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Pettway v. Mobile County Revenue Commissioner

United States District Court, S.D. Alabama, Southern Division

January 19, 2018

PAULA A. PETTWAY, Plaintiff,
v.
MOBILE COUNTY REVENUE COMMISSIONER, Defendant.

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. BACKGROUND FACTS

         Plaintiff 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.[1](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.).

         On 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 warning. (Id.).
(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 everyday. (Id.).
(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.).

         On May 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).

         In her 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.

         II. STAND ...


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