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Whitfield v. Bolewis and Fluor Enterprises

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

November 13, 2017

PORSHA L. WHITFIELD, Plaintiff,
v.
BOLEWIS and FLUOR ENTERPRISES, Defendants.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS UNITED STATES MAGISTRATE JUDGE

         Plaintiff commenced the above-captioned employment discrimination case pro se and is proceeding in forma pauperis (“IFP”). Because she 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) & (ii).

         I.SCREENING OF THE COMPLAINT

         A.BACKGROUND

         Taking all of Plaintiff's factual allegations as true, as the Court must for purposes of the present screening, the facts are as follows. Plaintiff was employed by Fluor Enterprises. (Doc. no. 4, p. 8.) Plaintiff attended an employee meeting on April 5, 2016, wherein Defendant Bo Lewis, her foreman, said to another employee he would let Plaintiff give him “mouth to mouth.” (Id. at 5, 9, 11.) Plaintiff did not respond. (Id. at 9.) Plaintiff alleges generally this was not the first time Mr. Lewis made sexual comments toward Plaintiff, but she does not describe any other incidents. (Id. at 5.) The next day, April 6, 2016, Mr. Lewis “wrote up” Plaintiff for being insubordinate by wearing eyeliner. (Id. at 5, 9.) Another employee wore eyeliner but was not written up. (Id.) Plaintiff had not been written up before. (Id. at 9.)

         Because of Mr. Lewis' formal complaint, Plaintiff was placed on suspension on April 7, 2016. (Id. at 9.) Plaintiff informed human resources about Mr. Lewis' “mouth to mouth” statement and alleged she was written up because she did not respond to the statement. (Id. at 5.) Human resources told Plaintiff there were no witnesses to the exchange, but Plaintiff indicated there were. (Id.) Plaintiff said “‘you dig on (sic) ditch you dig two, '” which is a “biblical term.” (Id.) Human resources interpreted this as a threat and fired Plaintiff on April 24, 2016. (Id.)

         Plaintiff filed a charge with the United States Equal Employment Opportunity Commission (“EEOC”). The EEOC issued a right to sue notice on May 18, 2017, and Plaintiff timely filed this suit on September 16, 2017. (Id. at 7.)

         B.DISCUSSION

         1.Legal Standard for Screening

         The 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)).

         To 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. 8(a)(2)).

         Finally, 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).

         2. Defendant Lewis Should Be Dismissed.

         Plaintiff has brought her Title VII claims against Mr. Lewis in addition to Fluor Enterprises, her past employer. However, the relief granted under Title VII is against the employer, not individual employees who violated the Act. Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991). Thus, individual capacity suits under Title VII are inappropriate, and the only proper defendant in a Title VII suit is the employer or supervisory employees in their official capacities as agents of the employer. Id. To the extent Plaintiff names Mr. Lewis in his official capacity as a supervisory employee, her claims are redundant because she has already named Fluor Enterprises. Busby, 931 F.2d at 776; Wheeles v. Nelson's Elec. Motor Servs., 559 F.Supp.2d 1260, 1267 (M.D. Ala. 2008) (“However, when a plaintiff names both the employer and the individual ...


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