Nurse v. Teleperformance Inc. et al, No. 1:2015cv00094 - Document 30 (S.D. Ga. 2016)
Court Description: ORDER granting 11 Motion to Dismiss Plaintiff's ADEA claim and dismissing Plaintiff's Title VII claim sua sponte. The Court dismisses both claims with prejudice. The Clerk is directed to terminate all pending motions and close this case. Signed by Judge J. Randal Hall on 07/08/2016. (thb)
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Nurse v. Teleperformance Inc. et al Doc. 30 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION RONALD A. NURSE, * * * v, * TELEPERFORMANCE, INC., VERONICA WEST, and TRACEE JOHNSON. * l:15-cv-94 * Defendants. * * * * ORDER Presently before the Court is Defendants' motion to dismiss Plaintiff's Amended Complaint for failure to state an ADEA claim under Federal Additionally, Rule of Civil on May 16, Procedure 2016, 12(b)(6). (Doc. 11.) the Court informed the parties that it was considering the sua sponte dismissal of Plaintiff's Title VII claims for failure to state a claim. Order gave Plaintiff opposition to dismissal, an opportunity which he did. to (Doc. file a 27.) That brief in Having now been fully briefed on both claims, the Court GRANTS Plaintiff's motion and its sua sponte motion and DISMISSES Plaintiff's claims WITH PREJUDICE. Dockets.Justia.com I. BACKGROUND A. Procedural History On June 25, se Complaint West, to 2015, against and Tracee proceed in denied his Plaintiff Ronald A. Defendants Teleperformance, Johnson. (Doc. forma pauperis. motion Nurse and 1.) (Doc. directed Plaintiff 2.) filed his pro Inc., Veronica filed a motion The Magistrate Plaintiff to file an Judge amended complaint and a new motion to proceed in forma pauperis. 4.) Soon after, Plaintiff renewed his motion. under the (Docs. heading 5, and Fourteenth Constitution. 6.) "Jurisdiction jurisdiction under 42 U.S.C. Eighth filed (Doc. Discrimination in § 621 et seq. 5 In and Amended his Complaint and Amended Complaint, Venue," Plaintiff alleged § 1983 based on violations of the Amendments at an (Doc. 2.) the Plaintiff on the Act Amended of 1967 United also cited Complaint, ("ADEA"), States the Age (Id.) Based Employment to U.S.C. Magistrate the 29 Judge granted Plaintiff's motion to proceed in forma pauperis. 7 at 1.) The Magistrate claim because Judge dismissed Plaintiff's (Doc. § 1983 he did not plead "any facts demonstrating Defendants acted under Plaintiff "arguably color stated treatment under Title VII. of a state viable law," claim but for found that that disparate 42 U.S.C. § 2000e-2 (a) (1)." (IdJ The Magistrate Judge never addressed the viability of Plaintiff's ADEA claim. Defendants subsequently appeared in this case and filed the presently motion pending does not ADEA claim. motion to address On May 16, dismiss. Plaintiff's 2015, (Doc. Title 11.) VII Defendants' claim, only his the Court notified Plaintiff that it was considering the sua sponte dismissal of Plaintiff's Title VII disparate-treatment claim. (Doc. 27.) Subsequently, Plaintiff and Defendants provided briefs in opposition to and in support of dismissal, requirements Puerto Rico, been met, of respectively. Jefferson Inc., (Docs. 28-29.) Fourteenth Assocs. 695 F.2d 524, 526-27 the Court's sua v. (11th Cir. sponte motion and The notice Wometco de 1983), having Defendants' motion to dismiss are now ready for adjudication. B. The Amended Complaint's Allegations For some time before March 14, 2015, Defendant Teleperformance, Inc. employed Plaintiff at its Augusta, Georgia call center. employed (Compl., Defendants center. (Id.) Doc. Veronica In 1 at West general, 2.) and Teleperformance Tracee Johnson Defendant alleges also at the that Teleperformance conspired with Veronica West and Tracee Johnson to discriminate specifically, and harass Plaintiff. (Id. at 2-3.) More Plaintiff alleges that he was the only employee whom supervisors wrote up and threatened with termination when his machine malfunctioned, even though all employees' machines, including the at 2.) female employees' Additionally, repeatedly "accus[ed] Plaintiff him coaxing a supervisor to machines, of malfunctioned. alleges Defendants allegations," false that ultimately level a false charge against resulting in his termination. (Id. at 2-3.) alleges being that Defendants "are (Id. sued In sum, for Plaintiff Plaintiff misfeasance and misandry because they abused their authority and took advantage [of] their mistreat cruel power plaintiff 14, 2015. to every neglect, day" abuse, from March discriminate, 14, 2014 until and March (Id^ at 3.) II. Under Federal Rule LEGAL STANDARD of Civil Procedure 8(a)(2), a complaint must contain "a short and plain statement of the claim showing that the the pleader is entitled to relief" to give defendant fair notice of both the claim and the supporting grounds. Atl. Corp. v. Twombly, defendant's plaintiff's to raise Rule 12(b)(6) complaint must a right those facts must its face." 550 U.S. 544, 555 to motion relief factual therefore, above the speculative 550 U.S. attacked by a Rule 12(b)(6) detailed dismiss, To survive a include enough "factual "state a claim to Twombly, to (2007). at relief that 570. Bell is Although a allegations level," and plausible on a complaint motion need not be buttressed by allegations, the plaintiff's pleading obligation formulaic not "requires recitation do." more Id. than at an accusation." of than the 555. The Ashcroft Rule the same time, and of a conclusions, cause 8 pleading of and action a will standard "demands the-defendant-unlawfully-harmed-me v. 556 U.S. labels elements unadorned, (quoting Twombly, At more Iqbal, 556 U.S. 662, 678 (2009) at 555). a complaint should not be dismissed for failure to state a claim "unless it appears beyond a doubt that the plaintiff can entitle him to (1957); see 2011 WL prove relief." also Cnty. F.2d 1171, must accept construe Bd. 1174 all at true (11th Cir. all circumstances Gibson, v. Ga. Co., Sept. Marshall 1993)). facts At in in the Hoffman-Pugh v. Ramsey, 41, 45-46 1:ll-cv-2747, 27, this would U.S. No. Cnty. alleged inferences 355 that 2011) Gas Dist., stage, the (citing the 992 Court complaint light most and favorable 312 F.3d 1222, 1225 are held to less 2002) . Further, stringent (N.D. Cir. reasonable to the plaintiff. of Statebridge Educ. (11th as v. *2 of set Conley v. Kabir 4500050, Marshall no "[a]lthough pro standard than se pleadings pleadings filed by lawyers a and are generally construed liberally, Alba v. Montford, 517 F.3d 1249, 252 (11th Cir. 2008) . . . , this liberal construction does not give a court license to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain an action." Giles v. Wal-mart Distribution Ctr., App'x 91, 93 (11th Cir. 2008) 359 F. (internal quotations omitted). III. ANALYSIS A. Plaintiff's Title VII Claim As an initial accusations engaged matter, that in race, Plaintiff's Defendants, gender, and briefs particularly age complaint Adding (Doc. by 15 at 2-3.) adding allegations discrimination, cv-2649, 2011 plaintiff's Federal of WL Rule claim for in allegations in Corp., 829 F.2d could have relationship the the Court 1563, so."); Marshall 366 F. App'x 91, the v. her Mayor violated O.C.G.A. § 10- of his to dismiss, J. P. Turner (N.D. to Ga. amend 15. briefs. pre-1979 his the 17, of (11th Cir. 2010) not City of under states a factual Georgia because mean A allegations 1987)("That not 1:09- for purposes the Coon v. is 2011). complaint factual claims briefs. No. Complaint and Cir. does & Alderman May Amended See (11th & Co., Accordingly, considers charge body motion Complaint 1570 197 9 101 a Plaintiff s Plaintiff's to is Amended pleaded *5 Procedure whether relief, contained course of Civil determining at the to Brown v. 1882522, proper in response plainly inappropriate." and A plaintiff may not amend his allegations "in many Teleperformance, the Georgia Fair Business Practices Act of 1975, 1-390 et seq. contain that Pac. plaintiff of their she Savannah, did Ga., ("The fact that Marshall could have amended claims pleaded complaint, ^present' her but Title did within not, her retaliation does not claim The in her render somehow complaint.") course, consider the arguments Title VII provides VII her Court does, in Plaintiff's briefs. that it is unlawful for an employer to discriminate against an employee because of the employee's See 42 U.S.C. § 2000e-2 (a) (1) . claim under Title VII, matter (taken as to discrimination. See Davis v. F.3d (11th 955, 555). out The 974 complaint Cir. because McDonnell Terrace a 2008) allege Twombly, facts not 789 506, 550 511 1245-46 at make (citing "This is framework a pleading requirement." 1239, to Id. (2002)). 516 U.S. sufficient burden-shifting F.3d gender Consol., Douglas prima facie case." Douglas's Found., ^enough factual intentional" (quoting sex. disparate-treatment Coca-Cola Bottling Co. Sorema N.A., 534 U.S. evidentiary standard, Hamlin state suggest' "need not a classic McDonnell Swierkiewicz v. To a complaint "must provide true) of is an Surtain v. (11th Cir. 2015) (citing Swierkiewicz, 534 U.S. at 510). According to the Amended Complaint, Defendants conspired to fire Plaintiff by having a supervisor level against him. An investigation, cleared him of the charge, but a false Plaintiff contends, accusation would have Defendants refused to scrutinize the evidence. Viewed in the light most favorable to Plaintiff, this allegation suggests that Defendants fired Plaintiff based on a false accusation while knowing the accusation was false. Notably absent from Plaintiff's Complaint is any suggestion that Defendants fired him because of his gender. "Title VII is neither a general civility code nor a statute making actionable the ordinary tribulations of the workplace." Lake Park, contrary, 245 F.3d "[t]o be 1232, 1238 actionable (11th under Davis v. Cir. Title Town of 2001). VII, On the the harassing conduct or the adverse employment action must be because of the employee's protected Jacobs Biando, v. (emphasis characteristic, 592 added). F. Appfx Plaintiff's in this 838, Amended 841 case [gender]." (11th Complaint Cir. 2014) alleges Teleperformance fired him based on a false accusation, that but does not allege that the real reason was that he is male. Even liberally construed, the only factual allegation the Amended Complaint that concerns gender at all is that, employees' machines—including employees-malfunctioned, those operated allegation 1 The uncoupled Court from, suggests notes for George, 24 F. that that Defendants a mere example, Supp. a write-up change 3d 1254, 1264 "numerous courts have concluded that of termination do not constitute Medearis v. CVS Pharmacy, affTd sub nom. Medearis v. female in (Compl. at 2.)1 treated or negative job duties, benefits does not constitute an adverse employment action. v. when Plaintiff was "the only employee being written up and threatened to be fired daily." This by in 92 F. CVS (M.D. Ga. 2014). Plaintiff evaluation hours, or See Mason Similarly, *[v]erbal reprimands and threats adverse employment actions.'" Supp. 3d 1294, 1312 Pharmacy, Inc., No. (N.D. Ga. 2015), 15-11605, 2016 WL 1273475 (11th Cir. Apr. 1, 2016); Mistretta v. Volusia County Depft of Corrections, 61 F. Supp. 2d 1255, 1260 (M.D. Fla. 1999). 8 differently than all other employees, to, the female plausible employees. inference construing the of event Therefore, sex as additional allegations Plaintiff's including, does discrimination. sex termination. it but not limited not Moreover, discrimination, that connect See this Jacobs, support 592 there even are occurrence F. App'x a at no to 841 (affirming the dismissal of a disparate-treatment claim in part due to based the comment Plaintiff then absence did fired to connecting allegations the not him of complained-of allege because that he general, conduct). Defendants is a male. Simply falsely See race- accused id. put, and Accordingly, Plaintiff's disparate treatment claim must be dismissed. To the extent that Plaintiff's states a sexual-harassment claim, allege that he belongs to a protected group; subject harassment was harassment to was sexual-harassment unwelcome based on sexual the sufficiently arguably such a claim fails for similar To been a Complaint reasons. (1) state Amended claim, (2) harassment; Plaintiff's severe Plaintiff or must that he has (3) that the to pervasive the (4) sex; that alter the terms and conditions of employment and create a discriminatorily abusive working Teleperformance 1238, 1245 environment; liable. (11th Cir. and (5) See Mendoza v. 1999) a basis Borden, for Inc., holding 195 F.3d (en banc). "The paradigm of sexual harassment as federally prohibited employment discrimination occurs when an employee's expressed terms of employment, such as salary or continued employment, are conditioned upon compliance with the employer's sexual demands." Id. pro This form of harassment is "traditionally described as quid quo harassment." Id. "Absent such explicit discrimination," a plaintiff must demonstrate that a defendant's conduct is conditions "sufficiently of [the victim's] working environment." Vinson, 477 conduct U.S. was employee's severe 57, Id. 67 terms and (quoting Meritor severe or Sav. of that (2) should be the Circuit considered: severity physically utterance; of (4) the conduct; or whether (3) conduct with the employee's job performance." Here, Plaintiff's Amended to abusive FSB v. alter includes an a the Supreme Court following frequency of whether humiliating, the Bank, the Id. at 124 6. identified the "(1) the threatening and have an employment With respect to the objective component, Eleventh alter create pervasive subjective and an objective component." and the to "Establishing that harassing conditions or pervasive employment (1986)). sufficiently or or the conduct; the a factors conduct is mere offensive unreasonably interferes Id. Complaint is absent any allegations of harassment "sufficiently severe or pervasive" as to alter the conditions of his employment. Winter Park Hous. Auth., See 486 F. App'x 771, 774 Tagliaferri v. (11th Cir. 2012) (allegations that "defendant photographed [plaintiffs] outside," "set up [a] video camera at [plaintiffs'] bedroom window once", 10 and "interrupted severe App'x or their pervasive 911, 913 plaintiff's conversations under (11th Cir.2006) claim that sixteen conduct over four years conduct at offensive issue Mendoza); with Mitchell (per men" v. specific were Pope, curiam) (rejecting instances of F.3d at and 1247-48 sufficiently plaintiff, severe on three "crass" Though occasions the defendant Plaintiff the conduct, component). the 1246 the working that not told employer is the followed not the harassment was sufficiently allege frequent, the the severity of (describing the job performance. four factors to See Mendoza, the objective Because the Amended Complaints fails to allege that conditions relief does alleges interfered with his harassment abusive where conduct whether he was physically threatened or humiliated, or whether it the pervasive employer's Mendoza, and made sniffing noises while staring at her). Amended Complaint F.3d at the and "juvenile" "I'm getting fired up," rubbed against her, her around, 195 (holding that an or F. offensive attempted to touch or actually touched the plaintiff); 195 189 not constituted sexual harassment where the consisted primarily of utterances other is was of "sufficiently [the victim's] environment," plausible severe on it its or pervasive employment does face." not and "state Twombly, to alter create a 550 an claim to U.S. at 570. Whether a disparate-treatment or a sexual-harassment claim, Plaintiff's Amended Complaint fails to state a claim for relief 11 under Title Plaintiff's VII. The Title VII Court, sua sponte, makes an at 2.) To state a claim acting DISMISSES claims. B. Plaintiff's ADEA Claim Plaintiff's Amended reference to the ADEA. Complaint (Amended Compl. for relief under the ADEA, unexplained a plaintiff must allege "(1) that he was a member of the protected group of persons between the ages of forty and seventy; (2) employment action; filled position that and that the discharged; which he was 135 1428, F.3d (3) (4) that rejected." 1432 that a [s]he he was he was substantially sought Cir. or qualified Turlington v. (11th subjected 1998). younger from to adverse person which he was the job for do Atlanta to Gas Light Alternatively, to Co., the extent Plaintiff alleges a hostile-work-environment claim under ADEA,2 he must show that "(1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) was based on group; his membership in a protected the harassment (4) it was severe or pervasive enough to alter the terms and conditions of employment and create a hostile or abusive work environment; and 2 "The Eleventh Circuit has never decided in a published opinion whether a hostile work environment claim is cognizable under . . . the ADEA." Hollingsworth v. QfReilly Auto. Stores, Inc., No. 4:13-cv- 01623, 2015 WL 412894, at *12 (N.D. Ala. Jan. 30, 2015) (citing (citing E.E.Q.C. v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1249 n.7 (11th Cir. 1997). For purposes of this motion, the Court assumes such a claim is viable. 12 (5) [Defendants are] responsible theory of either vicarious Ground Freight, quotations 683 omitted) F.3d or for direct 1283, environment claim under 42 U.S.C. (11th of Defendants who replaced him in Plaintiff's West his Amended harassed Amended him and caused Johnson, him all is that to 2012) of or a the Likewise, In Complaint Jones v. a UPS (internal hostile work the ages of his coworkers, reference age. under § 1981 and Title VII). position. Complaint suffered because of his Plaintiff's and Cir. elements Plaintiff has not pled his age, ages environment liability." 1292 (describing the the that any at women his no of anyone point does discrimination respects, lose age he the gravamen of at Teleperformance job. In short, the Court is at a loss to see an ADEA Claim in the Amended Complaint or understand what motivated ADEA, 29 U.S.C. Plaintiff to include a reference to § 621 et seq. Because Plaintiff failed to allege any facts giving rise to a claim under ADEA, which relief Defendants' may his be Complaint granted. Defendants' DISMISSES The to state Court, a claim upon therefore, GRANTS motion to dismiss this claim. IV. For fails the reasons motion Plaintiff's CONCLUSION discussed to dismiss Title VII 13 above, the Plaintiff's claim sua Court ADEA sponte. GRANTS claim The and Court DISMISSES both claims WITH PREJUDICE. The Court DIRECTS the Clerk to TERMINATE all pending motions and CLOSE THIS CASE. /\ ORDER ENTERED at Augusta, Georgia, this day of July, 2016. )AL HALL 'STATES DISTRICT JUDGE 1ERN 14 DISTRICT OF GEORGIA
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