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Winn v. Health South-Mid America Rehab Hospital

United States District Court, Tenth Circuit

November 26, 2013

DARLENE D. WINN, Plaintiff,


JULIE A. ROBINSON, District Judge.

Plaintiff Darlene D. Winn, proceeding pro se and in forma pauperis, filed an employment discrimination complaint against her current employer, Defendant Health South-Mid America Rehab Hospital ("Health South"). Plaintiff alleges that she suffered, and continues to suffer, racial discrimination, work-place harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964. This matter is before the Court on Defendant's Motion to Dismiss (Doc. 11) pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons explained in detail below, Defendant's motion is granted with leave to amend.

I. Failure to Respond

Plaintiff failed to file a response to the motion to dismiss and the time to do so has expired.[1] Under D. Kan. R. 7.4,

Absent a showing of excusable neglect, a party or attorney who fails to file a responsive brief or memorandum within the time specified in D. Kan. Rule 6.1(d) waives the right to later file such brief or memorandum. If a responsive brief or memorandum is not filed within the Rule 6.1(d) time requirements, the court will consider and decide the motion as an uncontested motion. Ordinarily, the court will grant the motion without further notice.

A pro se litigant is not excused from complying with the rules of the court, and is subject to the consequences of noncompliance.[2] As a result of Plaintiff's failure to respond, the Court may grant Defendant's motion to dismiss as uncontested. Nevertheless, the Court will address the merits of Defendant's motion.

II. Motion to Dismiss

A. Facts

The following facts are alleged in the Complaint and read in the light most favorable to Plaintiff. Plaintiff, who is African-American, works for Health South in a secretarial position. Sometime in 2012, Plaintiff's managers told her that she could no longer work overtime, on which Plaintiff had previously depended to supplement her income. At about that same time, Plaintiff's manager hired her daughter in a secretarial role similar to Plaintiff's at a higher wage. Plaintiff's attendance was more strictly enforced compared to her manager's daughter, who is Caucasian. Plaintiff eventually complained to management that she was treated less favorably because of her race. After she made this complaint, she began experiencing hostility from her managers. She noticed them rolling their eyes at Plaintiff, giving her hateful looks, and ceasing to verbally communicate with her.

Sometime in October 2012, Plaintiff received a lackluster performance review. Plaintiff disputes the validity of this review, claiming that it is inexplicably and significantly lower than performance reviews she has been given in the past. Plaintiff also associates this review with retaliation for raising the subject of race in the workplace with her managers.

Sometime in the first half of 2013, Plaintiff filed a discrimination and retaliation charge with the Equal Employment Opportunity Commission ("EEOC"). In May 2013, Defendant initiated disciplinary action against Plaintiff for uniform violations, which she views as retaliatory. Also in May 2013, Plaintiff sought permission to leave a shift early in order to visit her ill father, but Plaintiff's manager counted this as an unexcused absence after stating that they could not find additional help to finish her shift.

B. Discussion

Because Plaintiff proceeds in forma pauperis, the Court may dismiss the Complaint or any portion thereof that is frivolous, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant immune from such relief.[3] A complaint must contain "a short plain statement of the claim showing that the pleader is entitled to relief."[4] Under the "plausibility" standard that guides the court, a complaint must contain sufficient factual allegations to give fair notice to defendants of the grounds of the claim against them.[5] "Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only fair notice' of the nature of the claim, but also grounds' on which the claim rests."[6]

Although a complaint filed by a pro se party proceeding in forma pauperis must be given a liberal construction, [7] even under this standard, a court need not accept as true those allegations that are conclusory in nature.[8] A pro se litigant's "conclusory allegations without supporting factual ...

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