Davis v. Sam's West Inc

MOTION to Dismiss Plaintiff's Complaint, MOTION for More Definite Statement

M.D. Ga.February 21, 2017

IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA MACON DIVISION ALISA S. “DUSTY” DAVIS, Plaintiff, v. SAM’S WEST, INC., a.k.a. SAM’S CLUB, Defendant. CIVIL ACTION NO. 5:16-cv-00555-LJA DEFENDANT’S MOTION AND INCORPORATED MEMORANDUM OF LAW TO DISMISS OR, IN THE ALTERNATIVE, FOR MORE DEFINITE STATEMENT Defendant Sam’s East, Inc. (“Sam’s”), by and through its undersigned counsel and pursuant to Fed. R. Civ. P. 12(b)(6) and 12(e),1 hereby files this Motion to Dismiss or, in the Alternative, for More Definite Statement. Plaintiff Alisa S. “Dusty” Davis’ (“Plaintiff”) Complaint fails to state a claim upon which relief can be granted and is so vague that Sam’s cannot reasonably be expected to frame a responsive pleading. Accordingly, Sam’s respectfully requests that the Court dismiss Plaintiff’s Complaint in its entirety. Alternatively, Sam’s requests that the Court enter an Order requiring Plaintiff to provide a more definite statement of her claim(s). 1 Because Sam’s moves to dismiss the Complaint in its entirety pursuant to Fed. R. Civ. P. 12(b)(6) and/or for a more definite statement pursuant to Fed. R. Civ. P. 12(e), Sam’s deadline to answer is stayed until after this Court rules on this Motion. See Fed. R. Civ. P. 12(a)(4) (“[S]erving a motion under this rule alters [the time for serving a responsive pleading] as follows: (A) if the court denies the motion . . . the responsive pleading must be served within 14 days after notice of the court’s action; or (B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.”); Lawrence v. Bank of America, N.A., 2016 WL 6678060, at *17 (N.D. Ga. June 23, 2016) (“[A]ny Defendant who has filed a Motion to Dismiss is not required to file an Answer until the Court issues a final ruling on its Motion to Dismiss that is not dispositive of all claims.”); Abrams v. CIBA Specialty Chems. Corp., 2008 WL 4183344, at *2 n.4 (S.D. Ala. Sept. 10, 2008) (“The Federal Rules of Civil Procedure are quite clear that the filing of a motion to dismiss or a motion for more definite statement extends the deadline for filing an answer.”). Case 5:16-cv-00555-LJA Document 4 Filed 02/21/17 Page 1 of 12 2 I. FACTUAL BACKGROUND On December 19, 2016, Plaintiff filed her Complaint against Sam’s, purporting to bring a claim for “Race Discrimination-Job/Work Assignments, Termination and Working in a Racially Hostile Work Environment,” apparently pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended (“Title VII”), and/or 42 U.S.C. § 1981 (“Section 1981”). (See Dkt. No. 1.) It is unclear from the Complaint whether Plaintiff brings only a race discrimination claim under Title VII and/or Section 1981, or if she also asserts a race-based harassment claim under Title VII and/or Section 1981. It is also unclear from the Complaint whether Plaintiff asserts a pay-related claim, and if so, under what statute(s). It is equally unclear from the Complaint what alleged act(s) and/or omission(s) Defendant committed that form the basis(es) of Plaintiff’s claim(s), other than the termination of her employment. Furthermore, Plaintiff does not plead that her termination or any other alleged adverse employment actions occurred because of her race. Nor does Plaintiff allege in her Complaint that any other employee was treated more favorably than her, much less a similarly-situated employee outside of her protected class, as required for a discrimination claim. As such, Plaintiff has failed to state any facially-plausible claim for relief under Fed. R. Civ. P. 12(b)(6), and the Complaint should be dismissed in its entirety. Alternatively, the Court should order Plaintiff to provide a more definite statement of her claim(s). II. ARGUMENT AND AUTHORITY A. Standard for Dismissal under Fed. R. Civ. P. 12(b)(6). Pursuant to 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.” Fed. R. Civ. P. 12(b)(6) provides for dismissal of a pleading that does not state a claim upon which the Court may grant relief. To Case 5:16-cv-00555-LJA Document 4 Filed 02/21/17 Page 2 of 12 3 survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain sufficient factual content from which the Court may draw a reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“[A] plaintiff’s obligation to provide the ‘grounds’ of [her] ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”). In ruling on a motion to dismiss, the Court must accept the factual allegations in the complaint as true and evaluate all inferences derived from those facts in the light most favorable to the plaintiff. See Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994). While facts must be accepted as alleged, the same is not true with respect to bald assertions, subjective characterizations, or legal conclusions. Iqbal, 556 U.S. at 687 (reversing denial of motion to dismiss for failure to state a claim upon finding that, after conclusory allegations were disregarded, the remaining allegations failed to plausibly establish a claim of discrimination). A plaintiff must allege sufficient facts “‘to raise a right to relief above the speculative level.’” Burnett v. City of Jacksonville, FL, 376 F. App’x 905, 906 (11th Cir. 2010) (quoting Twombly, 550 U.S. at 555). B. Plaintiff’s Complaint Does Not State Plausible Claims of Race Discrimination and/or Harassment Under Either Title VII or Section 1981. 1. Plaintiff Did Not Allege Facts Sufficient to Even Suggest Intentional Race Discrimination; Thus, Her Claim Should Be Dismissed. As a threshold matter, as to all of Plaintiff’s claims, Plaintiff’s Complaint does not even set forth the bare minimum prima facie case to support her claims. Although a plaintiff need not fully prove every aspect of her claims in a complaint, she must at least do this minimum to make her claims plausible. Plaintiff has not done so, nor can she. Case 5:16-cv-00555-LJA Document 4 Filed 02/21/17 Page 3 of 12 4 To establish a prima facie case of race discrimination under Title VII or Section 1981, Plaintiff must show that: (1) she is a member of a protected class, (2) she suffered an adverse employment action, (3) the employer replaced her with someone outside her protected class, or otherwise treated similarly-situated employees outside her protected class more favorably, and (4) she was qualified to perform the duties of her job.2 See Bowens-Thomas v. Alabama Coop. Extension Sys., 2016 WL 8193625, at *4 (M.D. Ala. Nov. 9, 2016), report and recommendation adopted, 2017 WL 459866 (M.D. Ala. Feb. 2, 2017) (citing Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1228 (11th Cir. 2002); Crapp v. City of Miami Beach, 242 F.3d 1017, 1020 (11th Cir. 2001); Nix v. WLCY Radio/Rahall Comm’ns, 738 F.2d 1181, 1185 (11th Cir. 1984)). “Although a Title VII complaint need not allege facts sufficient to make out a classic McDonnell Douglas prima facie case, it must provide ‘enough factual matter (taken as true) to suggest’ intentional race discrimination.” Id. (quoting Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir. 2008)). Here, the Complaint sufficiently alleges that Plaintiff is a member of a protected class (i.e., she is Caucasian (Compl. ¶ 3)) and suffered an adverse employment action (i.e., termination of employment (Compl. ¶ 14)). Thus, Plaintiff alleged sufficient facts satisfying the first and second elements of her race discrimination claim. However, in the Complaint, Plaintiff alleged no facts indicating that she was qualified to perform the duties of her job, or that Sam’s replaced her with someone outside of her protected class or otherwise treated similarly-situated employees outside of her protected class more favorably. Instead, Plaintiff conclusively alleges that she was “discriminated against because of 2 The analysis of a disparate treatment claim is the same whether that claim is brought under Title VII or Section 1981. See Green v. Savage of Georgia, LLC, 2015 WL 5120241, at *3 (M.D. Ga. Aug. 27, 2015) (J. Abrams) (citing Hopkins v. Saint Lucie Cnty. Sch. Bd., 399 F. App’x 563, 565 (11th Cir.2010)). Case 5:16-cv-00555-LJA Document 4 Filed 02/21/17 Page 4 of 12 5 her race” (Compl. ¶ 6); “discriminatorily terminated” (Compl. ¶ 7); treated “differently because of her race, Caucasian” (Compl. ¶ 8); and Sam’s “proffered reasons for plaintiff’s termination were pretext for race discrimination” (Compl. ¶ 15). Plaintiff utterly fails to explain how her discharge (or any other alleged adverse employment action) was motivated by racial animus. See Green, 2015 WL 5120241, at *4 (citing Alvarez v. Royal Atl Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010)) (a court’s “sole concern is whether [an] unlawful discriminatory animus motivated the decision”). Plaintiff thus fails to provide even a formulaic recitation of the elements of any identifiable claim. Because Plaintiff’s Complaint is completely devoid of factual assertions that can be construed in her favor as even suggesting intentional race discrimination by Sam’s, Plaintiff’s Title VII and Section 1981 claims of race discrimination are due to be dismissed for failure to state a claim under Fed. R. Civ. P. 12(b)(6). See Green, 2015 WL 5120241, at *3-4 (dismissing Title VII and Section 1981 race discrimination claims for failure to state a claim); Bowens- Thomas , 2016 WL 8193625, at *4 (same); see also Hopkins v. St. Lucie Cnty. Sch. Bd., 399 F. App’x 563, 566 (11th 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”); Hicks v. Bd. of Regents of the Univ. Sys. of Ga., 2011 WL 6300542, at *2 (M.D. Ga. Dec. 16, 2011) (holding that plaintiff, who alleged only that “the individuals named in his Complaint did not give him the same treatment as other employees on several occasions[,]” failed to state a claim for Title VII discrimination and harassment); Washington v. Sprint Food Stores, Inc., 2010 WL 5463137, *2 (N.D. Ga. Dec. 2, 2010) (granting motion to dismiss race discrimination action where plaintiff failed to allege any facts to suggest he was treated less favorably than a similarly situated person Case 5:16-cv-00555-LJA Document 4 Filed 02/21/17 Page 5 of 12 6 outside of the protected class); Howell v. Douglas Cnty. Sch. Dist., 2009 WL 196084, *11 (N.D. Ga. Jan. 23, 2009) (granting motion to dismiss Title VII and Section 1981 claims where plaintiff “failed to identify any similarly situated employee outside his protected classification whom the [employer] treated more favorably than it treated him”). 2. A Change in Job Assignment Does Not Constitute An Adverse Employment Action, And Any Claim Based on the Same Should Be Dismissed. Furthermore, to the extent Plaintiff alleges she was discriminated against because she was tasked with additional assignments and/or assignments outside her department, such assignment changes do not in and of themselves constitute adverse employment actions for purposes of a discrimination claim. “Changes to an employee’s work assignments are rarely sufficiently ‘adverse’ to warrant scrutiny under the anti-discrimination laws.” Diaz v. AIG Mktg., Inc., 396 F. App’x 664, 667 (11th Cir. 2010) (“neither assigning Diaz to the Fort Lauderdale area nor increasing his workload was an adverse employment action. It is not our role to second-guess AIG’s business decisions”) (citing Davis v. Town of Lake Park, 245 F.3d 1232, 1244 (11th Cir. 2001)); see also Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1233 (11th Cir. 2006) (“Title VII discrimination claims must allege ‘ultimate employment decisions.”’). “An adverse employment action is one that involves ‘a serious and material change in the terms, conditions, or privileges of employment.’” Nash v. Palm Beach Cnty. Sch. Dist., 469 F. App’x 712, 714 (11th Cir. Feb. 16, 2012) (quoting Davis, 245 F.3d at 1239) (emphasis in original). “‘[T]he employee’s subjective view of the significance and adversity of the employer’s action is not controlling; the employment action must be materially adverse as viewed by a reasonable person in the circumstances.’” Id. An adverse employment action may exist “if it involves a reduction in pay, prestige or responsibility.” Id. (citing Hinson v. Clinch Cnty. Bd. of Case 5:16-cv-00555-LJA Document 4 Filed 02/21/17 Page 6 of 12 7 Educ., 231 F.3d 821, 829 (11th Cir. 2000).) “In the vast majority of cases, however, a temporary change in work assignment that creates no tangible harm and does not alter the employee’s permanent job title, is not legally adverse.” Id. (citing Davis, 245 F.3d at 1245.) Plaintiff claims only that she was required to complete work assignments in both her own department and others. She does not allege any “reduction in pay, prestige or responsibility.” Her “subjective viewpoint is not controlling,” and she has failed to plead any conduct that a reasonable person would consider materially adverse. Nash, 469 F. App’x at 714 (failure to show tangible harm resulting from transfer where plaintiff conceded he retained the same salary, benefits, job responsibilities and work days) (citing Davis, 245 F.3d at 1239.) The Eleventh Circuit continues to hold that shift assignments are not materially adverse employment actions and therefore not a basis for a discrimination claim, and Sam’s requests that this Court find the same. See McCone v. Pitney Bowes, Inc., 582 F. App’x 798, 800 (11th Cir. 2014) (granting motion to dismiss discrimination claim based on change in employee’s work assignment for failure to allege adverse employment action); Jackson v. Hall Cnty. Gov’t, 518 F. App’x 771, 773 (11th Cir. 2013) (plaintiff’s discrimination and retaliation claims based on his shift assignments failed as matter of law). 3. Plaintiff Does Not Allege Conduct That Rises to the Level of Severe or Pervasive Harassment as a Matter of Law; Thus, Any Alleged Harassment Claim Should Be Dismissed. While unclear from the Complaint, to the extent Plaintiff asserts a hostile work environment claim, such claim should also be dismissed for failure to state a claim under Fed. R. Civ. P. 12(b)(6). In order to plead a plausible hostile work environment claim under Title VII or Section 1981, a plaintiff must allege that: (1) she is a member of a protected class; (2) she was subjected to unwanted harassment on the basis of that protected characteristic; (3) the harassment was Case 5:16-cv-00555-LJA Document 4 Filed 02/21/17 Page 7 of 12 8 sufficiently severe or pervasive to alter the terms and conditions of her employment and create a discriminatorily abusive working environment; and (4) that there is a basis for holding his employer liable. McCann v. Tillman, 526 F.3d 1370, 1378 (11th Cir.), cert. denied, 555 U.S. 944 (2008). Plaintiff’s only factual allegations regarding her supposed harassment appear to relate to her being assigned to other departments, asked to perform additional duties outside her hours, and receiving no pay for these additional duties. (Compl. ¶¶ 9-13.) In her Complaint, Plaintiff did not allege any fact showing that the alleged harassment was on account of her race, nor did she allege any fact establishing that the harassment was sufficiently severe or pervasive to alter the terms and conditions of her employment. Title VII and Section 1918 are not general civility codes. Thompson v. City of Miami Beach, Fla., 990 F. Supp. 2d 1335, 1341 (S.D. Fla. 2014). Thus, Plaintiff’s failure to plead that the alleged harassment was race-related and severe or pervasive, any alleged harassment claim Plaintiff purports to assert in this case should be dismissed. See id. at 1340-41 (dismissing Title VII race-based harassment claim where plaintiff did not sufficiently plead that the alleged harassment was race-based or so severe or pervasive as to alter the terms and conditions of her employment); see also Alhallaq v. Radha Soami Trading, LLC, 484 F. App’x 293, 296 (11th Cir. 2012) (same, but in the context of alleged religious harassment). C. Alternatively, Plaintiff Should Be Ordered to File a More Definite Statement Under Fed. R. Civ. P. 12(e). A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief” and also show that the pleader provided their opponent with fair notice of their claim and the grounds upon which it rests. See FED. R. CIV. P. 8(a)(2), 10(b); see also Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 984 (11th Cir. 2008) (noting that a Case 5:16-cv-00555-LJA Document 4 Filed 02/21/17 Page 8 of 12 9 defendant must be able to understand the cause(s) of action the plaintiff asserts in order to frame a responsive pleading) (abrogated on other grounds by Iqbal). In Twombly, the U.S. Supreme Court clarified the degree of support required in a pleading under Fed. R. Civ. P. 8(a) and adopted a “plausibility” standard. See Twombly at 1966. The plausibility standard requires that the pleader do more than use conclusory language to establish a cause of action - the pleader must show that his factual allegations “possess enough heft” to establish entitlement to relief (and, thus, to permit the costly process of litigation to continue). See id. Accordingly, a plaintiff must allege enough facts to raise his claims beyond mere speculation and must “nudge[] [his] claims across the line from conceivable to plausible.” See id. at 1974. The Eleventh Circuit analyzed this “plausibility” standard where discrimination is alleged. In Davis, African-American employees brought suit to recover under Title VII and Section 1981 for their employer’s alleged race discrimination and retaliatory acts. The Eleventh Circuit held that the conclusory allegations in the African-American employees’ complaint, i.e., that they were “denied promotions and treated differently than similarly situated white employees solely because of race,” were insufficient to satisfy the “notice” pleading standard under Twombly. Davis, 516 F.3d at 975. In particular, the court found that the plaintiffs’ allegations would not put the employer on notice that employees were complaining of the fact that Caucasian employees, rather than African-American complainants, were hired for two supervisory positions pursuant to the employer’s allegedly discriminatory policy of filling the positions by word of mouth without any formal posting. See id. at 974. The court further noted that plaintiffs were aware of these two hirings before they filed their complaint and, by specifically citing these hirings, could have raised their right to relief above level of speculation. See id. at 975. Case 5:16-cv-00555-LJA Document 4 Filed 02/21/17 Page 9 of 12 10 Here, Plaintiff fails to identify any claim with sufficient clarity to enable Sam’s to frame a responsive pleading. Indeed, the legal basis that constitutes Plaintiff’s entire Complaint is so vague and ambiguous that Sam’s does not know how to best respond to Plaintiff’s allegations. As noted above, it is impossible to determine with certainty Plaintiff’s claim(s) against Sam’s. In addition to her discrimination claim, is Plaintiff asserting a racial harassment claim? Although Plaintiff alleges that she was discriminated against, she conflates several possible issues and/or causes of action in doing so, making it difficult to determine the exact nature of her claim(s). As such, Plaintiff’s Complaint fails to provide Sam’s with “fair notice of what his claim is and the grounds upon which it rests” and leaves Sam’s in the position of guessing, to its peril, what Plaintiff’s claims are. Sam’s is entitled to know the claims that are being asserted against it, as well as the “allegations of fact [that] are intended to support [Plaintiff’s] claim(s) for relief.” See Anderson v. Dist. Bd. of Trs. of Century, Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996). Plaintiff’s pleading not only confounds Sam’s “efforts to fashion a responsive pleading,” but it also “impermissibly force[s] the court to ‘sift through the facts presented and decide for [itself] which were material to the particular cause of action asserted.’” Streeter v. City of Pensacola, 2007 WL 809786, * (N.D. Fla. March 15, 2007) (quoting Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1296, n.9 (11th Cir. 2002)). As such, should the Court decide not to dismiss the Complaint in its entirety, Plaintiff should be required to provide a more definite statement of her claim(s). See Davis, 516 F.3d at 979. III. CONCLUSION For all of the above reasons, Sam’s respectfully requests that the Court grant Defendant’s Motion to Dismiss, and dismiss Plaintiff’s Complaint in its entirety, with prejudice. Case 5:16-cv-00555-LJA Document 4 Filed 02/21/17 Page 10 of 12 11 Alternatively, Sam’s requests that the Court issue an Order requiring Plaintiff to provide a more definite statement of her claim(s). Respectfully submitted, this 21st day of February, 2017. /s/ Amy M. Palesch Amy M. Palesch Georgia Bar No. 866827 apalesch@littler.com LITTLER MENDELSON, P.C. 3344 Peachtree Road N.E., Suite 1500 Atlanta, GA 30326.4803 Telephone: 404-233-0330 Facsimile: 404-233-2361 Molly M. Shah Admitted pro hac vice mmshah@littler.com LITTLER MENDELSON, P.C. 100 N. Tryon Street, Suite 4150 Charlotte, NC 28202 Telephone: 704-972-7000 Facsimile: 704-333-4005 Attorneys for Defendant Sam’s East, Inc. Case 5:16-cv-00555-LJA Document 4 Filed 02/21/17 Page 11 of 12 12 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA MACON DIVISION ALISA S. “DUSTY” DAVIS, Plaintiff, v. SAM’S WEST, INC., a.k.a. SAM’S CLUB, Defendant. CIVIL ACTION NO. 5:16-cv-00555-LJA CERTIFICATE OF SERVICE I hereby certify that I have on this 21st day of February, 2017, served a true and correct copy of DEFENDANT’S MOTION AND INCORPORATED MEMORANDUM OF LAW TO DISMISS OR, IN THE ALTERNATIVE, FOR MORE DEFINITE STATEMENT via ECF to ensure delivery to the following: William Gregory Dobson, Esq. LOBER & DOBSON, LLC 830 Mulberry Street, Suite 201 Macon, GA 31201 Attorneys for Plaintiff /s/ Amy M. Palesch Amy M. Palesch Attorneys for Defendant Sam’s East, Inc. Firmwide:145798589.1 080000.1204 Case 5:16-cv-00555-LJA Document 4 Filed 02/21/17 Page 12 of 12