United States District Court, M.D. Alabama, Northern Division
ORDER AND RECOMMENDATION OF THE MAGISTRATE
RUSS WALKER UNITED STATES MAGISTRATE JUDGE.
order entered on August 18, 2016, the District Judge referred
this case to the undersigned for action or recommendation on
all pretrial matters. See Doc. 4. Plaintiff Michal
Ruth Mitchell (“Mitchell”), proceeding pro
se,  filed this action against her employer,
the State of Alabama Department of Labor
(“ADOL”), and Charles Timothy Delamar
(“Delamar”), the Workers' Compensation
Division Director at the Alabama Department of Labor,
alleging violations of her federal statutory rights. She
brings claims of sex discrimination and retaliation in
violation of Title VII of the Civil Rights Act of 1964.
See Doc. 1; Doc. 17. This matter is before the court
on a motion to dismiss Counts One and Three of
plaintiff's Amended Complaint or, in the alternative, to
consider plaintiff's original complaint as the operative
pleading. See Doc. 19; Doc. 17 (Amended
Complaint). The motion to dismiss has been fully briefed. For
the reasons discussed below, the motion to dismiss is due to
Standard of Review
12(b)(6) motion to dismiss tests the sufficiency of the
complaint against the legal standard set forth in Rule 8:
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). “When considering a motion to dismiss, all
facts set forth in the plaintiff's complaint are to be
accepted as true and the court limits its consideration to
the pleadings and exhibits attached thereto.”
Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231
(11th Cir. 2000) (internal marks omitted)).
evaluating a motion to dismiss pursuant to Rule 12(b)(6), the
court must take “the factual allegations in the
complaint as true and construe them in the light most
favorable to the plaintiff.” Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008).
However, “the tenet that a court must accept as true
all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009). “[A]
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). “Determining whether a complaint
states a plausible claim for relief [is] ... a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. at 663 (alteration in original) (citation
omitted). “[F]acial plausibility” exists
“when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556). The standard also
“calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence” of the
claim. Twombly, 550 U.S. at 556. While the complaint
need not set out “detailed factual allegations, ”
it must provide sufficient factual amplification “to
raise a right to relief above the speculative level.”
Id. at 555.
when the allegations in a complaint, however true, could not
raise a claim of entitlement to relief, ‘this basic
deficiency should ... be exposed at the point of minimum
expenditure of time and money by the parties and the
court.'” Id. at 558 (quoting 5 Wight &
Miller § 1216, at 233-34 (quoting, in turn, Daves v.
Hawaiian Dredging Co., 114 F.Supp. 643, 645 (D. Haw.
1953)). “[O]nly a complaint that states a plausible
claim for relief survives a motion to dismiss.”
Iqbal, 556 U.S. at 679 (citing Twombly, 550
U.S. at 556).
In keeping with these principles a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled
to the assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be supported
by factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
Background and Procedural History
original complaint, the plaintiff brought claims against ADOL
and Delamar for sex discrimination and retaliation in
violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq. See
Doc. 1. Plaintiff alleged, inter alia, that, in July
and October of 2015, ADOL and Delamar promoted a less
qualified male candidate to a job posting for which the
plaintiff is qualified and, after plaintiff filed an EEOC
charge, ADOL and Delamar retaliated against the plaintiff by
reducing her performance scores. See id.
September 9, 2016, Delamar filed a motion to dismiss the
complaint. See Doc. 7. Plaintiff filed a
brief in opposition to Delamar's motion. See
Doc. 9. On June 14, 2017, the undersigned Magistrate Judge
entered a Recommendation finding that Delamar's motion to
dismiss was due to be granted and that all Title VII claims
against Delamar were due to be dismissed because Delamar is
not the plaintiff's employer and the Title VII claims
against him are duplicative of those asserted against the
plaintiff's employer, ADOL. See Doc. 10.
Objections to the undersigned's Recommendation were due
on June 28, 2017.
plaintiff filed objections on June 26, 2017. See
Doc. 12. Also, prior to filing her objections, the plaintiff
filed a motion for leave to file an amended complaint to add
an “additional retaliation claim, occurring on March
31, 2017” against ADOL and Delamar because Delamar,
acting in his official capacity, allegedly denied approval
for the plaintiff's “overnight stay and per
diem travel in excess of 100 (one hundred) miles or more
one way, as is allowed by AL Dept. of Finance Regulations and
State law.” Doc. 11 at 1; see also Doc. 11
(motion for leave to file amended complaint). Thereafter,
Chief Judge Watkins overruled the plaintiff's objections
and adopted the Recommendation, held that the plaintiff
cannot bring Title VII discrimination or retaliation claims
against Delamar as a matter of law, and dismissed with
prejudice plaintiff's Title VII claims against Delamar.
See Doc. 15. The plaintiff sued Delamar exclusively
under Title VII; accordingly, Chief Judge Watkins dismissed
Delamar as a party to this case.
January 22, 2018, the court held that the plaintiff could not
assert claims against Delamar in the amended complaint, but
granted plaintiff's motion for leave to file an amended
complaint against ADOL to assert a retaliation claim based on
denial of overnight travel in March 2017. That claim is now
set out in Count Three of the Amended Complaint. See
Doc. 17. ADOL did not object to the plaintiff's motion
for leave to file an amended complaint for the purpose of
asserting Count Three - which ADOL now seeks to have
dismissed pursuant to Rule 12(b)(6). See Doc. 16 at
6; Doc. 19. Also, the court held that the plaintiff's
proposed amended complaint - which was attached as an exhibit
to plaintiff's motion for leave to file an amended
complaint - was a “shotgun” pleading and directed
plaintiff to file “an amended complaint which complies
with [the January 22] order and Rules 8, 10, and 11 of the
Federal Rules of Civil Procedure.” Id. at 5-7.
Plaintiff's amended complaint is her second attempt at
drafting an amended pleading that comports with the Federal
Rules of Civil Procedure.
did not move to dismiss Count Two of the Amended Complaint;
thus, this case has always been on track to proceed to
discovery. In the instant motion to dismiss Counts One and
Three, ADOL argues that Count One should be dismissed because
it does not comply with the January 22, 2018 order, and Count
Three fails because plaintiff did not exhaust her
administrative remedies. Prior to addressing the merits of