Powell v. Baptist Mem'l Hosp.

SHELIA POWELL, Plaintiff, v. BAPTIST MEMORIAL HOSPITAL and TARA ETTER, Defendants.

No. 2:20-cv-02856-JTF-atc

United States District Court, W.D. Tennessee, Western Division

January 13, 2022

REPORT AND RECOMMENDATION TO GRANT PARTIAL MOTION TO DISMISS

ANNIE T. CHRISTOFF UNITED STATES MAGISTRATE JUDGE

Before the Court by order of reference^[1] is Defendants Baptist Memorial Hospital (“Baptist”) and Tara Etter's Motion to Dismiss Plaintiff's Complaint in Part, filed July 8 2021 (the “Motion”). (ECF No. 15, 16.) After pro se Plaintiff Shelia Powell failed to respond to the Motion by her deadline to do so, the Court entered an Order to Show Cause on August 26, 2021. (ECF No. 27.) Powell filed her response to the Order to Show Cause on September 7 2021. (ECF No. 30.) Three days later she filed her response to the Motion. (ECF No. 32.) Baptist filed its reply on September 23, 2021. (ECF No. 34.) For the reasons stated below, it is recommended that the Motion be granted in its entirety.

PROPOSED FINDINGS OF FACT

Powell was Baptist's head nurse from January 5, 1998, through September 21, 2018, the date of her termination. (ECF No. 1 at 1.) Powell alleges that Etter, the manager of the cardiovascular intensive care unit, or CVICU, terminated her for assisting nurses with their re-certifications. (Id.) Powell does not dispute that she assisted nurses seeking their re-certifications. Instead, she alleges that Emily Coltharp-Shorter, a CVICU nurse who is white and younger than Powell, similarly assisted nurses seeking re-certifications but, unlike Powell, who is Black, was not terminated for her actions. (Id. at 2.)

Powell filed a charge of discrimination with the Equal Employment Opportunity Commission (the “EEOC”) on May 13 2019, alleging racial discrimination based on the foregoing allegations. (ECF No. 1-2.) On August 21, 2020, the EEOC dismissed Powell's claims and issued her a notice of a right to sue. (ECF No. 1-1.) In her complaint, Powell asserts claims for compensatory and punitive damages. (ECF No. 1, at 2-3.) Though her allocation of damages is not entirely clear, she appears to be seeking a total of $1.5 million. (Id. at 2.) Though Powell checked only the “Race” box on the complaint form she filed with the EEOC, her complaint briefly references retaliation as well. (Id.)

Defendants' Motion seeks a partial dismissal of Powell's claims. Specifically, Defendants assert that Powell's claims against Etter should be dismissed because Etter was Powell's supervisor and, under Title VII, supervisors are not subject to individual liability. (ECF No. 16, at 1, 3-4.) Defendants additionally assert that, to the extent Powell is claiming Baptist retaliated against her, that cause of action must be dismissed because Powell failed to exhaust her administrative remedies as to it. (Id. at 1, 4-5.)

Powell's response sets out standards of review applicable to motions to dismiss, as well as the forgiving approach courts can take with pro se litigants, especially as to pleading standards. She asks that she “not be h[e]ld to the same stringent standards as that of a schooled attorney.” (Id. at 1.)^[2] The response otherwise repeats the allegations in her complaint and briefly responds to the issues raised in Defendants' Motion, including a suggestion that she “plans to amend the complaint.” (Id. at 11.)

PROPOSED CONCLUSIONS OF LAW

I.Standard of Review for Failure to State a Claim

To determine whether Plaintiff's complaint states a claim on which relief may be granted, the Court applies the standards under Federal Rule of Civil Procedure 12(b)(6), as articulated in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S 544 (2007). “Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal citations and quotations omitted). The court “construes the complaint in a light most favorable to [the] plaintiff” and “accepts all factual allegations as true” to determine whether they plausibly suggest an entitlement to relief. HDC, LLC v City of Ann Arbor, 675 F.3d 608, 611 (6th Cir. 2012). Pleadings provide facial plausibility when they present “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. However, “pleadings that . . . are no more than conclusions[] are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 679; see also Twombly, 550 U.S. at 555 n.3 (“Rule 8(a)(2) still requires a ‘showing,' rather than a blanket assertion, of entitlement to relief. 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.”).

“[A] pleading filed pro se is to be liberally construed and held to less stringent standards than a pleading filed by counsel.” Kondaur Cap. Corp. v. Smith, 802 Fed.Appx. 938, 945 (6th Cir. 2020) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)); see also Vandiver v. Vasbinder, 416 Fed.Appx. 560, 562 (6th Cir. 2011) (finding the less stringent standard applies to pro se complaints, “however inartfully pleaded”). Nevertheless, pro se litigants “are not exempt from the requirements of the Federal Rules of Civil Procedure.” Wright v. Penguin Random House, 783 Fed.Appx. 578, 581 (6th Cir. 2019) (citing Fox v. Mich. State Police Dep't, 173 Fed.Appx. 372, 376 (6th Cir. 2006)); see also Young Bok Song v. Gipson, 423 Fed.Appx. 506, 510 (6th Cir. 2011) (“[W]e decline to affirmatively require courts to ferret out the strongest cause of action on behalf of pro se litigants. Not only would that duty be overly burdensome, it would transform the courts from neutral arbiters of disputes into advocates for a particular party. While courts are properly charged with protecting the rights of all who come before it, that responsibility does not encompass advising litigants as to what legal theories they should pursue.”); Brown v. Matauszak, 415 Fed.Appx. 608, 613 (6th Cir. 2011) (“[A] court cannot ‘create a claim which a plaintiff has not spelled out in his pleading.'”) (quoting Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975)).

II. Powell Fails to State a Claim Against Etter

Defendants assert that Powell's claims against Etter must be dismissed because Etter was her supervisor, not her employer, and individuals cannot face liability under Title VII. (ECF No. 16, at 3-4.)

Plaintiff responds “[t]his is not correct, Tara Etter[] works as a decision maker, it was Etter that fired the Plaintiff on behalf of Defendant Baptist Memorial Hospital.” (ECF No. 32, at 11.)

“Title VII provides, in pertinent part, that ‘[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin.'” Jenkins v. Plumbers & Pipefitters Union Loc. No. 614, 971 F.Supp.2d 737, 744 (W.D. Tenn. 2013) (quoting 42 U.S.C. § 2000e-2(a)). Title VII limits liability to “employers, ” as “an individual employee/supervisor, who does not otherwise qualify as an ‘employer,' may not be held personally liable under Title VII.” Tutwiler v. Memphis Light Gas & Water, No. 21-2011-JTF-tmp, 2021 WL 4185887, at *2 (W.D. Tenn. Jan. 27, 2021), report and recommendation adopted, 2021 WL 3821020 (W.D. Tenn. Aug. 26, 2021) (quoting Colston v. Cleveland Pub. Library, 522 Fed.Appx. 332, 336 (6th Cir. 2013)). In the Sixth Circuit, “under 42 U.S.C. § 2000e, an ‘employer' does not include the ‘supervisors,' ‘managers,' or ‘co-workers' of a plaintiff.” Han v. Univ. of Dayton, 541 Fed.Appx. 622, 629 (6th Cir. 2013) (citing Wathen v. Gen. Elec. Co., 115 F.3d 400, 404 (6th Cir. 1997)). “Indeed, ‘the statute as a whole, the legislative history and the case law support the conclusion that Congress did not intend individuals to face liability under the definition of ‘employer' it selected for Title VII.'” Mallory v. Middle Tenn. Mental Health, No. 2:19-cv-02255-SHL-cgc, 2019 WL 2427958, at *2 (W.D. Tenn. June 10, 2019) (quoting Wathen, 115 F.3d at 406). Ultimately, even if an individual defendant plays a supervisory or managerial role in the events giving rise to a complaint, a plaintiff cannot state a claim against her under Title VII. Sanders v. FedEx Express Corp., No. 2:19-cv-02831-TLP-tmp, 2020 WL 1666943, at *1 (W.D. Tenn. Apr. 3, 2020).

Whether Etter can face individual liability for the allegedly discriminatory actions taken against Powell does not hinge on whether she is considered a “decision maker” for Baptist, as Powell contends. Etter, according to Powell, is Baptist's CVICU Manager and its “representative” and was acting “on behalf of” Baptist when she fired Powell. (ECF No. 1, at 1, 2; ECF No. 32, at 10.) Even under the more forgiving standard applicable to pro se pleadings, Powell has failed to plead that Etter is an employer. Because Etter's status as a manager at Baptist precludes her from facing personal liability under Title VII, it is recommended that Defendants' Motion to dismiss the claims against Etter individually be granted.

III. Powell Fails to State a Claim for Retaliation

Baptist also seeks dismissal of Powell's claim for retaliation asserting that she has failed to exhaust her administrative remedies as to that claim. Baptist contends that Powell did not check the “retaliation” box or allege retaliation in the...