Herard v. UAB Hematology/Oncology

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BETTY HERARD, }

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Plaintiff, }

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v. } Case No.: 2:19-CV-02130-MHH

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UNIVERSITY OF ALABAMA AT }

BIRMINGHAM, }

}

Defendant.

MEMORANDUM OPINION AND ORDER

In this employment case, plaintiff Betty Herard is proceeding pro se, meaning

without the assistance of an attorney. She alleges that the University of Alabama at

Birmingham violated Title VII of the Civil Rights Act of 1964 and the Age

Discrimination in Employment Act. (Doc. 5). Pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure, the Board of Trustees for the University of

Alabama has asked the Court to dismiss Ms. Herard’s amended complaint for failure

to state a claim upon which relief can be granted. (Doc. 11).1 For the reasons stated

in this opinion, the Court grants the Board’s motion to dismiss.

1 Ms. Herard names “UAB” as the defendant in her amended complaint. (Doc. 5, p. 1). The proper

name of the defendant is the Board of Trustees for the University of Alabama. Therefore, the

Court will refer to the Board as the defendant in this matter.

MOTION TO DISMISS STANDARD

Rule 12(b)(6) enables a defendant to move to dismiss a complaint for “failure

to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). A Rule

12(b)(6) motion to dismiss tests the sufficiency of a complaint against the “liberal

pleading standards set forth by Rule 8(a)(2).” Erickson v. Pardus, 551 U.S. 89, 94

(2007). Pursuant to Rule 8(a)(2), 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). “Generally, to survive a [Rule 12(b)(6)] motion to dismiss and meet the

requirement of FED. R. CIV. P. 8(a)(2), a complaint need not contain ‘detailed factual

allegations,’ but rather ‘only enough facts to state a claim to relief that is plausible

on its face.’” Maledy v. City of Enterprise, 2012 WL 1028176, *1 (M.D. Ala. March

2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)).

“Specific facts are not necessary; the statement need only ‘give the defendant fair

notice of what the . . . claim is and the grounds upon which it rests.’” Erickson, 551

U.S. at 93 (quoting Twombly, 550 U.S. at 555).

“Thus, the pleading standard set forth in Federal Rule of Civil Procedure 8

evaluates the plausibility of the facts alleged, and the notice stemming from a

complaint’s allegations.” Keene v. Prine, 477 Fed. Appx. 575, 583 (11th Cir. 2012).

“Where those two requirements are met … the form of the complaint is not

significant if it alleges facts upon which relief can be granted, even if it fails to

categorize correctly the legal theory giving rise to the claim.” Keene, 477 Fed. Appx.

at 583.

This is particularly true with respect to pro se complaints. Courts must

liberally construe pro se complaints. Erickson, 551 U.S. at 94. “‘[A] pro se

complaint, however inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers.’” Erickson, 551 U.S. at 94. (quoting Estelle v.

Gamble, 429 U.S. 97, 106 (1976)); see also Tannenbaum v. United States, 148 F.3d

1262, 1263 (11th Cir. 1998) (“Pro se pleadings are held to a less stringent standard

than pleadings drafted by attorneys and will, therefore, be liberally construed.”). Cf.

FED. R. CIV. P. 8(e) (“Pleadings must be construed so as to do justice.”). Still, the

Court “may not serve as de facto counsel for a party, or … rewrite an otherwise

deficient pleading in order to sustain an action.” Ausar-El ex. rel. Small, Jr. v. BAC

(Bank of America) Home Loans Servicing LP, 448 Fed. Appx. 1, 2 (11th Cir. 2011)

(internal quotations and citations omitted).

When evaluating a Rule 12(b)(6) motion to dismiss, a district court accepts as

true the allegations in the complaint and construes the allegations in the light most

favorable to the plaintiff. See Brophy v. Jiangbo Pharms. Inc., 781 F.3d 1296, 1301

(11th Cir. 2015). Therefore, the Court construes all factual allegations and the

reasonable inferences from those allegations in the light most favorable to Ms.

Herard.

FACTUAL ALLEGATIONS

Betty Herard is a Black Haitian-American woman, and she is over 40 years

old. (Doc. 5, p. 1, ¶ 1). On February 11, 2019, UAB hired Ms. Herard as a Clinical

Trials Administrator in the Hematology/Oncology Department. (Doc. 5, p. 1, ¶ 1).

Ms. Herard alleges that she “endured several discriminatory and disparaging

statements against [her] national origin, age[,] and race.” (Doc. 5, p. 1, ¶ 2). These

statements included, “I need to know my place in the South,” “My credentials have

me believing I have overcome,” and “I need to be planning my retirement at my age

as opposed to applying for a doctorate program.” (Doc. 5, p. 1, ¶ 2). Ms. Herard

does not allege who made these statements, when the statements were made, or

whether the statements were made to her or another individual. Drawing reasonable

inferences from this allegation in Ms. Herard’s favor, the Court infers that other

UAB employees directed these comments to Ms. Herard.

In her EEOC charge, Ms. Herard explained that at some point between April

and May 2019, she asked Dr. Julie Kanter, an Associate Professor in UAB’s

Hematology/Oncology Department, how to pursue a pay increase. (Doc. 5, p. 4).

After Dr. Kanter told Ms. Herard that she could not help her with her wages, Ms.

Herard spoke with a representative in UAB’s Human Resources Department. (Doc.

5, p. 4). Ms. Herard alleges that Dr. Kanter was upset “because allegedly I went

over her head.” (Doc. 5, p. 4).

On June 20, 2019, Dr. Kanter gave Ms. Herard a verbal warning for

unsatisfactory job performance and misconduct, and Ms. Herard was put on a

Performance Improvement Plan. (Doc. 5, p. 4). Ms. Herard denied the reported

misconduct and asked Human Resources to remove the write-up from her file, which

the HR representative refused to do. (Doc. 5, p. 4). Ms. Herard sought early transfer

to a different position to address her financial concerns, but Dr. Kanter extended Ms.

Herard’s probationary period, preventing a transfer. (Doc. 5, p. 4). On August 9,

2019, Ryan Outman, UAB’s Division Administrator for the Hematology/Oncology

Department, gave Ms. Herard a written warning and a letter requesting her

resignation to avoid an extension of the probationary period. (Doc. 5, p. 4). Ms.

Herard “was coerced under distress to resign [her] position effective October 31,

2019.” (Doc. 5, pp. 4–5).

Ms. Herard indicated in her September 2019 EEOC charge that she believed

she was discriminated against because of race, national origin, and age and that she

was retaliated against in violation of Title VII and the Age Discrimination in

Employment Act of 1967. (Doc. 5, pp. 4–5).

After receiving a right to sue letter from the EEOC, Ms. Herard timely filed

this federal lawsuit against UAB Hematology/Oncology, Dr. Kanter, Mr. Outman,

Emily Warner, and Dr. Ayesha Bryant for violations of Title VII and the ADEA.

(Doc. 1). Ms. Herard filed an amended complaint against only UAB on March 17,

2020. (Doc. 5). The Board of Trustees for the University of Alabama then filed its

motion to dismiss this action. (Doc. 11).2

ANALYSIS

In the discussion that follows, the Court first addresses Ms. Herard’s

allegations of race and national origin discrimination under Title VII and then turns

to the doctrine of Eleventh Amendment immunity as it pertains to Ms. Herard’s

ADEA claim against the Board.

A. Title VII

2 In her response to the Board’s motion to dismiss, Ms. Herard describes facts that she did not

include in her complaint, amended complaint, or September 2019 EEOC charge about hostile

treatment from colleagues in UAB’s Anesthesiology Department in 2018, predating Ms. Herard’s

employment in UAB’s Hematology/Oncology Department. (Doc. 29, p. 7). Because the Court

must determine whether the factual allegations in Ms. Herard’s amended complaint are sufficient

to state a claim against the Board, the Court has not accounted for the new factual allegations in

Ms. Herard’s opposition to the Board’s motion to dismiss.

Were those facts included in Ms. Herard’s amended complaint as the basis for additional claims

against the Board, the Board would be able to challenge the additional claims as unexhausted

because Ms. Herard did not complain about the conduct of employees in UAB’s Anesthesiology

Department in her September 2019 EEOC charge. To the extent that Ms. Herard might attempt to

rely on a November 2018 or April 2019 EEOC charge that she mentions in her opposition brief

but has not placed in the record to establish exhaustion, claims based on conduct that allegedly

occurred while she worked in UAB’s Anesthesiology Department in 2018 likely would be

untimely. See 29 C.F.R. § 1626.7(a); see also Hipp v. Liberty National Life Ins. Co., 252 F.3d

1208, 1214 n. 2, 1220 (11th Cir. 2001) (explaining that plaintiffs in “non-deferral” states, which

are those states that do not have “state entities authorized to grant or seek relief for victims of . . .

discrimination,” must file their charges of discrimination within 180 days of the allegedly

discriminatory acts).

To the extent that Ms. Herard mentions the conduct of employees in another UAB department as

evidence of the discriminatory intent of employees in UAB’s Hematology/Oncology Department,

the Court need not consider those allegations at this stage of the litigation because Ms. Herard did

not allege those facts in her amended complaint.

Under Title VII, it is unlawful for an employer “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.” 42 U.S.C. § 2000e–2(a)(1). Reading her original complaint, amended

complaint, and EEOC charge together liberally, Ms. Herard asserts claims for

disparate treatment, harassment or a hostile work environment, and retaliation in

violation of Title VII.

Disparate Treatment

Ms. Herard contends that she suffered from discrimination because of her race

and national origin. Ms. Herard alleges that Dr. Kanter refused to help her pursue a

pay raise and that she was coerced by a member of UAB’s Hematology/Oncology

Department into resigning from her position after she spoke to a UAB Human

Resources representative about a pay raise. (Doc. 5, pp. 4–5).

To state a claim for disparate treatment under Title VII, an employee must

“provide enough factual matter to plausibly suggest intentional discrimination.”

Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1253 (11th Cir. 2017). At a minimum, a

Title VII plaintiff must allege that “‘(1) the defendant took an adverse employment

action against [her]; and (2) [a protected characteristic] was a motivating factor for

the defendant’s adverse employment action.’” Quigg v. Thomas Cnty. Sch. Dist.,

814 F.3d 1227, 1239 (11th Cir. 2016) (quoting White v. Baxter Healthcare Corp.,

533 F.3d 381, 400 (6th Cir. 2008)); see 42 U.S.C. § 2000e–2(m).

Ms. Herard has not adequately alleged facts that support her assertion that the

Board intentionally discriminated against her based on her race or national origin.

For factual allegations to support a claim of disparate treatment under Title VII, the

facts must concern different treatment based on a protected characteristic of the

plaintiff. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998)

(holding that Title VII does not set forth “a general civility code for the American

workplace”); Gupta v. Florida Bd. of Regents, 212 F.3d 571, 583 (11th Cir. 2000),

abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.

53 (2006) (holding that “[i]nnocuous statements or conduct, or boorish ones that do

not relate to the sex [or another protected characteristic] of the actor or of the

offended party (the plaintiff),” are not actionable under Title VII).

Here, Ms. Herard alleges that Dr. Kanter was unwilling to help her pursue a

pay raise, but Ms. Herard does not allege that Dr. Kanter was in a position to help

her get a pay raise or that Dr. Kanter helped other employees get raises but refused

her because she is a Black Haitian-American. Ms. Herard has not alleged that Dr.

Kanter made discriminatory statements to her or to others about her. At most, Ms.

Herard’s allegations concerning Dr. Kanter evidence a lack of collegiality and

possible retaliation because Ms. Herard went over Dr. Kanter’s head, but there is no

allegation concerning Dr. Kanter that suggests that Ms. Herard’s race or national

origin motivated Dr. Kanter’s conduct.

Accordingly, the Court will dismiss Ms. Herard’s Title VII claim for disparate

treatment.

Harassment/Hostile Work Environment

To the extent that Ms. Herard asserts a Title VII claim for harassment or a

hostile work environment, that claim also fails on the facts alleged. Title VII

prohibits an employer from maintaining a “‘workplace . . . permeated with

‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or

pervasive to alter the conditions of the victim’s employment and create an abusive

working environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citation

omitted). Unlike disparate treatment claims that involve discrete acts, “[a] hostile

work environment claim depends on ‘a series of separate acts that collectively

constitute one unlawful employment practice.’” Chambliss v. Louisiana–Pacific

Corp., 481 F.3d 1345, 1349 n. 1 (11th Cir.2007) (quoting Nat'l R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 117 (2002)) (internal quotations omitted). To establish a

Title VII claim for hostile work environment, a plaintiff must show:

“(1) that [s]he belongs to a protected group; (2) that [s]he has been

subject to unwelcome harassment; (3) that the harassment must have

been based on a protected characteristic of the employee, such as

national origin; (4) that the harassment was sufficiently severe or

pervasive to alter the terms and conditions of employment and create a

discriminatorily abusive working environment; and (5) that the

employer is responsible for such environment under either a theory of

vicarious or of direct liability.”

Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). The

severe or pervasive element has two components: the plaintiff must subjectively

perceive the conduct as hostile or abusive, and the conduct must be objectively

hostile or abusive. Miller, 277 F.3d at 1276. Under the objective prong, courts

consider “(1) the frequency of the conduct; (2) the severity of the conduct; (3)

whether the conduct is physically threatening or humiliating, or a mere offensive

utterance; and (4) whether the conduct unreasonably interferes with the employee’s

job performance.” Miller, 277 F.3d at 1276.

With respect to Title VII, Ms. Herard alleges that someone remarked that she

“need[ed] to know her place in the South” and that her credentials had her believing

that she had “overcome.” These remarks are race-based and derogatory, but without

more, they do not suffice to support a hostile work environment claim under Miller

because Ms. Herard has not explained who made the statements, how often the

statements were made over the six-month period that she worked at in UAB’s

Hematology/Oncology Department, or how the statements impacted her work.

On the record before the Court, Ms. Herard has not pleaded facts that indicate

that that she suffered from severe or pervasive race-based or national-origin based

hostile conduct. Therefore, the Court will grant the Board’s motion to dismiss

regarding Ms. Herard’s Title VII hostile work environment claim.

Retaliation

Ms. Herard alleges in her September 2019 EEOC charge that Dr. Kanter

retaliated against her because Ms. Herard “went over her head” to ask someone in

Human Resources how she could obtain a pay raise. (Doc. 5, pp. 4–5). After Ms.

Herard spoke with the HR representative, Dr. Kanter allegedly gave Ms. Herard a

verbal warning for unsatisfactory job performance and extended Ms. Herard’s

probationary period, which prevented Ms. Herard from transferring to a more

lucrative position. (Doc. 5, pp. 4–5). Then, Mr. Outman in UAB’s

Hematology/Oncology Department gave Ms. Herard a letter in which she was asked

to resign. (Doc. 5, pp. 4–5).

To state a claim of retaliation under Title VII, “a plaintiff must first show (1)

that ‘she engaged in statutorily protected activity,’ (2) that ‘she suffered an adverse

action,’ and (3) ‘that the adverse action was casually related to the protected

activity.’” Gogel v. Kia Motors Mfg. of Georgia, Inc., 967 F.3d 1121, 1134–35 (11th

Cir. 2020) (citing Jefferson v. Sewon Am., Inc., 891 F.3d 911, 924 (11th Cir. 2018));

see also Bryant v. Jones, 575 F.3d 1281, 1307–08 (11th Cir. 2009). A plaintiff

alleging a retaliation claim under Title VII “must establish that his or her protected

activity was a but-for cause of the alleged adverse action by the employer.” Uni. of

Texas SW Med. Center v. Nassar, 570 U.S. 338, 362 (2013). “In other words, ‘a

plaintiff must prove that had she not [engaged in the protected conduct], she would

not have been fired.’” Gogel, 967 F.3d at 1135 (quoting Jefferson, 891 F.3d at 924).

An employee engages in statutorily protected activity “if (1) ‘[she] has

opposed any practice made an unlawful employment practice by this subchapter’

(the opposition clause) or (2) ‘[she] has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing under this

subchapter’ (the participation clause).” Clover v. Total. Sys. Servs., Inc., 176 F.3d

1346, 1350 (11th Cir. 1999) (quoting 42 U.S.C. § 2000e-(3)(a)). As to the latter test,

Ms. Herard has not alleged in her complaint, her amended complaint, or her

September 2019 EEOC charge that she made a charge or participated in a Title VII

proceeding.

To state a claim for retaliation based on opposition conduct, a plaintiff must

establish both that she subjectively believed the employer was engaged in unlawful

employment practices when she opposed the conduct and that her belief was

objectively reasonable. See Little v. United Techs., Carrier Transicold Div., 103

F.3d 956, 960 (11th Cir. 1997). Ms. Herard has not alleged that she took steps to

oppose race or national origin discrimination at UAB that prompted Dr. Kanter to

retaliate against her. Again, Ms. Herard’s allegations concerning Dr. Kanter have

nothing to do with race, and Ms. Herard has not alleged in her complaints or in her

current EEOC charge that she complained to someone at UAB about the race-based

statements that she heard while working in UAB’s Hematology/Oncology

Department.3

Because Ms. Herard has not alleged that Dr. Kanter or someone else at UAB

retaliated against her for protected conduct, the Court will grant the Board’s motion

to dismiss as to her retaliation claim.

B. Age Discrimination in Employment Act

Ms. Herard alleges that she was discriminated against because of her age in

violation of the Age Discrimination in Employment Act when she was told that she

needed to be planning her retirement “at [her] age as opposed to applying for a

doctorate program.” (Doc. 5, p. 1, ¶ 2). The Board argues that under the Eleventh

Amendment, it is immune from Ms. Herard’s ADEA claim. (Doc. 11, pp. 16–17).

The ADEA “prohibits employers from ‘fail[ing] or refus[ing] to hire or to

discharge any individual or otherwise discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because

of such individual’s age.’” Ashkenazi v. S. Broward Hosp. Dist., 607 Fed. Appx.

3 Again, in her brief in opposition to the Board’s motion to dismiss, Ms. Herard describes EEOC

charges that pre-date the September 2019 EEOC charge in which Ms. Herard exhausted her current

claims. (Doc. 5, p. 4; Doc. 29, p. 7). Ms. Herard analogizes her treatment in UAB’s Hematology

Department to her previous experiences in UAB’s Anesthesiology Department. (Doc. 29, pp. 7–

9). Even if information concerning other EEOC charges appeared in Ms. Herard’s current

complaint and was properly before the Court, Ms. Herard has not alleged that anyone in UAB’s

Hematology Department was aware of her complaints about conduct in UAB’s Anesthesiology

Department such that actions taken in the Hematology Department might be viewed as retaliation

for complaints that Ms. Herard made concerning UAB employees in UAB’s Anesthesiology

Department.

958, 961 (11th Cir. 2015) (quoting 29 U.S.C. § 623(a)(1)); see also Sims v. MVM,

Inc., 704 F.3d 1327, 1331–32 (11th Cir. 2013). The ADEA provides to individuals

who are at least 40 years of age a cause of action against their employers for

employment discrimination based on the individuals’ age. 29 U.S.C. § 623.

But public employers like the Board may be immune from these claims. The

Eleventh Amendment states:

The Judicial power of the United States shall not be construed to extend

to any suit in law or equity, commenced or prosecuted against one of

the United States by Citizens of another State, or by Citizens or Subjects

of any Foreign State.

U.S. CONST. amend. XI. The Eleventh Amendment shields unconsenting states from

private suits in federal courts, which means plaintiffs ordinarily cannot sue states in

federal court for money damages. States and state agencies are entitled to Eleventh

Amendment immunity for ADEA claims. See Kimel v. Fla. Bd. of Regents, 528

U.S. 62, 91–92 (2000). In Alabama, boards of trustees for public universities are

agents of the State. See Shuler v. Board of Trustees of Uni. Of Ala., 480 Fed. Appx.

540, 544 (11th Cir. 2012) (holding that the Board of Trustees for the University of

Alabama is entitled to Eleventh Amendment Immunity from ADEA claims).

The Board, as an agent of the state of Alabama, is immune from Ms. Herard’s

ADEA claim because the Board is entitled to Eleventh Amendment immunity.

Therefore, the Court will dismiss Ms. Herard’s ADEA claim against the Board.

CONCLUSION

For the reasons stated above, the Court grants the Board’s motion to dismiss.

The Court dismisses Ms. Herard’s Title VII claims against the Board without

prejudice for failure to state a claim and dismisses her ADEA claim against the

Board with prejudice because the Board is immune from the claim.

DONE and ORDERED this June 4, 2021.

Malis

UNITED STATES DISTRICT JUDGE

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