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Armstrong v. Sessions

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

July 9, 2018

RESHAWN ARMSTRONG, Pro se Plaintiff,
v.
JEFFERSON B. SESSIONS, Attorney General, Defendant.

          MEMORANDUM OF OPINION AND ORDER

          L. Scott Coogler United States District Judge.

         Plaintiff, Reshawn Armstrong ("Plaintiff" or "Armstrong") brings the instant action against U.S. Attorney General, Jefferson B. Sessions ("Defendant"), alleging race and sex discrimination, failure to promote, unequal terms of employment, retaliation, harassment, and hostile work environment under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 1981a, 2000e- 2000e-17, and 29 C.F.R. § 1614, et seq. Before the Court is Defendant's motion to partially dismiss Plaintiff's amended complaint. (Doc. 12.) The motion is now ripe for review. For the reasons stated below, Defendant's motion (doc. 12) is due to be granted in part and denied in part.

         I. Background [1]

         Plaintiff has been a Federal Bureau of Prisons employee since 2007. She began work FCI Aliceville, in Pickens County, Alabama in August of 2012 and currently serves as a Senior Officer Specialist. She received positive performance evaluations, was the recipient of two incentive awards for her job performance, and no disciplinary action was taken against her in 2015 or 2016.

         Between March 2015 and January 2017, a number of events occurred which Armstrong claims subjected her to discrimination. In response to the alleged discrimination, she filed two formal EEO Complaints with subsequent amendments, as well as reports with the Federal Bureau of Prisons and the management at FCI Aliceville. In 2015, Plaintiff submitted applications in response to various job announcements for promotion at institutions within the Department of Justice. She represents that she did not receive a promotion, and further that several of her reference checks between March 2015 and August 2015 were negative, false or misleading-allegedly due to her sex and race. One of Plaintiff s co-workers, Randolph King, a white male, was selected for one of the same positions Armstrong had applied for.

         On August 21, 2015, Plaintiff first contacted her Equal Employment Opportunity Commission ("EEOC") Counselor, Zelford Thomas ("Thomas"), about drafting an EEO Complaint. Armstrong filed her informal EEO Complaint on September 11, 2015. On December 1, 2015, Plaintiff filed her first official EEO Complaint, alleging discrimination based on sex and retaliation for non-promotion. The conduct she listed which began in February 2015, included false reference checks, harassment by other staff members while performing her duties, failure to respond to her complaints, non-payment of overtime, scheduling her EEO mediation on her day off, as well as other issues surrounding scheduling and leave which occurred through November of 2015.

         On January 14, 2016, Plaintiff requested to amend her formal EEO Complaint to add two additional incidents evidencing discrimination. (See Doc. 8-2 at 1-3.) The two acts she added had to do with overtime for her mediation date in November 2015 and requests for official time to work on her EEO complaint in January 2016. She attempted to amend her complaint again in July 2016 to include race discrimination as a basis for her claims. However, her motions were denied by EEOC Administrative Judge Bryan M. Douglas ("the EEOC AJ") "due to the impact on the case" because Armstrong filed the first motion "more than 30 days from the Order regarding the hearing process was issued, after discovery had closed, after the Agency filed a motion to dismiss, and after the Agency filed a motion for a decision without a hearing." (Doc. 16-1 at 1.) On November 28, 2017, the EEOC dismissed the 2015 Complaint pursuant to 29 C.F.R. §1614.107(a)(3)[2] because the allegations were the subject of a pending lawsuit, and it had been more than 180 days since the Complaint was filed.

         Plaintiff filed a second formal EEO Complaint on September 18, 2017, in which she alleged that the harassment, hostile work environment and retaliation had persisted through August 2017 listing race, sex, sexual orientation, and reprisal as bases for discrimination. (Doc. 12-1 at 2.) The 2017 EEOC Complaint was based upon a number of incidents. One occurred in February 2016, when Lieutenant Tommy Simmons, allowed the prison control center to release unescorted vehicles from the facility, which Plaintiff alleges could have jeopardized her safety given her post at the rear gate. In response, Armstrong wrote memos voicing her security concerns which went unanswered. Another instance was when Lieutenant Hebb called Plaintiff at her home and allegedly harassed her for not showing up to work on her day off. A third involved the heating, ventilation, and air conditioning technician, Rusty Adams ("Adams"), harassing Plaintiff by continually changing thermostat temperature at her post. In response, Plaintiff sent a memo to the Warden, and Plaintiffs union sent a letter to Captain Troy Gentry; both were ignored.

         Between March 2016 and November 2016, Management failed to pay Plaintiff on three separate occasions for time she had worked, twice inputted her into the overtime roster program so that she would drop to the bottom of the list for available overtime shifts, and bypassed her for overtime shifts two times. Plaintiff sent numerous memos and emails to Management, the Warden, and Captain Chandra Nelson ("Captain Nelson") concerning these actions, all of which were ignored. In addition to the continued harassment from Adams about the air conditioning, Plaintiff took offense to a number of Captain Nelson's statements such as "Hey Ms. Armstrong you act like you can't speak!"; "You act like I slept in your bed last night!"; "I'm not sleeping with you!"; and "I'm not your mama!" Plaintiff continues to work at FCI Aliceville.

         II. Standards of Review

         Exhausting one's administrative remedies before filing a civil complaint for discrimination is required by 29 C.F.R. § 1614.407 and 42 U.S.C. § 2000e-16(c), and the Eleventh Circuit has held that courts have subject matter jurisdiction over Title VII claims only if the plaintiff "pursue[d] and exhauste[d] [those] administrative remedies." Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir. 1999). That is, a plaintiff must have "made a good faith effort to comply with the [EEOC] regulations and, particularly, to provide all the relevant, specific information available." Wade v. Sec'y of the Army, 796 F.2d 1369, 1376 (11th Cir. 1986). Dismissal for failure to exhaust remedies should be raised in a motion to dismiss. Basel v. Sec'y of Defense, 507 Fed.Appx. 873, 874 (11th Cir. 2013) (per curiam). In order to survive a motion to dismiss on grounds of failure to exhaust administrative remedies, the Court must find that Plaintiff made a good-faith effort to comply with the EEOC procedural requirements and allowed the EEOC an opportunity to investigate the merits of her claims. Id.

         In general, a pleading must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). However, in order to withstand a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), a complaint "must plead enough facts to state a claim to relief that is plausible on its face." Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1347-48 (11th Cir. 2016) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (internal quotation marks omitted). "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 (2009). Stated another way, the factual allegations in the complaint must be sufficient to "raise a right to relief above the speculative level." Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). "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 (2009). Pleadings asserting legal conclusions rather than mere facts are not entitled to the assumption of truth. Id. at 679. However, factual allegations on the face of the complaint are taken as the truth and then determined whether they "plausibly give rise to an entitlement to relief." Id. A pleading satisfies the notice pleading standard if the pleading "contains enough information regarding the material elements of a cause of action to support recovery under some 'viable legal theory.'" Am. Fed'n of Labor & Cong, of Indus. Orgs. v. City of Miami, 637 F.3d 1178, 1186 (11th Cir. 2011) (quoting Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683-84 (11th Cir. 2001)).

         The review of a motion to dismiss is limited in scope to the face of the complaint. St. George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th Cir. 2002). However, materials attached to a defendant's motion to dismiss may be considered if the plaintiff refers to the document in the complaint, the document is central to the plaintiff's claim, and the authenticity of the document is not in dispute.[3]Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007).

         III. ...


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