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Thomas v. Shulkin

United States District Court, S.D. Georgia, Savannah Division

July 20, 2017

DAVID J. SHULKIN, Secretary, United States Department of Veteran's Affairs, Defendant.


         Pro se plaintiff Angela L. Thomas, a former employee of the United States Department of Veteran's Affairs (VA), sues on the grounds that that the VA discriminated against her on the basis of her race and disability. Doc. 1. She also seeks leave to pursue her case in forma pauperis (IFP). Doc. 2. Since it appears that she is indigent, the Court GRANTS her request. The Court, therefore, proceeds to screen her Complaint. See 28 U.S.C. § 1915(e)(2)(B).[1]

         Thomas alleges that the VA discriminated against her by failing to select her for a promotion. See doc. 1 at 5. She was employed as a Program Support Assistant at the VA's Mid-Atlantic Consolidated Patient Account Center, in Ashville, North Carolina from 2011 until her retirement in 2013. Id. In 2011, she applied for one of four positions as a Financial Administrative Assistant. Id. On March 30, 2012, she was not selected, despite being given “one of the three highest evaluation ratings . . . .” Id.

         Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) on April 9, 2012. Doc. 1 at 6. The EEOC issued to her a Notice of Right to Sue on May 20, 2017. Id.; see also doc. 1-3 at 2-3 (EEOC determination on request for reconsideration, dated 06/18/2017, notifying plaintiff of her right to file a civil action “within ninety (90) calendar days from the date you receive this decision.”). She filed her Complaint on July 12, 2017. See doc. 1. It appears, therefore, that her Complaint is timely and that she has exhausted her administrative remedies.[2]

         Thomas also alleges, in a purely summary fashion, that the VA retaliated against her and that it discriminated against her, not only based on her race, but also based on her disability. See doc. 1 at 4. These claims are insufficient. Her substantive allegations clearly allege that, although she is disabled, she “was subjected to discrimination based on race . . . .” Id. at 5 (emphasis added). She simply does not allege any discrimination based on disability.[3] See generally id.

         She also alleges no facts suggesting that the VA's decision not to hire her for the higher position she applied for was retaliatory. Id. “To establish a prima facie case of retaliation, the plaintiff must show that (1) she engaged in statutorily protected activity; (2) she suffered a materially adverse employment action; and (3) there was a causal link between the two.” Gowski v. Peake, 682 F.3d 1299, 1311 (11th Cir. 2012) (citing Dixon v. The Hallmark Companies, Inc., 627 F.3d 849, 856 (11th Cir. 2010)). At most, the decision not to hire her for her desired position is an adverse employment action. The lack of any allegation that she previously engaged in protected activity, and thus the lack of any alleged link between that activity and the adverse action, is fatal to a retaliation claim.

         Thomas' race-discrimination claim is also insufficient.[4] “To establish a prima facie case for disparate treatment in a race discrimination case, the plaintiff must show that: (1) she is a member of a protected class; (2) she was subject to an adverse employment action; (3) her employer treated similarly situated employees outside of her protected class more favorably than she was treated; and (4) she was qualified to do the job.” Burke-Fowler v. Orange Cty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (citing EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000)).

         Thomas has alleged facts supporting three of those four elements: (1) she alleges that she is a member of a protected class, see, e.g. Maddox-Jones v. Bd. of Regents of University Sys. of Ga., 448 F. App'x 17, 20 (11th Cir. 2011) (African-American is a protected class); (2) her allegation that the VA failed to promote her (or, alternatively, refused to hire her for a new position) is an “adverse employment action, ” see, e.g., Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 760-61 (1998)) (explaining adverse employment action under Title VII is “‘a significant change in employment status, such as hiring, firing, [or] failing to promote . . . .'”); and (3) that she was qualified for the job, see doc. 1 at 5 (alleging Thomas was not hired for “one of four positions although she . . . [received] one of the three highest evaluation ratings received by Human Resources when recommended for the position.”).

         She has not, however, alleged any facts supporting the last element, that the VA treated an employee outside of her protected class more favorably. See Hughley v. Upson Cnty. Bd. of Comm'rs, 2017 WL 2274952 at * 2 (11th Cir. May 24, 2017) (quoting Burke-Fowler v. Orange Cty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (affirming determination that plaintiff who failed to identify individual outside of plaintiff's protected class treated more favourably failed to state a race-discrimination claim). Thomas does not allege anything about who was selected for the position she sought. See doc. 1 at 5-6. Thus, she fails to state a race-discrimination claim.

         Despite her claims' insufficiency, the Court will give Thomas the opportunity to amend her Complaint. See Langlois v. Traveler's Ins. Co., 401 F. App'x 425, 426-27 (11th Cir. 2010) (pro se plaintiff afforded an opportunity to amend Complaint before dismissal); see also, Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (same). Accordingly within 21 days of the day this Order is served, plaintiff must file an Amended Complaint, clarifying the theories she asserts and the facts supporting them. That Amended Complaint will supersede the original, so it must be complete in itself. See Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1345 n. 1 (11th Cir. 1999) (“An amended complaint supersedes an original complaint”); Varnes v. Local 91, Glass Bottle Blowers Ass'n of U.S. & Canada, 674 F.2d 1365, 1370 n. 6 (11th Cir. 1982) (“As a general rule, an amended complaint supersedes and replaces the original complaint unless the amendment specifically refers to or adopts the earlier pleading”).

         The Clerk is DIRECTED to provide Thomas a blank form Complaint for Employment Discrimination with this Order. Once she files an Amended Complaint, her original pleading will no longer serve any function in this case other than establishing the filing date. If Thomas fails to file an Amended Complaint within 21 days from the date this Order is served, or fails to cure the deficiencies identified above, the Court will recommend dismissal.

         SO ORDERED.



[1] The Court applies the familiar Fed.R.Civ.P. 12(b)(6) standard to evaluate plaintiff's claim under § 1915(e)(2). See Thompson v. Rundle, 393 F. App'x 675, 678 (11th Cir. 2010) (citing Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997)). Under that standard, the Court takes well-pleaded factual allegations as true and, given Thomas' pro se status, liberally construes her Complaint. See Id. (citations omitted). ‚ÄúDismissal for failure to state a claim is appropriate when the facts as pleaded do not state a ...

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