United States District Court, W.D. Oklahoma
RUTH C. WARRIOR, Plaintiff,
HOPE COMMUNITY SERVICES, INC., Defendant.
L. RUSSELL, UNITED STATES DISTRICT JUDGE.
Hope Community Services, Inc. filed a Motion to Dismiss (Doc.
No. 10) seeking dismissal of Plaintiff's pro se
Complaint. Plaintiff responded in opposition to the motion,
and Defendant filed a reply in support of its position.
Having considered the parties' submissions, the Court
finds as follows.
filed this action and alleged the following as her claim:
Plaintiff was employed by defendant. During the course of the
employment, defendant discriminated against plaintiff in the
manner described in the attached Charged in Discrimination
and the attendant administrative file prepared pursuant to
the charge, in violation of federal and state law.
Doc. No. 1, p. 1. The remaining allegations do not assert
substantive allegations of discrimination, and thus these are
the operative facts for purposes of Defendant's motion.
Rule 12(b)(6) a court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion
under Rule 12(b)(6), the court must “accept as true all
well-pleaded factual allegations...and view these allegations
in the light most favorable to the plaintiff.”
Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir.
2010) (quoting Smith v. United States, 561 F.3d
1090, 1098 (10th Cir. 2009)). A plaintiff may not rely on
mere labels or conclusions, “and a formulaic recitation
of the elements of a cause of action will not do.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007); see also Hall, 935 F.2d at 1110 (holding
that even pro se litigants cannot rely on conclusory,
unsubstantiated allegations to survive a 12(b)(6) motion).
Rather, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009); see also Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)
(explaining that plausibility refers “to the scope of
the allegations in a complaint, ” and that the
allegations must be sufficient to nudge a plaintiff's
claim(s) “across the line from conceivable to
plausible.”). The ultimate duty of the court is to
“determine whether the complaint sufficiently alleges
facts supporting all the elements necessary to establish an
entitlement to relief under the legal theory proposed.”
Forest Guardians v. Forsgren, 478 F.3d 1149, 1160
(10th Cir. 2007). The court liberally construes a pro
se complaint and applies “less stringent standards
than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d
1081 (2007). Nonetheless, a pro se litigant's
“conclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief
can be based.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir.1991). The court “will not supply
additional factual allegations to round out a plaintiff's
complaint or construct a legal theory on a plaintiff's
behalf.” Whitney v. New Mexico, 113 F.3d 1170,
1173-74 (10th Cir.1997).
Petition contains a single factual allegation relevant to the
inquiry currently before the Court, that she was employed by
the Defendant. This allegation is clearly insufficient to
avoid dismissal of Plaintiff's complaint, as she makes no
allegations from which the Court can infer discriminatory
treatment by Defendant. Plaintiff, however, did reference her
Charge of Discrimination in the June 6, 2017, Petition,
although she failed to attach a copy to her pleading.
“[I]f a plaintiff does not incorporate by reference or
attach a document to its complaint, but the document is
referred to in the complaint and is central to the
plaintiff's claim, a defendant may submit an indisputably
authentic copy to the court to be considered on a motion to
dismiss.” See GFF Corp. v. Associated Wholesale
Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997).
Plaintiff attempts to add additional factual support for her
claims via her response to the motion to dismiss, the Court
is limited to consideration of her Petition and the document
incorporated therein by reference. The Court finds that even
with consideration of the Charge of Discrimination Plaintiff
fails to allege a plausible claim for race discrimination
based on either discriminatory treatment or a hostile work
environment theory. She similarly fails to allege sufficient
facts to support her claim of retaliation for complaints of
race discrimination, or disability discrimination, including
failure to accommodate. With regard to her hostile work
environment claim, the only facts the Court can derive from
the EEOC charge are the three examples contained therein,
which is insufficient to allege that Plaintiff suffered
harassment sufficiently severe or pervasive so as to alter a
term, condition or privilege of her employment with Defendant
and created an abusive working environment. See U.S. ex.
rel. Feaster v. Dobbs Chiropractic Clinic, LLC, 2015 WL
6801829, *6 (D.Kan. 2015).
VII prohibits an employer from retaliating against an
employee because she has opposed an employment practice based
on Title VII discrimination. Khalik v. United Air
Lines, 671 F.3d 1188, 1192 (10th Cir. 2012)(citing 42
U.S.C. § 2000e-3(a)). “A meritorious retaliation
claim will stand even if the underlying discrimination claim
fails.” Sanchez, 164 F.3d at 533. “To
state a prima facie case for retaliation under Title VII, a
plaintiff must show ‘(1) that [s]he engaged in
protected opposition to discrimination, (2) that a reasonable
employee would have found the challenged action materially
adverse, and (3) that a causal connection existed between the
protected activity and the materially adverse
action.'” Khalik , 671 F.3d at 1193
(quoting Twigg v. Hawker Beechcraft Corp., 659 F.3d
987, 998 (10th Cir. 2011)). Nevertheless, at the motion to
dismiss stage, the plaintiff need not establish her prima
facie case; she need only state a plausible claim.
Khalik, 671 F.3d at 1192.
discussed above, the Court construes Plaintiff's pro
se complaint liberally. Roman-Nose v. New Mexico
Dep't of Human Servs., 967 F.2d 435, 436-37 (10th
Cir. 1992). Following Defendant's lead and considering
the allegations in the Charge of Discrimination, the Court
finds that Plaintiff's Complaint fails to state a claim
for retaliation. She alleges that she informed human
resources of allegedly discriminatory comments and thereafter
was subjected to counseling by her supervisor about an
absence. Although he allegedly stated that he had heard from
other employees that she was a troublemaker, there is no
basis in the Charge or Complaint to draw an inference that
her counseling was inappropriate under the circumstances or
that the supervisor had any knowledge about Plaintiff's
alleged complaints to human resources. Although Plaintiff
alleges she was terminated on September 14, 2015, the Court
cannot discern when she allegedly reported the racial
harassment so as to conclude she has stated a claim for
with regard to her claim that Defendant violated the
Americans with Disabilities Act, the Complaint and Charge are
devoid of any facts from which the Court could infer that
Plaintiff was disabled under any of the relevant ADA
standards. It is insufficient to allege that she requested
and was denied a reasonable accommodation without first
pleading facts to establish that she was entitled to such
as here, however, a pro se Plaintiff's original
pleading misses “important element[s] that may not have
occurred to [her], ” the Court will grant leave to
amend. Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). Here it appears from
Plaintiff's response to the motion to dismiss that she
possesses additional facts to be incorporated into an amended
complaint that may permit her to comply with the pleading
requirements of Iqbal and Twombly.
Plaintiff may file an amended complaint not later than
October 10, 2017.
Motion to Dismiss is hereby granted and the Court grants
Plaintiff leave to amend. Should no amended complaint be
filed by the deadline set ...