out of the charge of discrimination.”16
Applying these principles to Plaintiff’s Pro Se Complaint, the Court holds that Plaintiff failed
to exhaust her claim for retaliation. Plaintiff has attached her right-to-sue letter and charge of
discrimination to her pleadings. The charge of discrimination clearly refers to Plaintiff’s claim of
age discrimination in violation of ADEA and her date of discharge on September 9, 2010. The
charge never referred to Plaintiff’s belief that she was terminated in retaliation for engaging in any
protected activity. The Court concludes then that an EEOC investigation of Plaintiff’s retaliation
claim could not reasonably be expected to grow out of her charge. As such, Plaintiff has not
exhausted her claim for retaliation. Defendant’s Motion must be granted as to the retaliation claim
for this reason alone.
Likewise, even if Plaintiff could show that she exhausted her administrative remedies for her
retaliation claim, the Court holds that Plaintiff has failed to allege that she engaged in activity
protected by Title VII or the ADEA. Plaintiff’s Pro Se Complaint simply asserts that Plaintiff was
terminated for speaking out about a workplace relationship. Although Plaintiff need not allege
specific facts establishing a prima facie case of discrimination under the McDonnell Douglas
framework,17 her pleadings must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief,”18 thereby giving “the defendant fair notice of what the plaintiff’s claim
is and the grounds upon which it rests.”19 In Swierkiewicz, the Supreme Court found that the
16
Id.
17
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002).
18
Fed. R. Civ. P. 8(a)(2).
19
Swierkiewicz, 534 U.S. at 512 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
5
complaint in that case “easily satisfie(d) the requirements of Rule 8(a)” because it “detailed the
events leading to (the plaintiff’s) termination, provided relevant dates, and included the ages and
nationalities of at least some of the relevant persons involved with his termination.”20 In the case
at bar, Plaintiff has not alleged any facts to put Defendant on notice of how her activity was protected
under the federal anti-discrimination laws. Therefore, the Court concludes that Plaintiff’s Pro Se
Complaint fails to state a claim for retaliation upon which relief may be granted against Defendant.21
Defendant’s Motion to Dismiss is GRANTED as to Plaintiff’s retaliation claim.
Finally, Defendant’s Motion to Dismiss states that “Plaintiff’s only alleged cause of action
is a retaliation claim.”22 Plaintiff’s narrative states that in addition to her claim of retaliation, she
“was an employee of 20 yrs.” and that “the same day an employee with 34 years was terminated.”23
Construing the pro se pleadings liberally in Plaintiff’s favor,24 the Court holds that Plaintiff’s Pro
Se Complaint can be read to give adequate notice of her properly exhausted claim of age
discrimination. Therefore, the Court will not dismiss Plaintiff’s Pro Se Complaint in its entirety, and
Defendant’s Rule 12(b)(6) Motion must be denied with respect to Plaintiff’s age discrimination
20
Id. The petitioner in Swierkiewicz who was Hungarian alleged that his company which
was a French entity discriminated against him on the basis of his national origin.
21
The Court would add that other courts have concluded that “a complaint that pleads
facts in support [of] each element of a prima facie case of discrimination . . . necessarily meets
Iqbal’s requirement that the complaint show more than the ‘mere possibility of misconduct[.]’”
Orozco v. City of Murfreesboro, No. 09–00752, 2009 WL 4042586, at *3 (M.D. Tenn. Nov. 19,
2009).
22
Def.’s Mot. to Dismiss 2 (D.E. # 7-1).
23
Pro Se Complaint 3, ¶ 10.
24
Pitre v. Cain, 131 S. Ct. 8, 9 (2010) (citing Estelle v. Gamble, 429 U.S. 97, 106
(1976)).
6
claim.
Defendant’s Motion to Dismiss is GRANTED in part, DENIED in part.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: March 27, 2013.
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?