Some v. Honda Manufacturing of Alabama, LLC

          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 ...