Cisero v. Wal-Mart, Inc.

Full title: NAKIRI S. CISERO, Plaintiff, v. WAL-MART, INC., et al., Defendants

Court: United States District Court, M.D. Florida, Jacksonville Division

Date published: Jan 29, 2007

Case No. 3:05-cv-1105-J-32MCR (M.D. Fla. Jan. 29, 2007)

Opinion

Case No. 3:05-cv-1105-J-32MCR.

January 29, 2007

ORDER ¹

1 Under the E-Government Act of 2002, this is a written opinion and therefore is available electronically. However, it has been entered only to decide the motion or matter addressed herein and is not intended for official publication or to serve as precedent.

TIMOTHY CORRIGAN, Magistrate Judge

This employment case is before the Court on a Motion to Dismiss Second Amended Complaint (Doc. 86) filed by defendants Larry Dollar, Ralph Chapman, Aaron Gillingham, Sandra Panichello, Daryl Rieli, Kenneth Weeks, and David Hanania (collectively, "defendants"), each of whom pro se plaintiff has sued in Counts I and/or III for retaliation in violation of 42 U.S.C. § 1981.² Plaintiff has filed a response in opposition (Doc. 95).

2 Two other defendants (Wal-Mart, Inc., named in Counts I-IV and Mia Davis, named in Count V) have filed answers to the second amended complaint (Docs. 84, 87); three other defendants (Corey Woods, Greg Ley, Pamela Williams) have yet to appear. Approximately twenty-five other defendants were dismissed either voluntarily or by the Court.

On September 14, 2006, the Court issued an Order finding that as contained in plaintiff's amended complaint, the allegations against these defendants failed to suggest that any of them had the power or authority to make or recommend employment action against plaintiff. See Order, Doc. 78 at 2-3 (citing authorities). The Court therefore granted a motion to dismiss filed by these same defendants but gave plaintiff a final opportunity to re-plead her Section 1981 claims against them. Plaintiff subsequently filed a second amended complaint (Doc. 82) and defendants once again seek dismissal of the claims alleged against them pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that plaintiff has failed to state a claim for retaliation pursuant to Section 1981.

When considering a motion to dismiss under Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true, consider the allegations in the light most favorable to the plaintiff, and accept all reasonable inferences that can be drawn from such allegations. Hill v. White, 321 F.3d 1334, 1335 (11^th Cir. 2003); Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11^th Cir. 1994). To satisfy the "short plain statement" pleading requirements of Fed.R.Civ.P. Rule 8, a complaint "must simply 'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Conley v. Gibson, 335 U.S. 41, 47 (1957)). A complaint may not be dismissed under Rule 12(b)(6) "'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.'" Lopez v. First Union Nat'l Bank of Florida, 129 F.3d 1186, 1189 (11^th Cir. 1997) (quoting Conley, 355 U.S. at 45-46).

To state a claim for retaliation under Section 1981, plaintiff must allege that 1) she engaged in protected activity; 2) defendant subsequently took an adverse employment action against her; and 3) the adverse employment action was causally related to the protected activity. Bass v. Bd. of County Comm'rs, Orange County, Fla., 256 F.3d 1095, 1117 (11^th Cir. 2001). See also,Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55 (1990) (recognizing identity of elements between Title VII and Section 1981).

Although defendants argue that plaintiff has failed to plead the second and third elements as to any of them, drawing all inferences from the allegations of the complaint in plaintiff's favor, the Court finds plaintiff has adequately pled her retaliation claims against defendants Larry Dollar, Ralph Chapman and Daryl Rieli to survive a motion to dismiss. Plaintiff has alleged that these three defendants were superiors with the power or authority to make or recommend employment actions against plaintiff, that these defendants failed to investigate complaints of discrimination and retaliation and that they solicited and used information to "build a case against plaintiff" in an effort to justify terminating her. Though some of these allegations are vague (both in context and temporally), the Court cannot say beyond doubt that plaintiff could prove no set of facts in support of her allegations such as would meet the required elements of her Section 1981 claims against these defendants. See Burlington N. Sante Fe Ry. Co. v. White, 126 S.Ct. 2405, 2411-15 (2006) (explaining that adverse employment action for purposes of retaliation claim under Title VII includes not only tangible employment actions (such as hiring, firing, failing to promote, reassignment and changes in benefits) but also encompasses actions that might objectively deter victims of discrimination from complaining).

However, the Court finds plaintiff has failed to adequately plead her claims against Aaron Gillingham, Sandra Panichello, Kenneth Weeks, and David Hanania. There are simply no allegations tying any alleged actions by any of these defendants to any protected activity by plaintiff. As plaintiff has already had two earlier opportunities to perfect the inadequacies of her complaint, plaintiff's claims against these four defendants are due to be dismissed with prejudice.

Accordingly, it is hereby

ORDERED:

1. Defendants' Motion to Dismiss (Doc. 86) is GRANTED to the extent that plaintiff's claims against Aaron Gillingham, Sandra Panichello, Kenneth Weeks, and David Hanania are DISMISSED with prejudice; and is otherwise DENIED.

2. Defendants Larry Dollar, Ralph Chapman and Daryl Rieli shall file and serve their answers to plaintiff's second amended complaint no later than February 21, 2007.

3. The parties shall confer and file their Case Management Report (the form of which is attached hereto) no later than February 21, 2007. DONE AND ORDERED at Jacksonville, Florida. UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION CASE MANAGEMENT REPORT Meeting of Parties Name Counsel for (if applicable) Initial Disclosures 26 Preliminary Pretrial Conference: mandatory in Track Three cases. Track Two cases Discovery Plan 26 26 Daubert Mediation: If yes, the parties shall complete and all counsel and/or unrepresented parties shall execute on the Form AO-85 attached hereto (through the portion for "Consent"- all signatures together on one form); submit the same to the Clerk, and the Court will promptly thereafter enter the "Order of Reference" portion and file the same in the record hereof.

v. Case No. _________________________________________/ This Case Management Report shall be used in all Track Two or Track Three civil cases to be tried before the Honorable Timothy J. Corrigan, United States District Judge. Based on this Report and availability on the Court's calendar, the Court will issue a binding Case Management and Scheduling Order. 1. : Pursuant to Local Rule 3.05(c)(2)(B) or (c)(3)(A), a telephone or in-person conference was held on _______________________________(date) between: _____________________________________ ______________________________________ _____________________________________ _______________________________________ _____________________________________ _______________________________________ _____________________________________ _______________________________________ 2. : The parties (check one) [__] have exchanged [__] agree to exchange information described in Fed.R.Civ.P. (a)(1) on or by____________________________ (date). 3. Local Rule 3.05(c)(3)(B) provides that preliminary pretrial conferences are : Parties (check one) [__] request [__] do not request a preliminary pretrial conference before entry of a Case Management and Scheduling Order in this Track Two case. Unresolved issues to be addressed at such a conference include: ______________________________________________________________________________ ______________________________________________________________________________ 4. : In propounding and responding to discovery, the parties are directed to consult and comply with the Federal Rules of Civil Procedure, the Local Rules of the United States District Court for the Middle District of Florida, and the Middle District of Florida's Discovery Handbook. A. Requested deadline for party seeking affirmative relief (be it plaintiff, counterclaim plaintiff, etc.) to serve expert reports in full compliance with Fed.R.Civ.P. Rule (a)(2): ________________________________________________________. B. Requested deadline for responding party (be it defendant, counterclaim defendant, etc.) to serve expert reports in full compliance with Fed.R.Civ.P. Rule 26(a)(2):_____________________________________________________. C. Requested deadline for any party to submit expert rebuttal reports in full compliance with Fed.R.Civ.P. Rule (a)(2) (if no expert rebuttal reports are anticipated, put "none").________________________________________. D. Requested deadline for completing all discovery:_____________________________. E. Other matters: Parties agree on the following other matters relating to discovery (e.g., handling of confidential information, assertion of privileges, whether discovery should be conducted in phases or be limited to or focused upon particular issues): ___________________________________________________________________________________ ___________________________________________________________________________________ ___________________________________________________________________________________ ___________________________________________________________________________________ 5. Are amendments to pleadings, counterclaims, or third party practice contemplated? [__] yes [__] no If yes, describe and give requested deadlines:___________________________________ _________________________________________________________________________________ ________________________________________________________________________________ 6. Requested dispositive and motions filing deadline:________________. 7. Requested final pretrial conference date:________________________________________________________. (In requesting a proposed date, parties are reminded that Judge Corrigan requires at least 90 days between the filing of dispositive motions and the final pretrial conference). 8. Requested trial term:___________________________________________________________________________. for a (check one) [__] jury [__] non-jury trial. Trial is expected to take approximately _____________ days. 9. The Court typically refers all cases to court annexed mediation as detailed in Chapter Nine of the Court's Local Rules. The order of referral to mediation described in Local Rule 9.04 should be entered by the Court directing that mediation occur on or before __________________________ (date) designating _____________________________________ (name) to serve as mediator. (A list of certified mediators is available from the Clerk's Office and on the Court's website. If the parties do not so designate, the Court will designate the mediator and the deadline for mediation). 10. Do parties agree to consent to trial presided over by United States Magistrate Judge? (check one) [__] yes [__] no [__] may agree in future. 11. Pending or Anticipated Motions: ______________________________________________________________________________ _____________________________________________________________________________ ______________________________________________________________________________ _____________________________________________________________________________ 12. Requests for Special Consideration or Handling (requests can be joint or unilateral): _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ Date:____________________________________ Signatures of Counsel (with information required by Local Rule 1.05(d)) and Signature of any unrepresented party: __________________________________________________________________________________________ __________________________________________________________________________________________ __________________________________________________________________________________________ __________________________________________________________________________________________ __________________________________________________________________________________________ UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA NOTICE, CONSENT, AND ORDER OF REFERENCE — EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE v. Case No.

NOTICE OF AVAILABILITY OF A UNITED STATES MAGISTRATE JUDGE TO EXERCISE JURISDICTION

In accordance with the provisions of 28 U.S.C. 636(c), and Fed.R.Civ.P. 73, you are notified that a United States Magistrate Judge of this District Court is available to conduct any or all proceedings in this case including a jury or non-jury trial, and to order the entry of a final judgment. Exercise of this jurisdiction by a Magistrate Judge is, however, permitted only if all parties voluntarily consent.

You may, without adverse substantive consequences, withhold your consent, but this will prevent the court's jurisdiction from being exercised by a Magistrate Judge. If any party withholds consent, the identity of the parties consenting or withholding consent will not be communicated to any Magistrate Judge or to the District Judge to whom the case has been assigned.

An appeal from a judgment entered by a Magistrate Judge shall be taken directly to the United States Court of Appeals for this judicial circuit in the same manner as an appeal from any other judgment of this District Court.

CONSENT TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE

In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have a United States Magistrate Judge conduct any and all proceedings in this case, including the trial, order the entry of a final judgment, and conduct all post-judgment proceedings.

Party Represented Signatures Date ______________________________ ___________________________ _______________________ ______________________________ ___________________________ _______________________ ______________________________ ___________________________ _______________________

ORDER OF REFERENCE

IT IS ORDERED that this case be referred to_______________________________________________ United States Magistrate Judge, to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. 636(c) and Fed.R.Civ.P. 73.ONLY IF Date: ________________________ _________________________________ UNITED STATES DISTRICT JUDGE NOTE: RETURN THIS FORM TO THE CLERK OF COURT ALL PARTIES HAVE CONSENTED ON THIS FORM TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE.