United States District Court, S.D. Alabama, Southern Division
PAULA A. PETTWAY, Plaintiff,
MOBILE COUNTY REVENUE COMMISSIONER, Defendant.
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE
case is before the Court on Defendant Mobile County Revenue
Commissioner's Motion to Dismiss Plaintiff's Amended
Complaint (doc. 15) and Motion to Dismiss Plaintiff's
“Performance Evaluation” Claim (doc. 17). The
motions, which have been fully briefed and are ripe for
resolution, have been referred to the undersigned for a
report and recommendation pursuant to 28 U.S.C. §
636(b)(1)(B) and S.D. Ala. CivLR 72(a)(2)(S). Upon
consideration of all matters presented, the undersigned
RECOMMENDS, for the reasons stated herein,
that Defendant's motion seeking the dismissal of
Plaintiff's amended complaint (doc. 15) be
granted, and Defendant's motion to
dismiss the performance evaluation claim as beyond the scope
of the EEOC charge (doc. 17) be denied.
Paula A. Pettway, who is proceeding pro se,
initiated this action by filing a complaint under 42 U.S.C.
§ 1983, alleging discrimination in violation of the Age
Discrimination in Employment Act (hereinafter
“ADEA”). (Doc. 1). Pettway sought and was granted
leave to proceed without prepayment of fees. (Docs. 2, 3).
Shortly thereafter, Defendant Mobile County Revenue
Commissioner filed a motion seeking the dismissal of
Pettway's claims on the ground that they were vague,
conclusory, and failed to state a claim for relief. (Docs. 6,
7). Pettway opposed the motion (doc. 10), and upon review,
the undersigned, in a report and recommendation dated April
14, 2017, recommended that Defendant's motion be denied
without prejudice and that Pettway be given the opportunity
to amend her complaint.(Doc. 12). The undersigned observed
that, while Pettway cited the ADEA as the bases for relief,
her complaint was wholly bereft of any facts suggesting that
she was treated differently from other employees because of
her age. Pettway was directed to file an amended complaint
which set forth the factual bases for her claim that she was
discriminated against because of her age. (Id.).
April 27, 2017, Pettway filed an amended pro se
complaint. (Doc. 13). In her amended complaint, Pettway
alleges discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, and the ADEA. (Id.
at 1). Liberally construing Pettway's amended pro
se complaint, she alleges that she was discriminated
against due to her sex and age, and was subjected to a
hostile work environment for presumably the same reasons.
Pettway's factual assertions are summarized as follows:
(1) On December 21, 2015, Plaintiff was told that she had to
arrive to work ten minutes early during the weeks that she
worked an 8:00 a.m. - 5:00 p.m. shift, even though others
seemingly did not have to do so. (Id. at 2).
Plaintiff was warned that she would be insubordinate if she
failed to report early, but “Mr. Madise”
(ostensibly a co-worker) was not given the same rule or
(2) On January 4, 2016, Plaintiff was informed that her cash
drawer was missing money. Plaintiff contends that, when she
initially counted her cash drawer on December 31, 2015, she
had at least $20.00 extra, which was confirmed by her
supervisor, Quesandra Battles (“Battles”).
However, when Plaintiff returned to work on January 4, 2016,
she was informed of the missing money and told that she would
have to personally reimburse it. (Id. at 2-3).
Plaintiff contends that, on several other (non-enumerated)
occasions, she would return from lunch and find that her cash
drawer was missing money, and that this became such an issue
that she stopped taking a lunch break out of fear that her
drawer would be short on money. (Id. at 2).
Plaintiff contends that she knew Battles “was messing
with [her] mind” and these actions made her sick and
caused her to loose sleep. (Id.).
(3) On January 6, 2016, Plaintiff was moved to a new desk
after her supervisor confronted her about allegations that
she spent twenty minutes on a personal call “while
taxpayers were in the Lobby.” (Id. at 3).
Plaintiff was never given the opportunity to defend herself.
(4) On February 3, 15, and 23, 2016, Battles gave Plaintiff
“error sheets” for incomplete/erroneous
paperwork. (Id. at 4). Plaintiff states that Mr.
Madise was often offered the opportunity to correct his
paperwork instead of receiving an error sheet.
(Id.). Plaintiff also noted that a female coworker
did not receive an error sheet for failing to complete
“a non-filing affidavit[, ]” which Plaintiff
contends would have resulted in an error sheet for her had
she made the same mistake. (Id.).
(5) On February 16, 2016, Plaintiff states that her
“office privileges were terminated” when Battles
told her that she could no longer eat at her desk or have
electronics at her desk. (Id. at 3). Plaintiff was
told that she would have to eat in the break room with the
door closed, though others did not have to close the door
when using the room. (Id.). Further, when Plaintiff
attempted to work through her lunch break, she was told that
she could not do so. (Id.). Finally, though
Plaintiff was unable to use electronics at her desk, she
noticed that Mr. Madise was allowed to play his radio
(6) On April 7, 2016, “Mr. Glenn Ford” observed
Plaintiff's performance evaluation with Battles, where
she received a “low (satisfactory) performance
rating[.]” (Id. at 1). Plaintiff states that
having Mr. Ford sit in on her evaluation was humiliating,
intimidating, and fostered a hostile work environment.
(Id.). Plaintiff also asserts that no one observed
Madise's evaluation with Battles. (Id.).
9, 2017, Defendant filed a motion (doc. 15) seeking the
dismissal of Pettway's amended complaint, and a motion
(doc. 17) addressing Pettway's performance evaluation
claim. According to Defendant, Pettway has failed to allege
sufficient information concerning her age or the ages of
other co-workers who purportedly were treated more favorably.
(Doc. 16). Defendant further argues that none of the alleged
actions raised in Pettway's amended complaint constitutes
legally actionable “adverse employment actions”
sufficient to sustain either an age discrimination or a sex
discrimination claim. (Id.). Defendant also contends
that Pettway has failed to establish workplace harassment
that was severe or pervasive. With respect to Pettway's
“Performance Evaluation” claim, Defendant
contends that, because Pettway did not file a charge with the
EEOC regarding this claim, the claim exceeds the scope of her
EEOC charge and, as a result, the claim is not properly
before this Court. (Docs. 17, 18).
response in opposition, Pettway does not dispute that her
“Performance Evaluation” claim was not included
in her EEOC charge, but instead contends that she verbally
told the EEOC investigator about her performance evaluation
claim. (Doc. 20 at 1-2). Pettway further asserts that she
also sent a letter to the EEOC requesting that they conduct
an investigation into her performance evaluation complaint
since Defendant did not address that issue in its response to
her EEOC complaint. (Id. at 2). Pettway does not
address the other arguments contained in Defendant's
motion seeking the dismissal of her amended complaint.