IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ROBERT GRISSETT, JR., )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 15-0072-WS-C

 )

H.J. BAKER BROS., etc., )

 )

Defendant. )

ORDER

This matter is before the Court on the defendant’s motion to dismiss the 

amended complaint. (Doc. 31). The plaintiff has filed a response and the 

defendant a reply, (Docs. 36, 37), and the motion is ripe for resolution.1 After 

careful consideration, the Court concludes the motion is due to be granted.

BACKGROUND

The original complaint attempted to assert claims for retaliation under Title 

VII and OSHA, as well as state tort and contract claims. The Court granted the 

defendant’s motion to dismiss the complaint but granted the plaintiff leave to file 

an amended complaint. (Doc. 29).

The amended complaint identifies a single cause of action: a Title VII 

claim for hostile work environment. (Doc. 30). The defendant raises two 

arguments in support of dismissal: (1) failure to exhaust administrative remedies; 

and (2) failure to state a claim. (Doc. 31).

 1 The plaintiff’s response says only that the motion to dismiss has been mooted by 

his filing of an amended complaint. (Doc. 36). The plaintiff, however, has filed no 

pleading (nor sought leave to do so) since he filed the amended complaint that is the 

subject of the defendant’s motion. The defendant’s motion to dismiss that complaint 

therefore cannot be moot.

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DISCUSSION

I. Failure to Exhaust Administrative Remedies.

“[A] plaintiff’s judicial complaint is limited by the scope of the EEOC 

investigation which can reasonably be expected to grow out of the charge of 

discrimination.” Gregory v. Department of Human Resources, 355 F.3d 1277, 

1280 (11th Cir. 2004) (internal quotes omitted); accord Mullins v. Crowell, 228 

F.3d 1305, 1312 (11th Cir. 2000). The plaintiff’s EEOC charge includes 

allegations of “racist remarks made at that plant,” (Doc. 1 at 5), which would 

appear to suggest a potentially hostile work environment. The defendant, which 

acknowledges neither the governing legal test nor these allegations, (Doc. 31 at 2-

4), has not applied the test to those allegations or engaged in the sometimes subtle 

analysis required to evaluate such issues. The Court will not develop or support 

an exhaustion argument on the defendant’s behalf. 

II. Failure to State a Claim.

To survive dismissal under Rule 12(b)(6), a complaint must first satisfy the 

pleading requirements of Rule 8(a)(2). Bell Atlantic Corp. v. Twombly, 550 U.S. 

544, 555 (2007). “A pleading that states a claim for relief 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). Rule 8 establishes a regime of “notice pleading.” 

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 513-14 (2002). It does not, 

however, eliminate all pleading requirements. 

First, the complaint must address all the elements that must be shown in 

order to support recovery under one or more causes of action. “At a minimum, 

notice pleading requires that a complaint contain inferential allegations from 

which we can identify each of the material elements necessary to sustain a 

recovery under some viable legal theory.” Wilchombe v. TeeVee Toons, Inc., 555

F.3d 949, 960 (11th Cir. 2009) (emphasis and internal quotes omitted). 

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Pleading elements is necessary, but it is not enough to satisfy Rule 8(a)(2). 

The rule “requires more than labels and conclusions, and a formulaic recitation of 

the elements of a cause of action will not do” to satisfy that rule. Twombly, 550 

U.S. at 555. There must in addition be a pleading of facts. Though they need not 

be detailed, “[f]actual allegations must be enough to raise a right to relief above 

the speculative level ....” Id. That is, the complaint must allege “enough facts to 

state a claim for relief that is plausible on its face.” Id. 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.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard ... asks for 

more than a sheer possibility that the defendant has acted unlawfully,” and 

“[w]here a complaint pleads facts that are merely consistent with a defendant’s 

liability, it stops short of the line between possibility and plausibility of 

entitlement to relief.” Id. (internal quotes omitted). A complaint lacking 

“sufficient factual matter, accepted as true, to state a claim to relief that is 

plausible on its face” will not “survive a motion to dismiss.” Id. But so long as 

the plausibility standard is met, the complaint “may proceed even if it strikes a 

savvy judge that actual proof of those facts is improbable, and that a recovery is 

very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotes omitted).

As noted, the plaintiff’s claim is for hostile work environment. “To plead 

that claim [the plaintiff] was required to allege that: (1) he belongs to a protected 

group; (2) he was subjected to unwelcome harassment; (3) the harassment was 

based on his membership in the protected group; (4) it was severe or pervasive 

enough to alter the terms and conditions of employment and create a hostile or 

abusive working environment; and (5) the employer is responsible for that 

environment under a theory of either vicarious or direct liability.” Edwards v. 

Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010). The Eleventh Circuit has, in 

several unpublished opinions, indicated that, to satisfy Twombly and Iqbal, a 

complaint must set forth facts plausibly suggesting that the hostile environment 

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experienced by the plaintiff was sufficiently severe and/or pervasive to satisfy the 

fourth element.2 The defendant argues the amended complaint fails to attain this 

standard. (Doc. 31 at 5). 

The amended complaint alleges the following regarding the defendant’s 

conduct towards the plaintiff (who is black): (1) falsely accusing him of forging 

and falsifying a transportation document; (2) placing him on leave (suspension) 

with pay; (3) terminating him (the only black office employee) and replacing him 

with a white male; (4) failing or refusing to take prompt remedial action in 

response to his complaints of being suspended and fired; and (5) failing or 

refusing to take prompt remedial action in response to the discrimination, hostile 

work environment and harassment of its managers. (Doc. 30). 

“Discrete acts such as termination ... must be challenged as separate 

statutory discrimination and retaliation claims” and cannot be considered part of a 

hostile work environment claim. McCann v. Tillman, 526 F.3d 1370, 1378-79 

(11th Cir. 2008). Under McCann, the plaintiff cannot complain of his termination 

or suspension under a hostile-work-environment rubric. Nor can he rest his claim 

on the allegation of forgery that allegedly prompted his termination and 

suspension. Freeman v. City of Riverdale, 330 Fed. Appx. 863, 865-66 (11th Cir. 

2009) (false accusations leading to termination had to be asserted as part of a 

separate termination claim, not as part of a hostile work environment claim). This 

leaves for consideration only the final two items on which the plaintiff relies.

“A hostile work environment claim under Title VII is established upon 

proof that the workplace is 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.” Miller v. 

 2 Glover v. Donahoe, ___ Fed. Appx. ___, 2015 WL 5438229 at *4 (11th Cir. 

2015); Palmer v. McDonald, ___ Fed. Appx. ___, 2015 WL 4978778 at *4 (11th Cir. 

2015); Jacobs v. Biando, 592 Fed. Appx. 838, 841-42 (11th Cir. 2014); Alhallaq v. Radha 

Soami Trading, LLC, 484 Fed. Appx. 293, 296 (11th Cir. 2012); Wilkerson v. H&S, Inc., 

438 Fed. Appx. 769, 770 (11th Cir. 2011). 

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Kenworth, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (internal quotes omitted). 

Simply failing to respond to the plaintiff’s complaints of being placed on leave 

and being fired is not intimidating, ridiculing or insulting, much less to such a 

severe degree as to alter the terms and conditions of employment. And failing to 

correct a hostile work environment that does not exist cannot itself create a hostile 

work environment. 

The amended complaint does state that the defendant “created a hostile 

work environment.” (Doc. 30 at 2). “That broad statement, however, is merely a 

‘formulaic recitation of the elements’ of a [Title VII] claim and, standing alone, 

does not satisfy the pleading standard of ... Rule 8.” Edwards, 602 F.3d at 1301

(quoting Twombly, 550 U.S. at 555). “An introductory conclusion cannot take the 

place of factual allegations in stating a plausible claim for relief.” Id. 

III. Amendment. 

The defendant proposes that this action be dismissed without leave to 

amend because this is the pro se plaintiff’s second effort and his “opportunities to 

fix his deficient pleadings should not be unlimited.” (Doc. 31 at 6). The 

defendant cites no authority in support of its implicit “one amendment” rule, and it 

offers no reason why such a rule should be crafted for or employed in this case. 

Certainly the reporters are filled with examples of pro se litigants receiving more 

than one opportunity to file a viable complaint.3 

CONCLUSION

For the reasons set forth above, the defendant’s motion to dismiss is 

granted. This action is dismissed with prejudice, subject to the plaintiff’s right 

 3 See, e.g., Moody v. City of Delray Beach, 609 Fed. Appx. 966 (11th Cir. 2015) 

(discussing pro se plaintiff’s second amended complaint); Peavey v. Black, 476 Fed. 

Appx. 697 (11th Cir. 2012) (same); Mickens v. Tenth Judicial Circuit, 181 Fed. Appx. 

865 (11th Cir. 2006) (same). 

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to file a second amended complaint on or before October 16, 2015, failing which 

final judgment will be entered in favor of the defendant and against the plaintiff.4

DONE and ORDERED this 30th day of September, 2015.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

 4 The plaintiff should not assume he will be provided any additional opportunities 

to file a viable complaint. For example, in each of the cases cited in note 3, supra, the 

Eleventh Circuit affirmed the trial court’s refusal to permit the pro se plaintiff to file a 

third amended complaint.

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