The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NADIA WINSTON CIVIL ACTION
VERSUS NO: 19-14533
LOFTON SECURITY SECTION: "A" (4)
ORDER AND REASONS
Before the Court is a Motion to Dismiss (Rec. Doc. 14) filed by Defendant Lofton
Security, Inc. Plaintiff Nadia Winston opposes the Motion (Rec. Doc. 20). The Motion, set
for submission on December 9, 2020, is before the Court on the briefs without oral
argument. Having considered the motion and memoranda of counsel, the opposition, the
record, and the applicable law, the Motion to Dismiss (Rec. Doc. 14) is GRANTED for
the reasons set forth below.
I. Background
On December 11, 2019, Plaintiff Nadia Winston, who is pro se, filed her Complaint
against Lofton Security asserting claims under Title VII of the Civil Rights Act of 1964 and
1991, as amended, 42 U.S.C. § 2000 et seq. (“Title VII”). (Rec. Doc. 1). Plaintiff alleges
discrimination on the basis of gender/sex, pregnancy, and disability, as well as a claim
for retaliation. Id. In her Complaint, Plaintiff alleges the following:
• “I, Nadia Winston, was terminated after reporting the picture taken of me (Nadia
Winston) by Cecily, stating that I could not wear certain attire, to come pick up my
check off the clock. Cecily refused to work with my schedule, as Cecily worked
with other employees schedule that had a second job. Cecily refused to put me to
work.”
• “I, Nadia Winston submitted payroll sheets for another employee and I, other
employee received her paycheck but I didn’t. Employer Gene (payroll) was
contacted via email to resend but Cecily also had access to my payroll stating she
couldn’t read the timesheets that were scanned into the portal.”
• “After reporting Cecily to Baton Rouge office I was fired approximately one month
later.”
II. Legal Standard
In the context of a motion to dismiss, the Court must accept all factual allegations
in the complaint as true and draw all reasonable inferences in the plaintiff’s favor.
Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (citing Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308 (2007); Scheuer v. Rhodes, 416 U.S. 232, 236
(1974); Lovick v. Ritemoney, Ltd., 378 F.3d 433, 437 (5th Cir. 2004)). However, the
foregoing tenet is inapplicable to legal conclusions. Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009). Thread-bare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice. Id. (citing Bell Atlantic Corp. v. Twombly, 550, U.S.
544, 555 (2007)).
The central issue in a Rule 12(b)(6) motion to dismiss is whether, in the light most
favorable to the plaintiff, the complaint states a valid claim for relief. Gentilello v. Rege,
627 F.3d 540, 544 (5th Cir. 2010) (quoting Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th
Cir. 2008)). To avoid dismissal, a plaintiff must plead sufficient facts to “state a claim for
relief that is plausible on its face.” Id. (quoting Iqbal, 129 S. Ct. at 1949). “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. The
Court does not accept as true “conclusory allegations, unwarranted factual inferences, or
legal conclusions.” Id. (quoting Plotkin v. IP Axess, Inc., 407 F.3d 690, 696 (5th Cir.
2005)). Legal conclusions must be supported by factual allegations. Id. (quoting Iqbal,
129 S. Ct. at 1950).
A document filed pro se is “to be liberally construed,” and a “pro se complaint,
‘however inartfully pleaded,’ must be held to a ‘less stringent standard than formal
pleadings drafted by lawyers.’” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting
Haines v. Kerner, 404 U.S. 519, 520–21 (1972)). A pro se complaint may only be
dismissed for failure to state a claim if it appears “beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief.” Id. (internal
quotations omitted).
III. Discussion
Defendant Lofton Security argues that the Court should dismiss Plaintiff’s
complaint for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(6).
(Rec. Doc. 14). Defendants asserts that the facts alleged by Plaintiff in her complaint are
not actionable under Title VII. Id.
Under Title VII, it is unlawful for an employer to “fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” Singleton v. Tall Timbers
Homeowners Ass’n, No. CV 16-14863, 2016 WL 6892893, at *5 (E.D. La. Nov. 22, 2016).
Further, an employer is prohibited from retaliating against an employee for engaging in
an activity protected by Title VII. Brown v. United Parcel Serv., Inc., 406 Fed.Appx. 837,
839 (5th Cir. 2010). In order to establish a retaliation claim under Title VII, the plaintiff
must show that (1) she engaged in protected activity, (2) an adverse employment action
occurred, and (3) there was a causal link between the protected activity and the adverse
employment action. Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012).
Here, Plaintiff’s complaint alleges that Cecily, who was presumably a supervisor
or co-worker of Plaintiff, refused to work with Plaintiff’s schedule, but that Cecily did work
with the schedules of “other employees” who had second jobs. (Rec. Doc. 1, Section
III(E)). Plaintiff also alleges that she submitted timesheets for herself and another
employee, and while the other employee received her paycheck on time, Plaintiff received
her paycheck late. Id. However, Plaintiff failed to allege that either of the foregoing
incidents was discrimination based upon or because of her being a woman, or otherwise
actionable under Title VII.
Plaintiff further alleges that she was terminated after reporting Cecily for taking a
picture of her over concerns of Plaintiff’s work attire. (Rec. Doc. 1. Section III(E)). Like the
other incidents, Plaintiff did not allege that her termination was based upon or because of
her sex. Thus, she has failed to state a claim for discrimination under Title VII. Plaintiff
has also failed to state a claim for Title VII retaliation, because she has not alleged that
she engaged in any protected activity.
Additionally, in order to file suit under Title VII, a plaintiff first must file a charge
with the EEOC within 300 days of the alleged discriminatory act. Charles v. Posigen of
Louisiana, No. CV 15-2270, 2016 WL 3365391, at *2 (E.D. La. June 17, 2016) (citing
Prince v. Choctaw Glove & Safety Co., 459 F.3d 595, 598 (5th Cir. 2006)). Plaintiff did
not identity the date that her employment from Lofton Security was terminated or the
dates of any of the other incidents identified in the Complaint. However, in her Charge of
Discrimination that she made with the EEOC, Plaintiff alleged that the “dates of
discrimination took place” from April 4, 2017 through December 6, 2017, the latter date is
when Plaintiffs employment with Lofton Security was terminated. As Defendant points
out, Plaintiff needed to file her charge with the EEOC within 300 days of her termination,
which deadline was October 2, 2018. Plaintiff's charge with the EEOC is dated February
2, 2019. Thus, Plaintiff failed to timely file her charge with the EEOC.
Accordingly;
IT IS ORDERED that Defendant’s Motion to Dismiss (Rec. Doc. 14) is
GRANTED, and the entirety of the complaint in this matter is DISMISSED with prejudice.
January 28, 2021 C '
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UNITED STATES DISTRICT JUDGE