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Price v. Priority Transportation

March 19, 2009

JANICE M. PRICE, PLAINTIFF,
v.
PRIORITY TRANSPORTATION AND MICHAEL NEILSON, DEFENDANTS.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

MEMORANDUM and ORDER

Siragusa, J. This case is before the Court on Defendants' motion to dismiss. In their supporting memorandum, Defendants contend that "Plaintiff's allegations arising under Title VII (as to both Defendants) must be dismissed as a claim based on HIV status does not lie under Title VII. Further, Plaintiff's claims against Michael Neilson must be dismissed as neither Title VII nor the ADA provide for individual liability." (Def.s' Mem. of Law, at 1.)

The Court entered an Order setting November 14, 2008, for Plaintiff's response and scheduled oral argument for January 18, 2009. Plaintiff did not file a response and did not appear for oral argument. The Court, sue sponte, permitted Plaintiff until February 13, 2009, to file a written response and on February 5, 2009, Plaintiff sent to chambers a paper containing "facts why I believe that the motion for dismissal should be granted [sic] to the defendants." (Pl.'s motion response.)

Plaintiff alleges the following facts in her complaint:

1. Priority took my route that would [me] keep near Dr.

2. Mike Nielson told me if I couldn't take the load to Little Rock, AK to take his truck to Conley yd.

3. Already had 309 miles that day and he wanted me to drive over 500 more mile[s] which would have put me fault [sic] with my log book.

4. He knew of my health, because he work[ed] with Andy Rivera my immediate supervisor. (Compl., at 5.) In the written complaint filed with the Equal Employment Opportunity Commission and attached to the complaint, Plaintiff stated:

Back in April of 2006, I told Shawn Westner that I need to be close to home because I was HIV positive and every [sic] since then I feel that they have been trying to make me quit and I have never been wrote [sic] up for any thing. I have sign [sic] a paper about Falsecation [sic] of fuel over 9 month [sic] ago, or longer.

I was told by Mr. Mike Neilson, if I wasn't going to take the load to Little Rock, Ark. I needed to take his truck to Conley yard in Conley Ga and get my things out of it.

I don't think I'm disable [sic]. I'm HIV Positive. By nothing [sic] this I feel this is the reason I was fired. I never had trouble until I told them. My immediate supervisor, Andy Rivera, new [sic] of this also and they all work in the same office. (EEOC Compl., at 2-3.) In the EEOC complaint, Plaintiff further indicated that in July 2006, she asked her employer for assistance or a change in working condition because of her disability:

I was running a deciated [sic] route from Mableton, Ga., to Orlando, Fla., and I had [a] heart attack in April and lost my deciated [sic] route and I ask [sic]

Mr. Westner to keep me close to home so I can be close to my doctor. He agree [sic]. (EEOC Compl., at 3.) She alleges that on January 2, 2007, "Mike Nielson fired me because I refuse [sic] to take a load." (EEOC Compl., at 2.)

The U.S. Supreme Court, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), clarified the standard to be ...


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