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Terry v. G4S Secure Solutions (USA) Inc.

United States District Court, E.D. Arkansas, Western Division

June 1, 2018

ANGELA TERRY PLAINTIFF
v.
G4S SECURE SOLUTIONS USA, INC. DEFENDANT

          OPINION AND ORDER

          J LEON HOLMES UNITED STATES DISTRICT JUDGE

         Angela Terry brings this action against her employer, G4S Secure Solutions (USA), Inc., alleging sex discrimination, retaliation, and hostile work environment in violation of Title VII of the Civil Rights Act of 1964 and defamation. Document #19. Terry is a private security officer. She originally sued her supervisors in addition to G4S Secure Solutions, but the Court dismissed the claims against the supervisors with prejudice. Document #18. The Court also held that the complaint did not state a claim against G4S Secure Solutions because nowhere did she allege that she was treated differently because she was a woman. Id. The Court, however, gave her the opportunity to file an amended complaint. Id. Terry filed the amended complaint. Document #19. G4S Secure Solutions has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Document #20. For the following reasons, the motion is granted in part and denied in part.

         I.

         In the amended complaint, Terry references the initial complaint, stating that she wants to give the Court more details about her experience. Document #19 at 1. She does not repeat the facts in the original complaint. See Id. Ordinarily, an amended complaint supersedes the original complaint, rendering the original complaint without legal effect. In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067 (8th Cir. 2000). However, the Court “may consider the pleadings, material embraced by the pleadings, exhibits attached to the pleadings, and matters of public record” in deciding the motion to dismiss. Mills v. City of Grand Forks, 614 F.3d 495, 498 (8th Cir. 2010). Furthermore, Terry is proceeding pro se and her pleadings are held to less stringent standards than pleadings drafted by lawyers. Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014). Therefore, the Court finds that Terry intended for the original complaint to operate as part of the amended complaint and looks to both in deciding the motion to dismiss. See Thompson v. Westmore Indus., No. 16-cv-4024, 2017 WL 2841228 at *3 (D. Minn. June 14, 2017).

         The original complaint includes the following facts. Document #2 at 4-5. Terry's supervisor, Tracy Parker, publicly accused her of stealing.[1] Terry complained about the false accusation to upper management and human resources. Then, Parker began harassing Terry. Parker criticized her work and threatened to write her up, even though she performed her duties satisfactorily and maintained a perfect attendance record. Terry reported the harassment to upper management more than ten times. G4S Secure Solutions did nothing to stop the harassment. Terry was forced to consult an attorney, who wrote a letter to G4S Secure Solutions on December 20, 2017. Document #2 at 6-7. After receiving the letter, G4S Secure Solutions placed Terry on administrative leave pending an investigation. Upon completion of the investigation, Terry was told that Parker confused her with another employee and that she would be compensated for the two days she missed while on administrative leave, but that she could not return to her post. Instead, G4S Secure Solutions offered Terry another position: special events. Terry says that special events does not provide a stable income because events take place only two or three times a month.

         The amended complaint expands upon the original complaint. Document #19 at 4. Terry says that when she reported the harassment to human resources, she made clear her opinion that if she were a male, Parker would never have treated her poorly. She also told her superiors that she felt discriminated against because she was the only female guard at her post for several months. She alleges that Parker treats male employees more favorably. According to Terry, Parker praises male employees but criticizes Terry. She also explains that at the time Parker publicly accused her of stealing, he had access to the surveillance system and easily could have viewed the footage to see that nothing was stolen. Terry maintains that G4S Secure Solutions fabricated the reason for moving her to another position-because the client no longer wanted her there after the investigation, even though she was cleared of wrongdoing. Terry alleges that since she filed this action, G4S Secure Solutions has refused to consider her for a permanent post. She met with Tasha Pankey, the human resources officer, in February of this year and learned that the client had complained about Parker and G4S Secure Solutions planned to replace him with another supervisor. Terry alleges that she has consistently followed company rules, performed her job to the best of her ability, and even reported to work the same day she had major foot surgery.

         II.

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). While Rule 8(a)(2) does not require a complaint to contain detailed factual allegations, it does require a plaintiff to state the grounds of his entitlement to relief, which requires more than labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). In ruling on a motion to dismiss, the Court must accept as true all factual allegations in the complaint and review the complaint to determine whether its allegations show that the pleader is entitled to relief. Gorog v. Best Buy Co., Inc., 760 F.3d 787, 792 (8th Cir. 2014). All reasonable inferences from the complaint must be drawn in favor of the nonmoving party. Id. The Court need not, however, accept as true legal conclusions, even those stated as though they are factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). A pro se complaint must be liberally construed, however inartfully pleaded, and held to less stringent standards than pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007).

         In Swierkiewicz v. Sorema N.A., the Supreme Court held that, in the employment discrimination context, a plaintiff's complaint does not need to allege specific facts establishing a prima facie case of discrimination under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) because a prima facie case under that framework is an evidentiary standard. 534 U.S. 506, 508, 122 S.Ct. 992, 995, 152 L.Ed.2d 1 (2002). Instead, the Court recited Rule 8(a), which provides that a complaint must contain only a short and plain statement showing that the pleader is entitled to relief. Id. (citing Fed.R.Civ.P. 8(a)(2)). When Swierkiewicz was decided, the Conley v. Gibson interpretation of Rule 8(a), establishing a notice-pleading4 standard was good law. Id. at 512, 122 S.Ct. at 998. The Court explained that “this simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.” Id.

         Since Twombly and Iqbal refined the Supreme Court's interpretation of Rule 8(a) and held that plausibility is the pleading standard, whether Swierkiewicz is still good law has been a matter of debate. See Charles A. Sullivan, Plausibly Pleading Emp't. Discrimination, 52 Wm. & Mary L. Rev. 1613, 1619-21 (2011); see also McCleary-Evans v. Maryland Dept. of Transp., 780 F.3d 582, 587 (4th Cir. 2015) (“Swierkiewicz in any event applied a more lenient pleading standard than the plausible-claim standard now required by Twombly and Iqbal.”); Littlejohn v. City of New York, 795 F.3d 297, 309 (2nd Cir. 2015) (contemplating whether the Iqbal requirements apply to Title VII complaints); Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008) (holding that plaintiff's complaint included enough facts in support of a claim of employment discrimination, stating that a plaintiff “need only aver that the employer instituted a (specified) adverse employment action against the plaintiff on the basis of her sex[, race, etc.].”). Neither in Twombly nor Iqbal did the Supreme Court expressly overrule Swierkiewicz.

         The Eighth Circuit has relied on Swierkiewicz insofar as it held that a plaintiff does not have to plead specific facts establishing a prima facie case of discrimination under the McDonnel Douglas burden-shifting framework. See Blomker v. Jewell, 831 F.3d 1051, 1056 (8th Cir. 2016) (applying the plausibility standard but acknowledging that in Swierkiewicz “the Supreme Court negated any need to plead a prima facie case in the discrimination context.”). A recent Eighth Circuit opinion suggests that a more lenient pleading standard applies in the employment discrimination context. See LaKeysia Wilson v. Ark. Dept. of Human Servs. 850 F.3d 368, 372 (8th Cir. 2017); see also McPherson v. Brennan, 888 F.3d 1002, 1004 (8th Cir. 2018) (citing Swierkiewicz). The court explained that “[u]nder the ‘simplified notice pleading standard' that governs McDonnell Douglas retaliation claims, summary judgment motions-not motions to dismiss-should dispose of most unmeritorious claims.” Id. The Eighth Circuit quoted Johnson v. City of Shelby, a case in which the Supreme Court cited Swierkiewicz approvingly, in support of this proposition: “The provisions for discovery are so flexible and the provisions for pretrial procedure and summary judgment so effective, that attempted surprise in federal practice is aborted very easily, synthetic issues detected, and the gravamen of the dispute brought frankly into the open for the inspection of the court.” 135 S.Ct. 346, 347, 190 L.Ed.2d 309 (2014) (per curiam).

         II.

         A. Sex Discrimination

         Title VII prohibits an employer from discriminating against an employee with respect to compensation, or the terms, conditions, or privileges of employment because of the employee's sex. 42 U.S.C. § 2000e-2(a)(1). The elements of a claim of sex discrimination are: (1) plaintiff was a member of a protected class; (2) she was qualified for her job; (3) she suffered an adverse employment action; and (4) the facts give rise to an inference of unlawful sex discrimination. Wells v. SCI Mgmt., L.P., 469 F.3d 697, 700 (8th Cir. 2006). Terry was a member of a protected class, she has sufficiently alleged that she was qualified for her job, and her transfer from a permanent post to an as-needed post involving a reduction in pay is an adverse employment action. See Williams v. Tucker, 857 F.3d 765, 769 (8th Cir. 2017). The issue is whether there are facts that give rise to an inference of unlawful sex discrimination. Terry alleges that Parker was critical, treated her with disrespect and falsely accused of her stealing ...


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