United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OF OPINION AND ORDER
Scott Coogler United States District Judge.
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.
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.
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.
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.
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) because the allegations were the
subject of a pending lawsuit, and it had been more than 180
days since the Complaint was filed.
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.
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.
Standards of Review
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.
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)).
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.Fin.
Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276,
1284 (11th Cir. 2007).