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Armour v. Allied Universal

United States District Court, D. Kansas

October 11, 2017

SHEILA L. ARMOUR, Plaintiff,
v.
ALLIED UNIVERSAL, Defendant.

          MEMORANDUM & ORDER

          CARLOS MURGUIA UNITED STATES DISTRICT JUDGE.

         This matter comes before the court upon the Order to Show Cause issued by Magistrate Judge Rushfelt (Doc. 4) and plaintiff's Response thereto (Doc. 5). Judge Rushfelt granted plaintiff's motion to proceed without the prepayment of fees but also ordered her to show cause why her complaint should not be dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2). Plaintiff filed a response on August 4, 2017, one day late. For the reasons explained below, this case is dismissed for failure to state a claim upon which relief may be granted.

         I. Background

         Plaintiff Sheila L. Armour, appearing pro se, filed this case on May 3, 2017, asserting an employment discrimination claim pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. Plaintiff claims allege discrimination based on race; retaliation; and harassment by her former employer, defendant Allied Universal. Plaintiff moved for and was granted leave to proceed in forma pauperis. In granting leave, the court was required to conduct a screening of plaintiff's complaint. When a plaintiff proceeds pro se, “the court shall dismiss the case 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).

         As Judge Rushfelt noted in his order to show cause, plaintiff filed two cases with nearly identical allegations. This one against Allied Universal and one that was before Judge Crabtree against Universal Protection Services. which merged to become a part of Allied Universal in August 2016. The case before Judge Crabtree was dismissed for failure to state a claim. As Judge Rushfelt noted, the only material difference between plaintiff's claims in the two cases is that in this case she alleges racial harassment in addition to her claims of discrimination and retaliation based on race.

         II. Discussion

         A. Legal Standard

         As explained in the order to show cause, the court employs the same standard under § 1915(e)(2)(B)(ii) as it does to decide motions to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Fed.R.Civ.P. 8(a)(2) requires complaints to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The United States Supreme Court has explained that the purpose of notice pleading is to provide defendants with fair notice of the claims against them and any alleged grounds for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         To survive a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), plaintiff must state a claim for relief that is plausible on its face. Id. at 570. The complaint must consist of “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 554. Plaintiff must plead sufficient facts that the court may draw reasonable inferences that defendant is liable. Ashcroft v. Iqbal, 555 U.S. 662, 678 (2009). Plaintiff need not show that the right to relief is probable, but the facts must raise the right to relief above the speculative level-it must be plausible. Twombly, 550 U.S. at 545.

         The court takes all well-pleaded allegations in plaintiff's complaint as true and construes them in her favor. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). The court's role at the motion to dismiss stage is not to weigh the evidence but to determine whether the allegations are legally sufficient to state a claim for relief upon which relief may be granted. Id.

         Where a plaintiff proceeds pro se, the court construes her filings liberally and holds them to less stringent standards than pleadings filed by lawyers. Barnett v. Corr. Corp of Am., 441 Fed.Appx. 600, 601 (10th Cir. 2011). Pro se plaintiffs are nevertheless required to follow the Federal and Local Rules of practice and the court does not assume the role of advocating for plaintiff. United States v. Porath, 553 Fed.Appx. 802, 803 (10th Cir. 2014).

         B. Title VII Employment Discrimination

         “An employment discrimination complaint need not contain specific facts establishing a prima facie case under the McDonnel Douglas framework, but instead must contain only a short and plain statement of the claim showing that the pleader is entitled to relief.” Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (quoting Fed.R.Civ.P. 8(a)'s pleading requirements)). The court should only dismiss a complaint “if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Id. at 507 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). However, “[a] complaint alleging employment-based discrimination, retaliation or harassment under Title VII must make at least minimal factual allegations on every element of the claim.” Rivera v. Sw. Bell Tel. Co., No. 13-1039-RDR, 2013 WL 2319395, at *2 (D. Kan. May 26, 2013) (quoting Sims v. Wyandotte Co./Kan. City, Kan., 120 F.Supp.2d 938, 367 (D. Kan. 2000)). As Judge Rushfelt explained in his order to show cause, [v]ague references to discrimination, retaliation, or harassment “without any indication that this misconduct was motivated by race . . . does not constitute protected activity and will not support a retaliation claim.” Anderson v. Academy Sch. Dist. 20, 122 Fed.Appx. 912, 916 (10th Cir. 2004).

         Plaintiff's complaint explains that the alleged discrimination occurred January 16, 2017. (Doc. 1 at 2.) Plaintiff claims that her employer ...


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