United States District Court, S.D. Georgia, Savannah Division
ANGELA L. THOMAS Plaintiff,
DAVID J. SHULKIN, Secretary, United States Department of Veteran's Affairs, Defendant.
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. §
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.
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
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. See generally id.
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.
race-discrimination claim is also insufficient. “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)).
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.”).
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.
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”).
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.
 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).
“Dismissal for failure to state a claim is appropriate
when the facts as pleaded do not state a ...