United States District Court, N.D. Florida, Gainesville Division
REPORT AND RECOMMENDATION
R. JONES, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on ECF No. 42, Defendant's
Motion to Dismiss Plaintiff's Second Amended Complaint
(ECF No. 40). Plaintiff has filed a response in opposition
(ECF No. 45). For the reasons explained below, it is
respectfully recommended that Defendant's motion to
dismiss be denied.
brings claims against the Department of Veterans Affairs (the
“VA”) under Title VII of the Civil Rights Act, 42
U.S.C. § 2000e, et seq. (“Title
VII”). Plaintiff was initially represented by counsel
in this case, but is now proceeding pro se.
See ECF Nos. 1, 36. Plaintiff was employed as a
Telemetry Technician at the Malcolm Randall Veterans
Administration Medical Center. Plaintiff's First Amended
Complaint, ECF No. 21, alleged that Defendant created a
hostile work environment in violation of Title VII and that
she was disciplined and ultimately terminated in retaliation
for EEO activity, also in violation of Title VII. ECF No. 21
at 3-4. Defendant moved to dismiss the First Amended
Complaint, arguing that Plaintiff's hostile work
environment claim should be dismissed for failure to state a
claim under Fed.R.Civ.P. 12(b)(6), and that her retaliation
claim should be dismissed for failure to exhaust
administrative remedies because Plaintiff had an appeal of
her termination pending before the Merit Systems Protection
Board. ECF No. 22. Defendant did not argue that Plaintiff had
failed to exhaust administrative remedies with respect to her
hostile work environment claims. See id.
Court dismissed Plaintiff's retaliation and termination
claim for failure to exhaust administrative remedies. The
Court dismissed Plaintiff's hostile work environment
claim without prejudice, with leave to file a Second Amended
Complaint. ECF No. 39.
Second Amended Complaint clarifies Plaintiff's hostile
work environment claims. Plaintiff, who is African-American,
alleges that from August 23, 2012, through August 17, 2015,
Plaintiff's coworkers, most of whom were white, subjected
Plaintiff to race-based harassment. Plaintiff contends that
in or about December 2013, a white coworker “likened
Plaintiff to less than a monkey, ” while complaining
that she was not properly training another worker. The
coworker stated that “even a monkey can do this
job.” ECF No. 40 at 3. Plaintiff complained to the
coworker, and the next day he greeted her with the taunt
“what's up monkey?” Plaintiff complained to
her nurse manager, but no action was taken. The coworker
subsequently told Plaintiff that “it does no justice to
complain, ” and again reiterated that a monkey could do
Plaintiff's job. Id.
alleges that she was repeatedly subjected to insults
regarding her ethnic dialect. Id. at 4. Further she
alleges that “[t]he notion that Black people are
unclean was a frequent theme of the speech and behavior of
Plaintiff's white coworkers.” Plaintiff alleges
that at least three times per day, from November 2014 to
August 2015, five of her white coworkers would disinfect
items that she had touched as soon as she left her
workstation. The white coworkers did not similarly clean or
disinfect items that had been touched by each other.
Plaintiff alleges that during 2014 and 2015, on at least 60
occasions, two of her white coworkers, in her presence,
stereotyped the African medical staff as
“stinking” and not bathing. Id.
further alleges that because of her race and her
“Louisiana roots, ” coworkers stereotyped her as
being a practitioner of voodoo. In May 2014, a coworker
loudly called her a “Louisiana voodoo ass.”
Id. Plaintiff claims that on at least five occasions
in 2015, one of the white coworkers, who habitually
disinfected items she had touched, taunted Plaintiff because
of her race with verbiage about hexes and voodoo dolls.
Plaintiff alleges that she had been warned about that
coworker's “skinhead” background.
alleges that she complained to management about the foregoing
conduct, but no remedial action was taken. Id. at 5.
first argues that Plaintiff's hostile work environment
claim should be dismissed for failure to exhaust
administrative remedies. Defendant contends that the Second
Amended Complaint contains “new” allegations that
are barred because they are unexhausted. Defendant contends,
without identifying specific claims, that the allegations
contained in the Second Amended Complaint “are not
contained in the accepted claims by the EEOC.”
Defendant then contends that Plaintiff fails to state a claim
for relief under Fed.R.Civ.P. 12(b)(6). ECF No. 42.
STANDARD OF REVIEW
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.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “Factual allegations must be enough to raise a
right to relief above the speculative level, ” and the
complaint “must contain something more . . . than . . .
a statement of facts that merely creates a suspicion [of] a
legally cognizable right of action.” Twombly,
550 U.S. at 555. Conclusory allegations that “amount to
nothing more than a formulaic recitation of the elements of a
cause of action” are “not entitled to be assumed
true.” Iqbal, 556 U.S. at 681. To escape
dismissal, a complaint must allege facts sufficient to move
claims “across the line from conceivable to
plausible.” Id. at 683 (quoting
Twombly, 550 U.S. at 570)). “The plausibility
standard is met only where the facts alleged enable
‘the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.'”
Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir.
2013) (quoting Iqbal, 556 U.S. at 678). “The
complaint's allegations must establish ‘more than a
sheer possibility that a defendant has acted
unlawfully.'” Id. (quoting Iqbal,
556 U.S. at 678).
Exhaustion of ...