Opinion
Civil Action No. 00-2657 Section: J/3
December 4, 2001
Defendant, the State of Louisiana, through the Department of Health and Hospitals and through the Office of Public Health, has filed a motion to dismiss plaintiff's first amended complaint or, in the alternative, a motion for a more definite statement pursuant to Rule 12 of the Federal Rules of Civil Procedure. Plaintiff, Raymond Carey, who was formerly represented by counsel and is now proceeding pro se, opposes the motion. This action was referred to the undersigned United States Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636 (c) with the written consent of all parties.
Rec. Doc. No. 21.
See Rec. Doc. No. 22.
Rec. Doc. No. 19.
Facts
Plaintiff, Raymond Carey, is employed as an archivist in Vital Records for the State of Louisiana, Department of. Health and Hospitals, Office of Public Health. He has worked for the State of Louisiana for twenty-eight years.Plaintiff filed a charge of discrimination and retaliation with the EEOC on May 25, 2000. In his EEOC charge, plaintiff alleged that:
Attachment A to Rec. Doc. No. 20.
I. On March 24, 2000 I received a memo from the Section Manager stating that employees were not to listen to radios without ear phones or headsets. I have been employed by the Respondent since 1972 and my current position is Office Manager II.
II. The Section Manager, Helen Moten (BF), and William Balow (WM), Stat Register, stated that the radio policy would apply to all employees with no exceptions.
III. I believe that I have been discriminated against because of my race, black, my sex, male, and in retaliation for filing a complaint against the Respondent in 1999 with the State Civil Service Commission.
In an affidavit in support of his EEOC charge, plaintiff stated that he filed a complaint with the Civil Service Commission in 1999, and that it is still pending. He also states that on March 24, 2000, the Deputy Director of Vital Records Registry issued a memorandum to the three section managers mandating that all employees in Vital Records Registry were required to use earphones or headsets when listening to radios. Plaintiff also stated that upon receipt of the memorandum, he inquired of his section manager whether that rule applied to his section since it was located in a basement vault with no windows and no customers. The section manager told him that she would discuss the radio policy with the deputy director. On April 24, 2000, the section manager gave the plaintiff a memo advising that all employees in the basement archives must listen to radios with earphones or headsets. The plaintiff's affidavit states that he sent a memo to the Director of the Office of Public Health, Department of Health and Human Services, again requesting that he be allowed to play the radio without headsets or earphones, but that he did not receive a response.
Attachment A to Rec. Doc. No. 20.
Attachment A to Rec. Doc. No. 20.
The plaintiff also stated in his EEOC affidavit that employees who work in the maintenance and pharmacy departments, the other two sections located in the basement where he works, are allowed to listen to radios without headphones or headsets. Plaintiff admits, however, that the other section employees are supervised by different managers.
Attachment A to Rec. Doc. No. 20. In his affidavit, he notes that a).]. persons employed in the Vital Records Registry department who work in the building listen to radios with headsets or earphones.
In the Dismissal and Notice of Suit Rights issued to the plaintiff on June 9, 2000, the EEOC determined that based upon its investigation, there was no basis to conclude that any statutes were violated. This lawsuit followed.
Attachment A to Rec. Doc. No. 20.
On September 7, 2000, plaintiff filed his original complaint asserting claims pursuant to Title VII, codified at 42 U.S.C. § 2000e et seq, the Equal Pay Act, codified at 29 U.S.C. § 206 (d)(1), and the Civil Rights Act of 1866, codified in part at 42 U.S.C. § 1981 and 1982. In his initial complaint, plaintiff made general allegations that he was denied promotions, equal pay, and compensation, because of his race and his sex, but he did not provide any specific factual detail. The defendant then filed a motion to dismiss which was denied without prejudice because plaintiff agreed to file an amended complaint specifying the action taken by the EEOC, the date of such action, and the dates of the alleged violations of plaintiff's rights. On August 10, 2001, plaintiff filed his first amended complaint, alleging in pertinent part that:
Rec. Doc. No. 1.
Rec. Doc. No. 18.
Rec. Doc. No. 20.
Defendant has discriminated against plaintiff by denying plaintiff promotions repeatedly given to women, higher wages for equal employment duties beyond the scope of his employment as his co-workers, defendant creating an additional position out of plaintiff's duties and paying the newly hired individual more money, i.e., no equal pay for equal work. Below are the alleged actions taken by the EEOC and the date such action was taken as well as the date of the violations of plaintiff's rights.
Dates of grievances/complaints filed to the Department of Health and Hospitals of violations of plaintiff's rights: January 10, 1997; March 17, 1997; September 22, 1997; October 13, 1997; February 12, 1998; April 16, 1998; May 7, 1998; June 26, 1998; March 17, 1998; June 9, 1998; November 30, 1998; December 21, 1998; January 5, 1999; February 1, 1999; February 23, 1999; February 25, 1998; March 24, 1999; May 13, 1999; February 10, 1999; March 23, 2000. . . .
Defendant has knowingly, deliberately, and purposefully carried out acts with the intent to deprive plaintiff of his equal rights since 1997.
Rec. Doc. No. 20.
In his first amended complaint, plaintiff alleges that the defendant violated Title VII, the Equal Pay Act, and 42 U.S.C. § 1981 and 1982.
Rec. Doc. No. 20.
Rule 12(b)(1) Motion
Defendant, arguing a lack of subject matter jurisdiction, initially moves for dismissal pursuant to Rule 12(b)(1). In ruling on a motion to dismiss for lack of subject matter jurisdiction, the court must accept all factual allegations in the plaintiff's complaint as true, but may consider (1) the complaint alone, (2) the complaint supplemented by undisputed facts evidenced in the record, or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.Plaintiff, alleging federal question jurisdiction, asserts that this court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. 28 U.S.C. § 1331 provides that "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." In this case, the plaintiff's claims of employment discrimination are brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981 and 1982, and the Equal Pay Act. These statutes are laws of the United States and plaintiff's claims arise under those federal laws. This court has subject matter jurisdiction.
Plaintiff also asserts subject matter jurisdiction pursuant to 28 U.S.C. § 1343, which vests the court with original jurisdiction over claims. for civil rights violations.
Rule 12(b)(6) Motion
Defendant next seeks dismissal of this action pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. When considering a motion to dismiss under Fed.R.Civ.P. 12(b) (6), the Court construes the complaint liberally in favor of the plaintiff, taking all factual allegations as true and resolving any ambiguities regarding the sufficiency of the claim in plaintiff's favor. Motions to dismiss for failure to state a claim are viewed with disfavor. A complaint may not be dismissed under Fed.R.Civ.P. 12(b)(6) "unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief."
Leleux v. United States, 178 F.3d 750, 754 (5th Cir. 1999);Broadway v. Slater, 2000 U.S. Dist. LEXIS 2251, 2000 WL 235238, *1 (E.D. La. 2000)
Lowrey v. Texas AM Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997).
Id., quoting Conley v. Gibson, 351 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).
In order to avoid dismissal when a Rule 12(b)(6) motion has been filed, plaintiff is only required to allege sufficient facts which state a claim for which relief may be granted. "A plaintiff, however, must allege specific facts, not conclusory allegations." The court may dismiss a complaint as a matter of law for "(1) lack of a cognizable legal theory or (2) insufficient facts under a cognizable legal claim." The "complaint must contain either direct allegations on every material point necessary to sustain a recovery . . . or contain allegations from which an inference fairly may be drawn that evidence on these points will be introduced at trial." In construing the motion to dismiss, the court must presume all factual allegations in the complaint to be true as well as any reasonable references to be drawn from them and resolve any ambiguities or doubts regarding the sufficiency of the claim in favor of the plaintiff. "The Court must decide whether the material facts alleged would entitle a plaintiff to offer evidence regarding the legal remedy [plaintiff] requests. Unless the answer is unequivocally no, the motion must be denied."
Baker v. Starwood Hotel and Resort Worldwide, Inc., 1998 WL 849297, *3 (Sear, J.) (E.D.La. 1998).
Buerger v. Southwestern Bell Telephone Co., 982 F. Supp. 1247, 1250 (E.D. Tex. 1997), citing Elliott v. Foufas, 867 F.2d 877, 881 (5th Cir. 1995).
Smilecare Dental Group v. Delta Dental Plan of California, Inc., 88 F.3d 780, 783 (9th Cir.) ( citations omitted), 519 U.S. 1028, 117 S.Ct. 583, 136 L.Ed.2d (1996); see also Buerger, 982 F. Supp. at 1250 ( quoting 5A CHARLES A. WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357. (1969)).
Buerger, 982 F. Supp. at 1250 ( quotation omitted).
Id. ( citing Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993)).
Cook v. Fidelity Investments, 908 F. Supp. 438, 440 (N.D. Tex. 1995) ( citing Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) and Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957)).
Since a Rule 12(b)(6) motion is not used to contest the facts of a case, it should be read in conjunction with Rule 8 of the Federal Rules of Civil Procedure. "[Federal] Rule [of Civil Procedure] 8 indicates that a complaint need only set out a generalized statement of facts from which defendant will be able to frame a responsive pleading."
Nevarez v. United States, 957 F. Supp. 884, 889 (N.D. Tex. 1997).
Buerger 982 F. Supp. at 1250 (E. D. Tex. 1997) ( quoting 5A CHARLES A. WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (1969)); see Frito-Lay, Incorporated v. Wapco Constructors, Incorporated, 520 F. Supp. 186, 188 (M.D. La. 1981) ( citing George C. Frey Ready-Mix Con. v. Pine Hill C.M., 554 F.2d 551 (2d Cir. 1977)) (plaintiff need only provide a short and plain statement of the claim which sufficiently gives the defendant fair notice of what the claim is and the grounds upon which the claim rests).
Plaintiff makes no allegations in his first amended complaint regarding discrimination in inheriting, purchasing, leasing, selling, holding or conveying real or personal property. His complaints are all employment related. Construing the factual allegations of plaintiff's amended complaint as true and resolving all ambiguities in plaintiff's favor, it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief under 42 U.S.C. § 1982.
See, Lowrey, 117 F.3d at 247.
42 U.S.C. § 1981
Plaintiff also alleges that defendant violated 42 U.S.C. § 1981. 42 U.S.C. § 1981 prohibits discrimination in the making and enforcement of contracts on the basis of race. Gender discrimination does not fall within the scope of 42 U.S.C. § 1981.While Title VII claimants must exhaust administrative remedies prior to instituting suit, those seeking redress under § 1981 need not meet such an exhaustion requirement. In addition, there are different statutes of limitation applicable to Title VII claims and § 1981 claims.
Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000), quoting Scarlett v. Seaboard Coast Line R. Co., 676 F.2d 1043, 1050 (5th Cir. Unit B 1982).
Although § 1981 contains no statute of limitations, the appropriate limitations period is the one applicable to similar claims under state law. The Fifth Circuit applies Louisiana's one year tort prescriptive period to § 1981 claims.
Delaware State College v. Ricks, 449 U.S. 250, 255 n. 5, 101 S.Ct. 498, 502 n. 5, 62 L.Ed.2d 751 (1980); Washington v. Touro Infirmary, Inc., 1998 WL 754540, *2 (Vance, J.) (E.D. La. 1998).
Page v. U.S. Industries, Inc., 556 F.2d 346, 352 (5th Cir. 1977); Washington, 1998 WL 754540 at *2; Hazeur v. Federal Warranty Service Corp., 1999 WL 615176, *3 (Clement, J.) (E.D. La. 1999).
Plaintiff filed his initial complaint on September 7, 2000 and filed an amended complaint on August 10, 2001. While the plaintiff's first amended complaint is vague with respect to the specific dates he complained that he was being discriminated against because of his race and sex, he includes a list of dates that grievances were filed. With the exception of the last date, May 23, 2000, all of the other grievances were filed prior to September 7, 1999. Therefore, any claims plaintiff has pursuant to 42 U.S.C. § 1981 for actions he complained about in grievances filed prior to September 7, 1999, have prescribed.
The subject matter of the May 23, 2000, grievance cannot be ascertained from the complaint. Alternatively, the defendant has moved for a more definite statement. Pursuant to Rule 12(e) of the Federal Rules of Civil Procedure, "[i]f a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading."
The defendant is entitled to determine the facts underlying the May 23, 2000, grievance. With respect to the May 23, 2000, grievance, plaintiff must amend his complaint to state with specificity the facts underlying his complaint and the relevant dates that actionable conduct which might arguably violate § 1981 occurred. In the amended complaint, plaintiff "must allege specific facts, not conclusory allegations." While plaintiff is now proceeding pro se, "[e]ven a liberally construed pro se civil rights complaint . . . must set forth facts giving rise to a claim on which relief may be granted."
Buerger, 982 F. Supp. at 1250.
Id.
Title VII Exhaustion of Administrative Remedies
Pursuant to Title VII, employees may sue their employers for discriminatory employment decisions. Title VII requires that plaintiffs exhaust their administrative remedies before instituting a lawsuit in federal court. Before a Title VII complaint is properly before the Court, a charge must be timely filed with the EEOC and notice of the right to sue must be received."The scope of a Title VII complaint is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." "[A] judicial complaint filed pursuant to Title VII may encompass any kind of discrimination like or related to allegations contained in the charge and growing out of such allegation during the pendency of the case before the Commission." "This is because `the civil action is much more intimately related to the EEOC investigation than to the words of the charge which originally triggered the investigation.'" "`[The EEOC] charge, enlarged only by such EEOC investigation as reasonably proceeds therefrom, fixe[s] the scope of the charging party's subsequent right to institute a civil suit. The suit filed may encompass only `the discrimination stated in the charge itself or developed in the course of a reasonable [EEOC] investigation of that charge.
Thomas v. Texas Department of Criminal Justice, 220 F.3d 389, 395 (5th Cir. 2000).
National Association of Government Employees, 40 F.3d at 711, quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970) (emphasis added and citation omitted in National Association).
National Association of Government Employees, 40 F.3d at 711, quoting Sanchez v. Standard Brands. Inc., 431 F.2d 455, 466 (5th Cir. 1970) (emphasis in original).
National Association of Government Employees, 40 F.3d at 711-12, quoting King v. Seaboard Coastline R. Co., 538 F.2d 581, 583 (4th Cir. 1976) (footnote and citation omitted); see also Johnson v. General Electric, 840 F.2d 132, 139 (1st Cir. 1988) (Suit may include "reasonably related" noncharged "new acts occurring during the pendency of the charge before the EEOC").
Because "[p]laintiff's instant suit may only encompass the discrimination alleged in the initial charge or that investigated by the EEOC," a review of the allegations of plaintiff's charge of discrimination is appropriate. While plaintiff checked the appropriate boxes asserting discrimination based on race, gender, and retaliation, the "Particulars" section of the EEOC complaint and the attached affidavit contain only a specific complaint about a March 24, 2000, memo concerning a radio policy and the statement that, "I believe that I have been discriminated against because of my race, black, my sex, male, and in retaliation for filing a complaint against the Respondent in 1999 with the State Civil Service Commission." Similarly, his affidavit contains specific details regarding his dissatisfaction with the radio policy and the statement that, "In 1999 I filed a complaint with the Civil Service Commission and this is still pending." No other complaints or factual details regarding any other incidents, disputes, or grievances are included in the affidavit.
Gerac-Ogashi v. Iberia General Hospital, 952 F. Supp. 360, 363 (W.D. La. 1996).
See Attachment A to Rec. Doc. No. 20.
See Attachment A to Rec. Doc. No. 20.
In his opposition memorandum, plaintiff includes information concerning the following: (1) a complaint he filed against William Barlow on March 17, 1997, (2) a grievance he filed on April 4, 1997, (3) another memorandum he submitted on September 22, 1997, complaining that he needed additional help handling his duties, but that the female managers were fully staffed, (4) a grievance he filed on April 16, 1998, (5) an incident on February 8, 1999, in which he suggests that a white female was hired to perform similar, but slightly different, duties as he was performing, and that she and other females, both white and black, were promoted to higher GS levels, and (6) an action occurring "this year" in which a white female with no test or experience, was promoted to Administrative Manager. None of this information was included in plaintiff's EEOC complaint, either in the "Particulars" section or in the affidavit."
Rec. Doc. No. 24, pp. 4-5.
See, Attachment A to Rec. Doc. No. 20.
The only claims which could reasonably be expected to grow out of the plaintiff's EEOC charge are his complaint regarding the radio policy and his complaint that he was retaliated against for filing a complaint in 1999 against the Civil Service Commission. Whatever the subject matter of these other grievances, they were not contained in the plaintiff's EEOC charge. With the exception of plaintiff's complaint concerning the radio policy and his complaint of retaliation, plaintiff has failed to exhaust administrative remedies. Therefore, except with respect to those claims, all of plaintiff's other Title VII claims must be dismissed for failure to exhaust administrative remedies.
Generally, a Title VII litigant must file a claim with the EEOC within 180 days of the complained-of violation. 42 U.S.C. § 2000e-5 (e). If the plaintiff has filed his complaint with a "State or local agency with authority to grant or seek relief," the litigant must file with the EEOC within 300 days of the discriminatory act. Id. In states with a work-sharing agreement in effect, including Louisiana, in which the EEOC routinely transmits a copy of. the complaint to the state referral agency, a plaintiff may file his complaint within 300 days of the alleged discriminatory act. Schutte v. Gulf Coast Marine, 2000 WL 222170 *3, n. 5 (Berrigan, J.) (E.D. La. 2000); Bordelon v. Winn-Dixie Louisiana, Inc., 1998 WL 560351 *1 (Berrigan, J.) (E.D. La. 1998);Urrutia v. Valero Energy Corp., 841 F.2d 123, 125-26 (5th Cir. 1988). Therefore, plaintiff was required to file a charge of discrimination with the EEOC within 300 days after any alleged unlawful employment practice occurred. See, Byers, 209 F.3d at 424; Messer v. Meno, 130 F.3d 130, 134 n. 2 (5th Cir. 1997). Thus, in addition to failing to exhaust administrative remedies, plaintiff's claims as to employment actions for which no EEOC charge was filed within 300 days after their occurrence have prescribed.
However, plaintiff's radio policy claim must be dismissed under Title VII for another reason. In order to make out a prima facie case of race discrimination, gender discrimination, or retaliation under Title VII, courts agree that in all three circumstances the claimant must show that he was not hired, that he was dismissed or that he suffered some kind of adverse employment consequence as a result of the employer's actions. Furthermore, "Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." "Ultimate employment decisions" include decisions "such as hiring, granting leave, discharging, promoting, and compensating."
See Broadway, 2000 U.S. Dist. LEXIS 2251 at * 5 (Adverse employment action necessary for racial discrimination claim under Title VII); Dollis, 77 F.3d at 781 (Adverse employment action necessary for retaliation claim).
Dollis, 77 F.3d at 781-782.
Id. at 782.
There is no indication in the record that plaintiff suffered any adverse employment action as a result of the defendant's radio usage policy. The application of the radio policy to the plaintiff did not trigger an "ultimate employment decision", i.e., he was not discharged, denied a promotion, nor was his leave usage or compensation affected. Further, as plaintiff admits, the defendant's radio policy applies to all employees equally and, therefore, there is no discriminatory treatment.
Plaintiff's only remaining Title VII claim is his claim that his employer retaliated against him because he filed a complaint against his employer with the State Civil Service Commission in 1999. Other than the allegation contained in his EEOC charge that he was retaliated against for filing this complaint, plaintiff has not included any facts underlying this complaint, i.e., the nature of the 1999 complaint, the persons involved in the retaliatory actions, the consequences to the plaintiff. Plaintiff must amend his complaint to include the specific facts upon which his retaliation claim rests.
Equal Pay Act
The Equal Pay Act, 29 U.S.C. § 206 (d)(1), a provision of the Fair Labor Standards Act ("FLSA"), prohibits discrimination "between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. . . ."
Whether the states enjoy sovereign immunity from claims pursuant to the Equal Pay Act after the United States Supreme Court's decision in Kimel v. Florida Board of Regents has been addressed by the Fifth Circuit. In Silder-Khodr v. University of Texas Health Science Center San Antonio, the Fifth Circuit held that the Equal Pay Act is constitutional and that it did not violate the Eleventh Amendment of the United States Constitution with respect to Equal Pay Act claims lodged against a state. Therefore, the defendant has no Eleventh Amendment immunity with respect to Equal Pay Act claims.
528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000)
261 F.3d 542 (5th Cir. 2001).
261 F.3d at 550. The court stated, in pertinent part:
We find that in the wake of Kimel, the [Equal Pay Act] nevertheless does not violate the Eleventh Amendment of the Constitution because it is congruent and proportional "between the injury to be prevented or remedied and the means adopted to that end" and is therefore an appropriate use of Congress's sec. 5 power of the Fourteenth Amendment" ( quoting City of Boerne v. Flores, 521 U.S. 507, 520, 117 S.Ct 2157, 138 L.Ed.2d 624 (1997)). Id.
In order to establish a prima facie case of wage discrimination under the Equal Pay Act, the plaintiff must prove that (1) higher wages were paid to a female employee; (2) for equal work requiring substantially similar skill, effort and responsibilities; and (3) the work was performed under similar working conditions. Unlike Title VII, a plaintiff need not prove an employer's discriminatory intent under the Equal Pay Act. Once plaintiff has made a prima facie case, the burden shifts to the defendant to "prove by a preponderance of the evidence that the wage differential is justified under one of the four affirmative defenses set forth in the Equal Pay Act: (1) a seniority system;
Stopka v. Alliance of American Insurers, 141 F.3d 681, 685 (7th Cir. 1998).
Ryduchowski v. The Port Authority of New York and New Jersey, 203 F.3d 135, 142 (2d Cir. 2000).
(2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) any other factor than sex."
Siler-Khodr, 261 F.3d at 546, quoting Kovacevich v. Kent State Univ., 224 F.3d 806, 826 (6th Cir. 2000).
Plaintiff's Equal Pay Act claim as set forth in his first amended complaint has been reviewed. Which female employees he claims are being paid higher wages for equal work cannot be discerned. Similarly, the dates that such employment actions occurred cannot be determined. Plaintiff must amend his complaint and include specific facts which give rise to his claim. Wihout such information, defense counsel cannot determine whether plaintiff's complaint states a claim under the Equal Pay Act.
The statute of limitations for an Equal Pay Act claim is two years after the cause of action accrues, except that a cause of action arising out of a willful violation may be filed within three years after the cause of action accrues. 29 U.S.C. § 255 (a); Brinkley-Obu v. Hughes Training, Incorporated, 36 F.3d 336, 345-346 (4th Cir. 1994); Holt v. KMI-Continental. Inc., 95 F.3d 123, 131 (2d Cir. 1996).
Conclusion
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of defendant, the State of Louisiana, through the Department of Health and Hospitals and the Office of Public Health, to dismiss pursuant to F.R.Civ.P. 12 is hereby GRANTED as to plaintiff's claims under 42 U.S.C. § 1982, all claims under 42 U.S.C. § 1981 arising out of grievances filed prior to September 7, 1999, and his claims under Title VII, except for his claim of retaliation.
IT IS FURTHER ORDERED that the motion of defendant, the State of Louisiana, through the Department of Health and Hospitals and the Office of Public Health, pursuant to F.R.Civ.P. 12 is hereby DENIED as to his claim under 42 U.S.C. § 1981 arising out of plaintiff's May 23, 2000, grievance, his Title VII retaliation claim, and his claims under the Equal Pay Act.
IT IS FURTHER ORDERED that the alternative motion of defendant under F.R.Civ.P. 12(e) for a more definite statement is hereby GRANTED. Plaintiff is ORDERED to file an amended complaint within 10 days to state with specificity the facts underlying his § 1981 claim which arises out of his May 23, 2000, grievance, his Title VII retaliation claim, and his Equal Pay Act claim. Failure to file the amended complaint within 10 days shall result in dismissal of this action.