United States District Court, D. Kansas
SHEILA L. ARMOUR, Plaintiff,
ALLIED UNIVERSAL, Defendant.
MEMORANDUM & ORDER
MURGUIA UNITED STATES DISTRICT JUDGE.
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.
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).
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.
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).
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.
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.
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).
Title VII Employment Discrimination
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).
complaint explains that the alleged discrimination occurred
January 16, 2017. (Doc. 1 at 2.) Plaintiff claims that her