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Toomer v. Ricketts

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

August 29, 2019

CHARLIE TOOMER, Plaintiff,
v.
MARK RICKETTS, Defendant.

          ORDER

          CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Charlie Toomer, proceeding pro se and in forma pauperis, brings this Complaint alleging discrimination and retaliation under Title VII of the Civil Rights Act (Title VII) of 1964, 42 U.S.C. § 2000e, et. seq., and the Age Discrimination in Employment Act (ADEA) of 1967, 29 U.S.C. § 621, et. seq., against defendant Mark Ricketts.[1] Doc. 1. The Court granted plaintiffs Motion for Leave to proceed in forma pauperis (IFP). Id. at 3. The Court now screens the Complaint pursuant to 28 U.S.C. § 1915(e).[2]

         Plaintiff applied for an advertised apartment manager position with "Telfair Arms."[3] Id. at 4. Despite having some experience as an apartment manager, he was not interviewed or hired for the position.[4] Id. at 10. After receiving no response to his application, plaintiff sent a letter to defendant alleging discrimination and threatening to file a complaint with "federal investigators." Doc. 1-1 at 2-3. Several weeks later, an attorney, acting on behalf of "Telfair Arms," notified plaintiff by letter that his lease would not be renewed. Docs. 1 at 10 & 1-1 at 3. Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunities Commission (EEOC). Doc. 1-1 at 4. As a result of defendant's decision to not renew his lease, plaintiff claims he was forced to place his belongings into storage and incur costs related to vacating his apartment. Doc. 1 at 10. Plaintiff also claims that he is currently homeless. Id. at 5.

         ANALYSIS

         I. Exhaustion of Administrative Remedies and Proper Defendant

         Plaintiff has not demonstrated that he exhausted all administrative remedies as required by Title VII and the ADEA before bringing this claim. 42 U.S.C. § 2000e-5(1); 29 U.S.C. § 6269(d)(2), Bost v. Fed. Express Corp., 372 F.3d 1233, 1238 (11th Cir. 2004); Fareed v. U.S. Sec. Ass., Inc., 2012 WL 1939731 (N.D.Ga. May 29, 2012). Exhaustion requires filing a charge of discrimination with the EEOC and receiving statutory notice from the agency of the right to sue. 42 U.S.C. § 2000(e)-5(f)(1); see Forehand v. Fla. St. Hosp. at Chattahoochee, 89 F.3d 1562, 1567 (11th Cir. 1996) ("Before instituting a Title VII action in federal district court, a private plaintiff must file an EEOC complaint against the discriminating party and receive statutory notice from the EEOC of his or her right to sue the respondent named in the charge."); Bost, 372 F.3d at 1238 ("The ADEA requires that an individual exhaust available administrative remedies by filing a charge of unlawful discrimination with the EEOC before filing a lawsuit."). Plaintiff has neither provided a right-to-sue letter from the EEOC[5] nor alleged that the administrative process has been completed. See Burnett v. City of Jacksonville, Fla., 376 Fed.Appx. 905, 907-908 (11th Cir. 2010) (a plaintiff must allege the exhaustion of administrative remedies in their complaint). As such, plaintiff must amend his Complaint to allege whether he has exhausted his administrative remedies. This may be accomplished either by alleging he received a right to sue letter, or by simply attaching a copy of that letter.

         Likewise, plaintiff has not filed suit against a proper party. He has identified Mark Ricketts, in his individual capacity, as defendant. Doc. 1 at 1. However, individual employees are not proper defendants under either Title VII or the AEDA as "[t]he relief granted . . . is against the employer, not the individual employees whose actions would constitute a violation of the Act." Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1993) (citing Clanton v. Orleans Parish School Bd., 649 F.2d 1084, 1099, n. 19 (5th Cir. 1981)) (dismissing claims against city employees and noting that the proper defendant was the city); see also, Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996) (extending Title VII preclusion of individual liability to the ADEA). Additionally, the Eleventh Circuit has held that a civil suit cannot be brought against a party not named in the prior EEOC charge. Bell v. Crackin Good Bakers, Inc., 777 F.2d 1497, 1504 (11th Cir. 1985). If plaintiff does not know the identity of the proper defendant, he may allege his claim against a "John Doe Company," and provide as much information as he has (i.e., identifying the name under which the company does business or identifying the property at issue may be sufficient). See Bowens v. Superintendent of Miami South Beach Police Dep't, 557 Fed.Appx. 857, 862 (11th Cir. 2014) (per curiam) ("[A] claim may be maintained against unnamed defendants where allegations in the complaint make clear the plaintiff could uncover the names through discovery."). If any of his claims merit service, he will have the opportunity to substitute the proper defendant after an opportunity for discovery.

         II. Unlawful Discrimination

         Even if plaintiff had exhausted his administrative remedies and had sued a proper party, his complaint still fails to state a claim. Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1). The ADEA similarly prohibits an employer from failing to hire, discharging, or otherwise discriminating on the basis of age against an individual who is at least 40 years of age. 29 U.S.C. § 623(a)(1). A plaintiff carries the initial burden of proffering evidence adequate to support an inference of a discriminatory employment practice. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Absent direct evidence[6] of discrimination, failure-to-hire claims under both acts must allege that (1) plaintiff is a member of a protected class; (2) they were qualified for the position; (3) they were rejected for the position; and (4) an individual outside of plaintiffs protected class was hired. Id.; Suarez v. Sch Bd. Hillborough Cty., Fla., 638 Fed.Appx. 897, 899 (11th Cir. 2016).

         Plaintiffs Complaint fails to state a claim upon which relief might be granted. Though plaintiff alleges membership in a protected class[7] and a possible adverse employment action, he does not adequately allege that he was qualified for the position. A plaintiff cannot rely on conclusory statements of their general qualifications, rather they must allege with sufficient support that they are qualified for the specific position to which they applied. Pouyeh v. Bascom Palmer Eye Inst., 613 Fed.Appx. 802, 811 (11th Cir. 2015) (finding that an applicant's allegation that he was a medical school graduate with research and clinical experience was not sufficient under Title VII to demonstrate that he was qualified for a specific residency position). In order to sufficiently plead his qualification, the Complaint must include allegations concerning the requirements and responsibilities (from, for example, the advertisement for the position) for the specific position of apartment manager with "Telfair Arms." See Trask v. Sec, Dept. of Veterans Affairs, 822 F.3d 1179 (11th Cir. 2016) (a Title VII or ADEA plaintiff in a failure-to-hire claim must make prima facie showing that she satisfied the employer's objective qualifications). Likewise, to demonstrate discrimination, plaintiff must plead that he was treated differently than an individual outside of his protected class who is otherwise "similarly situated in all material respects." Lewis v. City of Union City, Ga., 918 F.3d 1213, 1217, 1218 (11th Cir. 2019). Here, the plaintiff fails to allege that the position was ultimately filled by a person outside his protected class.

         III. Retaliation

         In addition to his failure-to-hire claim, plaintiff also alleges that defendant, who was also his landlord, retaliated against him for his filing of the EEOC complaint by declining to renew his lease. Doc. 1 at 10. Title VII makes it unlawful for "an employer to discriminate against any of his employees or applicants for employment . . . because [the employee or applicant] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). The ADEA adopts nearly identical language in its prohibition of retaliatory actions. 29 U.S.C. § 623(d). Retaliation claims under both Title VII and the ADEA require a showing that (1) plaintiff was engaged in a protected activity, (2) plaintiff was subjected to an adverse action, and (3) there exists a causal link between the protected act and the adverse employment action. See Shannon v. BellSouth Telecomms., 292 F.3d 712, 715 (11th Cir. 2002) (discussing the elements of a retaliation claim under Title VII); Stone v. Geico Gen. Ins. Co., 279 Fed.Appx. 821, 822 (2008) (discussing the elements of a retaliation claim under the ADEA).

         Filing a Charge of Discrimination with the EEOC is a protected act under Title VII and the ADEA. See Weeks v. Harded Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002) (finding that the timely filing of a charge with the EEOC was statutorily protected expression under Title VII and the ADEA so long as the employee "had a good faith, reasonable belief that the employer was engaged in unlawful employment practices." (quoting Little v. United Tech., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997)). Plaintiff also alleges that he suffered an adverse action when his lease was not renewed. Although Title VII and the ADEA often involve adverse actions taken in the context of the plaintiffs employment (i.e., firing, demotion, or punitive work assignments), both the courts and EEOC have broadly interpreted adverse actions to include those that are not specifically related to the normal confines of the workplace. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 61-67 (2006) (analyzing the language of the anti-discrimination and anti-retaliation provisions of Title VII and finding that anti-retaliation is "not limited to discriminatory actions that affect the terms and conditions of employment."); see also, Rochon v. Gonzales, 438 F.3d 1211, 1213 (D.D.C. 2006) (refusal of Federal Bureau of Investigation to investigate death threats made by a federal prisoner against an agent and his wife was actionable as retaliation); Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 347-48 (6th Cir. 2008) (setting fire to employee's car and threatening violence was actionable as retaliation); Aviles v. Cornell Forge Co., 183 F.3d 598, 604 (7th Cir. 1999) (falsely telling police that employee had a gun and had threatened to shoot supervisor, resulting in police injuring employee so severely he was unable to work for six weeks, was actionable as retaliation); Berry v. Stevinson Chevrolet, 74 F.3d 980, 984, 986 (10th Cir. 1996) (filing false criminal charges was actionable as retaliation). Similarly, the EEOC's Enforcement Guidelines on Retaliation and Related Issues[8] state "[a] materially adverse action may also be an action that has no tangible effect on employment, or even an action that takes place exclusively outside of work, as long as it might well dissuade a reasonable person from engaging in protected activity." U.S. Equal Opportunity Comm'n, Guidelines on Retaliation and Related Issues 35 (Aug. 25, 2016). The loss of a residence undoubtedly disrupts an individual's life and could deter challenging allegedly unlawful actions.

         It is unclear, however, if plaintiffs EEOC complaint prompted defendant's decision not to renew plaintiffs lease. To establish retaliation, a plaintiff must allege a causal link between the protected activity and the adverse action sufficient to show that they were not wholly unrelated. See Simmons v. Camden Cty. Bd. of Ed., 757 F.2d 1187, 1189 (11th Cir. 1985) (holding that the connection between a protected act and adverse employment action need not be alleged by direct evidence, but, rather, only be alleged to be "not wholly unrelated'"); Bonham v. Regions Mortg., Inc.,129 F.Supp.2d 1315, 1327 (N.D. Ala. 2001) (adopting the Eleventh Circuit's "causal link" interpretation for both Title VII and the ADEA). At a minimum, a plaintiff must demonstrate that the employer was aware of the protected activity before taking the adverse action. See Goldsmith v. City of At more,996 F.2d 1155, 1165 (11th Cir. 1993) ("a plaintiff must generally establish that the employer was actually aware of the protected expression at the time it took adverse employment action"). Though the Complaint is not clear as to when defendant became aware of the EEOC filing, it is sufficient that ...


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