Opinion
No. 7:19-CV-155-H
09-10-2020
EVETTE MARIE JOHNSON, Plaintiff, v. NOVANT HEALTH BRUNSWICK MEDICAL CENTER, Defendant.
ORDER AND MEMORANDUM & RECOMMENDATION
This pro se case is before the court for continued frivolity review, pursuant to 28 U.S.C. § 1915(e)(2)(B), following particularization of Plaintiff's claims in response to this court's order entered November 14, 2019. For the reasons set forth below, the undersigned concludes that Plaintiff's Title VII race/national origin claim survives frivolity review and recommends that Plaintiff's remaining claims be dismissed.
DISCUSSION
I. Standard for Frivolity Review
Notwithstanding the court's prior determination that Plaintiff is entitled to in forma pauperis status, the court is required to dismiss all or part of an action found to be frivolous or malicious, which fails to state a claim on which relief can be granted, or which seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2); Michau v. Charleston County, 434 F.3d 725, 728 (4th Cir. 2006). A case is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Pro se complaints are entitled to a more liberal treatment than pleadings drafted by lawyers. See White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). However, the court is not required to accept a pro se plaintiff's contentions as true. Denton v. Hernandez, 504 U.S. 25, 32 (1992). The court is permitted to "pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327.
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to give a "short plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8. The statement must give a defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint is insufficient if it offers merely "labels and conclusions," "a formulaic recitation of the elements of a cause of action," or "naked assertion[s]" devoid of "further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555) (alteration in original). "A plaintiff must offer more detail . . . than the bald statement that he has a valid claim of some type against the defendant." Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001); see also White, 886 F.2d at 723 (affirming district court's dismissal of plaintiff's suit as frivolous where plaintiff's complaint "failed to contain any factual allegations tending to support his bare assertion"). While the court must read the complaint carefully to determine if the plaintiff has alleged facts sufficient to support his claims, White, 886 F.2d at 724, the court is not required to act as the pro se plaintiff's advocate or to parse through volumes of documents or discursive arguments in an attempt to discern the plaintiff's unexpressed intent, Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir. 2013).
II. Plaintiff's Claims
Plaintiff seeks to sue her former employer, Novant Health Brunswick Medical Center, for claims under Title VII of the Civil Rights Act of 1964. Title VII makes it an "unlawful employment practice for an employer . . . 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)(1).
On August 20, 2019, Plaintiff filed an initial proposed compliant [DE #1-1] and a supplemental proposed complaint [DE #1-2]. In these filings, Plaintiff asserted she was discharged from and discriminated against in her employment from May 2017 to February 2019 on the basis of her race, religion, sex, and national origin.
The court previously construed these filings, together, as Plaintiff's proposed complaint. (Order dated Nov. 14, 2019 [DE #5].)
On November 14, 2019, the court allowed Plaintiff's application to proceed without prepayment of filing fees and ordered Plaintiff to particularize her complaint. The court explained, in part, that Plaintiff's proposed complaint failed to include basic information that would put any defendant on notice of her employment claim (e.g., when, where, and how any adverse employment actions allegedly occurred) or how she was treated differently due to her race, religion, sex, or national origin.
In response to the court's order, Plaintiff filed a particularized complaint in which she continues to assert she was discriminated against in her employment because of her race, religion, sex, and national origin. Plaintiff alleges that as a Black/African-American secretary she was treated differently from White secretaries. (Am. Compl. [DE #6] at 6.) In support of her claim, Plaintiff has provided additional facts regarding alleged events, dates, and individuals involved.
Viewed together, and liberally construed, Plaintiff's filings assert a Title VII discrimination claim based on race or national origin that is neither legally nor factually baseless. Accordingly, this claim survives frivolity review.
However, Plaintiff has not alleged any facts to support a Title VII claim based on religion or sex. Plaintiff has included no facts from which the court may determine what her religion is, nor has she stated how her employer treated her differently due to her religion or sex. Accordingly, these claims should be dismissed as frivolous or for failure to state a claim.
It is not clear that Plaintiff has exhausted her administrative remedies with respect to her race/national origin claim as she has not provided the court with a copy of any charge of discrimination filed with the Equal Employment Opportunity Commission or any notice of right to sue issued by the agency. While failure to exhaust administrative remedies may be grounds for dismissal, the Supreme Court has clarified that "Title VII's charge-filing requirement is not of jurisdictional cast." Fort Bend Cty. v. Davis, 139 S. Ct. 1843, 1849-52 (2019) (holding that Title VII exhaustion requirement, though mandatory and potentially dispositive, may be forfeited if not timely raised). Accordingly, the court will not address the exhaustion issue on frivolity review.
CONCLUSION
For the reasons stated above, the court ORDERS that Plaintiff be allowed to proceed on her race/national origin claim and RECOMMENDS that Plaintiff's remaining claims be DISMISSED as frivolous or for failure to state a claim.
It is DIRECTED that a copy of this Order and Memorandum and Recommendation be served on Plaintiff, who is hereby advised as follows:
You shall have until September 28, 2020, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C. (Dec. 2019).
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline may bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
This 10th day of September 2020.
/s/_________
KIMBERLY A. SWANK
United States Magistrate Judge