Broadhead v. VIA Health Center

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JULIA BROADHEAD, )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO. 24-10-TFM-MU
)
VIA HEALTH CENTER, )
)
Defendant. )
AMENDED REPORT AND RECOMMENDATION
This action is before the Court on the second amended complaint filed by pro se
Plaintiff Julia Broadhead on May 15, 2024 (Doc. 11) and has been referred to the
undersigned Magistrate Judge for pretrial disposition pursuant to 28 U.S.C. § 636(b)(1)(B)
and General Local Rule 72(a)(2)(S). Following Broadhead’s initiation of this action, she
has failed to comply with Court directives and failed to state a claim upon which relief can
be granted. Accordingly, upon consideration of all relevant pleadings and for the reasons
stated herein, the undersigned RECOMMENDS this action be DISMISSED without
prejudice, prior to service of process. The Court amends its earlier Report and
Recommendation (Doc. 12 dated July 25, 2024) to address the fact that this dismissal,
although recommended to be without prejudice, is in effect a dismissal with prejudice.
PROCEDURAL BACKGROUND AND FACTS
On January 11, 2024, Plaintiff filed her original complaint alleging discrimination
on the basis of race, color, and religion, claims based on physical and mental disability
under the Americans with Disabilities Act, and a claim under the Age Discrimination in
Employment Act. (Doc. 1). At the same time, Plaintiff also filed a motion to proceed in
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forma pauperis under 28 U.S.C. § 1915(e)(2)(B). (Doc. 2). The undersigned granted the
motion to proceed in forma pauperis, but found the complaint deficient in several respects,
and, therefore, the Court could not properly screen the complaint under § 1915(e)(2)(B).
(Doc. 5). Accordingly, the Clerk of Court was directed to withhold service, and Plaintiff
was ordered to refile her complaint by February 23, 2024, to include additional information
clearly setting forth the nature of the claims against the Defendant and facts linking
Defendant to each particular claim of discrimination. Plaintiff was also provided specific
instructions on additional information to include in her amended complaint and was
provided a copy of the Pro Se Litigant Guide. (Id.).
Plaintiff filed an amended complaint on February 23, 2024; however, the amended
complaint still did not conform with the general rules of pleading. (Doc. 6). The amended
complaint did not clearly set forth the nature of the claims against the Defendant and did
not contain facts linking Defendant to each particular claim of discrimination. The Court
was still unable to ascertain the basis of the claims that Plaintiff is attempting to assert.
Nonetheless, the Court allowed one additional chance for Plaintiff to amend her
complaint, ordering Plaintiff to refile her complaint by April 19, 2024. (Doc. 8). The Court
again included specific instructions on additional information to include in her second
amended complaint. (Id. at PageID.29). The Court also noted that “[b]ecause Plaintiff’s
complaint was brought alleging, among other claims, employment discrimination on the
basis of race, color, and religion, pursuant to Title VII of the Civil Rights Act, Plaintiff is
required to file suit within 90 days of receiving her EEOC right to sue letter, which is dated
October 23, 2023 (Doc 6. at PageID.21). See Title VII, 42 U.S.C. § 2000e–5(f)(1).” (Doc.
8, PageID.28). As a result, the Court cautioned that if Plaintiff’s claims are dismissed, she
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will be unable to refile them because more than 90 days have passed since she received
her right to sue letter. (Id.).
On the April 19, 2024, deadline, Plaintiff filed a request for additional time to refile
her complaint. (Doc. 9). The Court granted this request, and Plaintiff was given until May
15, 2024, to refile her complaint. (Doc. 10). On May 15, 2024, Plaintiff filed her second-
amended complaint using the Court’s general “Complaint for Civil Case” form and now
only includes race discrimination as the basis for jurisdiction. (Doc. 11). While this
complaint does include additional factual allegations that were not present in the first-
amended complaint, including specific actions allegedly taken by her white co-workers,
these additional statements are still insufficient to establish the required elements of a
race discrimination claim. (Id., PageID.43-45).
ANALYSIS
A. Applicable Law for Screening
Because Broadhead seeks to proceed without prepayment of fees, her complaint
is subject to review, under §1915, and is due to be dismissed “at any time if the court
determines that . . . the action or appeal— (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The standard for determining
whether a complaint states a claim upon which relief may be granted is the same whether
under 28 U.S.C. § 1915(e)(2)(B) or Fed.R.Civ.P. 12(b)(6) or (c). See Mitchell v. Farcass,
112 F.3d 1483, 1490 (11th Cir. 1997) (“The language of section 1915(e)(2)(B)(ii) tracks
the language of Federal Rule of Civil Procedure 12(b)(6)”). A complaint is “frivolous under
section 1915(e) “where it lacks an arguable basis either in law or in fact.” Neitzke v.
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Williams, 490 U.S. 319, 325 (1989); Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.), cert.
den'd. 534 U.S. 1044 (2001). Dismissals on this ground should only be ordered when the
legal theories are “indisputably meritless,” Neitzke, 490 U.S. at 327, or when the claims
rely on factual allegations that are “clearly baseless.” Denton v. Hernandez, 504 U.S. 25,
31 (1992). Additionally, a claim may be dismissed as frivolous when it appears that a
plaintiff has little or no chance of success. Bilal, 251 F.3d at 1349.
A complaint must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief ...” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are
not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth
“sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’ ”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands
more than the mere possibility that a defendant committed misconduct and, while factual
allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
As a pro se litigant, Plaintiff's pleadings “are held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be liberally construed.” Tannenbaum
v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). However, this leniency 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.” GJR Invs., Inc. v. Cnty. of Escambia, 132
F.3d 1359, 1369 (11th Cir. 1998) (citations omitted), overruled on other grounds by
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
B. Summary of Complaint
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Plaintiff’s second-amended complaint only alleges a claim of race discrimination
and names as defendants Via Health Center, as well as Stephen Foot, who Plaintiff
identifies as a white male and chef at Via, and Christy, with no last name or additional
identifying descriptors. (Doc. 11, PageID.41-44). The complaint then sets forth six
paragraphs as her Statement of Claim. Although, they are not entirely clear, the Court
understands them as follows:
1. A “Ms. Sherry,” who is described as a white female and director of finance and
operations, and her fiancé, the white chef, Stephen Foot, told Plaintiff “I should
take you home to clean my house.”
2. Plaintiff was not allowed to work the lunch line or receive tips from the tip jar.
3. Stephen Foot told Plaintiff she needed to ask his permission to use the
bathroom. Plaintiff states she never did this and just waited until she got home.
4. Plaintiff describes a white secretary laughing at her while “Black daycare
seniors singing a song to me.”
5. Plaintiff alleges her laryngitis was caused by Stephen Foot and Christy who
both brought her contaminated dishes to wash. Plaintiff also states that Christy
squeezed dish liquid in her face while washing the contaminated dishes as
“retaliation of what I had said to Christy about not speaking in the morning time,
that was a big No, on this job being black to say to a white person.”
6. Drugs were shown to Plaintiff in the kitchen by Stephen Foot and his brother,
and they said Plaintiff couldn’t talk about this because drugs in the kitchen were
against health department rules.
(Doc. 11, PageID.44-45).
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The relief Plaintiff seeks in her complaint is reimbursement for a $750 hospital bill
and $60 for a prescription drug. (Doc. 11, PageID.45). Plaintiff states these costs were
incurred due to laryngitis, which she alleges was caused by Stephen Foot and Christy
bringing her contaminated dishes to wash in retaliation for something she said to Christy.
(Id. at PageID.44-45). Plaintiff also seeks $5,000 in punitive damages for pain and
suffering related to her laryngitis. (Id. at 45).
C. Failure to State a Race Discrimination Claim
Under Title VII of the Civil Rights Act of 1964 (“Title VII”), it is unlawful for an employer
“to discharge ... or otherwise to 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). As a
preliminary matter, “[r]elief under Title VII is available against only the employer and not
against individual employees whose actions would constitute a violation of the Act.”
Dearth v. Collins, 441 F.3d 931, 933 (11th Cir. 2006). Proper recovery under Title VII is
made by suing the employer, “either by naming the supervisory employees as agents of
the employer or by naming the employer directly.” Busby v. City of Orlando, 931 F.2d 764,
772 (11th Cir. 1991). “The only proper individual defendants in a Title VII action would be
supervisory employees in their capacity as agents of the employer.” Hinson v. Clinch Cty.,
Georgia Bd. Of Educ., 231 F.3d 821, 827 (11th Cir. 2000). “If the employer is already a
defendant, claims against the supervisory employee in her official capacity are
redundant.” Davis v. Infinity Ins. Co., No. 2:15-CV-01111-JHE, 2016 WL 4507122, at *18
(N.D. Ala. Aug. 29, 2016) (citing Busby, 931 F.2d at 776). Accordingly, claims against the
individual defendants are improper here where the employer, Via Health Center, has been
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named as a defendant.
Further, liberally construing Plaintiff's allegations and giving her the benefit of all
reasonable inferences from those allegations, she has failed to state a claim under Title
VII. Although Plaintiff seems to assert a claim for a hostile work environment, 1 her
allegations fall short of pleading the required elements for this claim. When asserting a
claim for a hostile work environment, a plaintiff must show that: (1) she belongs to a
protected group; (2) she has been subjected to unwelcome harassment; (3) the
harassment was based on a protected characteristic of the employee; (4) the harassment
was sufficiently severe or pervasive to alter the terms and conditions of employment and
create a discriminatory, abusive working environment; and (5) the employer was
responsible for such environment under either a theory of vicarious or direct liability. Miller
v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.2002).
To begin, the Court liberally construes Plaintiff's allegations and assumes for
review purposes that Plaintiff's complaint establishes the first two requisite elements.2
However, Plaintiff has failed to put forth any evidence demonstrating that the alleged
harassment was based on her race. Moreover, as is the case with many litigants
attempting to assert a hostile work environment claim, Plaintiff has failed to establish that
the harassment she experienced was “sufficiently severe or pervasive to alter the terms
1 The Court bases this inference on the fact that Plaintiff did not describe any adverse employment
action in her second-amended complaint or allege that a similarly situated employee outside her
race received better treatment from her employer. Instead, Plaintiff’s complaint is based on her
listing of six incidents that presumably represent allegations of a hostile work environment. (See
Doc. 11, PageID.43-44).
2 Plaintiff has not explicitly stated or identified her race, although based on Plaintiff identifying her
co-workers as white and her statement that she was retaliated against for something she said to
Christy “that was a big No on this job being black to say to a white person”, the Court assumes
that Plaintiff is African-American. (Doc. 11, PageID.44).
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and conditions of [her] employment ....” Id. To establish this fourth element of a hostile
work environment claim, a plaintiff must demonstrate that “the harassing conduct created
both an objectively hostile or abusive environment-one that a reasonable person would
find hostile-and a subjective[ly] hostile or abusive environment-one that the victim
subjectively perceives to be abusive.” Brantley v. City of Macon, 390 F.Supp.2d 1314,
1324 (M.D.Ga. 2005) (internal quotations and citations omitted). When determining
whether a work environment is sufficiently hostile under this standard, there are four
general factors to consider: “(1) the frequency of the conduct; (2) the severity of the
conduct; (3) whether the conduct is physically threatening or humiliating, or a mere
offensive utterance; and (4) whether the conduct unreasonably interferes with the
employee's job performance.” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 584 (11th Cir.
2000).
That said, the Supreme Court has stated that “simple teasing, offhand comments,
and isolated incidents (unless extremely serious) will not amount to discriminatory
changes in the terms and conditions of employment.” Faragher v. City of Boca Raton,
524 U.S. 775 (1998) (emphasis added). Rather, the standard for asserting a hostile work
environment claim is stringent and “sufficiently demanding to ensure that Title VII does
not become a ‘general civility code.’ ” Id. at 788 (quoting Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 80 (1998)); see also Hartsell v. Duplex Prods., Inc., 123 F.3d
766, 773 (4th Cir.1997) (“Title VII is not a federal guarantee of refinement and
sophistication in the workplace ....”); Carr v. Allison Gas Turbine Div., Gen. Motors Corp.,
32 F.3d 1007, 1010 (7th Cir.1994) (“[E]mployers are not under a legal duty enforceable
by suits under Title VII to purify the language of the workplace.”); Waite v. Blair, Inc., 937
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F.Supp. 460, 468 (W.D.Pa.1995) (“The mere fact that a work environment may prove to
be intolerable to a particular employee does not necessarily implicate Title VII, since the
civil rights laws do not guarantee a working environment free of stress.”). Stated another
way, “a plaintiff must show that ‘the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe to alter the conditions of the
victim's employment and create an abusive working environment.’ ” Rojas v. Fla., 285
F.3d 1339, 1344 (11th Cir.2002) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993)). While Plaintiff may have felt humiliated or offended by some of the occurrences
she described, her allegations do not allege the frequency or severity necessary to state
a hostile work environment claim, nor has she alleged that the conduct described
unreasonably interfered with her job performance. As a result, even construing Plaintiff's
allegations liberally, the Court finds that the second-amended complaint fails to state a
claim upon which relief can be granted.
Finally, because Plaintiff has already been extended two opportunities to amend
her complaint to correct deficiencies noted by the Court, she need not be given a further
opportunity to amend her complaint. See Butler v. Morgan, 562 Fed.Appx. 832, 835
(11th Cir. Apr. 3, 2014) (“A district court must grant a plaintiff at least one opportunity to
amend his complaint before dismissal if ‘it appears a more carefully drafted complaint
might state a claim upon which relief can be granted,’ even if the plaintiff never seeks
leave to amend.”). As a result, the undersigned RECOMMENDS that this action be
DISMISSED without prejudice for failure to state a claim upon which relief may be
granted.
Where a dismissal without prejudice has the effect of precluding the plaintiff from
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re-filing her claim due to the running of the statute of limitations, it is tantamount to a
dismissal with prejudice. Justice v. United States, 6 F.3d 1474, 1482 & n.15 (11th Cir.
1993). As a result, the undersigned understands that dismissal of Broadhead's action
without prejudice at this time will likely be in effect a dismissal with prejudice of all claims
given that Plaintiff was required to file suit within 90 days of receiving her EEOC right to
sue letter. See Title VII, 42 U.S.C. § 2000e–5(f)(1). The Court previously cautioned
Plaintiff that if her claims are dismissed, she will be unable to refile them because more
than 90 days have passed since she received her right to sue letter. (Doc. 8, PageID.28).
However, Plaintiff’s three attempts to assert viable claims have failed to produce facts or
legal theories which support any possible claim of merit. The Court therefore concludes
that this dismissal, effectively with prejudice to Broadhead’s opportunity to refile, is
appropriate because no lesser sanction would suffice. The Court has considered and
rejected any lesser sanction, which might include further instruction on filing or a monetary
penalty. Each of those and any lesser sanction would be of no value given the futility of
the claims and Plaintiff’s IFP status. The failure to advance a claim of possible merit is
not the result of negligence but instead the product of willful action, where Broadhead has
failed to conform her allegations and claims to the two rounds of Court instruction, and
any further opportunities to amend would be futile. Stephenson v. Doe, 554 Fed. Appx.
835 (11th Cir. 2014).
CONCLUSION
Based upon the foregoing, the undersigned RECOMMENDS that Plaintiff's
second-amended complaint (Doc. 11) be DISMISSED without prejudice, prior to service
of process, pursuant to 28 U.S.C. § 1915(e)(2)(B).
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NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the
manner provided by law. Any party who objects to this recommendation or anything in it
must, within 14 days of the date of service of this document, file specific written objections
with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); S.D. Ala.
GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-1, “[a] party
failing to object to a magistrate judge's findings or recommendations contained in a report
and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives
the right to challenge on appeal the district court's order based on unobjected-to factual
and legal conclusions if the party was informed of the time period for objecting and the
consequences on appeal for failing to object. In the absence of a proper objection,
however, the court may review on appeal for plain error if necessary in the interests of
justice.” To be specific, an objection must identify the specific finding or recommendation
to which objection is made, state the basis for the objection, and specify the place in the
Magistrate Judge’s report and recommendation where the disputed determination is
found. An objection that merely incorporates by reference or refers to the briefing before
the Magistrate Judge is not specific.
DONE this the 22nd day of October, 2024.
s/ P. Bradley Murray
UNITED STATES MAGISTRATE JUDGE
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