United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
SUSAN RUSS WALKER, Chief Magistrate Judge.
Plaintiff, pro se, brings this action against Defendant Chuck Hagel,  Secretary of the United States Department of Defense, alleging employment discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Doc. #1, at 1). Plaintiff alleges that she was subjected to "assault, harassment, reassignment, retaliation." (Doc. #1, at 1, ¶ 4). She claims that she was the subject of discrimination based on her "right to file gr[ie]vance with union and EEOC complaint because [her] supervisor physically assaulted [her] and continues to harass and intimidate [her] along with her supervisor." (Doc. #1, at 2, ¶ 6).
This action is presently before the court on defendant's motion to dismiss or, in the alternative, for summary judgment. (Doc. # 31). The court granted plaintiff extensions to respond to defendant's motion, but to date plaintiff has not responded. (Doc. ## 33, 36, 41). Upon review of the motion and the record, the court concludes that dismissal or summary judgment is due to be granted as to all of plaintiff's claims.
MOTION TO DISMISS STANDARD
To overcome a defendant's Rule 12(b)(6) motion, the complaint must include "a short and plain statement of the claim showing that the [plaintiff] is entitled to relief." Fed.R.Civ.P. 8(a)(2). The complaint must include factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp v. Twombly, 550 U.S. 544, 555 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements" are insufficient to state a claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Twombly, 550 U.S. at 555). Courts considering motions to dismiss first "eliminate any allegations in the complaint that are merely legal conclusions" and, then, determine whether the well-pleaded factual allegations of the complaint - assuming their veracity - "plausibly give rise to an entitlement to relief.'" See American Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)(citing Iqbal, 129 S.Ct. at 1950). In considering a Rule 12(b)(6) motion, the court "limits its consideration to the pleadings and exhibits attached thereto.'" Thaeter v. Palm Beach County Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir. 2006)(quoting Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000)(per curiam); see also Fuller v. SunTrust Banks, Inc., 744 F.3d 685, 695-96 (11th Cir. 2014)(also noting the general rule).
SUMMARY JUDGMENT STANDARD
A movant is entitled to summary judgment if it "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). For summary judgment purposes, an issue of fact is "material" if, under the substantive law governing the claim, its presence or absence might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the movant fails to satisfy its initial burden, the motion for summary judgment will be denied. Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012), cert. denied, 133 S.Ct. 1810 (2013). If the movant adequately supports its motion, the burden shifts to the opposing party to establish - "by producing affidavits or other relevant and admissible evidence beyond the pleadings" - specific facts raising a genuine issue for trial. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011); Dietz v. Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010); Fed.R.Civ.P. 56(c)(1)(A). "All affidavits [and declarations] must be based on personal knowledge and must set forth facts that would be admissible under the Federal Rules of Evidence[.]" Josendis, 662 F.3d at 1315; Fed.R.Civ.P. 56(c)(4). The court views the evidence and all reasonable factual inferences in the light most favorable to the nonmovant. Miller's Ale House, Inc. v. Boynton Carolina Ale House, LLC, 702 F.3d 1312, 1316 (11th Cir. 2012). However, "[i]f no reasonable jury could return a verdict in favor of the nonmoving party, there is no genuine issue of material fact and summary judgment will be granted.'" Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th Cir. 2013)(citation omitted).
BACKGROUND AND UNDISPUTED FACTS
At all times relevant to the complaint, plaintiff was employed at the Maxwell Air Force Base Commissary in Montgomery, Alabama, as a part-time Store Associate. Plaintiff accepted a career conditional appointment as Store Associate effective October 25, 2010. (Doc. #31-1, at 3; Doc. #31-2, at 2). As a Store Associate, plaintiff was trained in various departments such as product, front end, and office functions. (Doc. #31-1, at 3). Her appointment was not to exceed forty hours biweekly. (Doc. #31-1, at 3; Doc. #31-2, at 2, blocks 32 & 33). In March 2012, plaintiff agreed to a temporary increase in her hours to sixty-four hours biweekly, for a period not to exceed six months. (Doc. #31-1, at 3; Doc. #31-2, at 4, 6). Effective September 23, 2012, plaintiff's hours were reduced to forty hours biweekly. (Doc. #31-1, at 3; Doc. #31-3, at 2).
On February 1, 2013, plaintiff and her supervisor, Marisol Hennessey, the Maxwell Commissary Store Manager, were involved in an incident in which plaintiff alleges Hennessey physically assaulted plaintiff. (Doc. #1, at 2; Doc. #31-8, at 2). Plaintiff maintains that Hennessey grabbed plaintiff by the shoulders, twisted her around, shoved her, and screamed at her. (Doc. #1, at 2; Doc. #31-9, at 4-7). Samuel King, a witness to the incident, stated that Hennessey reached out and grabbed plaintiff on the shoulder, turned her around, and pushed her "toward produce." (Doc. #31-11, at 21).
On February 4, 2013, plaintiff met with Zone Manager Michael Mertz about the incident. (Doc. #31-8, at 3-5). Plaintiff told Mertz that Hennessey had touched plaintiff twice on the shoulders, turned her around, said that more labels needed to be hung in the store, told plaintiff she was a follower, and told plaintiff she needed to stop following people and do her job. Plaintiff said that Hennessey made her feel bad and embarrassed. Plaintiff told Mertz that Hennessey later apologized for the incident, and plaintiff accepted the apology. (Doc. #31-8, at 3, 5). On February 5, 2013, Mertz spoke with Hennessey, who recounted that she put her arms around plaintiff in a friendly way and said come with me. (Doc. #31-8, at 3, 5). Hennessey said she apologized to plaintiff after she learned plaintiff was upset, and that plaintiff had accepted Hennessey's apology. Mertz told Hennessey that she should never touch anyone at the workplace, and Hennessey said she understood. (Doc. #31-8, at 3, 5).
On February 19, 2013, Ermies Hernandez, the Store Director and Hennessy's supervisor, implemented an agency-wide hiring freeze that required all part-time employees to revert back to their authorized hours. (Doc. #31-3, at 4). Hernandez avers that she had no first-hand knowledge of the February 1 incident. (Doc. #31-1, at 3). On February 22, 2013, plaintiff was moved from the grocery to the office area, where she worked in the same area as Hennessey and another supervisor, Sue Wilkins. (Doc. #31-1, at 4; Doc. #31-11, at 3). Hernandez avers that plaintiff was moved in accordance with her job description, to expose plaintiff to the work of the Office of the Commissary Officer, and not for any retaliatory or discriminatory purpose. (Doc. #31-1, at 4). Hernandez alleges that "[a]fter it was determined that [plaintiff] was not well suited for this work and given the hiring freeze, she was transferred to the front end, where she performed cashiering and other related functions." (Doc. #31-1, at 4-5).
On April 16, 2013, plaintiff contacted the EEO counselor. (Doc. #31-8, at 2). On April 17, 2013, plaintiff completed a Pre-Complaint Intake form, and, for the basis of discrimination, plaintiff checked "reprisal" but did not specify any prior EEO activity. She stated that the applicable issues were "harassment, " "reassignment, " and "job training." (Doc. #31-9, at 2). Plaintiff wrote that the alleged incident had occurred on February 1, 2013. (Doc. #31-9, at 3). She asked to be transferred to Gunter Commissary. (Doc. #31-9, at 3). Plaintiff previously had sought a transfer to Gunter in July 2012 because it was closer to her home. (Doc. #31-7, at 2). Hernandez avers that plaintiff was not transferred because there were no positions at the Gunter Commissary to which plaintiff could transfer. (Doc. #31-1, at 4).
On April 19, 2013, Wilkins told plaintiff that she "was failing at [her] job; [she] needed to speed up and get with it because [she] had already failed back here." (Doc. #31-11, at 3, 8). On April 22, 2013, plaintiff reported the February 1 incident to Military Police; Hennessey was arrested thereafter and issued a citation for simple assault. (Doc. #31-11, at 3, 11). Plaintiff alleges that Hennessey was handcuffed and arrested in connection with the citation, and avers that it was stressful for plaintiff when Hennessey returned to work. (Doc. #1, at 2, ¶ 9). Plaintiff reports that on April 23, 2013, Hennessey called plaintiff "Hey chick" in a demeaning manner. (Doc. #31-11, at 10). Plaintiff stated that Hennessey commented and acted ...