United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE, Chief District Judge.
This matter comes before the Court on defendant's Motion to Dismiss (doc. 8). The court-ordered briefing schedule having expired, the Motion is now ripe.
In a Complaint (doc. 1) filed on December 16, 2014, plaintiff, Myra Cochran, by and through counsel, purported to bring a claim under 42 U.S.C. § 1981 against defendant, The Southern Company d/b/a Alabama Power. The well-pleaded factual allegations of the Complaint reflect that Cochran is employed by Alabama Power and that she raised multiple complaints to Alabama Power "concerning discriminatory treatment she was receiving on the job, " culminating in an EEOC Charge of Discrimination. (Doc. 1, ¶ 4.) The Complaint further alleges that, after Cochran filed her EEOC Charge, Alabama Power "has engaged in a pattern of retaliatory behavior, " including having her work "unduly scrutinized, criticized and disrupted by her supervisors." ( Id., ¶ 5.) On the basis of these factual allegations, Cochran purports to assert a § 1981 retaliation claim against Alabama Power.
Alabama Power filed a Motion to Dismiss the Complaint for failure to state a claim upon which relief can be granted. The premise of the Motion is that the Complaint in its present form fails to state an actionable claim under § 1981 because it identifies neither protected activity nor a materially adverse action, such that the Complaint does not pass muster under the Twombly/Iqbal pleading standard. On April 29, 2015, Magistrate Judge Nelson entered an Order (doc. 10) specifying that Cochran must file her response to the Motion to Dismiss on or before May 13, 2015. That date came and went without Cochran either responding to the Motion or requesting an enlargement of time. In light of these circumstances, the Motion to Dismiss is properly taken under submission at this time.
As an initial matter, the Court recognizes that Cochran's failure to file any response to the Motion to Dismiss neither constitutes a legal abandonment of her Complaint nor authorizes the reflexive granting of said Motion without scrutiny of its merits. See, e.g., Gailes v. Marengo County Sheriff's Dep't, 916 F.Supp.2d 1238, 1243-44 (S.D. Ala. 2013) (explaining that "the Court will not treat a claim as abandoned merely because the plaintiff has not defended it in opposition to a motion to dismiss, " but that "the Court will review the merits of the defendant's position" instead). That said, Cochran's omission is at her peril. The Court cannot and will not fill in the blanks with arguments she could have raised but did not.
Defendant's Motion to Dismiss posits that the Complaint fails to state a claim upon which relief can be granted; therefore, it is properly analyzed under Rule 12(b)(6), Fed.R.Civ.P. To withstand Rule 12(b)(6) scrutiny and satisfy Rule 8(a), a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face, " so as to "nudge[its] claims across the line from conceivable to plausible." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). "This necessarily requires that a plaintiff include factual allegations for each essential element of his or her claim." GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1254 (11th Cir. 2012). Thus, minimum pleading standards "require  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. As the Eleventh Circuit has explained, Twombly / Iqbal principles require that a complaint's allegations be "enough to raise a right to relief above the speculative level." Speaker v. U.S. Dep't of Health and Human Services Centers for Disease Control and Prevention, 623 F.3d 1371, 1380 (11th Cir. 2010) (citations omitted). "To survive a 12(b)(6) motion to dismiss, the complaint does not need detailed factual allegations, ... but must give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010) (citations and internal quotation marks omitted).
There is no question that "42 U.S.C. § 1981 encompasses claims of retaliation." CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008). However, the law is clear that "in order to constitute statutorily protected activity capable of supporting a § 1981 retaliation claim, an employee's complaint must reasonably convey that she is opposing discrimination based specifically upon race, versus some other type of discrimination or injustice generally." Willmore-Cochran v. Wal-Mart Associates, Inc., 919 F.Supp.2d 1222, 1234 (N.D. Ala. 2013). As Alabama Power observes, the Complaint does not allege that Cochran's EEOC Charge or her "multiple complaints to Defendant concerning discriminatory treatment" were based on race, as opposed to some other type of discrimination or injustice. If Cochran did not complain about adverse treatment on the basis of race, then she did not engage in protected activity for purposes of § 1981. Nothing in the Complaint, as presently framed, would support a reasonable inference that Cochran's internal complaints or her EEOC Charge were grounded in allegations of race discrimination; therefore, her pleading does not state a plausible claim for § 1981 retaliation, and falls short under a Twombly / Iqbal analysis.
Furthermore, the Complaint does not identify adequate facts to support the "materially adverse action" element of Cochran's claim. It is well-settled that a plaintiff alleging a § 1981 retaliation claim must show, among other things, that "he suffered a materially adverse action." Butler v. Alabama Dep't of Transp., 536 F.3d 1209, 1212-13 (11th Cir. 2008). "An action is materially adverse if it might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1259 (11th Cir. 2012) (citation and internal quotation marks omitted). Cochran's vague and conclusory allegations about having her work "unduly scrutinized, criticized and disrupted" fail to set forth a plausible claim for § 1981 retaliation, inasmuch as such activities are generally held legally inadequate to constitute a materially adverse action. See, e.g., Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1241 (11th Cir. 2001) ("criticisms of an employee's job performance - written or oral - that do not lead to tangible job consequences will rarely form a permissible predicate").
As it stands, then, Cochran's Complaint pleads no facts raising a plausible inference that either (i) she engaged in protected activity within the ambit of 42 U.S.C. § 1981, or (ii) Alabama Power took materially adverse action against her. At most, her Complaint raises a speculative claim for relief under the anti-retaliation prong of § 1981. That is not sufficient to comport with the governing Twombly / Iqbal pleading standard.
For all of the foregoing reasons, defendant's Motion to Dismiss (doc. 8) is granted pursuant to Rule 12(b)(6), Fed.R.Civ.P. Because the Court cannot rule out the possibility that Cochran might be able to state a claim with a more carefully crafted complaint, this ...