Caldwell v. Cellco Partnership

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Pursuant to Fed. R. Civ. P. 12

N.D. Ga.February 10, 2017

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION KARL A. CALDWELL, Plaintiff, v. CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS, Defendant. CIVIL ACTION NO. 1:16-cv-04522-CC-CMS DEFENDANT’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(6) Comes now Defendant Cellco Partnership d/b/a Verizon Wireless, and moves to dismiss Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that the Complaint fails to state a claim upon which relief may be granted. The grounds for the Motion appear more fully in the Memorandum which follows. WHEREFORE, Defendant respectfully requests that its Motion to Dismiss be granted, and that Plaintiff’s Complaint be dismissed. Dated February 10, 2017 /s/ Shella B. Neba Shella B. Neba Georgia Bar No. 305082 Case 1:16-cv-04522-CC-CMS Document 3 Filed 02/10/17 Page 1 of 3 2 Blaze R. Douglas Georgia Bar No. 198526 LITTLER MENDELSON, P.C. 3344 Peachtree Road N.E. Suite 1500 Atlanta, GA 30326.4803 404.233.0330 Attorneys for Defendant Cellco Partnership d/b/a Verizon Wireless Case 1:16-cv-04522-CC-CMS Document 3 Filed 02/10/17 Page 2 of 3 3 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION KARL A. CALDWELL, Plaintiff, v. CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS, Defendant. CIVIL ACTION NO. 1:16-cv-04522-CC-CMS CERTIFICATE OF SERVICE I hereby certify on this 10th day of February, 2017, I have electronically filed the foregoing DEFENDANT’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) using the Court’s ECF system, which will automatically generate notice to: Kirby G. Smith Amanda Brookhuis The Kirby G. Smith law Firm, LLC 5825 Glenridge Dr. Building 3, Suite 101A Atlanta, Georgia 30328 /s/ Shella B. Neba Shella B. Neba Firmwide:145630571.1 091790.1001 Case 1:16-cv-04522-CC-CMS Document 3 Filed 02/10/17 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION KARL A. CALDWELL, Plaintiff, v. CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS, Defendant. CIVIL ACTION NO. 1:16-cv-04522-CC-CMS DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(6) Comes now Defendant Cellco Partnership d/b/a Verizon Wireless (“Verizon” or “Defendant”), and in support of its Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) shows the Court as follows: I. INTRODUCTION Plaintiff Karl A. Caldwell (“Caldwell” or “Plaintiff”) filed this lawsuit on December 7, 2016, complaining of his separation from employment with Verizon as a “Supervisor” within the “Business/Government Customer Operations” group of Verizon’s “Customer Care Department” (“BCGO”) due to his misconduct in “improperly removing customers from surveys.” (Dkt. No. 1 (“Compl.”) ¶¶ 12, 41, 51-68.) Plaintiff does not deny that he committed the misconduct in question. Case 1:16-cv-04522-CC-CMS Document 3-1 Filed 02/10/17 Page 1 of 18 2 (See Compl. ¶¶ 23-28, 34-37 (alleging that, after he stated multiple times in a Verizon Human Resources investigation that he was “unaware of any supervisors using the [customer survey] process for statistical gain,” that he later admitted that he had discussed the removal of customers from customer surveys with another Verizon supervisor Francisco Feliz).) Furthermore, Plaintiff admits that Verizon employees who were not in his alleged protected categories were terminated for “the same alleged actions.” (See Compl. ¶¶ 41-43.) Nevertheless, Plaintiff vaguely suggests that his discharge constituted racial and gender discrimination allegedly in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). (Compl. ¶¶ 41, 51-68.) As illustrated above, Plaintiff’s Complaint contains a number of fatal flaws which prevent it from stating a plausible Title VII claim and which require its dismissal. Because Plaintiff fails to allege any facts from which it could be inferred, let alone established, that he was subjected to adverse employment action based on any Title VII protected classification, his Complaint does not “contain sufficient factual matter” to state a plausible discrimination claim under Title VII. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Accordingly, dismissal of Plaintiff’s Complaint is warranted under Federal Rule of Civil Procedure 12(b)(6). Case 1:16-cv-04522-CC-CMS Document 3-1 Filed 02/10/17 Page 2 of 18 3 II. FACTUAL ALLEGATIONS Plaintiff, a former Verizon BCGO Supervisor, filed the instant action asserting that he was discriminated against on the basis of his gender (male) and race (African American) when he was terminated for his involvement in a scheme to improperly remove Verizon customers-without obtaining their consent-from surveys regarding the quality of service they received from Mr. Caldwell’s department for the purpose of reducing negative feedback attributable to his group. (Compl. ¶¶ 8-10, 12, 21-25, 35-37, 41, 51-68.) Specifically, Plaintiff contends that in January 2015, Verizon Human Resources launched an investigation into allegations that he had improperly removed customers from surveys by falsely stating that they had “opted out” of the survey process. (Compl. ¶¶ 21-25.) Plaintiff admits that during this investigation he was specifically and repeatedly questioned regarding whether he had knowledge of other supervisors who inappropriately used the “opt out” process without customer authorization to reduce negative feedback attributable to their groups for statistical gain. (Compl. ¶ 25.) Plaintiff further admits that-at first-he denied having any such knowledge. (Id.) Plaintiff also admits that he later recanted, and reported to Verizon Human Resources that he had discussed the removal of customers from surveys with another Verizon supervisor, Francisco Feliz. (See Compl. ¶¶ 23-28, 34-37.) Case 1:16-cv-04522-CC-CMS Document 3-1 Filed 02/10/17 Page 3 of 18 4 Plaintiff’s Complaint then alleges that after he admitted to lying in the Human Resources investigation, he was discharged in connection with his conduct in “improperly removing customers from surveys.” (Compl. ¶ 41.) Plaintiff admits that other Verizon employees who committed “the same alleged actions,” however, were terminated without exception, and acknowledges that these employees were of various other races including Caucasian employees and Mr. Feliz, who is Hispanic. (Compl. ¶¶ 41-43.) Furthermore, Plaintiff’s Complaint is completely devoid of any allegations concerning disparate treatment based upon gender. Nevertheless, Plaintiff inexplicably contends that his own termination was the result of race and gender discrimination in violation of Title VII. (Compl. ¶¶ 51-68.) As outlined below, however, Plaintiff’s Complaint is due to be dismissed, as he has not plausibly alleged facts which could indicate that any intentional disparate treatment occurred based upon his race and gender. III. LEGAL STANDARD Under Fed. R. Civ. P. 8(a)(2), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” A Rule 12(b)(6) motion tests the legal sufficiency of the complaint, Papasan v. Allain, 478 U.S. 265, 283 (1986), and a complaint that fails to state a claim for relief must be dismissed. Fed. R. Civ. P. 12(b)(6). In Iqbal and Bell Atlantic Corp. v. Twombly, Case 1:16-cv-04522-CC-CMS Document 3-1 Filed 02/10/17 Page 4 of 18 5 550 U.S. 544 (2007), the Supreme Court expounded on the standard courts should apply for assessing the adequacy of the pleadings under Rule 8. “To survive a motion to dismiss, a complaint must contain sufficient factual material, accepted as true, to ‘state a claim to relief that is plausible on its face.”‘ Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). The requirement that a complaint contain sufficient factual material “demands more than an unadorned, the-defendant- unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice . . . [and] does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79. [A] complaint . . . does not need detailed factual allegations, [but] a plaintiff’s obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . Factual allegations must be enough to raise a right to relief above the speculative level . . . Twombly, 550 U.S. at 555. For well-pleaded factual matters to establish a claim that is “plausible on its face,” the facts must do more than simply support the “mere possibility of misconduct;” rather, and consistent with the language of Rule 8, the facts must “show[]” the pleader is entitled to relief. Iqbal, 556 U.S. at 679; Twombly, 550 Case 1:16-cv-04522-CC-CMS Document 3-1 Filed 02/10/17 Page 5 of 18 6 U.S. at 556 n.3 (“Rule 8(a)(2) ... requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.”). A 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. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.”‘ Iqbal, 556 U.S. at 663-64 (citations omitted); Twombly, 550 U.S. at 570 (noting that complaints must allege sufficient facts to “nudge their claims across the line from conceivable to plausible”). A two-pronged approach is utilized to analyze the sufficiency of a complaint. A court “begin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 129 556 U.S. at 664. Secondly, having then identified “well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. “Applied to a Title VII claim, Iqbal and Twombly require more than a mere recitation of the components of a prima facie case; a plaintiff may not merely allege, for example, that other employees similarly situated but [but outside of his protected class] received more favorable treatment.” Baker v. Hafez Corp., 2014 Case 1:16-cv-04522-CC-CMS Document 3-1 Filed 02/10/17 Page 6 of 18 7 WL 1760976, at *8 (S.D. Ala. May 2, 2014). “Instead, a plaintiff must provide enough factual content, explaining how the disparate treatment occurred, to give rise to an inference of discrimination and, therefore, nudge the discrimination claim across the line from conceivable to plausible.” Id.; see also Phillips v. City of Atlanta, 2016 WL 5429668, at *8 (N.D. Ga. July 29, 2016), report and recommendation adopted, 2016 WL 5394116 (N.D. Ga. Sept. 27, 2016). Furthermore, “factual allegations must not be merely formulaic recitations of elements of a discrimination claim, but must instead provide enough content to suggest there was intentional discrimination based on a protected trait.” Baker, 2014 WL 1760976, at *9. As further explained below, Plaintiff’s Complaint fails to comply with these pleading standards. IV. ARGUMENT A. Plaintiff Fails to Plead Facts That Would State a Plausible Prima Facie Title VII Claim. In this action, Plaintiff has asserted racial and gender-based disparate treatment claims based upon a discriminatory discharge theory of recovery. (Compl. ¶¶ 51-68.) Courts analyze Title VII discriminatory discharge claims under the McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). To begin, the plaintiff must establish a prima facie case of discrimination by demonstrating that (1) he is a Case 1:16-cv-04522-CC-CMS Document 3-1 Filed 02/10/17 Page 7 of 18 8 member of a protected class, (2) he was qualified for the job, (3) he suffered an adverse employment action, and (4) a similarly situated individual outside his protected class was treated more favorably. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997) (describing the McDonnell Douglas analysis as it pertains to racial discrimination claims); Clemons v. Delta Air Lines Inc., 625 F. App’x 941, 944 (11th Cir. 2015) (applying the above-referenced elements to a Title VII gender discrimination claim). Furthermore, to withstand a motion to dismiss, a plaintiff’s complaint “must provide ‘enough factual matter (taken as true) to suggest’ intentional . . . discrimination.” Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir. 2008) (quoting Twombly, 550 U.S. at 556); Ricci v. DeStefano, 557 U.S. 557, 577 (2009) (“A disparate-treatment plaintiff must establish ‘that the defendant had a discriminatory intent or motive’ for taking a job- related action”); Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (“liability depends on whether the protected trait . . . actually motivated the employer’s decision”). As illustrated below, however, Plaintiff’s Complaint is devoid of the factual elaboration required to plausibly allege a violation of Title VII in this manner and, therefore, is due to be dismissed in its entirety. Case 1:16-cv-04522-CC-CMS Document 3-1 Filed 02/10/17 Page 8 of 18 9 1. Plaintiff’s conclusory allegations are not entitled to an assumption of truth. The vast majority of Plaintiff’s allegations relating to race and gender discrimination are patently no more than mere conclusions, devoid of any factual enhancement. (See, e.g., Compl. ¶¶ 42-46 (asserting without factual support that a Caucasian employee was not investigated or terminated until after three employees who “appear[ed]” to be “African American” were investigated); ¶¶ 54, 63 (“Paragraphs 29-30 provide direct evidence of discrimination.” 1 ); ¶¶ 55, 64 (“Paragraphs 39-48 provide evidence establishing discriminatory animus.”); ¶¶ 56, 65 (“Defendant’s business reason for their actions is illegitimate as detailed in Paragraphs 1-50.”). These generic, conclusory allegations simply amount to “formulaic recitations of elements of a discrimination claim” which fail to state a claim to Title VII relief that is plausible on its face. Baker, 2014 WL 1760976, at *9; see also Iqbal, 556 U.S. at 678-79. As a result, for the purposes of this Motion, they are not assumed to be true, thereby subjecting the Complaint to dismissal. See id. 1 Notably, “remarks by non-decision makers or remarks unrelated to the decision- making process itself are not direct evidence of discrimination.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.1998). As Plaintiff’s Complaint completely fails to identify the alleged decision-maker involved in his termination, and similarly fails to attribute any remarks to an identifiable decision- maker, he has failed to plausibly allege any direct evidence of discrimination. See id.; Steinberg v. Donahoe, 2014 WL 1356711, at *9 (S.D. Fla. Apr. 7, 2014). Case 1:16-cv-04522-CC-CMS Document 3-1 Filed 02/10/17 Page 9 of 18 10 2. Plaintiff’s remaining allegations fail to plausibly show that he is entitled to relief under Title VII. When culled of these conclusory allegations, Caldwell’s discrimination claim boils down to his contentions that: (1) he was separated from employment with Verizon after he untruthfully stated multiple times during a Human Resources investigation that he was “unaware of any supervisors using the [customer survey] process for statistical gain;” (2) that he later admitted that he had discussed the inappropriate, unilateral removal of customers from customer surveys with another Verizon supervisor, Francisco Feliz; and (3) that Plaintiff allegedly “had not been disciplined” prior to said termination. (See Compl. ¶¶ 23-28, 34-41.) These allegations nonetheless do not advance Plaintiff’s discrimination claim beyond the merely possible for several reasons. a. Plaintiff fails to sufficiently plead the existence of any valid comparators or to contend that he was qualified for his position.2 First, Plaintiff did not set forth any facts in his Complaint concerning Defendant’s allegedly more favorable treatment of other employees sufficient to raise the inference of race or gender discrimination, such as specifically identifying 2 Plaintiff’s Complaint is utterly devoid of any allegations establishing that he was qualified for his position at the time of his termination. As is further demonstrated below, Plaintiff’s lack of factual elaboration to support this and the other elements of his claim underscore the lack of plausibility of his asserted causes of action under Title VII. Case 1:16-cv-04522-CC-CMS Document 3-1 Filed 02/10/17 Page 10 of 18 11 the other employees and the relevant decisionmakers, and including facts that show that the other employees held positions similar to Plaintiff’s. (See Compl. ¶¶ 42-43 (simply stating that Plaintiff “is aware of four people who were terminated for the same alleged actions,” and that these “individuals are African-American in appearance, 3 and one individual is Caucasian) (emphasis added).) Indeed, “[c]onclusory allegations that an employer treated an employee differently than similarly situated employees of another race ‘epitomize[] speculation and therefore [do] not amount to a short and plain statement of [the] claim under Rule 8.” Bradford v. Regions Fin. Corp., 2013 WL 3381375, at *2 (N.D.Ala. July 8, 2013) (citing Davis, 516 F.3d at 974.) Instead, in order to survive a motion to dismiss, Plaintiff must point to allegations in his Complaint containing factual elaboration demonstrating that the employee he contends was more favorably treated was actually similarly situated to him. This he cannot do. Courts in the Eleventh Circuit have held that “in a comparator analysis, the plaintiff is matched with a person or persons who have very similar job-related characteristics and [are] in a similar situation to determine if the plaintiff has been treated differently than others who are similar to him.” Caraway v. Sec’y, United 3 Notably, even when accepted as true for the sole purposes of evaluating the Complaint upon Fed. R. Civ. P. 12(b)(6) grounds, this allegation does not establish that the unidentified individuals actually are members of Plaintiff’s race, but instead only indicates that he suspects that they might be African American. Case 1:16-cv-04522-CC-CMS Document 3-1 Filed 02/10/17 Page 11 of 18 12 States Dep’t of Trans., 550 F. App’x 704, 709 (11th Cir. 2013) (quoting MacPherson v. Univ. of Montevallo, 922 F.2d 766, 774 n. 16 (11th Cir.1991)). In the present matter, Plaintiff has not alleged facts to show that other non-African American employees were similarly situated to him, and engaged in misconduct “nearly identical” to the misconduct upon which Plaintiff’s termination was premised-namely his untruthful denial of any knowledge of Verizon “supervisors using the [customer survey] process for statistical gain,” and his own involvement in the unauthorized removal of customers from surveys-but were not terminated. Precedent is clear that in the absence of such factual enhancement, Plaintiff’s conclusory allegations are insufficient to state a claim of race or gender discrimination. See e.g., Caraway, 550 F. App’x at 709-10 (dismissing complaint on 12(b)(6) grounds where plaintiffs did not allege facts that showed that other employees were proper comparators where, among other things, purported comparators were non-supervisory employees represented by a union, and plaintiffs were non-union supervisory employees); Hale v. Mingledorff, 2014 WL 7012772, at *13-14 (N.D. Ga. Dec. 11, 2014) (dismissing complaint for failure to state a Title VII race claim where complaint did not contain factual elaboration demonstrating that the alleged comparators engaged in “nearly identical” misconduct); Hopkins v. St. Lucie Cty. School Bd., 339 F. App’x 563, 566 (11th Case 1:16-cv-04522-CC-CMS Document 3-1 Filed 02/10/17 Page 12 of 18 13 Cir. 2010) (affirming grant of motion to dismiss Title VII discrimination claim where plaintiff “provides no facts that would allow a court to infer that the school district treated those outside the class of African-American males more favorably”); Eason v. Evans Cty. Bd. of Comm’rs, 2013 WL 5674497, at *2-3 (S.D. Ga. Oct. 17, 2013) (finding that plaintiff’s “allegation that the County accommodated disabled males is nothing more than a bare assertion that amounts to a ‘formulaic recitation of the elements of a constitutional discrimination claim,’ namely, that Defendants treated males similarly situated to Eason differently than her,” and “[a]s such, the allegation is conclusory and not entitled to be assumed true” (internal quotations omitted)); McCray v. Auburn Univ. Montgomery, 2011 WL 6140993, at *4 (M.D. Ala. Dec. 8, 2011); cf. Steinberg, 2014 WL 1356711, at *9 (S.D. Fla. Apr. 7, 2014) (finding that plaintiff failed to state a disparate treatment claim where plaintiff did “not adequately allege that he was treated less favorably than similarly situated employees who were not Jewish,” and “offer[ed] nothing more than a conclusory statement that he was denied benefits ‘while other non-Jewish employees were not so denied’”). Thus, Plaintiff’s failure to allege any facts indicating the existence of similarly situated comparators counsels dismissal of his race and gender discrimination claims. Case 1:16-cv-04522-CC-CMS Document 3-1 Filed 02/10/17 Page 13 of 18 14 b. Plaintiff’s Complaint does not plausibly allege even an inference of intentional discrimination. (1) Plaintiff’s Complaint contains no gender-based allegations. At a basic level, Plaintiff’s claim of discriminatory discharge based upon his gender requires him to plausibly allege that Verizon terminated him due to the fact that he is male. See Ricci, 557 U.S. at 577 (“A disparate-treatment plaintiff must establish ‘that the defendant had a discriminatory intent or motive’ for taking a job- related action”); Hazen Paper, 507 U.S. at 610 (“liability depends on whether the protected trait . . . actually motivated the employer’s decision”). Plaintiff’s Complaint, however, does not set forth any facts whatsoever regarding what role he contends his gender played in Verizon’s decision to terminate his employment. (See Compl. ¶¶ 60-68.) Notably, other than asserting that he is male and that his supervisor at the time of his termination, Alice Beringer, is female, he does not provide any factual elaboration to support a conclusion that he was terminated because of his gender. (See Compl. ¶¶ 14, 60-68.) Plaintiff has thus utterly failed to comply with his procedural requirement to “show” rather than simply “assert” that he is entitled to relief under Title VII for his claim of discriminatory discharge based upon gender. See Twombly, 550 U.S. at 556 n.3 (“Rule 8(a)(2) . . . requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.”). Moreover, his Case 1:16-cv-04522-CC-CMS Document 3-1 Filed 02/10/17 Page 14 of 18 15 Complaint does not provide any facts-let alone sufficient facts-to “nudge [this] claim[] across the line from conceivable to plausible.” Id. at 570. Plaintiff’s failure to define his gender discrimination claim “by setting forth enough factual matter taken as true to suggest intentional discrimination requires dismissal” of this claim. Chen v. Siemens Energy Inc., 2011 WL 1899254, at *3 (M.D. Fla. May 3, 2011) (citation omitted). (2) Plaintiff’s Complaint establishes that his termination was not the result of disparate treatment based upon race. Plaintiff’s claim of race-based discrimination is similarly fundamentally flawed. Even when construed as generously in his favor as possible, the allegations of his Complaint establish his admission that Verizon applied consistent discipline to non-African American employees, who Plaintiff contends-in a conclusory manner-committed “the same alleged actions.” (Compl. ¶ 42.) Specifically, Plaintiff alleges that a Caucasian employee was also terminated as a result of committing similar misconduct. Although Plaintiff contends in a conclusory manner that “[t]he Caucasian individual was given an opportunity to respond to the charges against him,” Plaintiff’s Complaint makes clear the fact Caldwell was similarly also provided with numerous opportunities to respond to the allegations against him. (Compare Compl. ¶¶ 46 (asserting that a Case 1:16-cv-04522-CC-CMS Document 3-1 Filed 02/10/17 Page 15 of 18 16 Caucasian employee was provided with an opportunity to respond regarding alleged misconduct), with Compl. ¶¶ 21-25, 34-36 (asserting that Plaintiff was provided at least two opportunities to meet with Verizon Human Resources to discuss the inappropriate removal of customers from surveys, and was allowed to provide additional information by telephone).) It is axiomatic that in order to plausibly allege a discriminatory discharge claim under Title VII based upon race, that a plaintiff must at least establish that some difference in treatment occurred based upon race. Instead, Plaintiff’s Complaint establishes that no disparate treatment occurred. Thus, the Complaint does not “contain sufficient factual matter to support a reasonable inference” of Title VII race discrimination, and is therefore due to be dismissed. See Ashmore v. F.A.A., 2011 WL 3915752, at *4 (S.D. Fla. Sept. 2, 2011). V. CONCLUSION For the reasons stated above, Defendant’s Motion to Dismiss should be granted and Plaintiff’s Complaint should be dismissed with prejudice. Respectfully submitted this 10th day of February, 2017. /s/ Shella B. Neba Shella B. Neba Georgia Bar No. 305082 Blaze R. Douglas Georgia Bar No. 198526 Case 1:16-cv-04522-CC-CMS Document 3-1 Filed 02/10/17 Page 16 of 18 17 LITTLER MENDELSON, P.C. 3344 Peachtree Road N.E. Suite 1500 Atlanta, GA 30326.4803 404.233.0330 Attorneys for Defendant Cellco Partnership d/b/a Verizon Wireless Case 1:16-cv-04522-CC-CMS Document 3-1 Filed 02/10/17 Page 17 of 18 18 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION KARL A. CALDWELL, Plaintiff, v. CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS, Defendant. CIVIL ACTION NO. 1:16-cv-04522-CC-CMS CERTIFICATE OF SERVICE I hereby certify on this 10th day of February, 2017, I have electronically filed the foregoing DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) using the Court’s ECF system, which will automatically generate notice to: Kirby G. Smith Amanda Brookhuis The Kirby G. Smith law Firm, LLC 5825 Glenridge Dr. Building 3, Suite 101A Atlanta, Georgia 30328 /s/ Shella B. Neba Shella B. Neba Firmwide:145630608.7 091790.1001 Case 1:16-cv-04522-CC-CMS Document 3-1 Filed 02/10/17 Page 18 of 18