United States District Court, M.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE
matter is before the Court on the Motion to Dismiss Count Two
- Retaliation (“Motion to Dismiss”)  filed by
Defendant, Carter & Carter Construction, LLC. After
considering the submissions of the parties, the record, and
the applicable law, the Court finds that the motion is well
taken and should be granted.
Trina Wright (“Plaintiff”) filed this action in
this Court on December 19, 2016, against Defendant Carter
& Carter Construction LLC (“Defendant”).
(Compl. .) This action focuses on Plaintiff's
employment relationship with Defendant, a business located in
Lee County, Alabama, during 2015. Plaintiff brings claims of
sexual harassment, retaliation, and assault against
Defendant. Defendant's Motion to Dismiss  challenges
only Plaintiff's retaliation claim.
Standard of Review
filed its Motion to Dismiss  under Federal Rule of Civil
Procedure 12(b)(6). For a claim to survive a Rule 12(b)(6)
motion, it must include “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl.
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). In evaluating the motion, the Court accepts
“the allegations in the complaint as true and
construe[s] them in the light most favorable to the
plaintiff.” Ray v. Spirit Airlines, Inc.,
836 F.3d 1340, 1347 (11th Cir. 2016). However,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. at
1949. “While legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations.” Id. at 679.
out a prima facie retaliation claim under Title VII,
Plaintiff must show that she was engaged in a statutorily
protected activity, that she suffered a materially adverse
action, and that there was some causal relation between the
two. Butler v. Alabama Dept. of Transp., 536 F.3d
1209, 1212-13 (11th Cir. 2008). Statutorily protected
activities include opposing an unlawful employment practice,
and making a charge, testifying, assisting, or participating
in any manner in an investigation, proceeding or hearing
related to an unlawful employment practice. 42 U.S.C. §
2000e-3(a) (2017). Statutory protection extends, not just to
employees who have filed formal complaints, but also to
employees who have informally voiced complaints to
supervisors or who have used internal procedures for voicing
complaints. Rollins v. State of Fla. Dept. of Law
Enforcement, 868 F.2d 397, 400 (11th Cir. 1989).
Additionally, the statute protects an employee from
retaliation even if her complaint is meritless, if she can
“show a good faith, reasonable belief that the
challenged practice violates Title VII.” Id.
rightfully asserts in its Motion to Dismiss  that
Plaintiff's Complaint  fails to allege that Plaintiff
was engaged in statutorily protected conduct that resulted in
retaliation. Plaintiff states that she “had to quit . .
. to escape from her supervisor's harassment, ”
(Compl.  at ¶ 24), and that she “was forced to
leave employment . . . to escape the [h]arassment.”
(Compl.  at ¶ 31.) However, at no point does
Plaintiff allege that her separation from her employment or
any other actions by the employer were causally linked to her
engagement in a statutorily protected activity. The only
indication that Plaintiff engaged in a statutorily protected
activity is the statement that Plaintiff filed a charge of
sex discrimination with the Equal Employment Opportunity
Commission (“EEOC”). (Compl. ¶ 3.) It is not
clear from the Complaint  whether this charge was filed
with the EEOC while Plaintiff was still employed by
Defendant, and Plaintiff does not allege any facts that
plausibly lead to a finding that Defendant's actions were
causally linked to the filing of the EEOC charge. Even
construing all of Plaintiff's assertions as true,
Plaintiff's retaliation claim, as currently stated, is
not sufficient to survive a Rule 12(b)(6) motion to dismiss
because it does not allege “enough facts to state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570, 127 S.Ct. at 1974.
also asserts Plaintiff's failure to allege that she
administratively exhausted her retaliation claim is a basis
for granting the Motion to Dismiss. (Mot. Dismiss  at pp.
3-4). Defendant relies on the fact that Plaintiff only
alleges that she filed an EEOC charge of “sex
discrimination” and that Plaintiff never alleges that
she filed a retaliation charge with the EEOC. (Compl. 
¶ 3.) Generally, a plaintiff must file a charge with the
EEOC prior to filing a Title VII action. Gregory v.
Georgia Dept. of Human Resources, 355 F.3d 1277, 1279
(11th Cir. 2004). However, “it is unnecessary for a
plaintiff to exhaust administrative remedies prior to urging
a retaliation claim growing out of an earlier charge; the
district court has ancillary jurisdiction to hear such a
claim when it grows out of an administrative charge that is
properly before the court.” Baker v. Buckeye
Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988)
(quoting Gupta v. E. Tex. State Univ., 654 F.2d 411,
414 (5th Cir. Unit A Aug. 1981)). Because the Complaint does
not contain enough facts to properly assert all elements of a
retaliation claim, the Court is unable to determine if the
Plaintiff's retaliation claim plausibly grew out of the
earlier charge of sex discrimination filed with the EEOC.
Request for Leave to Amend
Response to Defendant's Partial Motion to Dismiss Count
Two - Retaliation (“Plaintiff's Response”)
, Plaintiff requests the Court's authorization to
file an amended complaint including “facts that could
amount to retaliation.” (Pl.'s Resp.  at p. 3.)
The Court questions Plaintiff's ability to allege facts
that sufficiently state a claim for retaliation. Under
Federal Rule of Civil Procedure 15(a)(1)(B), Plaintiff had 21
days after service of Defendant's Motion to Dismiss to
amend her pleading as a matter of course but failed to do so.
Though Federal Rule of Civil Procedure 15(a)(2) instructs the
Court to “freely give leave” to amend, the Court
“may properly deny leave to amend under Rule 15(a) when
such amendment would be futile.” Hall v. United
Ins. Co. of Am., 367 F.3d 1255, 1262-63 (11th Cir.
2004). Plaintiff's own assertion that “discovery is
expected to show many specific acts that could constitute
retaliation” leads the Court to believe that there are
no facts that she could currently allege that would state a
plausible claim for retaliation. (Pl.'s Resp.  at p.
3.) As such, any amendment would be futile, and the Court
will deny Plaintiff's request for leave to amend.
the Court finds that Defendant's Motion to Dismiss 
should be granted, and Plaintiff's
retaliation claim under ...