Opinion
CASE NO. 11-CV-60272-ALTONAGA/Simonton
09-02-2011
SHELDON B. ASHMORE, Plaintiff, v. FEDERAL AVIATION ADMINISTRATION, et al., Defendants.
ORDER
THIS CAUSE comes before the Court upon Defendants, the Federal Aviation Administration ("FAA") and Ray LaHood's Motion to Dismiss (the "Motion") [ECF No. 11], filed July 11, 2011. In his Complaint [ECF No. 1], Plaintiff, Sheldon Ashmore ("Ashmore"), alleges he was fired from the FAA South Florida Flight Standards District Office because he is African-American. (See Compl. ¶¶ 1-2, 8-9). Defendants ask, pursuant to Federal Rule of Civil Procedure 12(b)(6), that the Court dismiss Plaintiff's Complaint in its entirety for failure to state a claim. (See Mot. 1). The Court has carefully considered the parties' written submissions and the applicable law.
I. BACKGROUND
The allegations in the Complaint are taken as true.
Ashmore claims the FAA violated section 703 of the Civil Rights Act of 1964 (Title VII) by discharging him based on his race. (See Compl. ¶ 2). On March 13, 2009, the FAA fired Ashmore. (See id. ¶ 9). The final termination decision was made by Sergio Lopez, a Hispanic manager. (See id. ¶ 15). Ashmore was allegedly fired because he failed to complete or progress through the FAA's required On the Job Training ("OJT") program. (See id. ¶¶ 9-10). However, there were other employees, similarly-situated to Ashmore, who were not fired for failing to complete the OJT program. (See id. ¶¶ 13-15). In particular, "[n]ot one Hispanic who was similarly situated to Plaintiff was removed for failing to complete the OJT training." (Id. ¶ 13).
42 U.S.C. §§ 2000 et seq.
Moreover, the OJT Program Coordinator, who oversees the OJT curriculum at issue, stated that Ashmore's progress through the program was "well ahead of [his] peers at the facility level, and nation wide [sic] in [his] progress to complete OJT assigned tasks." (Id. ¶ 11). Ashmore achieved this level of progress despite the fact that "the facility had a limited number of instructors . . . and resources were not made available to [him]." (Id. ¶ 12). Several other employees, similarly-situated to Ashmore, were able to avoid the requirements of completing the OJT program because FAA personnel falsified their OJT training documents. (See id. ¶¶ 14-15).
Defendants move to dismiss the Complaint claiming: (1) Ashmore fails to allege sufficient facts to plausibly suggest similarly-situated employees were treated differently from him, (2) Ashmore fails to allege sufficient facts supporting an inference of intentional discrimination, and (3) Ashmore has improperly named the FAA as a Defendant in this Title VII case. (See Memorandum of Law in Support of Defendants' Motion to Dismiss ("Memorandum") 3-12 [ECF No. 11-1]).
II. LEGAL STANDARD
It is well established that "[t]o 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.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although this pleading standard "does not require 'detailed factual allegations,' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 1949 (quoting Twombly, 550 U.S. at 555). Pleadings must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Indeed, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 129 S. Ct. at 1950 (citing Twombly, 550 U.S. at 556). To meet this "plausibility standard," a plaintiff must "plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949 (citing Twombly, 550 U.S. at 556). "The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss." Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009) (citing Iqbal, 129 S. Ct. at 1949).
When reviewing a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and take the factual allegations therein as true. See Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). But 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." Iqbal, 129 S. Ct. at 1950; see also Sinaltrainal, 578 F.3d at 1260 ("'[U]nwarranted deductions of fact' in a complaint are not admitted as true for the purpose of testing the sufficiency of plaintiff's allegations.").
III. ANALYSIS
A. Inference of Discrimination based on Disparate Treatment
Defendants first assert that Ashmore has failed to allege any facts to substantiate his allegation that similarly-situated employees outside his protected class were treated differently than he was. (See Mem. 4). Defendants maintain that without such facts, the Complaint does not permit an inference of discrimination, which Defendants contend is necessary for a Title VII claim to survive dismissal. (See id. 4-5).
In the employment discrimination context, courts have recognized a fair amount of uncertainty as to what plaintiffs must allege in their pleadings in order to survive a motion to dismiss under Rule 12(b)(6). Specifically, courts have struggled with whether an employment discrimination plaintiff must allege specific facts to establish a prima facie case for discrimination as set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). McDonnell dealt with the "proper order and nature of proof in actions under Title VII," id. at 794, and established a three-part burden-shifting framework in which the first step of the inquiry is to determine whether a plaintiff has set out a prima facie case of discrimination, see id. at 802. Once the plaintiff has done so, the burden shifts to the employer to "articulate some legitimate, nondiscriminatory reason" for the complained-of act, id. at 802, after which the burden shifts back to plaintiff to show that the stated reason is "in fact pretext," id. at 804. See also Maynard v. Bd. of Regents, 342 F.3d 1281, 1288-89 (11th Cir. 2003) (applying McDonnell burden-shifting analysis).
The Supreme Court in Swierkiewicz v. Soreman N.A., 534 U.S. 506 (2002), which preceded Twombly and Iqbal, squarely addressed "the question whether a complaint in an employment discrimination lawsuit must contain specific facts establishing a prima facie case of discrimination under the framework set forth by [the] Court in [McDonnell]." 534 U.S. at 508. The Court in Swierkiewicz held that an employment discrimination plaintiff need not establish a prima facie case, but merely "'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Id. (quoting FED. R. CIV. P. 8(a)). The Court emphasized that the prima facie case is an evidentiary standard rather than a pleading requirement, and that "requir[ing] greater 'particularity'" in the Title VII context would overly constrict pleadings. Id. at 510-11. The Court invoked the Conley v. Gibson, 355 U.S. 41, 47 (1957), standard of notice pleading, requiring only that plaintiff give "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. The Court found it sufficient to state a claim under Title VII and the Age Discrimination in Employment Act if the "complaint detailed the events leading to [the employee's] termination, provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved with [the employee's] termination." Id. at 514.
In light of Twombly and Iqbal, however, the approach in Swierkiewicz has been questioned. The Eleventh Circuit announced that "[r]ecently, we have recognized a tightening of liberal pleading standards, such that a complaint must now contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Thampi v. Manatee Cnty. Bd. of Comm'rs, 384 F. App'x 983, 987-88 (11th Cir. 2010) (internal quotation marks omitted) (comparing the current rule of Twombly with Swierkiewicz's "liberal" standard); see also Hopkins v. Saint Lucie Cnty. Sch. Bd., 399 F. App'x 563, 566 (11th Cir. 2010) (upholding dismissal of Title VII discrimination claim where plaintiff "fail[ed] to provide, as required by Twombly and Iqbal, the sufficient factual matter to establish a prima facie case") (internal quotation marks omitted); Edwards v. Prime, Inc., 602 F.3d 1276, 1300-01 (11th Cir. 2010) (holding that to plead hostile work environment claim, plaintiff "was required to allege" claim's five elements and finding that "conclusory allegations" and "formulaic recitation of the elements" did not meet standard under Rule 8 in light of Twombly and Iqbal).
See, e.g., Charles A. Sullivan, Plausibly Pleading Employment Discrimination, 52 WM. & MARY L. REV. 1613 (2011).
But see, e.g., Fanfan v. Pediatric Servs. of Am., Inc., No. 10-60011-Civ., 2010 WL 2471414, at *2 n.2 (S.D. Fla. June 17, 2010) (observing that "[w]hile some courts have held that Swierkiewicz is no longer valid due to its reliance on Conley, . . . this Court will continue to follow Swierkiewicz in the employment discrimination context because neither Twombly nor Iqbal involved FCRA or section 1981 claims.").
The Eleventh Circuit summed up the current state of affairs in Henderson v. JP Morgan Chase Bank, N.A., 2011 WL 3362682 (11th Cir. Aug. 4, 2011), citing Swierkiewicz and stating that it remained the case that "[a] complaint in an employment discrimination case need not contain specific facts establishing a prima facie case under the evidentiary framework for such cases to survive a motion to dismiss. . . . But complaints alleging discrimination still must meet the 'plausibility standard' of Twombly and Iqbal." Id. at *2 (internal citations omitted). Thus, to survive a Rule 12(b)(6) motion in an employment discrimination context, the complaint in Henderson had to "contain sufficient factual matter to support a reasonable inference that [the defendant] engaged in racial discrimination . . . . [The plaintiff] could have met this standard by alleging facts showing that similarly-situated loan applicants outside her racial class were offered more favorable loan terms." Id. The Henderson court makes clear that the Eleventh Circuit "recognize[s] the Twombly standard as controlling." Id. Thus, it appears that a plaintiff establishing a prima facie case of discrimination under McDonnell likely survives a Rule 12(b)(6) motion. However, when a plaintiff falls short of such a prima facie case the court must determine whether the plaintiff may have nevertheless alleged enough to survive a Rule 12(b)(6) motion.
In order to establish a prima facie case of discrimination, a plaintiff may provide either direct or circumstantial evidence. See Maynard, 342 F.3d at 1288. If by the latter, the plaintiff must show that
(1) he is a member of a protected class; (2) he is qualified for the position; (3) he suffered an adverse employment action; and (4) he was replaced by a person outside his protected class or was treated less favorably than a similarly-situated individual outside his protected class.Id. at 1289.
Ashmore does not establish a prima facie case of discrimination, because he fails to show that he was treated less favorably than another similarly-situated employee. "To satisfy [that] element of a prima facie case [of racial discrimination under Title VII], Plaintiff must identify at least one similarly-situated employee who was treated differently than Plaintiff. . . . The comparator Plaintiff identifies must be similarly situated in all relevant respects." Dawson v. Miami-Dade Cnty., No. 07-20126 CIV, 2008 WL 1924266, at *8-9 (S.D. Fla. 2008) (emphasis added) (internal quotation marks omitted). Although Ashmore identifies an individual comparator in his Opposition to the Motion to Dismiss ("Opposition") (see [ECF No. 29] at 7), "[a] plaintiff cannot amend the Complaint in [a] brief in opposition to a motion to dismiss." Grandrimo v. Parkcrest Harbour Island Condo. Ass'n, No. 8:10-CV-964-T-27MAP, 2011 WL 550579, at *5 (M.D. Fla. Feb. 9, 2011). Nowhere in the Complaint does Ashmore identify any similarly-situated individual outside his class who did not experience discrimination.
Even if Ashmore were not required to allege a prima facie case of discrimination, however, he would nevertheless fail to state a claim. The Complaint does not "contain sufficient factual matter to support a reasonable inference" of Title VII discrimination. See Henderson, 2011 WL 3362682, at *2. The Eleventh Circuit, post-Swierkiewicz but pre-Twombly and Iqbal, did not require a McDonnell prima facie case, but nevertheless did not permit a pleading to "survive dismissal when it consisted of only the barest of conclusory allegations without notice of the factual grounds on which they purport to be based." Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1271 (11th Cir. 2004). In Jackson, the Eleventh Circuit held that the district court, under Swierkiewicz, correctly applied the pleading standard in dismissing plaintiffs' claims where they "failed to identify any specific nonminority employees . . . who were treated differently." Id. at 1274 (emphasis in original). Thus, Ashmore's Complaint fails to state a claim under any pleading standard.
Moreover, the court in Jackson found persuasive the district court's conclusion that "the facts alleged do not relate to the race of the plaintiffs, and the allegations relating to race are not factually supported." Id. This is precisely what has occurred here. The only remotely specific fact alleged in the Complaint relating to treatment of any similarly-situated individuals is that Ashmore was one of "the last two picked up, and resources were not made available to them." (Compl. ¶ 12). Given the absence of any other facts describing similarly-situated individuals, this only suggests a non-racially related reason for Ashmore's treatment—the timing of his hiring. Ashmore's repeated description of other employees as "similarly situated" (see id. ¶¶ 13-15), without more, is precisely the sort of "label[] and conclusion[], and a formulaic recitation of the element[] of a cause of action" that the Twombly Court found inadequate. 550 U.S. at 555.
Ashmore argues that "upon a showing of a prima facie case," he must be afforded a fair opportunity to demonstrate that the reason for his termination was a mere pretext. (Opp'n 5). This argument is unavailing. As noted, and as Ashmore himself concedes, the McDonnell inquiry into the existence of pretext occurs only after a plaintiff has met his initial burden in proving the existence of a prima facie case, which Ashmore has not done. See Henderson, 2011 WL 3362682, at *2 (observing that the burden-shifting analysis of pretext "is predicated on the establishment of a prima facie case").
Ashmore also argues that he has in fact alleged facts creating an inference of discrimination regarding similarly-situated employees. (See Opp'n 6). In doing so, Ashmore acknowledges that
Although the Court cannot be sure that the term "peers" means other (Hispanic) new hires under the supervision of Mr. Lopez, said allegation of fact is clearly enough to establish that a reasonable expectation exists that discovery will reveal evidence supporting the allegation, thereby creating the inference of discrimination. For instance, one specific example of a similarly situated employee is Mr. Rafael Figuroa (Hispanic).(Id. 7). For the reasons stated, this line of argumentation, accompanied by the introduction of an entirely new fact, is unconvincing.
B. Inference of Intentional Discrimination
The Court declines to address Defendants' argument regarding intentional discrimination as the preceding discussion disposes of Ashmore's claim, and Ashmore makes no response to this argument in any case in his Opposition.
C. FAA is an Improper Party
Defendants argue that the FAA is an improper Defendant in this matter, as Title VII provides the exclusive remedy for federal employment discrimination claims and outlines procedures designating the head of department, agency or unit as the appropriate defendant. (See Mem. 11). Accordingly, Defendants state that Ray LaHood, the Secretary of the U.S. Department of Transportation, is the appropriate Defendant, and the FAA must be dismissed as an improper party. (Id. 11-12). Ashmore makes no response to this argument, which is correct in any event. See Laurent v. Potter, 405 F. App'x 453, (11th Cir. 2010) ("Title VII provides that the 'head of the department, agency, or unit' that allegedly discriminated against the plaintiff 'shall be the defendant' in any civil action by a federal employee claiming discrimination."). Accordingly, the FAA is dismissed as a Defendant in this action.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED AND ADJUDGED as follows:
1. The Motion to Dismiss the Complaint [ECF No. 11] is GRANTED. Plaintiff may file an amended complaint no later than September 16, 2011.
2. The Defendant, Federal Aviation Administration, is DISMISSED from this action.
DONE AND ORDERED in Chambers at Miami, Florida, this 2nd day of September, 2011.
/s/ _________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE cc: counsel of record