United States District Court, W.D. Louisiana, Shreveport Division
A. DOUGHTY, JUDGE.
REPORT AND RECOMMENDATION
L. Hayes, United States Magistrate Judge.
the undersigned magistrate judge on reference from the
District Court is a Rule 12(b)(6) motion to dismiss for
failure to state a claim upon which relief can be granted, or
in the alternative, motion for summary judgment [doc. # 16]
filed by defendant, Megan J. Brennan, Postmaster General of
the United States. The motion is opposed. For reasons
assigned below, it is recommended that the Rule 12(b)(6)
motion be DENIED, but that the alternative motion for summary
judgment be GRANTED.
31, 2018, Sharon K. Burns filed the instant pro se suit for
“hostile work environment violence in the
workplace.” (Compl.). Burns, who is a postal worker,
alleged in her complaint that her supervisor violently
charged at her on the workroom floor while shouting and
screaming at her. Id. She added that this
“person” had been involved in several encounters,
and therefore, she was in danger from this
“person.” Id. Her requested relief
includes the return of four months of sick leave, all medical
expenses, plus an award of compensatory and punitive damages
for the PTSD that she suffered. Id.
attached to her complaint a copy of a decision issued by the
U.S. Equal Employment Opportunity Commission
(“EEOC”), which documented that Burns had filed
an EEO complaint alleging that the Postal Service had
“discriminated against her on the bases of sex
(female), and reprisal when (1) on March 14, 2015, a
supervisor yelled at her and shook her hamper of mail; and
(2) beginning March 21, 2015, she has been denied
overtime.” (May 10, 2018, EEOC Decision on Request for
Reconsideration; Compl., Exh.). The EEOC denied the request
for reconsideration and advised Burns that she had ninety
(90) days to file a civil action in the appropriate United
States District Court. Id. The instant suit
25, 2019, following lengthy delays for service and then for
extensions of time to answer, defendant Megan Brennan, Post
Master General of the United States Postal Service (the
“Postal Service”) filed the instant Rule 12(b)(6)
motion, or in the alternative, motion for summary judgment.
The Postal Service seeks dismissal of plaintiff's
complaint on several grounds. First, the Post Service
contends that plaintiff's complaint fails to comply with
Rule 8's pleading standard because it does not place
defendant on notice of plaintiff's claims. Second,
plaintiff's hostile work environment claim should be
dismissed because she did not exhaust administrative remedies
through the EEO process before filing suit under Title VII of
the Civil Rights Act of 1964. Third, plaintiff's hostile
work environment claim fails on the merits because she cannot
satisfy the elements of the claim. Finally, insofar as
plaintiff intended or attempted to assert a retaliation
claim, she is unable to establish a prima facie case of
16, 2019, plaintiff filed her opposition to the hybrid motion
whereby she maintained that she felt threatened by “Mr.
Wilkerson, ” and that defendant had retaliated against
her by failing to assign her all of the overtime hours that
she was eligible for. [doc. # 18]. On July 23, 2019, the
Postal Service filed its reply brief. [doc. # 19]. The matter
Standard of Review
Federal Rules of Civil Procedure sanction dismissal where the
plaintiff fails “to state a claim upon which relief can
be granted.” Fed.R.Civ.P. 12(b)(6). A pleading states a
claim for relief when, inter alia, it contains a
“short and plain statement . . . showing that the
pleader is entitled to relief . . .” Fed.R.Civ.P.
withstand 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.” Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007)). A claim
is facially plausible when it contains sufficient factual
content for the court “to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Id. Plausibility does not
equate to possibility or probability; it
lies somewhere in between. See Iqbal, supra.
Plausibility simply calls for enough factual allegations to
raise a reasonable expectation that discovery will reveal
evidence to support the elements of the claim. See
Twombly, 550 U.S. at 556, 127 S.Ct. at 1965. Assessing
whether a complaint states a plausible claim for relief is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, supra (citation omitted). A
well-pleaded complaint may proceed even if it strikes the
court that actual proof of the asserted facts is improbable,
and that recovery is unlikely. Twombly,
the court must accept as true all factual allegations set
forth in the complaint, the same presumption does not extend
to legal conclusions. Iqbal, supra. A pleading
comprised of “labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action” does not satisfy Rule 8. Id. Moreover,
courts are compelled to dismiss claims grounded upon invalid
legal theories even though they might otherwise be
well-pleaded. Neitzke v. Williams, 490 U.S. 319, 109
S.Ct. 1827 (1989).
“[t]he notice pleading requirements of Federal Rule of
Civil Procedure 8 and case law do not require an inordinate
amount of detail or precision.” Gilbert v. Outback
Steakhouse of Florida Inc., 295 Fed.Appx. 710, 713
(5th Cir. 2008) (citations and internal quotation
marks omitted). Further, “a complaint need not pin
plaintiff's claim for relief to a precise legal theory.
Rule 8(a)(2) of the Federal Rules of Civil Procedure
generally requires only a plausible ‘short and
plain' statement of the plaintiff's claim, not an
exposition of [her] legal argument.” Skinner v.
Switzer, 562 U.S. 521, 131 S.Ct. 1289, 1296 (2011).
Indeed, “[c]ourts must focus on the substance of the
relief sought and the allegations pleaded, not on the label
used.” Gearlds v. Entergy Servs., Inc., 709
F.3d 448, 452 (5th Cir. 2013) (citations omitted).
“Specific facts are not necessary; the statement need
only ‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.'”
Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007)
(quoting Bell Atl., 127 S.Ct. at 1958).
considering a motion to dismiss, courts generally are limited
to the complaint and its proper attachments. Dorsey v.
Portfolio Equities, Inc., 540 F.3d 333, 338
(5th Cir. 2008) (citation omitted). However,
courts may rely upon “documents incorporated into the
complaint by reference, and matters of which a court may take
judicial notice” - including public records.
Dorsey, supra; Norris v. Hearst Trust, 500
F.3d 454, 461 n9 (5th Cir. 2007) (citation
omitted) (proper to take judicial notice of matters of public
record). Furthermore, “[d]ocuments that a defendant
attaches to a motion to dismiss are considered part of the
pleadings if they are referred to in the plaintiff''s
complaint and are central to [her] claim.” Collins
v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-499
(5th Cir. 2000) (citations and internal quotation
Postal Service seeks dismissal of plaintiff's claims for
hostile work environment and retaliation, in part, because of
plaintiff's inability to establish a prima facie case to
support these claims. However, in Swierkiewicz v.
Sorema, the Supreme Court held that “an employment
discrimination plaintiff need not plead a prima facie case of
discrimination” to survive a Rule 12(b)(6) motion.
Swierkiewicz v. Sorema, 534 U.S. 506, 511, 122 S.Ct.
992, 997 (2002). The Court explained that the McDonnell
Douglas framework “is an evidentiary standard, not
a pleading requirement.” Id. at
Accordingly, plaintiff's complaint need only comply with
Rule 8, which requires “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8; Swierkiewicz, 423
U.S. at 515.
the court certainly agrees that plaintiff's complaint is
quite threadbare, plaintiff is not writing on a blank slate.
The Postal Service is well aware of plaintiff's charges
and allegations because of the various layers of
administrative proceedings that plaintiff pursued before
filing suit. In fact, defendant adduced copies of these
decisions in support of its motion for summary judgment.
See discussion, infra. Under these rather
uncommon circumstances, the court finds that plaintiff's
complaint meets the “simple requirements of Rule 8(a),
” sufficient to provide the Postal Service with fair
notice of her claims such that it is able frame a responsive
pleading. See Swierkiewicz, supra. Indeed,
defendant's alternative motion for summary judgment and
the voluminous attachments thereto, belie the Postal
Service's argument to the contrary.
while the Postal Service also sought dismissal of one or more
of plaintiff's claims under Rule 12(b)(6) for failure to
exhaust administrative remedies, and on the merits,
defendant's arguments rely on extrinsic evidence. Of
course, if evidence outside of the pleadings is presented to
the court and used in deciding a 12(b)(6) motion, the court
must convert the matter to a motion for summary judgment.
Fed.R.Civ.P. 12(d); Knighton v. Merscorp Inc., 304
Fed.Appx. 285, 287 (5th Cir. 2008) (citing
Fernandez-Montes v. Allied Pilots Ass'n, 987
F.2d 278, 283 (5th Cir.1993)).
event of conversion, Rule 12(d) requires that all parties be
afforded a reasonable opportunity to present all material
pertinent to a motion for summary judgment. Id.
Specifically, the notice and hearing requirements of Rules
12(b) and 56(c) of the Federal Rules of Civil Procedure must
be adhered to. Mackey v. Owens, 1999 WL 423077 (5th
Cir. June 2, 1999) (unpubl.).
court, however, need not give a party “express
notice” that a motion to dismiss will be treated as a
motion for summary judgment:
given [Rule 12(d)]'s express declaration that a motion to
dismiss shall be treated as a motion for summary judgment
where matters outside the pleadings are presented to and not
excluded by the court, the simple act of placing matters
outside the pleadings before the court provides adequate