United States District Court, S.D. Georgia, Augusta Division
PORSHA L. WHITFIELD, Plaintiff,
BOLEWIS and FLUOR ENTERPRISES, Defendants.
MAGISTRATE JUDGE'S REPORT AND
K. EPPS UNITED STATES MAGISTRATE JUDGE
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) &
OF THE COMPLAINT
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.)
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.)
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.)
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).
Defendant Lewis Should Be Dismissed.
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 ...