United States District Court, W.D. Louisiana, Shreveport Division
ELIZABETH ERNY FOOTE, UNITED STATES DISTRICT JUDGE
before the Court is a Motion to Dismiss [Record Document 15]
filed by Defendant U.L. Coleman who seeks to dismiss this
suit pursuant to Federal Rule of Civil Procedure 12(b)(1),
12(b)(5), and 12(b)(6). Plaintiff Marcus Hardmon has filed an
Opposition. [Record Document 17]. For the reasons discussed
below, Defendant's Motion to Dismiss [Record Document 15]
Marcus Hardmon, appearing pro se, filed a complaint
in this Court under Section 706(f) of the Civil Rights Act of
1964. Record Document 1. Plaintiff filed his complaint using
a pre-made form for pro se litigants who seek to
file Title VII claims. The complaint itself contains very
little information. Aside from his signature, date, address,
the name of the defendant, and the signatures of two
witnesses, the only information Plaintiff provides is that he
filed a charge with the Equal Employment Opportunity
Commission (“EEOC”) and that the EEOC sent him a
“right-to-sue” letter. Id. Plaintiff
left blank the sections of the form where he was directed to
describe the employment practices about which he was
complaining and identify the relevant parties, indicate
whether he disagrees with the EEOC's finding in his case,
and give any other relevant information. See Id.
Plaintiff included twenty-four pages of attachments with his
complaint. Record Document 1-2. These attachments include a
Louisiana Commission on Human Rights intake form (pp. 1-6),
several pages of text that appear to be a narrative written
by Plaintiff about the incidents of which he complains (pp.
7-15), information from several different websites about
legal drugs that can cause a positive drug test for THC (pp.
16-20), and a document entitled “Dismissal and Notice
of Rights” from the EEOC stating that it was closing
its file on this matter and giving Plaintiff a right to sue
(pp. 21-24). See Id. Plaintiff alleges that he was
discriminated against because of his race, sex, age, and
religion. Id. at 2.
the Court can tell from Plaintiff's attachments to his
complaint, he was the maintenance supervisor at Northgate
Square Apartment in Bossier City, Louisiana when his
employment was terminated. Id. at 1-2. Plaintiff
states that his employment was terminated on November 24,
2015, because of “an alleged failed drug test.”
Id. at 7. He claims that the failed drug test was in
error and that he passed a second drug test later that same
day. Id. Plaintiff contends that certain legal
medications he was taking to treat headaches and allergies
caused him to test positive for THC. Id. at 13.
Furthermore, Plaintiff claims that his supervisors knew he
was taking these medications and that he needed to take them
because he had been working in apartments that contained
black mold. Id. at 3, 8, & 13.
main argument appears to be that his termination represents
an unfair employment practice. He is black and is aware of a
similarly situated white employee who either failed or
refused to take a drug test. Id. at 7. Plaintiff
explains that a white employee, Matthew Thomas
(“Thomas”), hit someone's Corvette with his
truck in 2015 and refused to go to “work
care” because he knew he would fail the drug
test. Id. at 10. Plaintiff claims that Thomas told
other employees on multiple occasions that he smoked
marijuana and did cocaine, and that he had a relationship
with maintenance director Jeff Roach (“Roach”).
Id. It appears that Thomas was initially fired
because of this incident, but Plaintiff states that Roach got
Thomas his job back shortly thereafter. Id.
Plaintiff also claims that he was replaced by a younger,
white employee named Mike, who was close with Plaintiff's
supervisor Lindsay Caldwell (“Caldwell”).
Id. at 15. According to Plaintiff, Caldwell
intentionally did not report an incident where Mike jumped
from a ladder and hurt his leg at work, so that Mike would
not have to go to “work care.” Id.
Finally, Plaintiff claims that U.L. Coleman applied fees and
provided services to tenants in an inconsistent manner based
on race and that U.L. Coleman did not hire black managers
because “Mr. Coleman does not trust a black manager to
be over his apartment complex . . . .” Id. at
11 & 14.
also makes several complaints about his working conditions
and injuries he sustained on the job. He complains that he
had to use his personal vehicle to drive around the apartment
complex even though the other twelve properties had golf
carts. Id. at 2 & 13. Plaintiff claims that he
had to work in apartments that contained black mold and was
“brushed off” by management when he raised health
concerns about the mold. Id. at 3. He had to miss
work on November 11, 2015, because his eyes and nose were
swelling due to his allergies. Id. at 8. He returned
the next day and informed his supervisors that he would be
taking allergy medication to treat the swelling. Id.
He also informed Caldwell that his eyes had been swollen and
burning more since he had been doing work in apartments with
black mold in them. Id.
November 20, 2015, Plaintiff cut his left ring finger while
replacing a sink drain in one of the apartments. Id.
Plaintiff states that since this injury, he has had trouble
pulling, climbing, lifting, carrying things, and scratching,
that he has sharp pains and numbness from his finger tip to
his shoulder, and that he may never be able to wear his
wedding ring again. Id. at 3. On November 23, 2015,
Plaintiff was moving a stove at work when he injured his left
shoulder and lower back. Id. at 9. It appears from
Plaintiff's narrative that his employment was terminated
when he failed a drug test following this incident. See
Id. at 14. Plaintiff states that he can no longer lift
his left arm over his head, has trouble dressing, and
performs tasks slowly because of the pain and stiffness in
his back and shoulder. Id. at 9. He also states that
since he has been fired, doctors will no longer see him to
treat his finger, back, or arm. Id.
U.L. Coleman filed the instant motion to dismiss, claiming
that Plaintiff has failed to effect proper service, failed to
exhaust his administrative remedies, and failed state a claim
upon which relief can be granted. Record Document 15.
Defendant claims that Plaintiff has failed to perfect service
in accordance with Federal Rule of Civil Procedure 4. Record
Document 15-2, pp. 10-11. Defendant argues that this Court
does not have subject matter jurisdiction over
Plaintiff's claim because Plaintiff has failed to exhaust
his administrative remedies as required under Title VII.
Id. at 13. Finally, Defendant claims that Plaintiff
has failed to state a claim against U.L. Coleman because he
fails to state the elements of a prima facie Title
VII claim and because he fails to make claims against U.L.
Coleman personally. Id. at 15-16.
Defendant has brought motions to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6),
this ruling will focus on the motion to dismiss pursuant to
Rule 12(b)(6) for failure to state a claim upon which relief
can be granted.
Lack of Subject Matter Jurisdiction
argues that Plaintiff's claims should be dismissed under
Rule 12(b)(1) for lack of subject matter jurisdiction because
Plaintiff has not exhausted his administrative remedies.
Record Document 15-1, p. 12. Defendant claims that when a
plaintiff has not exhausted his administrative remedies, a
federal court does not have subject matter jurisdiction over
a Title VII case. Id. at 13. The Court acknowledges
that Plaintiff is required to exhaust his administrative
remedies against U.L. Coleman before he can pursue an
employment discrimination claim in federal court. Taylor
v. Books A Million, Inc., 296 F.3d 376, ...