Windham v. Lynch et al, No. 5:2016cv00083 - Document 28 (S.D. Ga. 2017)

Court Description: ORDER granting in part and denying in part 9 Motion to Dismiss. The Court's stay of discovery is lifted. The parties must conduct their Rule 26(f) conference within fourteen days, and they must file an updated Rule 26(f) report within seven days after their conference. Signed by Chief Judge J. Randal Hall on 06/27/2017. (thb)
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Windham v. Lynch et al Doc. 28 IN THE UNITED FOR THE STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA WAYCROSS CONNIE L. WINDHAM, DIVISION * • Plaintiff, * * JEFF SESSIONS, Attorney General, UNITED STATES DEPARTMENT OF JUSTICE, and FEDERAL BUREAU OF PRISONS, CV 516-083 * * * * Defendants. * ORDER In with this the case, which Federal arises Bureau of out of Prisons, Plaintiff's Plaintiff employment alleges that Defendants retaliated against her for testifying against the BOP in a race-discrimination case and that against her because of her gender. Plaintiff's claims, arguing (1) that Plaintiff (2) did not claim. The Court GRANTS supporting exhaust that she has not pleaded she suffered any adverse employment actions, she has not pleaded facts discriminated Defendants move to dismiss that all of her administrative remedies, Defendants and (3) that her gender-discrimination IN PART AND DENIES IN PART Defendants' motion. I. Accepting the facts Background alleged in Plaintiffs complaint as true and viewing the allegations in the light most favorable to Plaintiff, as Martinez, this the 480 case F.3d are 12.) From must, 1043, as Federal Bureau of 1 Court 1057 Prisons Am. (11th follows.1 2001 until in United Cir. Life 2007), Ins. v. facts the Co. of Plaintiff began working (the "BOP") facility correctional see early Jesup, in 2001. 2014, (Doc. Plaintiff Georgia. (See for 1, Compl. worked id. M to the an at a 12-13, 28. ) In November Employment 2013, Opportunity coworker, Rackey complaint against ("EEO") Pasley, the skipping who opportunities. alleges, Wells "became intimidate her." filed (Id. SI supervisor, Plaintiff and overtime testified investigator had BOP. Plaintiff questioned her been Plaintiff SI angry" (Compl. 14. ) SI 21.) 20.) and behalf of race-discrimination A few Paul Wells, Pasley when (Id. a on Equal days later, whether he had selecting employees for In response, "started Plaintiff bullying Around the same time, her to some of 1 Defendants styled their motion as Defendants' "Motion to Dismiss the Complaint, or in the Alternative Motion for Summary Judgment" (see doc. 9), and they refer to matters outside the pleadings. In response, Plaintiff has filed with the Court a number of exhibits, attempting factual disputes exist to defeat summary judgment. taken place in this case, to show that enough Because no discovery has the Court treats this motion only as a motion to dismiss and declines to rely on the majority of the parties' evidence. As discussed below, however, the Court does look beyond the pleadings when addressing Defendants' argument that Plaintiff failed to exhaust all of her administrative remedies. Plaintiff's coworkers 25.) routinely They "Gestapo." Plaintiff January times (Id. that it 2014. in SI began called 26.) was (Id. her In Plaintiff members, a 28.) (Id. The SI blower." that in the "unhappy 2013, her BOP 31.) to in April, gift of was new her and whistle and facility two for example, filed Defendants violation of Plaintiff's this lawsuit retaliated Title and VII. complaint, administrative more a manager staff a whistle- 2016, September discriminated Defendants arguing remedies in for that one II. now she claim alleging against move failed to and that (Doc. fails to state a claim for the others. her to exhaust her Court tests all the 416 U.S. facts inferences Court, 232, 9.) sufficiency of the complaint. 236 in the v. light Ramsey, however, her complaint Legal Standard (1974). most 312 need not and construe favorable F.3d the Scheuer v. The Court must accept as true alleged in the complaint Hoffman-Pugh The legal in dismiss In considering a motion to dismiss under Rule 12(b)(6), Rhodes, in ridicule other for St notified workplace inmates "a BOP moved the (Id. camper/' the a then And front names. (Id^ SI 35. ) Plaintiff that whistle stating "LT," December continued throughout the moves: gave Plaintiff transferring SI January. calling 1222, accept to the 1225 legal all reasonable plaintiff. (11th Cir. conclusions as See 2002). true, only well-pleaded facts. 79 complaint also accepted as true, 550 Iqbal, 556 U.S. its to face.'" U.S. Id. 544, "factual 570 content inference that alleged." "probability must 678- "contain at 678 (citing Bell Atl. (2007)). the sufficient factual A plaintiff allows the defendant "The court is but it Corp. is to for standard asks for the the is speaking denied alleges to her the more overtime transferred her, Defendants reasonable akin than retaliated investigator: opportunities, and plead a to a sheer Id. Discussion that EEO Twombly, misconduct not possibility that a defendant has acted unlawfully." III. v. required to draw liable plausibility requirement,' Plaintiff matter, 'state a claim to relief that is plausible that Id. for 662, (2009). A on Ashcroft v. that her she that claims the coworkers BOP against that her Wells improperly ridiculed her. Plaintiff also alleges that Defendants discriminated against her because of her complaint. They administrative Wells gender. argue remedies Defendants (1) that with move to Plaintiff did not to her opportunities, (2) that name-calling were denied her overtime reassignments and allegations respect dismiss of Plaintiff's exhaust allegations her that Plaintiff's not adverse employment actions, and (3) that Plaintiff has failed to plead any facts supporting her gender-discrimination claim.2 A. Whether Plaintiff Exhausted Her Administrative Remedies As noted, Plaintiff contends against her in a number of ways, to work exhaust did overtime. her not Wells administrative contact the denied her 29 C.F.R. Defendants EEO that Defendants including by not allowing her argue remedies office that for Plaintiff this claim within 45 days opportunities overtime retaliated in did not because she from November the date 2013. See § 1614.105 (a) (1) . Before filing suit under Title VII, a federal employee must exhaust her administrative remedies so that the agency has "the information it needs to investigate and between the employee and the employer." F.3d 1322, 1326 quotation (11th marks requirement, a contact 45 days § 1614.105(a)(1). within 1999) omitted). plaintiff Counselor within C.F.R. Cir. the of part "initiate the date of the dispute Crawford v. Babbit, (citation As must resolve omitted) of contact the 18 6 (internal exhaustion with the" wrongful [an act. EEO] 29 And when a plaintiff does not initiate 45-day period, her claims are typically In her complaint, Plaintiff requests punitive damages, and Defendants move to dismiss that request because punitive damages are not recoverable against government agencies. Because Plaintiff concedes this point, the Court GRANTS Defendants' motion to dismiss on this issue. barred. 1242 Ramirez v. (11th Cir. According Sec'y, U.S. to Defendants, 2014, overtime opportunities.3 on exhausted her forty-five (doc. contact did days 2), a Plaintiff she does until contact anyone from denied Defendants' B. Whether on has not the 3, EEO she (her 2014. office overtime this that because dispute March her motion Plaintiff argues remedies office Wells contact the EEO Without citing any precipitating event but not (See Doc. 9-1.) issue, of did over 100 days after Wells denied her EEO after GRANTS Plaintiff administrative at the not the days 21 686 F.3d 1239, 2012). office until March 3, authority Dep't of Transp., she timely "filed third that transfer)" she did Because until not Plaintiff more opportunities, within than the 45 Court issue. Pleaded that She Suffered Adverse Employment Actions Under other Title VII, things, employee hearing" 3 pleadings in is unlawful made a an against an employee charge, any manner under the in an statute. On a motion to dismiss, when for discriminate "has participated it determining employer investigation, U.S.C. among because the assisted, testified, 42 to, or proceeding, § 2000e-3(a). or A the Court may view matters outside the whether a plaintiff has exhausted her administrative remedies. See Bryant v. Rich, 530 F.3d 1368, 1373-74 (11th Cir. 2008). Indeed, the Court is permitted to make factual findings and resolve disputes as long as the Court does not reach the merits of a claim. See id. at 1376. Here, the Court has reviewed the complaint of discrimination that Plaintiff filed with the Department of Justice, which shows that Plaintiff first contacted the EEO office on March 3, 2014. (Doc. 9-1.) But the Court has not resolved any factual disputes because Plaintiff does not argue that she contacted the EEO office before that date. plaintiff asserting "(1) that she that she there v. is some Lighting, Defendants she contends an retaliation claim Inc., she employment between 506 F.3d action; the 1361, two and challenge adverse whether employment suffered adverse mocked argue affect her (3) events.'' 1363 (2) that Thomas (11th Cir. Plaintiff her that employment for has actions. 2007) employment testifying actions on Plaintiff's transfers conditions and that pleaded Plaintiff the BOP transferred her to different facilities and Defendants prove (internal quotation marks omitted). only coworkers must statutorily protected expression; relation suffered that VII adverse causal (citation omitted) that Title engaged in suffered Cooper a when (1) (2) when her behalf Pasley. did not materially name-calling cannot support a Title VII retaliation claim. 1. Plaintiff s Transfers Defendants argue that Plaintiff's transfers do not support a retaliation claim because she "cannot demonstrate any serious or material change to And citing Davis v. Cir. one 2001), that quotation employment . . . ." Town of Lake Park, (Doc. 245 F.3d 1232, 9 at 1239 8.) (11th they contend that "[a]n adverse employment action is involves conditions, her or marks a serious privileges omitted) of and material change employment." (Id. (emphasis omitted).) in at But the 7 terms, (internal that is no longer the standard for evaluating adverse employment actions in retaliation White, cases. 548 U.S. See 53, 68 In Burlington, Burlington N. & Santa Fe Ry. Co. v. (2006). the Supreme Court held that a plaintiff in a retaliation case need only prove that she suffered a materially adverse action, which means that the action "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." marks omitted). Id. This (citation omitted) holding (internal quotation "significantly broaden[ed]" the standard for analyzing adverse employment actions in retaliation cases. Crawford v. 2008). Indeed, Carroll, 529 the Court's F.3d holding 961, 974 n.15 (11th Cir. in Burlington "strongly suggests that it is for a jury to decide whether anything more than the most petty and should be considered trivial actions 'materially adverse' against . . . ." an employee Id. at 973 n.13. Plaintiff alleges in retaliation for that the BOP transferred her three times testifying on behalf of Pasley. these allegations in the light most favorable to Viewing Plaintiff, the Court is satisfied that Plaintiff has alleged that the transfers "well might have dissuaded a reasonable supporting a charge of discrimination." 68 is, (citation omitted) if employees facilities, they worker from making Burlington, (internal quotation marks feared may not being be omitted). transferred willing to 548 U.S. to testify or at That different against Defendants. this Accordingly, the Court DENIES Defendants' motion on issue. 2. Plaintiff's Coworkers' As noted, Plaintiff Actions alleges that, after she testified to the EEO investigator, her coworkers began routinely calling her "LT," "unhappy camper," and "Gestapo." one occasion, whistle for contend - a manager a gave Plaintiff whistle-blower." and Plaintiff (Compl. does SI 26.) a whistle and (Compl. 35.) dispute not SI - that And on said, Defendants Plaintiff asserting a claim of retaliatory hostile work environment. Gowski v. Peake, In essence, environment hostile on arises work protected F.3d at 682 F.3d 1299, a when an 1311-12. under Thus, created showing that pervasive." defendant's conduct; conduct offensive the Id. in 42 the work employee to for engaging § 2000e-3(a). courts In of evaluating Gowski, "(1) of conduct; the (4) or whether which were the consider threatening and environment, complained severity utterance; hostile a in 682 a plaintiff must prove that the work 1312. physically See 2012). an retaliation is to succeed on a retaliation claim based hostile at subjects U.S.C. actions conduct, (2) is a retaliatory employer a hostile work environment, defendant (11th Cir. for claim environment conduct 1311 "a the "severe severity frequency (3) humiliating, the requires conduct or of of whether a or a the the mere unreasonably interferes with the employee's omitted) argue that "few offensive utterances pervasive (Doc. 9 mocked Id. (citation (internal quotation marks omitted). Defendants or job performance." at enough 9.) to But because she witnessed a "few satisfied that Plaintiff's spoken about constitute Plaintiff testified offensive Plaintiff F. Supp. persuaded that plausible hostile Plaintiff] 2d 270, [Plaintiff] against that unreasonable demands, profanity at Drew, 280 more favorably."). this often she facts claim harsh raised treating the and his that Court is The Court thus DENIES she thus claim of Plaza Constr. ("The Court make Plaza out is a [because critical, voice Caucasian action." not that against severe routinely plausible 2010) a was See Drew v. alleged was are not BOP, a because adverse The (S.D.N.Y. Smith while the pleaded has and that utterances." discrimination alleges employees alleges has fails materially retaliatory hostile work environment. Corp. , 688 claim and made directed employees much issue. C. Whether Plaintiff has Pleaded a Under Title VII, or to against discharge any any individual conditions, or individual's . it is with privileges . . sex . . . or respect of ." "to fail or refuse otherwise to his employment, 42 U.S.C. 10 motion on Claim of Gender Discrimination unlawful individual, Defendants' § to to hire discriminate compensation, because 2000e-2(a). of terms, such In her complaint, "discriminated (Compl. about SI why against 47.) She she Plaintiff Plaintiff does thinks alleges on not, the basis however, Defendants complaint, supporting Defendants' the this Court discriminated is claim. In motion to dismiss on this sum, Defendants' the an updated Court motion to discovery (doc. Rule 26(f) unable 27) to any gender." explanation against her or the any facts Court GRANTS issue. Conclusion GRANTS dismiss. IN PART (Doc. is LIFTED. 26(f) her locate AND 9.) report DENIES The Court's IN PART stay of The parties must conduct their conference within fourteen days, Rule Defendants And after reviewing Accordingly, IV. of offer point to any facts supporting her claim.4 the that within seven and they must days after file their conference. ORDER ENTERED at Augusta, Georgia this c^/^day of June, 2017. IIEF JUDGE 1ITE9 STATES DISTRICT COURT CRN 4 DISTRICT OF GEORGIA In her briefs opposing Defendants' motion, Plaintiff mentions that she prevailed on a gender-discrimination claim in 2011, but she does not explain how this prior claim supports her current claim of discrimination. 11