United States District Court, N.D. Mississippi, Aberdeen Division
MARKISTA S. HOWARD, PLAINTIFF
RUE 21 CORPORATION; VICTORIA ROBERTS, Store Manager; ANGELA HANCOCK, District Manager; CHAD SHAW, Regional Director; and STEPHANIE MERRITT, Human Resources Manager, DEFENDANTS
MEMORANDUM OPINION GRANTING DEFENDANTS' MOTION TO
DISMISS OR, IN THE ALTERNATIVE. MOTION FOR SUMMARY JUDGMENT
AND DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED
before the Court is a motion to dismiss or, in the
alternative, for summary judgment  filed by Defendants
rue21 Corporation; Victoria Roberts, Store Manager; and
Angela Hancock, District Manager. Also before the Court is a
motion for leave to file an amended complaint  filed by
Plaintiff Markista S. Howard. Upon due consideration, the
Court finds that the motion to dismiss or, in the
alternative, for summary judgment  should be granted, and
the motion for leave to file an amended complaint  should
Factual and Procedural Background
Markista S. Howard ("Plaintiff) was employed by
Defendant rue21 Corporation as a full-time assistant manager
at the Starkville, Mississippi store location from to her
termination on November 21, 2015. Following her termination,
Plaintiff filed an EEOC charge for race discrimination based
on her termination, wherein she alleged she was hired by
Defendant rue21 Corporation as a full-time assistant manager,
but was "treated differently than other assistant
managers, " who "are Caucasian and African[-]
American." EEOC Charge  at 7. Plaintiff further
alleged in her EEOC charge that although "Management
said [she] was discharged for unprofessional conduct which
resulted in a customer complaint, " she believed she was
discharged because of her color in violation of Title VII.
Id. The EEOC denied Plaintiffs charge of
discrimination and issued a right-to-sue letter. See
EEOC Dismissal & Notice of Rights  at 6.
April 19, 2016, Plaintiff, proceeding pro se, timely
filed a form complaint alleging race discrimination under
Title VII of the Civil Rights Act of 1964 against her former
employer, Defendant rue21 Corporation, a retail company with
a store in Starkville, Mississippi, as well as Victoria
Roberts, Store Manager, and Angela Hancock, District Manager
(collectively, "Defendants"). She alleges she was
terminated from her employment due to her color and that she
was treated differently than other employees, such as other
managers, who were "favored due to favoritism in regards
to requests etc[.] being granted during [her] employment that
associates received." Pl's Compl.  ¶ III.
Plaintiff seeks back-pay and punitive damages "for
stress, lack of financial support for my family, humiliation,
embarrassment, and the financial resources" required in
seeking other employment. Id. ¶¶ IV-V.
Magistrate Judge granted Plaintiffs motion to proceed in
forma pauperis , see Ct.'s Order ,
and Plaintiff submitted the addresses of Defendants, but also
submitted addresses for two additional individuals: Chad
Shaw, Regional Director, and Stephanie Merritt, Human
Resources Manager, see Pl's Resp. to Ct's
Order . These two individuals were not named Defendants in
Plaintiffs complaint. The Clerk of Court issued summonses to
the two individuals, and the two were served with process,
along with the other Defendants in the case.
8, 2016, Defendants filed an answer  to the complaint; on
August 4, 2016, Defendants filed the present motion to
dismiss or, in the alternative, for summary judgment .
Plaintiff has not filed a response to the motion, and the
time for doing so has now passed. Accordingly, the
Defendants' motion is ripe for review.
October 20, 2016, Plaintiff filed an amended complaint ,
identical to the original complaint with the addition of Shaw
and Merritt. The Defendants filed a motion to strike  the
amended complaint; the Magistrate Judge granted the motion to
strike , finding that the amended complaint was untimely
filed without leave of Court or the parties' agreement to
do so. See Ct.'s Order  at 1. Plaintiff then
filed a motion to amend her complaint  to add Shaw and
Merritt. The Magistrate Judge denied this motion as
procedurally deficient, because Plaintiff did not attach her
proposed amended complaint as an exhibit to her motion to
amend as required by Rule 15 of the Local Uniform Rules of
Civil Procedure; the Magistrate Judge further denied
Plaintiffs motion to amend as futile, because Plaintiffs sole
claim is employment discrimination based on Title VII and
cannot be urged against individuals. See Ct.'s
Order  at 1 (citing Grant v. Lone Star Co., 21
F.3d 649, 653 (5th Cir. 1994)).
February 21, 2017-while the Defendants' motion to dismiss
or, in the alternative, for summary judgment  was
pending-Plaintiff filed a second motion to amend her
complaint , wherein she requests leave to file an
additional EEOC charge to change the basis of her complaint
to harassment and retaliation and hostile work environment
but "not . . . racial discrimination."
stated, before the Court are the following: Defendants'
motion to dismiss or, in the alternative, for summary
judgment  and Plaintiffs motion for leave to file an
amended complaint . The following standards apply.
deciding a Rule 12(b)(6) motion to dismiss, the Court is
limited to the allegations set forth in the complaint and any
documents attached to the complaint. Walker v. Webco
Indus., Inc., 562 F.App'x 215, 216-17 (5th Cir.
2014) (per curiam) (citing Kennedy v. Chase Manhattan
Bank USA, NA, 369 F.3d 833, 839 (5th Cir. 2004)).
"If, on a motion under Rule 12(b)(6) . . ., matters
outside the pleadings are presented to and not excluded by
the court, the motion must be treated as one for summary
judgment under Rule 56." Fed.R.Civ.P. 12(d).
case sub judice, Defendants attach to their motion a
sworn affidavit, which, if considered, would render the
motion one for summary judgment. However, at this early
juncture of the case, before the parties have engaged in any
discovery, the Court finds that entertaining a motion for
summary judgment would be premature. Accordingly, the Court
excludes from consideration the attached affidavit, considers
only the matters presented in the pleadings and documentation
attached to the complaint, and applies the standard set forth
in Rule 12(b)(6).
to dismiss pursuant to Rule 12(b)(6) "are viewed with
disfavor and are rarely granted." Kocurek v. Cuna
Mut. Ins. Soc'y, 459 F.App'x 371, 373 (5th Cir.
2012) (citing Gregson v. Zurich Am. Ins. Co., 322
F.3d 883, 885 (5th Cir. 2003)). "[A plaintiffs]
complaint therefore 'must contain sufficient factual
matter, accepted as true, to "state a claim to relief
that is plausible on its face." ' "
Phillips v. City of Dallas, Tex., 781 F.3d 772,
775-76 (5th Cir. 2015) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007))). A claim is
facially plausible when the pleaded factual content
"allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing
Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
"[P]laintiffs must allege facts that support the
elements of the cause of action in order to make out a valid
claim." Webb v. Morella, 522 F.App'x 238,
241 (5th Cir. 2013) (per curiam) (quoting City of
Clinton, Ark. v. Pilgrim's Pride Corp., 632 F.3d
148, 152-53 (5th Cir. 2010) (quotation marks omitted)).
"[C]onclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to
prevent a motion to dismiss." Id. (quoting
Fernandez-Montes v. Allied Pilots Ass'n, 987
F.2d 278, 284 (5th Cir. 1993) (internal quotation marks
omitted)). "Dismissal is appropriate when the plaintiff
has not alleged 'enough facts to state a claim to relief
that is plausible on its face' and has failed to
'raise a right to relief above the speculative
level.' " Emesowum v. Hous. Police
Dep't, 561 F.App'x 372, 372 (5th Cir. 2014) (per
curiam) (quoting Twombly, 550 U.S. at 555, 570, 127
deciding a motion for leave to file an amended complaint, the
Court "should freely give leave when justice so
requires." See Fed. R. Civ. P. 15(a). To
determine whether to grant the motion for leave to amend, the
Court should examine five considerations: "1) undue
delay, 2) bad faith or dilatory motive, 3) repeated failure
to cure deficiencies by previous amendments, 4) undue
prejudice to the opposing party, and 5) futility of the
amendment." SGIC Strategic Glob. Inv. Capital, Inc.
v. Burger King Europe GmbH,839 F.3d 422, 428 (5th Cir.
2016). " '[A] party seeking to amend its pleadings
after a deadline has passed must demonstrate good cause for
needing an extension.' " Hull v. City of New