United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EFPS UNITED STATES MAGISTRATE JUDGE
commenced the above-captioned employment discrimination case
pro se and is proceeding in forma pauperis
(“IFP”). Because he is proceeding IFP,
Plaintiff's amended complaint must be screened to protect
potential Defendants. Phillips v. Mashburn, 746 F.2d
782, 785 (11th Cir. 1984). Pleadings drafted by pro
se litigants must be liberally construed, Haines v.
Kerner, 404 U.S. 519, 520-21 (1972), but the Court may
dismiss a complaint, or any part thereof, that is frivolous
or malicious or that fails to state a claim upon which relief
may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(i) &
SCREENING OF THE COMPLAINT
and Defendants were employees at Medtronic. (Doc. no. 1, pp.
had a “playful social relationship” with
Defendant Beth Love, team leader at Medtronic. (Id.
at 9.) On November 3, 2016, Plaintiff and Ms. Love were
“playing together” at work when he “touched
her on her arm and she ran.” (Id. at 4, 9.)
Defendant Kelly Speight placed Plaintiff on administrative
leave. (Id. at 4.) Plaintiff requested
“African Americans to be present at their
administrative hearings and investigations, ” to which
Ms. Speight agreed. (Id.) However, none were present
at the hearings and none were involved in any investigation.
(Id.) On November 28, 2016, Ms. Speight fired
Plaintiff for “violating Medtronic policy and offensive
behavior.” (Id. at 9.) Ms. Speight called
Plaintiff to tell him he was fired. (Id. at 4.)
Defendant David Cadden was present with Ms. Speight at the
time of the call and said “I told you” to
Plaintiff over the phone. (Id. at 4.) Plaintiff and
Mr. Cadden had a dispute about Ms. Love “years
ago.” (Id. at 10.) Plaintiff told Ms. Speight
that Mr. Cadden was “bias[ed], prejudice[d] and [has]
been firing African Americans in the same or similar
ways.” (Id. at 5.) Plaintiff was not given the
opportunity to defend himself or be present or represented at
any “termination meetings.” (Id. at 6.)
filed a charge with the United States Equal Employment
Opportunity Commission (“EEOC”). However,
Plaintiff stated he has not received a right to sue letter
from the Equal Employment Opportunity Commission
(“EEOC”). (Id. at 6.)
Legal Standard for Screening
amended complaint or any portion thereof may be dismissed if
it is frivolous, malicious, or fails to state a claim upon
which relief may be granted, of if it seeks monetary relief
from a defendant who is immune to such relief. See
28 U.S.C. § 1915(e)(2)(B). A claim is frivolous if it
“lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 327
(1989). Moreover, “[f]ailure to state a claim under
§ 1915(e)(2)(B)(ii) is governed by the same standard as
dismissal for failure to state a claim under Fed.R.Civ.P.
12(b)(6).” Wilkerson v. H & S, Inc., 366
F. App'x 49, 51 (11th Cir. 2010) (citing Mitchell v.
Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997)).
avoid dismissal for failure to state a claim upon which
relief can be granted, the allegations in the complaint must
“state a claim for relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility 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, 678 (2009). That is,
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.”
Twombly, 550 U.S. at 555. While Rule 8(a) of the
Federal Rules of Civil Procedure does not require detailed
factual allegations, “it demands more than an
unadorned, the defendant unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678. A
complaint is insufficient if it “offers ‘labels
and conclusions' or ‘a formulaic recitation of the
elements of a cause of action, '” or if it
“tenders ‘naked assertions' devoid of
‘further factual enhancement.'” Id.
(quoting Twombly, 550 U.S. at 555, 557). In short,
the complaint must provide a “‘plain
statement' possess[ing] enough heft to ‘sho[w] that
the pleader is entitled to relief.'”
Twombly, 550 U.S. at 557 (quoting Fed.R.Civ.P.
the court affords a liberal construction to a pro se
litigant's pleadings, holding them to a more lenient
standard than those drafted by an attorney. Haines v.
Kerner, 404 U.S. 519, 520 (1972); Erickson v.
Pardus, 551 U.S. 89, 94 (2007). However, this liberal
construction does not mean that the court has a duty to
re-write the complaint. Snow v. DirecTV, Inc., 450
F.3d 1314, 1320 (11th Cir. 2006).
Plaintiff Fails to State a Title VII Claim.
complaint attempts to assert a Title VII employment
discrimination claim against Defendants. (Doc. no. 1, p. 4.)
However, Plaintiff conceded the EEOC has not yet issued such
a letter with regards to the charge he filed on January 12,
2017. Prior to bringing a claim of employment discrimination
under Title VII, a plaintiff is required to exhaust available
administrative remedies. Wilkerson v. Grinnell
Corp., 270 F.3d 1314, 1317 (11th Cir. 2001). Generally,
as an initial step, the aggrieved employee must file a charge
of discrimination with the EEOC and receive a right-to-sue
letter. Id.; see also 42 U.S.C. §
2000e-5(f)(1) (requiring charges be filed within ninty days
of issuance of a right-to-sue letter). The receipt of the
right-to-sue letter is not a jurisdictional requirement, but
rather a statutory prerequisite subject to equitable
defenses. See Zipes v. Trans World Airlines, Inc.,
455 U.S. 385, 393 (1982) (holding prerequisite of obtaining a
right-to-sue letter is subject to waiver, estoppel, and
equitable tolling); Forehand v. Fla. State Hosp. at
Chattahoochee, 89 F.3d 1562, 1569 (11th Cir. 1996)
(“[R]eceipt of a right-to-sue letter is not a
jurisdictional prerequisite ...