United States District Court, N.D. Alabama, Southern Division
MARILYN Y. GIDLEY, Plaintiff,
RENAISSANCE MONTGOMERY HOTEL AND SPA, Defendant.
MEMORANDUM OPINION 
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE
Marilyn Y. Gidley (“Gidley”) filed this
employment discrimination action on October 18, 2016, using
this Court's form “Application under Section 706(f)
of Civil Rights Act of 1964.” (Doc. 1). On this form,
Gidley requested appointment of an attorney and leave to
proceed in forma pauperis. (Id.). On
November 1, 2016, the undersigned denied Gidley appointment
of counsel and granted her leave to proceed in forma
pauperis, provided she file an amended complaint. (Doc.
2). Gidley filed an amended complaint on November 28, 2016.
(Doc. 4). It is apparent from Gidley's amended complaint
she is attempting to assert a sex discrimination claim.
(See id.). Defendant PCH Hotels and Resorts d/b/a/
Renaissance Montgomery Hotel and Spa
(“Defendant”) moves to dismiss the amended
complaint for failure to state a claim under Rule 12(b)(6) of
the Federal Rules of Civil Procedure. (Doc. 8). The motion is
fully briefed and ripe for review. (Docs. 22 & 23). For
the reasons stated below, the motion to dismiss, (doc. 8), is
Factual Allegations 
is a current “on call” employee of
Defendant's Renaissance Montgomery Hotel and Spa, where
she previously worked as bartender. (Doc. 4 at 1, 3). On May
3, 2015, Gidley placed her money bag next to the register,
and then allowed Willie Reese, a Jani King employee,
behind the bar to clean. (Id.). Reese stole $300.00
while Gidley stood at the end of the counter. (Id.
at 1, ¶E). Gidley was initially terminated based on cash
handling issues, but was hired back and now works as an
“on call” employee for Defendant. (Id.
at 2, 3). That same day, Reese also stole a television from
an unlocked office belonging to Gary Jones, a male board
member. (Id. at 1, 3). Jones was not punished for
the theft or for leaving the office door unlocked.
(Id. at 1).
Standard of Review
Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain "a short and plain statement of the claim
showing the pleader is entitled to relief." "[T]he
pleading standard Rule 8 announces does not require
'detailed factual allegations,' but it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atlantic v. Twombly, 550
U.S. 544, 555 (2007)). Mere "labels and
conclusions" or " a formulaic recitation of the
elements of a cause of action" are insufficient.
Iqbal, 556 U.S. at 678. (citations and internal
quotation marks omitted). "Nor does a complaint suffice
if it tenders 'naked assertion[s]' devoid of
'further factual enhancement." Id. (citing
Bell "Atl. Corp., 550 U.S. at 557).
12(b)(6), Fed. R. Civ. P., permits dismissal when a complaint
fails to state a claim upon which relief can be granted.
"To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face."
Iqbal, 556 U.S. at 678 (citations and internal
quotation marks omitted). A complaint states a facially
plausible claim for relief "when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. (citation omitted). The complaint
must establish "more than a sheer possibility that a
defendant has acted unlawfully." Id.; see
also Bell Atl. Corp., 550 U.S. at 555 ("Factual
allegations must be enough to raise a right to relief above
the speculative level."). Ultimately, this inquiry is a
"context-specific task that requires the reviewing court
to draw on its judicial experience and common sense."
Iqbal, 556 U.S. at 679.
comes before the court representing herself, without the
benefit of counsel: i.e., pro se. “A document
filed pro se is ‘to be liberally construed,
' . . . and ‘a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.'”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Nevertheless, “the pro se plaintiff's
complaint must meet the minimum requirements of presenting a
viable claim.” Hales v. City of Montgomery,
347 F.Supp.2d 1167, 1171 (M.D. Ala. 2004).
VII of the Civil Rights Act of 1964 makes it unlawful for an
employer “to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's race, color,
religion, sex, or national origin.” 42 U.S.C. §
2000e-2(a)(1). In her amended complaint, Gidley alleges she
was “[t]erminat[ed] from [her] position for being
robbed, but [her] male co-worker was robbed and no type of
disciplinary action was taken. (Doc. 4 at 1). Gidley refers
to this as “[d]iscrimination.” (Id.)
Supreme Court has held that, in considering a motion to
dismiss, “it is not appropriate to require a plaintiff
to plead facts establishing a prima facie
case” that would be sufficient to satisfy the
McDonnell Douglas framework that is often applied at
summary judgment. Swierkiewicz v. Sorema N. A., 534
U.S. 506, 511 (2002). Nonetheless, “the prima
facie elements are not entirely irrelevant, and no
plaintiff is exempt from her obligation to allege sufficient
facts to state all the elements of her claim.”
Streeter v. FedEx Ground Package System, Inc., No.
6:12- cv-163-Orl-22DAB, 2012 WL 717865, at *3 (M.D. Fla. Feb.
13, 2012). Therefore, the undersigned will use the prima
facie elements as a point of reference in discussing
plaintiff establishes a prima facie case of
disparate treatment by showing that she was a qualified
member of a protected class and was subjected to an adverse
employment action in contrast with similarly situated
employees outside the protected class.” Wilson v.
B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th
Cir.2004). Those three basic elements-membership in a
protected class, an adverse employment action, and better
treatment of a similarly situated employee outside the
protected class-are not rigid, and courts have developed
different sets of elements for specific theories of disparate
treatment. The protected group to which Gidley belongs is her
sex, female, and the first element of the prima
facie case is satisfied. Furthermore, she alleges an
adverse employment action, that she was terminated from her
bartender position and only later rehired as an
“on-call” employee. See Lucas v. W.W.
Grainger, Inc., 257 F.3d 1249, 1261 (11th Cir. 2001)
(explaining that an employment action is adverse if it
results in some tangible, negative effect on the
plaintiff's employment); see also Alexander v.
Evening Shade, Inc., No. 3:09cv605-MHT, 2010 WL 3168132,
*3 (M.D. Ala. Aug. 10, 2010) (explaining that a reduction in
hours qualifies as an adverse employment action because
“a reduction in hours results directly in a reduction
in pay”). Defendant argues that Gidley's claim
fails because her allegations establish that she and Jones
were not similarly situated as required to state a
claim. (Doc. 8 at 3-4).
an adequate comparator, the preferentially treated individual
must be from outside the plaintiff's protected class
and must be similarly situated in all respects.
Edmond v. Univ. of Miami, 441 Fed.Appx. 721, 724
(11th Cir. 2011). To be considered “similarly situated,
” an employee allegedly receiving lesser or no
discipline must have been involved in or accused of the
“same or similar misconduct” and have operated
under the same workplace rules or polices.” Dent v.
Federal Mogul Corp., 129 F.Supp.2d 1311, 1314 (N.D. Ala.
2001). “In a comparator analysis, the plaintiff is
matched with a person or persons who have very similar
job-related characteristics and who are in a similar
situation to determine if the plaintiff has been treated
differently than others who are similar to him [or
her].” Lee v. Mid-State Land & Timber Co.,
285 F.Appx. 601, 606 (11th Cir. 2008).
a bartender at the time of the alleged incident, allowed cash
that was in her custody to be stolen from in front of her.
Jones, a “board member, ” is not alleged to have
been on the premises when the television was stolen. Instead,
Gidley implies that Jones was responsible for the theft
because he left his office door unlocked, but fails to allege
that having an unlocked door was inappropriate or violated
any rules or procedures. Although Gidley ...