United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
HOLMES UNITED STATES DISTRICT JUDGE
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.
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).
original complaint includes the following facts. Document #2
at 4-5. Terry's supervisor, Tracy Parker, publicly
accused her of stealing. 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.
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
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).
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.
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.
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).
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