United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE
before the Court are Plaintiff Sterling Capone's Motion
for Leave to File Amended Complaint (Doc. 19) and Memorandum
in Support (Doc. 20), as well as Defendants University of
Arkansas and the Board of Trustees' (collectively,
"the University") Objection (Doc. 23) and Brief in
Support (Doc. 24). Also before the Court are the
University's Motion to Dismiss (Doc. 6) and Brief in
Support (Doc. 7), Ms. Capone's Response (Doc. 10), the
University's Reply (Doc. 11), Ms. Capone's
Supplemental Response (Doc. 15), the University's
Response to her Supplemental Response (Doc. 16), and a final
Response (Doc. 21) submitted by Ms. Capone after her attorney
entered his appearance. For the reasons given below, Ms.
Capone's Motion is GRANTED IN PART AND DENIED IN PART,
and the University's Motion is MOOT.
Capone alleges that she was employed by the University as a
bus driver from around March 2014 until around November 22,
2014, and that during her employment she was subjected to
sexual harassment and discrimination by various supervisors.
She further alleges that on numerous occasions she informed
her supervisors of workplace practices that she believed to
be unsafe or unlawful, and that her supervisors ignored and
sometimes explicitly overrode her requests that such
practices be stopped or corrected. Ms. Capone asserts that
she complained to the University's human resources
department of these and other related matters on November 21,
2014, and that she was fired in retaliation the very next
May 8, 2015, Ms. Capone submitted an intake questionnaire to
the Equal Employment Opportunity Commission
("EEOC"), in order to initiate the process of
filing formal charges with that agency against the University
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000(e) et seq. ("Title VII").
Around June 18, 2015, the EEOC concluded its investigation
into Ms. Capone's claims and mailed her a letter
informing her that it was unable to conclude that a violation
of Title VII had occurred, and that she had ninety days
within which to file a lawsuit under that statute in federal
court, if she wished to do so. Ninety days later, Ms. Capone
initiated this lawsuit pro se, filing her original
Complaint (Doc. 1) in this Court and asserting three counts
against the University: retaliation in violation of Title
VII, sex discrimination in violation of Title VII, and
retaliation in violation of the Arkansas Whistleblower Act,
Ark. Code Ann. § 21-1-603 ("AWA").
December 8, 2015, the University filed its Motion, arguing
that Ms. Capone's Complaint should be dismissed under
Fed.R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction
and under Fed.R.Civ.P. 12(b)(6) for failure to state a claim
upon which relief can be granted. The parties filed various
dueling briefs regarding this Motion before counsel for Ms.
Capone entered his appearance on March 15, 2016. Then, on
April 6, 2016, Ms. Capone's attorney filed a supplemental
Response in opposition to the University's Motion, along
with a Motion for Leave to file an amended complaint which
would assert two counts under Title VII, one count under
Title IX of the Education Amendments of 1972 ("Title
IX"), one count under the AWA, one count under the
Arkansas Civil Rights Act ("ACRA"), and one count
of negligence under Arkansas common law. A couple of weeks
later, the University filed its Response in opposition to Ms.
Capone's Motion, arguing that amendment of Ms.
Capone's Complaint would be futile. Both motions are now
fully briefed and ripe for decision.
defendant opposes granting leave to file an amended complaint
on the grounds that amendment would be futile, the Court must
determine whether the proposed amended complaint would
survive a Rule 12(b)(6) motion to dismiss for failure to
state a claim. See Zutz v. Nelson, 601 F.3d 842, 850
(8th Cir. 2010). To survive such a motion, the proposed
amended complaint must provide "a short and plain
statement of the claim that [Plaintiffs are] entitled to
relief." Fed.R.Civ.P. 8(a)(2). The purpose of this
requirement is to "give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests." Erickson v. Pardus, 551 U.S. 89, 93
(2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). The Court must accept all of the proposed
amended complaint's factual allegations as true, and
construe them in the light most favorable to Ms. Capone,
drawing all reasonable inferences in her favor. See
Ashley Cty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665
(8th Cir. 2009).
the proposed amended 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, 678 (2009) (quoting
Twombly, 550 U.S. at 570). "A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."
Id. "A pleading that offers 'labels and
conclusions' or 'a formulaic recitation of the
elements of a cause of action will not do.' Nor does a
complaint suffice if it tenders 'naked assertion[s]'
devoid of 'further factual enhancement.'"
Id. In other words, while "the pleading
standard that Rule 8 announces does not require 'detailed
factual allegations, ' ... it demands more than an
unadorned, the defendant-unlawfully-harmed-me
Rule 12(b)(6) motions must be decided on the face of the
pleadings. Rule 12(d) states that if the Court considers
"matters outside the pleadings" when ruling on a
Rule 12(b)(6) motion, then "the motion must be treated
as one for summary judgment" and "[a]ll parties
must be given a reasonable opportunity to present all the
material that is pertinent to the motion." However, the
Court "may consider. . . matters of public and
administrative record referenced in the complaint"
without converting a Rule 12(b)(6) motion into a motion for
summary judgment. Great Plains Trust Co. v. Union Pac.
R.R. Co., 492 F.3d 986, 990 (8th Cir. 2007). Although
the parties have referenced various public and administrative
filings with the EEOC, the Court has no need to consult such
materials in order to resolve the instant issues, though the
preceding "background" section of this Order
contains some information gleaned therefrom, solely to
provide some context for readers.
Rule 12(b)(1) motions, "the question may be resolved
either on the face of the pleadings or upon factual
determinations made in consideration of matters outside of
the pleadings." Bhd. of Maint. of Way Emps. Div. of
Intern. Bhd. of Teamsters v. Union Pac. R.R. Co., 475
F.Supp.2d 819, 834-35 (N.D. Iowa 2007) (citing Titus v.
Sullivan, 4 F.3d 590, 593 (8th Cir. 1993); Osbom v.
United States, 918 F.2d 724, 729 & n.6 (8th Cir.
1990)). The Court will resolve the instant question of
subject-matter jurisdiction on the face of the pleadings, and
therefore for purposes of this issue accepts all factual
allegations in Ms. Capone's proposed amended complaint as
true, and draws all reasonable inferences in Ms. Capone's
Court begins by considering Ms. Capone's Motion for Leave
to File Amended Complaint, which the University opposes on
grounds of futility. Below, the Court addresses in turn the
University's arguments as to Ms. Capone's ...