United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER 
RUSS WALKER UNITED STATES MAGISTRATE JUDGE
Plaintiff Tisha Nickson brings this action against Defendant
Jackson Hospital & Clinic, Inc. (“Jackson”),
alleging employment discrimination pursuant to Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. See Doc. 1 at 1. Nickson brings claims of
discrimination on the basis of her race (African-American)
and retaliation. Plaintiff avers that Jackson discriminated
against her by paying her less “than Caucasians in
other comparative manager positions, ” denying her
promotions, and terminating her employment. Doc. 1 at 2-3. In
support of her retaliation claims, Nickson alleges that she
opposed unlawful race discrimination and that her position
was eliminated after she filed a charge of race
discrimination with the Equal Employment Opportunity
Commission. See Doc. 1 at 3.
action is presently before the court on Jackson's motion
for summary judgment. See Doc. 19. Nickson filed an
opposition to the motion for summary judgment, see
Doc. 26, and Jackson replied, see Doc. 29. Nickson
also moves to dismiss all claims that are not reasserted in
her brief in opposition to Jackson's motion for summary
judgment. See Doc. 26 at 1. Upon review of
the motions and the record, the court concludes that
Jackson's motion for summary judgment is due to be
granted, and plaintiff's motion to dismiss is also due to
movant is entitled to summary judgment if it “shows
that there is no genuine disputes 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 sets forth facts that would be
admissible under the Federal Rules of Evidence[.]”
Josendis, 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 at 1315; Fed.R.Civ.P. 56(c)(4).
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) (internal quotation
AND UNDISPUTED FACTS
noted above, Nickson is African-American. In August 2010,
Jackson hired Nickson to work as a part-time phlebotomist in
its main laboratory. Nickson's education includes a
Bachelor of Science degree in legal studies, a Master's
Degree in Health Care Administration, a paralegal Associate
Degree, a certified nursing certificate, and a phlebotomy
certificate. Prior to her employment at Jackson, Nickson
worked as a phlebotomist for approximately five years, as a
certified nursing assistant for approximately three years,
and as a paralegal for roughly three to four years.
January 2011, Jackson transferred Nickson to a full-time
position as a technician in the Outreach Lab. Shortly
thereafter, in March 2011, she was promoted and became the
Business and Sales Manager for the Outreach Lab. In this
position, Nickson was responsible for supervising one
employee, the Outreach Lab's billing and coding
summer of 2013, the position of Vice President of Physician
Services became available. Nickson contacted Riley to express
an interest in the position. See Doc. 26-2 at 23.
Riley told her that he had someone in mind for the position
who had experience as a vice president, and Nickson
acknowledged that she did not have that kind of experience.
See id. Riley told Nickson that he would consider
her when a director's position became available. See
September 2013, Pat Harris, a Caucasian female, was the
director of both the main hospital lab and the Outreach Lab.
In September 2013, Joe Riley, Jackson's CEO, separated
the Outreach Lab from the hospital's main lab. Harris
remained as the supervisor of the main lab, and she was no
longer responsible for the Outreach Lab. At around the same
time, Jackson promoted Michael Ritzus to Vice President of
Physician Services, and he was placed in charge of the
Outreach Lab. Ritzus was Nickson's supervisor. He asked
Nickson to serve as the interim Outreach Lab Manager in
addition to her position as the Business and Sales Manager.
She initially agreed but, in December 2013, she asked him to
hire an Outreach Lab Manager and allow her to return solely
to her position as the Business and Sales Manager. Ritzus and
Nickson interviewed candidates, and Jackson hired Patricia
Morrow as the Outreach Lab Manager.
to Nickson, Ritzus excluded her from meetings, reassigned her
job duties to other employees, called her “incompetent,
” mistreated her, used profanity in speaking to her,
and caused her to feel intimidated. Doc. 26-2 at 24-35. On
December 16, 2013, Nickson approached the human resources
director, Gilbert Darrington, and they had a discussion about
Nickson's relationship with Ritzus, her pay, and her
interest in being promoted to a position as the director of
the Outreach Lab. See id. at 24-25. Nickson also
discussed her perception of Ritzus' treatment of her with
Harris. See Doc. 26-8 at 5. On March 6, 2014,
Nickson sent Ritzus an email to request that she be placed on
leave due to job-related stress, and she wrote that the cause
of her stress was largely due to his treatment of her.
See Doc. 26-8 at 3.
testified at her deposition that she believes Ritzus'
actions were motivated by racial animus, see Doc.
26-2 at 26, 32-33, 35, but there is no evidence of record
that the plaintiff complained to anyone at Jackson that
Ritzus or anyone else was discriminating against her on the
basis of her race before she filed her charge of
discrimination with the EEOC on March 11, 2014. See
Doc. 19 at 65. Also, Nickson alleges in her complaint that
she “made a complaint to human resources in December
2013 about the intimidating and harassing treatment she was
receiving from Mr. Ritzus, ” but she does not allege in
that pleading that his treatment of her was based on her race
or that she communicated to human resources that she was
being mistreated by Ritzus because she is African-American.
Doc. 1 at 3. In short, there is neither any allegation nor
any evidence that Nickson alerted Jackson, or that decision
makers at Jackson had knowledge, that she thought Ritzus or
anyone else had discriminated against her because of her race
prior to March 11, 2014.
date, Nickson filed with the EEOC a charge of race
discrimination against Jackson. See Doc. 19 at 65.
The EEOC mailed Jackson a copy of a notice and charge of
discrimination on March 20, 2014. See Doc. 19 at 71.
Because these were addressed to someone who no longer worked
for Jackson, a mail clerk removed the documents from the
envelope, placed all documents except for the charge of
discrimination into another envelope marked “Return to
Sender, ” and sent the envelope to the EEOC.
See Doc. 19 at 71; Doc. 26-12 at 4. The EEOC
received the returned mail on March 28, 2014. See
Doc. 19 at 71. It re-sent the notice and charge of
discrimination, which Jackson received on April 10, 2014.
See Doc. 26-12 at 2.
March 31, 2014, Jackson notified Nickson that the position of
Business and Sales Manager was being eliminated, effective
immediately, and Jackson terminated her employment. After
Jackson eliminated Nickson's position, she filed a second
charge of discrimination with the EEOC on May 14, 2014, in
which she alleged that Jackson retaliated against her by
terminating her employment because of her March 31, 2014
sold the Outreach Lab in June 2015.
Nickson's Claims and Motion to Dismiss
plaintiff filed her complaint pro se. On June 17, 2016,
attorney Norman Hurst entered an appearance on Nickson's
behalf. See Doc. 16. Mr. Hurst did not file a motion
for leave to file an amended complaint on his client's
behalf. Nickson's own complaint complies with Federal
Rules of Civil Procedure 8(a), and it clearly asserts Title
VII disparate treatment claims for (1) failure to promote her
to the positions of (a) Vice President of Physician Services
and (b) Director of the Outreach Lab, (2) unequal pay, and
(3) termination; and Title VII retaliation claims based on
Jackson's (1) failure to promote her to the position of
director after she complained about Ritzus, and (2)
termination of her employment. See Doc. 1. Also,
Nickson alleges that she complained to human resources about
“the intimidating and harassing treatment she was
receiving from Mr. Ritzus.” Doc. 1 at 3. Viewed under
the less stringent standard applied to pro se
pleadings, Nickson has arguably asserted a disparate
treatment claim as to the terms and conditions of her
employment based on allegedly discriminatory actions by her
supervisor, Ritzus. The plaintiff's complaint is pled so
that, either under the less stringent standard reserved for
pro se litigants or the higher standard for
pleadings drafted by attorneys, the aforementioned are the
plaintiff's only claims. See Fed. R. Civ. P.
8(a) (a complaint must set out the plaintiff's claims for
relief). Jackson moves for summary judgment in its favor on
all of Nickson's claims.
moves “to dismiss all claims not specifically
addressed” in her opposition to Jackson's motion
for summary judgment. Doc. 26 at 1. In that filing, Nickson
argues that Jackson has a “pattern and practice of low
pay, eliminating positions and restructuring when it relates
to African-Americans Outreach Business and Sales
Managers”; that Jackson's assertion that there were
quality control problems in the Outreach Lab are a ruse to
mask the discriminatory promotion of Ritzus to the position
of Vice President instead of Nickson; and that Jackson
terminated her employment as retaliation for her opposing
race discrimination and participating in the protected
activity of filing an EEOC charge. See Id. at 2-10.
Nickson's first argument in opposition to Jackson's
motion for summary judgment, Nickson did not assert a claim
for pattern and practice discrimination in her complaint. A
plaintiff cannot amend a complaint through an argument in a
brief opposing summary judgment. See Hall v. Dekalb Cty.
Gov't, 503 F. App'x 781, 786 (11th Cir. 2013).
Thus, a pattern and practice discrimination claim is not
properly before the court, and this claim has not been
considered. In the alternative, even had Nickson properly
asserted such a claim, it would not survive summary judgment.
“There are two theories of intentional discrimination
under Title VII: disparate treatment and pattern or practice
discrimination. Disparate treatment claims require proof of
discriminatory intent either through direct or circumstantial
evidence.” E.E.O.C. v. Joe's Stone Crab,
Inc., 220 F.3d 1263, 1286 (11th Cir. 2000). “In
contrast, a pattern and practice claim either may be brought
by the EEOC if there is reasonable cause to believe that any
person or group of persons is engaged in a pattern or
practice of discrimination … or by a class of private
plaintiffs[.]” Id. (internal citations and
marks omitted). This is not a class action lawsuit, nor do
the allegations of plaintiff's complaint lend themselves
to class treatment. Thus, Nickson cannot maintain a pattern
or practice claim as a matter of law.
Nickson's motion to dismiss, she does not make any
arguments in opposition to summary judgment as to her
disparate treatment claims for Jackson's failure to
promote her to the position of Director of the Outreach Lab
or her termination from employment. Nickson also does not
reference or offer any argument to support a claim of race
discrimination or harassment based on Ritzus' conduct. In
addition, Nickson is silent as to her retaliatory failure to
promote claim. See Doc. 26 at 6-10. Her motion to
dismiss will be granted as to these claims.
event, Nickson abandoned any claim that she did not directly
address in her opposition to Jackson's motion for summary
judgment. See Resolution Trust Corp. v Dunmar Corp.,
43 F.3d 587, 599 (11th Cir. 1995) (noting that “grounds
alleged in the complaint but not relied upon in summary
judgment are deemed abandoned”); Floyd v. Home
Depot U.S.A., Inc., 274 F. App'x 763, 765 (11th Cir.
2008). Jackson is entitled to summary judgment on those
reasons that are not made clear, Nickson appears to argue
against Jackson's motion for summary judgment as though
she has not asserted disparate treatment claims for failure
to promote her to the job of Vice President of Physician
Services and for unequal pay; rather, she only argues in
support of those theories of discrimination as though they
were pled as pattern and practice discrimination claims. As
discussed above, Nickson has no pattern and practice claims.
Nevertheless, despite the fact that Nickson makes only
cursory arguments in her opposition brief to support her
disparate treatment promotion and pay claims, those passing
references cause the court to conclude that plaintiff did not
intend to dismiss her disparate treatment claims. Thus, the
court will not grant her motion to dismiss those disparate
treatment claims. Also, Nickson opposes summary judgment on
her claims for retaliatory termination. Those claims will not
be dismissed pursuant to Nickson's motion.
the plaintiff's claims remaining before the court for
consideration on Jackson's motion for summary judgment
are (1) a disparate treatment race discrimination claim for
failure to promote Nickson to the position of Vice President
of Physician Services for which Ritzus was hired, (2) a