1 

 IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 NORTHERN DIVISION 

ROSE E. COLLINS, : 

 : 

 Plaintiff, : 

 : 

vs. : CIVIL ACTION 10-0161-CG-M 

 : 

VAUGHAN REGIONAL MEDICAL CENTER,: 

 : 

 Defendant. : 

 REPORT AND RECOMMENDATION

 The Motion to Dismiss filed by Defendant Vaughan Regional 

Medical Center (hereinafter Vaughan) (Docs. 9-10) has been 

referred for report and recommendation, under 28 U.S.C. § 

636(b)(1)(B) and Local Rule 72.2. Jurisdiction has been invoked 

in this Court under 28 U.S.C. § 1331, pursuant to Title VII of 

the Civil Rights Act of 1964, 28 U.S.C. § 2000e, et seq., as 

amended by the Civil Acts of Rights of 1991. After 

consideration, it is recommended that Defendant’s Motion (Docs. 

9-10) be granted as to the following claims: sex 

discrimination, race discrimination, and hostile work 

environment, as it relates to both sex and race discrimination; 

it is further recommended that Defendant's Motion be denied as 

Case 2:10-cv-00161-CG-M Document 23 Filed 08/24/10 Page 1 of 15
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to Plaintiff's claim for retaliation, on the basis of racial 

discrimination. 

 The facts are, briefly, as follows. Plaintiff Rose E. 

Collins is a Black female who has been employed by Vaughan since 

November 1994 as a Secretary in the Operating Room and the 

Surgery Center (Doc. 1, ¶¶ 1, 6, 10-11, 37). Collins was fired 

on August 29, 2008 (id. at ¶ 27; see also ¶¶ 12, 25), but was 

rehired approximately two weeks later (id. at ¶ 31). On 

November 19, 2008, Plaintiff filed a Charge of Discrimination 

(hereinafter Charge) with the Equal Employment Opportunity 

Commission (hereinafter EEOC) against Defendant (Doc. 10, pp. 

22-23). On January 5, 2010, the EEOC issued Collins a Right to 

Sue letter (see Doc. 1, ¶ 57B). 

 Plaintiff filed this action on April 5, 2010, raising the 

following claims: (1) racial harassment and hostile work 

environment; (2) sexual harassment and hostile work environment; 

and (3) Title VII (Doc. 1). Vaughan subsequently filed a Motion 

to Dismiss this action (Docs. 9-10); Plaintiff has responded to 

the Motion (Doc. 17) to which Defendant has replied (Doc. 18). 

 The Court notes, initially, that “[w]hen considering a 

motion to dismiss, all facts set forth in the plaintiff’s 

complaint ‘are to be accepted as true and the court limits its 

consideration to the pleadings and exhibits attached thereto.’” 

Case 2:10-cv-00161-CG-M Document 23 Filed 08/24/10 Page 2 of 15
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Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 

2000) (quoting GSW, Inc. v. Long County, 999 F.2d 1508, 1510 

(11th Cir. 1993)). In order to state a claim for relief, the 

Federal Rules of Civil Procedure state that a pleading 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). The 

U.S. Supreme Court explained that the purpose of the rule was to 

“give the defendant fair notice of what the plaintiff’s claim is 

and the grounds upon which it rests.” Conley v. Gibson, 355 

U.S. 41, 47 (1957).1 While factual allegations do not have to be 

detailed, they must contain more than “labels and conclusions;” 

“a formulaic recitation of the elements of a cause will not do.” 

Bell Atlantic Corporation v. Twombley, 550 U.S. 544, 555 (2007) 

(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual 

allegations must be enough to raise a right to relief above the 

speculative level.” Id. (citations omitted). “Facts that are 

‘merely consistent with’ the plaintiff’s legal theory will not 

suffice when, ‘without some further factual enhancement [they] 

 1

Conley also stated that “a complaint should not be dismissed for 

failure to state a claim unless it appears beyond doubt that the 

plaintiff can prove no set of facts in support of his claim which 

would entitle him to relief.” Conley, 355 U.S. at 45-46. The U.S. 

Supreme Court has done away with this standard in Bell Atlantic 

Corporation v. Twombley, 550 U.S. 544, 557-563 (2007). The Court, 

nevertheless, finds Conley’s statement regarding the purpose of Rule 

8(a)(2) to be useful here in deciphering the analysis necessary for 

evaluating Plaintiff’s claims. 

Case 2:10-cv-00161-CG-M Document 23 Filed 08/24/10 Page 3 of 15
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stop short of the line between possibility and plausibility of 

“entitle[ment] to relief.”’” Weissman v. National Association 

of Securities Dealers, Inc., 500 F.3d 1293, 1310 (11th Cir. 2007) 

(quoting Twombley, 550 U.S. 557) (quoting DM Research, Inc. v. 

College of American Pathologists, 170 F.3d 53, 56 (1st Cir. 

1999)). “Only a complaint that states a plausible claim for 

relief survives a motion to dismiss.” Ashcroft v. Iqbal, — U.S. 

—, 129 S.Ct. 1937, 1950 (2009) (citing Twombley, 550 U.S. at 

556). “Where the well-pleaded facts do not permit the court to 

infer more than the mere possibility of conduct, the complaint 

has alleged—but it has not ‘show[n]’—‘that the pleader is 

entitled to relief.’” Iqbal, — U.S. —, 129 S.Ct. at 1950 

(quoting Fed.R.Civ.P. 8(a)(2)). As noted by the Supreme Court, 

Plaintiffs must “nudge[] their claims across the line from 

conceivable to plausible[; otherwise,] their complaint must be 

dismissed.” Twombley, 550 U.S. at 570. It is noted, however, 

that a complaint may be dismissed, under Federal Rule of Civil 

Procedure 12(b)(6), “on the basis of a dispositive issue of 

law.” Executive 100, Inc. v. Martin County, 922 F.2d 1536, 1539 

(11th Cir.) (citing Neitzke v. Williams, 490 U.S. 319 (1989)), 

cert. denied, 502 U.S. 810 (1991). 

 In its Motion, Vaughan first argues that several of the 

claims raised in this action are precluded because they were not 

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raised in the discrimination charge filed with the EEOC (Doc. 

10, pp. 4-8). Specifically, Defendant asserts that Collins "did 

not check the box for discrimination based on sex, nor did she 

check the box for continuing activity so as to establish a 

hostile work environment claim" (Doc. 10, p. 5). 

 The Court notes that "the starting point for determining 

the permissible scope of a judicial complaint is the 

administrative charge and investigation. The judicial complaint 

is limited to the scope of the administrative investigation 

which could reasonably be expected to grow out of the charge of 

discrimination." Griffin v. Carlin, 755 F.2d 1516, 1523 (11th

Cir. 1985). Looking at the Charge, the Court finds that 

Vaughan's assertion that Collins did not mark certain boxes on 

the Charge form is correct (see Doc. 10, p. 22), but does not 

find this fact, alone, to be fatal to the claims. Defendant 

admits as much in noting that the Fifth Circuit Court of Appeals 

has held, in Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 

(5th Cir. 1970),2

 "that the crucial element of a charge of 

discrimination is the factual statement contained therein. 

Everything else entered on the form is, in essence, a mere 

 2

Error! Main Document Only.The Eleventh Circuit, in the en banc

decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 

1981), adopted as precedent decisions of the former Fifth Circuit 

rendered prior to October 1, 1981.

Case 2:10-cv-00161-CG-M Document 23 Filed 08/24/10 Page 5 of 15
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amplification of the factual allegations." Therefore, the Court 

will examine the factual assertions in the Charge to see what 

Collins asserted there. 

 The factual statement in the EEOC Charge is set out herein 

in full: 

 I have been discriminated against by 

Vaughan Regional Medical Center for several 

reasons. 

 First, while taking my break, Ms. 

Brenda Garza, Certified Registered Nurse 

Anesthetist, approached us in the lounge 

where I was sitting with my friend and said 

to us "ya'll didn't make me any coffee?" 

Please note that we took this question 

derogatorily because both of us are AfricanAmerican. Indeed, the implication was 

because we were African-American, it was our 

duty to get her coffee; hence, we were 

slaves. 

 Moreover, Ms. Garza, because of her 

position/job at the hospital, has been able 

to get many employees fired, particularly 

African-Americans. Thus, because of the 

above exchange, I was worried that I might 

have been on the next list to be fired. 

Indeed, Ms. Garza had previously told me and 

Ms. Lisa Jones, another African-American 

employee, that she was going to fire Ms. 

Pinkie Cowan, an African-American employee. 

Sure enough, Ms. Cowan was fired. 

 After the above-mentioned incident on 

August 2, 2008, Ms. Garza notified me that I 

would be getting a call from Human 

Resources. Shortly thereafter, I was 

informed that the call would be in reference 

to an accusation. I was left befuddled 

because I did not know what the charge was. 

Around 2:00 that afternoon, I was told to 

report to a meeting in Human Resources. 

Case 2:10-cv-00161-CG-M Document 23 Filed 08/24/10 Page 6 of 15
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Once I did report, I was fired. I was told 

that I was fired because of a report made by 

Ms. Brenda Garza. Until today, I don't 

understand, other than because of my race, 

color and sex, why I was fired. 

 About two weeks later, I was invited 

back to my employment. I had to sign an 

agreement to get my job back. 

 However, I firmly and wholeheartedly 

know that I have done nothing wrong. In 

fact, several African-Americans have been 

fired because of the deceitfulness and 

mendacity of Ms. Brenda Garza. It seems her 

only motivation to get employees fired is 

because of their race, sex and color. 

(Doc. 17, p. 13; cf. Doc. 10, p. 23). The Court notes that 

although Collins twice states that she was fired because of 

race, color, and sex, there are no factual assertions which 

support a claim of sex discrimination or harassment. For that 

reason, it is recommended that Plaintiff's claim of sexual 

discrimination and harassment be dismissed from this action.3

 Vaughan also seeks to have Collins's claim of a hostile 

work environment, as it relates to her claim of race 

discrimination, dismissed. "In order to establish a hostile 

work environment claim, the plaintiff must show that 'the 

 3

The Court notes that Plaintiff's reply brief fails to 

demonstrate evidence within the factual resume which indicates support 

for a sex discrimination or harassment claim (see Doc. 17). While 

Collins argues that retaliatory measures were taken, she still fails 

to lay the groundwork for a claim based on sex (see id., pp. 2-5). 

The Court's recommendation for dismissal of the sex 

discrimination claim is made also as to a claim of hostile work 

environment as it relates to a sex discrimination claim. 

Case 2:10-cv-00161-CG-M Document 23 Filed 08/24/10 Page 7 of 15
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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."'" Ramon v. AT&T Broadband, 195 

Fed.Appx. 860, 865 (11th Cir. 2006) (quoting Harris v. Forklift 

Systems, Inc., 510 U.S. 17, 21 (1993) (citations omitted)). 

 The Court notes that, in the EEOC Charge, Collins's 

recitation of the facts discussed a single incident which is 

racially-based. It does not provide, however, details of a work 

environment that is rife with racial tension. 

 In her reply to the Motion, though, Collins has asserted 

that the Court should consider facts set out in the Complaint as 

support for the hostile work environment claim (Doc. 17, pp. 5-

8). Plaintiff specifically references ¶¶ 21-304

 in the Complaint 

which discuss an exchange of words Collins had with RN Garza 

between the time of their "ya'll didn't make me any coffee?" 

conversation and Plaintiff's firing. In other words, the 

asserted conversation took place before Collins filed her EEOC 

Charge, but after the incident for which the Charge was filed. 

 The Court finds that this second conversation should not be 

considered as it was not made a part of the Charge. The factual 

 4

Though Plaintiff references ¶¶ 21-30, the incident discussed 

actually begins with ¶ 20. 

Case 2:10-cv-00161-CG-M Document 23 Filed 08/24/10 Page 8 of 15
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assertions newly-made in the Complaint do not "'amplify, 

clarify, or more clearly focus' the allegations in the EEOC 

complaint" so much as they make "allegations of new acts of 

discrimination." Gregory v. Georgia Dept. of Human Resources, 

355 F.3d 1277, 1279 (11th Cir. 2004) (quoting Wu v. Thomas, 863 

F.2d 1543, 1548 (11th Cir. 1989)). 

 The Court finds that the factual recitation in the Charge 

fails to support Plaintiff's claim regarding a hostile work 

environment. Therefore, it is recommended that Plaintiff's 

claim of a hostile work environment, whether it be sex- or racebased, be dismissed as there is no factual support for such a 

claim in the EEOC Charge.5

 In its Motion, Defendant also seeks to have Plaintiff's 

retaliation claim dismissed as it is not administratively 

exhausted (Doc. 10, pp. 12-14).6 Our sister Court, the U.S. 

District Court for the Middle District of Alabama, has stated 

the following with regard to this issue: 

[I]n certain circumstances binding precedent 

from the Eleventh Circuit dictates that a 

 5

The Court also recommends that ¶¶ 20-24 in the Complaint be 

struck as they relate to this "second conversation" which was not 

included in the Charge. The Court notes that these paragraphs do not 

relate to Plaintiff's retaliation claim which will be discussed later 

in this recommendation. 6

The Court specifically finds that Defendant has not challenged 

the sufficiency of this claim. By pointing this out, however, the 

Court is not suggesting that the claim is insufficient. 

Case 2:10-cv-00161-CG-M Document 23 Filed 08/24/10 Page 9 of 15
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plaintiff need not have filed a charge with 

the EEOC to preserve his ability to later 

litigate a retaliation claim. For example, 

when a retaliation claim is based on adverse 

actions taken against the employee after the 

initial EEOC charge is filed, it can be said 

that the retaliation claim grows out of a 

properly filed employment discrimination 

charge, and it is not necessary for a 

plaintiff to file a second charge 

specifically alleging retaliation. If, 

however, the alleged retaliatory action 

occurs before the initial EEOC charge is 

filed, a plaintiff must exhaust his 

administrative remedies as to that claim by 

including factual information in the charge 

that discloses the factual basis for the 

retaliation claim. 

Houston v. Army Fleet Services, L.L.C., 509 F.Supp.2d 1033, 1043 

Ala. 2007) (citations omitted). 

 Although appearing in a separate section of the Motion, 

Defendant seeks to have certain paragraphs in the Complaint 

struck as they occurred after she filed her Charge and were 

never made a part of the Charge through Amendment (Doc. 10, pp. 

11-12). Vaughan specifically references ¶¶ 33-36 which state 

the following: 

33. After Plaintiff Collins went back to 

work, she was again subjected to the same 

blatant discrimination and harassment by Ms. 

Garza. 

34. For example, on or about May 4, 2009, 

Plaintiff Collins was suspended for the same 

blatant discrimination and harassment by Ms. 

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Garza. 

35. Ms. Garza approached Plaintiff Collins 

about the beeper system at the hospital. 

Ms. Garza, in a very very loud, domineering, 

and as a matter-of-fact voice, accused 

Plaintiff Collins of paginag a Certified 

Registered Nurse Anesthetist when, in fact, 

she (Collins) had not done anything of the 

sort. 

36. Frustrated with the continued 

discrimination and harassment, Plaintiff 

Collins asked Ms. Garza, "What kind of game 

she was playing and that I (Plaintiff 

Collins) am tired of this xxxx that every 

time something happens, my name is thrown 

into it." Needless to say, Plaintiff 

Collins was given a written reprimand for 

inappropriate language. 

(Doc. 1). 

 Plaintiff indicates, in the Reply to the Motion, that these 

are factual assertions which relate to the retaliation claim 

(Doc. 17, pp. 4-5). Though Defendant may be correct in its 

insinuation that Collins's Complaint was not artfully pled (Doc. 

18, pp. 4-5), the Court is unwilling to strike the claim on that 

basis. It is, therefore, recommended that Defendant's Motion to 

Dismiss the retaliation claim, as well as to strike these 

specific paragraphs in the Complaint, be denied. 

 Finally, Vaughan seeks to have Collins's race 

discrimination claim dismissed, asserting that she has failed to 

allege sufficient facts to state a claim (Doc. 10, pp. 14-18). 

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The Court notes that Title VII states that "[i]t shall be an 

unlawful employment practice 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). Disparate 

treatment can be demonstrated through either direct or 

circumstantial evidence. Wilson v. B/E Aerospace, Inc., 376 

F.3d 1079, 1085 (11th Cir. 2004). 

 "Direct evidence of discrimination would be evidence which, 

if believed, would prove the existence of a fact without 

inference or presumption." Carter v. City of Miami, 870 F.2d 

578, 581-82 (11th Cir. 1989). Plaintiff has presented evidence 

that a White RN Anesthetist made the remark to her which she 

considered to be racially derogatory. The Court notes, though, 

that "only the most blatant remarks, whose intent could be 

nothing other than to discriminate . . . to constitute direct 

evidence of discrimination. Carter, 870 F.2d at 582. Whatever 

the remark implies, the Court would not categorize "ya'll didn't 

make me any coffee?" as racial. 

 To demonstrate circumstantial evidence of discrimination, 

Collins must prove "(1) that [s]he is a member of the protected 

group; (2) that adverse employment action was taken against 

Case 2:10-cv-00161-CG-M Document 23 Filed 08/24/10 Page 12 of 15
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h[er], e.g., discharge, demotion, or failure to hire; (3) that 

[s]he was replaced by a person outside the protected group; and 

(4) that [s]he was qualified for the position for which [s]he 

was rejected." Carter, 870 F.2d at 582 (citations omitted). 

Though Plaintiff asserted that she had been dismissed from her 

job for a period of two weeks, she admitted that "she was called 

back to work and rehired without any indication she had ever 

been fired" (Doc. 1, ¶ 31). This fails to demonstrate 

discrimination. 

 The Court has reviewed the evidence of record and finds 

that Plaintiff has not brought forth evidence sufficient to 

state a claim for racial discrimination. It cannot be said that 

Collins's claim of racial discrimination is plausible. 

Therefore, it is recommended that Plaintiff's claim of racial 

discrimination be dismissed under Iqbal. 

 In summary, it is recommended that Defendant's Motion to 

Dismiss (Docs. 9-10) be granted as to the following claims: sex 

discrimination, race discrimination, and hostile work 

environment, as it relates to both sex and race discrimination; 

it is further recommended that Defendant's Motion be denied as 

to Plaintiff's claim for retaliation, on the basis of racial 

discrimination. 

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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS 

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION 

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or 

anything in it must, within fourteen days of the date of service 

of this document, file specific written objections with the 

clerk of court. Failure to do so will bar a de novo

determination by the district judge of anything in the 

recommendation and will bar an attack, on appeal, of the factual 

findings of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); 

Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. 

Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The 

procedure for challenging the findings and recommendations of 

the magistrate judge is set out in more detail in SD ALA LR 72.4 

(June 1, 1997), which provides that: 

A party may object to a recommendation entered by a 

magistrate judge in a dispositive matter, that is, a matter 

excepted by 28 U.S.C. § 636(b)(1)(A), by filing a 

"Statement of Objection to Magistrate Judge's 

Recommendation" within fourteen days after being served 

with a copy of the recommendation, unless a different time 

is established by order. The statement of objection shall 

specify those portions of the recommendation to which 

objection is made and the basis for the objection. The 

objection party shall submit to the district judge, at the 

time of filing the objection, a brief setting forth the 

party's arguments that the magistrate judge's 

recommendation should be reviewed de novo and a different 

disposition made. It is insufficient to submit only a copy 

of the original brief submitted to the magistrate judge, 

although a copy of the original brief may be submitted or 

referred to and incorporated into the brief in support of 

the objection. Failure to submit a brief in support of the 

objection may be deemed an abandonment of the objection. 

 A magistrate judge's recommendation cannot be appealed to a 

Court of Appeals; only the district judge's order or judgment 

can be appealed. 

2. Transcript (applicable where proceedings tape recorded).

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the 

magistrate finds that the tapes and original records in this 

action are adequate for purposes of review. Any party planning 

Case 2:10-cv-00161-CG-M Document 23 Filed 08/24/10 Page 14 of 15
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to object to this recommendation, but unable to pay the fee for 

a transcript, is advised that a judicial determination that 

transcription is necessary is required before the United States 

will pay the cost of the transcript. 

 Done this 24th day of August, 2010. 

 s/BERT. W. MILLING, JR.

 UNITED STATES MAGISTRATE JUDGE 

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