United States District Court, S.D. Mississippi, Northern Division
ANDRE FUNCHES, SR. PLAINTIFF
MISSISSIPPI DEVELOPMENT AUTHORITY, ET AL. DEFENDANTS
P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE.
employment-discrimination case is before the Court on the
Motion to Dismiss  filed by Defendants Mississippi
Development Authority (“MDA”), Jay McCarthay, and
Jennifer Sledge (collectively “Moving
Defendants”). For the reasons that follow, the motion
is granted, but Plaintiff Andre Funches will be given an
opportunity to seek leave to amend. Two other defendants,
Glenn McCullough and Daron Wilson, may not have been properly
served, so Funches must show cause why the claims against
those defendants should not be dismissed under Federal Rule
of Civil Procedure 4(m).
African-American male-is employed by MDA and says Defendants
subjected him to a racially hostile work environment and
retaliated against him for engaging in protected conduct.
Funches has apparently filed a number of internal grievances,
EEOC charges, and lawsuits over the years. In August 2016,
MDA gave Funches-and no other employee-a memorandum
explaining how he should file future employment grievances.
Compl.  ¶ 5. Among other things, MDA instructed
Funches to enclose his grievances in envelopes. Id.
Although Funchs says he complied, MDA reprimanded him in
April 2017 for failing to enclose a new grievance.
Id.; see Reprimand [5-1].
by the reprimand, Funches filed a charge of race
discrimination and retaliation with the EEOC. EEOC Charge
[1-2]. And on November 21, 2017, he received his notice of
right to sue. EEOC Notice [1-1]. Funches then filed this
Complaint on February 7, 2018, within the 90-day time limit,
against MDA, Glenn McCullough, Daron Wilson, Jay McCarthy,
and Jennifer Sledge. Defendants MDA, McCarthy, and Sledge now
move to dismiss under Federal Rule of Civil Procedure
12(b)(6). It does not appear that McCollough or Wilson has
considering a motion under Rule 12(b)(6), the “court
accepts ‘all well-pleaded facts as true, viewing them
in the light most favorable to the plaintiff.'”
Martin K. Eby Constr. Co. v. Dall. Area Rapid
Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.
1999) (per curiam)). But “the tenet that a court must
accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To overcome a motion to dismiss, a plaintiff must
plead “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. “Factual allegations must be enough to raise a
right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Id. at 555
(citations and footnote omitted).
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.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). It follows that
“where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.'” Id. at 679 (quoting Fed.R.Civ.P.
8(a)(2)). “This standard ‘simply calls for enough
fact to raise a reasonable expectation that discovery will
reveal evidence of' the necessary claims or
elements.” In re S. Scrap Material Co., LLC,
541 F.3d 584, 587 (5th Cir. 2008) (quoting Twombly,
550 U.S. at 556).
Funches is proceeding pro se. “It is well-established
that ‘pro se complaints are held to less stringent
standards than formal pleadings drafted by
lawyers.'” Taylor v. Books A Million,
Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quoting
Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir.
1981)). “However, regardless of whether the plaintiff
is proceeding pro se or is represented by counsel,
‘conclusory allegations or legal conclusions
masquerading as factual conclusions will not
suffice.'” Id. (quoting S. Christian
Leadership Conference v. Supreme Court of the State of
La., 252 F.3d 781, 786 (5th Cir. 2001)).
in considering a motion under Rule 12(b)(6), the Court
“must [generally] limit itself to the contents of the
pleadings, including attachments thereto.” Collins
v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th
Cir. 2000). An exception to this rule exists for documents
“if they are referred to in the plaintiff's
complaint and are central to [his] claim.” Id.
at 499 (citing Venture Assocs. Corp. v. Zenith Data Sys.
Corp., 987 F.2d 429, 431 (7th Cir. 1993)).
case, Funches attached the disputed reprimand [5-1] to his
Response . The document is obviously central to his
claims, so the Court may consider it without converting the
motion to dismiss to one for summary judgment. See
Fed. R. Civ. P. 12(d) (“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. All parties must
be given a reasonable opportunity to present all the material
that is pertinent to the motion.”).
asserts Title VII claims for retaliation and hostile work
environment and an equal-protection claim under 42 U.S.C.
§ 1983. Compl.  at 1-3. Frankly, the Court struggled
to determine which claims Funches asserted against which
defendants, and a motion to dismiss on that basis would
probably be granted with leave to amend. Moreover,
Funches's Title VII claims against the individual
defendants are defective because individuals are generally
not considered “employers” under Title VII.
See Ackel v. Nat'l Commc'ns, Inc., 339 F.3d
376, 381 n.1 (5th Cir. 2003) (“Individuals are not
liable under Title VII in either their individual or official
Moving Defendants neglected these issues. Instead, their
two-paragraph analysis observes that the Complaint fails to
state plausible claims for retaliation or hostile work
environment. Accordingly, the Court has focused on those
issues and, for the reasons that follow, finds them