United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION
T.
MICHAEL PUTNAM UNITED STATES MAGISTRATE JUDGE.
This
matter is before the court on the motion to dismiss filed by
defendant Honda Manufacturing of Alabama, LLC
(“Honda”).[1] (Doc. 8). The plaintiff, who is appearing
pro se, was given time to respond, but no opposition to the
motion has been filed. Because the plaintiff is not
represented by counsel, her pleadings are construed
liberally. See GJR Invs., Inc. v. Cnty. of Escambia,
Fla., 132 F.3d 1359, 1369 (11th Cir.1998).[2] While construing
her pleading with leniency, however, the court does not have
“license to serve as de facto counsel” or
“to rewrite otherwise deficient pleadings to help her
navigate past the Rule 12(b)(6) challenge.” Johnson
v. Infirmary Health Sys., Inc., No. CIV.A. 13-0431-WS-M,
2013 WL 6062587, at *4 (S.D. Ala. Nov. 18, 2013) (citing
GJR Investments, 132 F.3d at 1369). The parties have
consented to the jurisdiction of the undersigned magistrate
judge.
BACKGROUND
This
action arises from the plaintiff's employment with Elwood
Staffing, which assigned her to a temporary position at the
Honda manufacturing facility in Lincoln, Alabama, on August
16, 2018. The allegations of the complaint set forth the
following facts.
Ms.
Some was involved in an on-the-job injury on September 4,
2018, that resulted in a bruise on her upper lip and nose.
(Doc. 1-2, p. 6). On September 5, 2018, she was returned to
full duty with no restrictions. (Doc. 1-2, p. 13). She has
since complained of neck pain, loss of bladder control,
tingling in her arms and hands, and ill effects from a
tetanus and whooping cough vaccine. (Doc. 1-2, pp. 15-19).
On
September 20, 2018, [3] Ms. Some had an interaction with a
supervisor named Ms. Willis, who was showing Ms. Some and
another worker a workplace procedure. Ms. Willis asked the
plaintiff if she was in pain, and the plaintiff indicated
that her neck was stiff and painful as a result of her
September 4 on-the-job accident. Ms. Willis asked Ms. Some
whether she was a “Trump supporter, ” to which
Ms. Some replied, “no comment.” Ms. Willis
continued to talk, telling her that she was from a large
family and liked to talk. (Doc. 1-2, p. 16). She asked the
plaintiff about her family, what foods she liked to eat,
shopping, and television shows. Id. Ms. Willis then
began to talk about “dead people, hauntings, and ghost
stories, ” and told Ms. Some that she liked to watch
television shows about ghosts. Id. Ms. Willis told
Ms. Some that she had seen dead people, and that dead people
would sometimes “sit beside her on the bed and rub her
hand.” Id. Ms. Willis also said that her son
had seen her (Ms. Willis's) deceased nephew in the Honda
facility's parking lot. Id. Plaintiff told Ms.
Willis that she did not think they should
“entertain” those ideas. Id. Although
the plaintiff believed, “as a Christian, ” she
should not entertain such thoughts, she does not allege that
she offered that explanation to Ms. Willis or otherwise
indicated her religious feeling about the conversation.
At that
point, Ms. Willis came up behind the plaintiff, grabbed her
neck, and “shook it from side to side, ” telling
her that she needed to “work [her] neck out” to
loosen it up. (Doc. 2-1, p. 16). Ms. Some was
“speechless and caught off guard.” Id.
Plaintiff apparently worked the next day, a Friday, and the
following Saturday before leaving work due to pain and
illness. (Doc. 1-2, pp. 16-18). She alleges that he has
“not been able to work due to [her] injury.”
(Doc. 1, p. 6).
The
plaintiff timely filed a charge of discrimination with the
Equal Employment Opportunity Commission (AEEOC@) and timely
filed this action after receiving a Right to Sue letter. In
an EEOC Precharge Inquiry Form, when asked whether she had
been discriminated against on the basis of race, color,
religion, sex, national origin, age, or disability, she
checked “None of the above” and described the
reason for the inquiry as “Harrasment/Hostile
worker.” (Doc. 1-2, p. 20). She described the event
that she thought was discrimination as “[h]ands placed
on my neck and my neck was shook from side to side.”
Id. She filed her EEOC charge, and in that charge
document alleged discrimination on the basis of age and
religion. (Doc. 1-2, p. 24). She complained that Ms. Willis
had attempted to engage her in “personal
conversations” about which she was
“uncomfortable, ” asserting in her EEOC charge
that “Christians don't entertain that.” (Doc.
1-2, p. 27). On October 14, 2018, the EEOC determined that
the charge should be dismissed because plaintiff had failed
to present any evidence tying the alleged harassment to her
age or religion. (Doc. 1-2, p. 27). A Right to Sue letter was
sent on October 19, 2018. (Doc. 1-2, p. 25).
She
filed the complaint commencing this action on December 27,
2018, asserting that she has been discriminated against on
the basis of religion and age. The defendant responded by
filing a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), asserting that none of the conduct
complained of states a claim for discrimination on the basis
of either age or religion. The plaintiff was given an
opportunity to respond to the motion, but has not to date
filed any response.
STANDARD
OF REVIEW
On a
motion to dismiss arising under Rule 12(b)(6), the court must
accept as true all of the facts alleged in the complaint.
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
1949-51, 173 L.Ed.2d 868 (2009). Federal Rule of Civil
Procedure 8(a)(2) requires only a “short and plain
statement of the claim showing that the pleader is entitled
to relief.” Prior to the Supreme Court's decision
in Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007), the
liberal notice pleading standards embodied in Rule 8(a)
“[did] not require that a plaintiff specifically plead
every element of a cause of action, ” Roe v. Aware
Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th
Cir. 2001), or set out in precise detail the specific facts
upon which she bases her claim. The complaint need only
“contain either direct or inferential allegations
respecting all the material elements necessary to sustain a
recovery under some viable legal theory.''
Id. (quoting In re Plywood Antitrust
Litigation, 655 F.2d 627, 641 (5th Cir. Unit A Sept. 8,
1981)).
The
Supreme Court raised the threshold for a sufficient pleading
in Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 1965 (2007)(rejecting the standard from
Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2
L.Ed.2d 80 (1957), that any “conceivable” set of
facts supporting relief is sufficient to withstand a motion
to dismiss). In Twombly, the Court announced a
“plausibility” standard for the sufficiency of a
pleading, which is met 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, 129
S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). To withstand
scrutiny under Rule 12(b)(6) a plaintiff must plead
“enough facts to state a claim to relief that is
plausible on its face, ” and that will thus
“nudge [his] claims across the line from conceivable to
plausible.” Twombly, 550 U.S. at 570. This
requires “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555.
The
Eleventh Circuit Court of Appeals has explained that the
principles set forth in Twombly and Iqbal
require the complaint to allege sufficient facts to
“raise a right to relief above the speculative
level.” Speaker v. U.S. Dep't of Health
and Human Servs. Centers for Disease Control and
Prevention, 623 F.3d 1371, 1380 (11th Cir. 2010). Honda
argues expressly in this case that, to plead an employment
discrimination claim sufficiently to meet the
Twombly/Iqbal standard, the plaintiff must allege
each element of a prima facie case of
discrimination. (Doc. 8, pp. 5-6). The defendant cites as
authority for this proposition Edwards v. Prime,
Inc., 602 F.3d 1276 (11th Cir. 2010), and McCone v.
Pitney Bowes, Inc., 582 Fed.Appx. 798, 801 (11th Cir.
2014). The court does not believe this correctly states the
current Eleventh Circuit law.
It is
true that, in Edwards, the ...