Lucille Yvette Arrington v. Alabama Power Company

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 19, 2019
• Docket: 17-14706
• Status: Unpublished

Opinion

Case: 17-14706 Date Filed: 04/18/2019 Page: 1 of 14

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-14706 Non-Argument Calendar ________________________

D.C. Docket No. 2:16-cv-01355-JEO

LUCILLE YVETTE ARRINGTON,

Plaintiff-Appellant,

versus

ALABAMA POWER COMPANY, SOUTHERN COMPANY,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Northern District of Alabama ________________________

(April 18, 2019)

Before MARCUS, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM: Case: 17-14706 Date Filed: 04/18/2019 Page: 2 of 14

Plaintiff Lucille Yvette Arrington, proceeding pro se, appeals the dismissal

of her claims for discrimination, hostile work environment, and retaliation, in

violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans

with Disabilities Act (“ADA”), and the Family and Medical Leave Act (“FMLA”),

as well as her personal injury claim for “workplace hazard.” On appeal, Plaintiff

recounts the events that led to her alleged constructive discharge and asserts that

she established a prima facie case of retaliation.1 After careful review, we affirm

the judgment of the district court.

I. BACKGROUND

Plaintiff, an African-American woman, filed the present suit in the Eastern

District of Virginia, alleging claims against Defendant Alabama Power Company. 2

Upon Defendant’s motion, the case was transferred to the Northern District of

Alabama. Defendant filed a motion to dismiss, pursuant to Federal Rule of Civil

Procedure 12(b)(6). The district court dismissed Plaintiff’s complaint without

prejudice and afforded her twenty-one days to file an amended complaint.

Plaintiff then filed an amended complaint in which she characterized her

claims as “Title VII, ADA discrimination, harassment, hostile work environment,

1 Plaintiff further suggests the magistrate judge who presided over her case had a conflict of interest. We find this allegation meritless. 2 Plaintiff also asserted claims against Southern Company, Defendant’s parent company. The district court later dismissed Southern Company as a defendant. Plaintiff does not challenge this ruling on appeal. 2 Case: 17-14706 Date Filed: 04/18/2019 Page: 3 of 14

retaliation, FMLA, workplace hazard.” She asserted that Defendant retaliated

against her for reporting a white male’s violations of company policy,

discriminated against her based on her race and transferred her to a “hostile and

harassing work environment,” blocked her from obtaining a new position, caused

her to develop asthma, removed her from her supervisory role, gave her unmerited

low performance ratings and negative referrals, demoted her, and subjected her to

“harassing comments and actions.”

In particular, Plaintiff alleged that in October 2013, she “reported [a white

male coworker’s] sexually explicit policy violations.” She asserted that the

“retaliation and discrimination began” one month later, when she was transferred

from her supervisor position at Defendant’s Metro Central office to a supervisor

position at Defendant’s Columbiana office—a rural, all-white office with a history

of racism. The employee who decided to transfer Plaintiff explained, “Going to

Columbiana will allow you to function as a Manager being totally responsible for

all aspects of the office.” Plaintiff received a pay raise based on her performance

at the Metro Central office.

After she began working in Columbiana, Plaintiff developed “Toxic Mold

Syndrome” and experienced headaches, nausea, and shortness of breath.

Defendant changed the air filters and sprayed deodorizer when Plaintiff first

3 Case: 17-14706 Date Filed: 04/18/2019 Page: 4 of 14

reported the mold issue, but waited seven months before working on the ducts and

conducting an air quality test.

On May 30, 2014, Plaintiff’s mother passed away. Three days later,

Plaintiff’s white supervisors brought her a large tray of chicken for her family.

Plaintiff’s supervisors emailed Plaintiff while she was on bereavement leave,

asking about reports she had told them she was working on while her mother was

in the hospital. Plaintiff replied that she did not complete them because she had

not anticipated her mother’s condition worsening. Plaintiff ultimately was held

accountable for her supervisors’ “failure to work the reports during the death of her

mother.” None of Plaintiff’s supervisors attended her mother’s funeral, even

though it was a long-standing tradition in the office for supervisors and managers

to attend the funerals of employees’ immediate family members. By contrast,

when a white subordinate’s father passed away, Plaintiff was required to attend the

funeral, and Plaintiff’s supervisors ensured that other employees would complete

the subordinate’s work while she was on leave.

In August 2014, Plaintiff was given an overall mid-year rating of “Needs

Improvement.” One month later, Plaintiff received medical attention due to

symptoms she developed as a result of exposure to mold in the office. Plaintiff’s

office had the highest concentration of toxic mold in the building. After staying

home sick for several weeks, Plaintiff reported to the Pelham Business Office on

4 Case: 17-14706 Date Filed: 04/18/2019 Page: 5 of 14

September 28, 2014. Her supervisor instructed her to return to the Columbiana

office, where she became ill again.

In October 2014, Plaintiff’s manager informed her that she would be

working in the Pelham office while they worked to address the mold issues in the

Columbiana office. On December 9, 2014, the Area Manager, a white female, met

with Plaintiff. The Area Manager said that Plaintiff was being transferred to an

Assistant Manager position (a position above Plaintiff’s current post), but that she

would keep her title as supervisor and would not receive a pay raise because of her

performance reviews.

On December 12, all employees except Plaintiff received an invitation to the

office Christmas party. Two days later, Plaintiff called the employee concerns line

to report harassment, retaliation, and discrimination. On December 16, the Area

Manager informed Plaintiff that she was rescinding the offer for Plaintiff to

become an Assistant Manager, and she would be reaching out to find Plaintiff a

new position with Defendant. Two days later, Plaintiff discussed her complaint

with a Concerns Program Manager, who encouraged Plaintiff to advise him if her

supervisors created any hardships for her.

In January 2015, Plaintiff was told she was being removed from her

supervisory position and that she would be placed “in an individual contributor

role.” She was also told that she would be given one year to find a new position or

5 Case: 17-14706 Date Filed: 04/18/2019 Page: 6 of 14

be “rolled back” to a Senior Customer Service Representative. The same month,

she received an annual performance rating of “needs improvement” and a bonus

reduction of $2,934.75.

On January 14, Plaintiff met with a woman who worked in the Employee

Concerns Program and recounted the events of the prior fourteen months. Upon

being questioned by her manager, Plaintiff admitted she had filed the complaint.

Over the next several months, Plaintiff “continue[d] to experience isolation by

being left out of meetings, blocked from new job opportunities internally as well as

externally because of negative feedback from [her supervisor] or his failure to

respond to request[s] and no support for career advancement.”

After being ill for six days in January 2016 due to stress-induced asthma

attacks, Plaintiff emailed her supervisor requesting a personal leave of absence.

Plaintiff’s supervisor informed her that she was not allowed to take personal leave

because she was on FMLA leave. He attempted to coerce her into requesting a

medical leave of absence. A white Disability Management representative also

“tried to coerce . . . Plaintiff to change the type of Leave to Medical and questioned

the FMLA paperwork and [doctor’s] excuse as if it were not legitimate.” Plaintiff

alleged that Defendant’s “disregard for her health and all of the preceding

wrongful retaliatory, harassing and discriminatory actions . . . made the working

conditions so intolerable that . . . Plaintiff felt constructively forced to resign.”

6 Case: 17-14706 Date Filed: 04/18/2019 Page: 7 of 14

Defendant filed a motion to dismiss the amended complaint. The district

court granted the motion, concluding that Plaintiff failed to allege facts that would

support plausible claims under Title VII, the ADA, or the FMLA. This appeal

followed.

II. DISCUSSION

We review the grant of a motion to dismiss de novo, accepting the

allegations in the complaint as true and construing them in the light most favorable

to the plaintiff. Chaparro v. Carnival Corp., 693 F.3d 1333, 1335 (11th Cir.

2012). To survive a motion to dismiss, “a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its

face.” Id. at 1337 (quotation marks omitted). “A facially plausible claim must

allege facts that are more than merely possible.” Id. When allegations are more

conclusory than factual, the court need not assume their truth. Id.

As an initial matter, Plaintiff has abandoned the majority of her claims on

appeal by failing to present legal arguments as to how the district court erred in

dismissing her claims. Although we liberally construe briefs filed by pro se

litigants such as Plaintiff, “issues not briefed on appeal by a pro se litigant are

deemed abandoned.” Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). For

the most part, Plaintiff merely realleges the facts she asserted before the district

court, while never explaining how these facts amount to a plausible claim under

7 Case: 17-14706 Date Filed: 04/18/2019 Page: 8 of 14

Title VII, the ADA, or the FMLA. Instead, Plaintiff simply states that Defendant’s

disregard for her health and other unlawful actions violated her civil rights. While

Plaintiff also cites to caselaw and sections from the U.S. Code and the Code of

Federal Regulations, these citations, standing alone, do not constitute legal

arguments.

Even ignoring that significant lapse on her part, and as the district court’s

order explains, Plaintiff’s amended complaint fails to plausibly allege that she was

retaliated against for engaging in protected activity or that any claimed

discriminatory and harassing actions were connected to her race or disability.

First, Plaintiff failed to plead a plausible retaliation claim. To establish a

retaliation claim under Title VII, a plaintiff must prove that she engaged in

statutorily protected activity, that she suffered a materially adverse action, and that

there was a causal relation between the complaint and the adverse action. Trask v.

Sec’y, Dep’t of Veterans Affairs, 822 F.3d 1179, 1194 (11th Cir. 2016). Here,

Plaintiff alleged that, after she complained that a fellow employee had violated the

company’s policy prohibiting the possession of explicit sexual materials,

Defendant retaliated against her by giving her a promotion to a higher position at a

different location. Although Plaintiff argued that the promotion was retaliatory

because a white subordinate subsequently harassed her, she declined her superiors’

assistance when they offered to help, insisting that she wanted to function as a

8 Case: 17-14706 Date Filed: 04/18/2019 Page: 9 of 14

leader in her office. Obviously, Plaintiff’s promotion to a higher position within

the company did not constitute an adverse action.

Plaintiff’s other retaliation claims also failed because none of Plaintiff’s

allegations suggested that she suffered consequences as a result of engaging in

protected activity. For example, while the Area Manager rescinded a job offer two

days after Plaintiff called the employee concerns line, Plaintiff did not allege any

facts showing that the Area Manager was aware that Plaintiff had made a

complaint. Instead, her amended complaint indicated that the Concerns Program

and her managers did not become aware of her call until after the Area Manager

had rescinded the job offer.

As for her race-based disparate-treatment claims, Plaintiff failed to plead a

prima facie claim. “A plaintiff establishes a prima facie case of disparate

treatment by showing that she was a qualified member of a protected class and was

subjected to an adverse employment action in contrast with similarly situated

employees outside the protected class.” Wilson v. B/E Aerospace, Inc., 376 F.3d

1079, 1087 (11th Cir. 2004). Here, even assuming without deciding that one or

more of the actions about which Plaintiff complains qualify as adverse

employment actions, Plaintiff failed to plead a prima facie case of disparate

treatment because she did not allege that a similarly situated employee outside of

her protected class was treated more favorably. See Crawford v. Carroll, 529 F.3d

9 Case: 17-14706 Date Filed: 04/18/2019 Page: 10 of 14

961, 970 (11th Cir. 2008). Nor did Plaintiff argue that she met her burden by

identifying direct evidence of discriminatory intent, Jefferson v. Sewon America,

Inc., 891 F.3d 911, 921–22 (11th Cir. 2018), or by identifying a “convincing

mosaic” of circumstantial evidence that warranted an inference of intentional

discrimination. See Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th

Cir. 2011).

Similarly, none of Plaintiff’s allegations met the standard for establishing a

hostile work environment. “[T]o prove a hostile work environment under [Title

VII], a plaintiff must show that her employer discriminated because of her

membership in a protected group, and that the offensive conduct was either severe

or pervasive enough to alter the terms or conditions of employment . . . .” See

Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010)). A

work environment is hostile if “the workplace is permeated with discriminatory

intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working

environment.” Smelter v. S. Home Care Servs. Inc., 904 F.3d 1276, 1284 (11th

Cir. 2018) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). A work

environment is sufficiently severe or pervasive only if it is both subjectively and

objectively hostile, meaning that the employee subjectively perceives, and a

reasonable employee would perceive, the environment as abusive. Id. at 1285. In

10 Case: 17-14706 Date Filed: 04/18/2019 Page: 11 of 14

assessing the objective component, we consider four factors: “(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.” Id.

(quoting Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) (en

banc)).

Here, none of these factors suggest that Plaintiff was subjected to a

workplace permeated with severe or pervasive discriminatory conduct. Although

she consistently identified the race of her coworkers and supervisors in her

amended complaint, the mere fact that these individuals were white did not

plausibly show that Plaintiff suffered any discrimination or harassment on the basis

of her race. For example, the fact that Plaintiff’s supervisors did not attend her

mother’s funeral, while Plaintiff was required to attend a subordinate’s father’s

funeral, does not plausibly amount to racial discrimination. Nor does the bare fact

that Plaintiff’s supervisors brought Plaintiff a platter of chicken after her mother

passed away indicate that she was treated differently based on her race. Here,

Plaintiff has not alleged facts supporting her suggestion that the supervisors’

gesture was intended to be or was, in fact, tied to her race.

Moreover, Plaintiff’s allegations indicate that, at most, she experienced

isolated incidents that caused her offense, but that did not have any direct effect on

11 Case: 17-14706 Date Filed: 04/18/2019 Page: 12 of 14

her job performance. That being so, Plaintiff has necessarily failed to demonstrate

that she was constructively discharged—a claim that she makes only as a

conclusory allegation. Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1231

(11th Cir. 2001) (“The standard for proving constructive discharge is higher than

the standard for proving a hostile work environment.”).

Plaintiff also failed to allege facts showing that she was discriminated

against based on a disability. To establish an ADA discrimination claim, a plaintiff

must show that she was disabled, she was a qualified individual, and she was

discriminated against because of her disability. Holly v. Clairson Indus., L.L.C.,

492 F.3d 1247, 1255–56 (11th Cir. 2007). Plaintiff alleged that on-the-job

exposure to toxic mold caused her to suffer from toxic mold syndrome, asthma,

and other disabilities. However, she did not allege any facts plausibly showing that

Defendant discriminated against her because of these disabilities. 3 Instead, her

allegations that Defendant replaced air filters, completed duct work, and

transferred her out of the affected office show just the opposite—that it sought to

accommodate her disabilities.

Plaintiff’s complaint identified a personal injury claim for “workplace

hazard” based on her toxic mold exposure, but the district court correctly noted

3 We assume for the sake of argument that Plaintiff was disabled within the meaning of the ADA.

12 Case: 17-14706 Date Filed: 04/18/2019 Page: 13 of 14

that there is no such claim under federal or state law. Plaintiff’s sole remedy for

her toxic mold exposure lies under Alabama’s Workmen’s Compensation Act. See

Ala. Code §§ 25-5-52, 25-5-53, 25-5-113, 25-5-114 (providing that employers may

not be held civilly liable for occupational diseases originating in employment,

except as provided in the Act). As Plaintiff did not raise a Workmen’s

Compensation Act claim, much less plead a plausible claim under the Act, the

district court correctly dismissed her personal injury claim.

Finally, Plaintiff’s conclusory allegations in her amended complaint were

insufficient to plead an FMLA violation. The FMLA grants employees periods of

leave for certain family or health-related events and the right to be restored to a

position of employment or an equivalent position following leave. Strickland v.

Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1206 (11th Cir.

2001). Under the FMLA, a plaintiff may assert two types of claims. Id. For an

interference claim, a plaintiff must establish that an employee interfered with

FMLA rights by showing that she was entitled to a benefit that her employer

denied. Id. at 1206−07. For a retaliation claim, a plaintiff must show that her

employer intentionally discriminated against her for exercising an FMLA right. Id.

Here, we cannot discern any allegation that would plausibly support a claim for

either FMLA interference or retaliation. Indeed, Plaintiff alleged that she was

13 Case: 17-14706 Date Filed: 04/18/2019 Page: 14 of 14

granted FMLA leave and failed to allege any facts supporting an inference that

Defendant discriminated against her for taking that leave.

III. CONCLUSION

In sum, Plaintiff abandoned the majority of her claims on appeal, but even if

she had not, the district court properly dismissed her amended complaint.

Accordingly, the judgment of the district court is affirmed.

AFFIRMED.