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Reed v. Dep't of Veterans Affairs

United States District Court, N.D. Florida, Gainesville Division

May 18, 2018

MEREACOS REED, Plaintiff,
v.
DEP'T OF VETERANS AFFAIRS, Defendant.

          REPORT AND RECOMMENDATION

          GARY R. JONES, UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. BACKGROUND

         Plaintiff 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.

         The 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.

         The 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.

         Plaintiff 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.

         Plaintiff 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. Id.

         Plaintiff alleges that she complained to management about the foregoing conduct, but no remedial action was taken. Id. at 5.

         The VA 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.

         II. STANDARD OF REVIEW

         “To 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).

         III. DISCUSSION

         A. Exhaustion of ...


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