Phillips v. Printpack, Inc.

REPLY BRIEF re MOTION to Dismiss Amended Complaint

N.D. Ga.November 28, 2016

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CHRISTIE PHILLIPS, ) ) Plaintiff, ) ) vs. ) Civil Action No. 1:16-cv-03110-ELR-JSA ) PRINTPACK, INC., ) ) Defendant. ) DEFENDANT’S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS AMENDED COMPLAINT Defendant Printpack, Inc. submits this reply brief in support of its Motion to Dismiss Amended Complaint. (Court File No. 15). A. Plaintiff’s Title VII Claims Should Be Dismissed in Their Entirety Based on Plaintiff’s Failure to File a Verified EEOC Charge. Defendant argued in its principal brief that Plaintiff’s Title VII claims should be dismissed based on Plaintiff’s failure to file a verified EEOC charge. At the outset of Plaintiff’s opposition, she concedes as follows – “Based on Plaintiff’s review of the file, Defendant appears to be correct that Plaintiff did not verify her Charge of Discrimination filed with the EEOC.” (Court File No. 16 at p.3). Case 1:16-cv-03110-ELR-JSA Document 17 Filed 11/28/16 Page 1 of 15 - 2 - Notwithstanding that concession, Plaintiff tries to save her Title VII claims from dismissal by first arguing that she cured her lack of verification by amending her EEOC charge in October 2016 (i.e., after Defendant filed a motion to dismiss raising the verification issue in response to Plaintiff’s original Complaint). Plaintiff then argues that she should be excused from satisfying the verification requirement altogether because Defendant responded to the merits of Plaintiff’s EEOC charge without raising the verification issue with the EEOC. As detailed below, both of Plaintiff’s arguments are without merit. 1. Plaintiff’s Attempted Amendment Was Untimely. In Butler v. Greif, Inc., 325 Fed. Appx. 748 (11 th Cir. 2009), cert. denied, 558 U.S. 875 (2009), the plaintiff – just like Plaintiff in this case – attempted to amend her EEOC charge in reliance on 29 C.F.R. § 1601.12(b) to cure a lack of verification after the EEOC had issued a right to sue letter, after the plaintiff had filed suit, and after the defendant had filed a dispositive motion. The Eleventh Circuit held that the plaintiff’s attempt to cure his lack of verification was untimely and ineffective, stating, “[t]he deadline to verify the EEOC charge was while the charge was pending before the EEOC. Butler, though, did not verify it until after the EEOC had dismissed his case.” Id. at 750. Case 1:16-cv-03110-ELR-JSA Document 17 Filed 11/28/16 Page 2 of 15 - 3 - Despite the Eleventh Circuit’s unambiguous holding in Butler, in an attempt to distinguish Butler away, Plaintiff wrongly asserts that, “Butler does not even address 29 C.F.R. § 1601.12.” (Court File No. 16 at p. 9). That is obviously misleading. The court in Butler directly cited 29 C.F.R. § 1601.12(b) and then specifically held that the regulation could not be called upon by the plaintiff therein to cure his lack of verification. Butler, 325 Fed. Appx. at 749. As noted in Defendant’s principal brief, this Court has followed Butler by disregarding an attempt by a plaintiff’s attorney to verify a charge after the EEOC issued a right to sue letter and after the plaintiff filed suit. Hatcher v. Kaiser Perm. Ins. Co., 2009 WL 3094853, *10 (N.D. Ga., Sep. 28, 2009). Notably, Plaintiff makes no mention whatsoever of the Hatcher decision in her opposition. 2. Plaintiff’s Waiver Argument Does Not Save Her Title VII Claims from Dismissal. Recognizing that her untimely attempt to amend her EEOC charge was ineffective, Plaintiff takes the position in her opposition (for the first time) that Defendant waived the verification issue because it submitted a substantive response to the EEOC without raising the verification issue. Plaintiff’s waiver argument is without merit because she failed to plead any facts in her Amended Complaint alleging a waiver, and, even if she had attempted to do so, waiver is not appropriate in this case. Case 1:16-cv-03110-ELR-JSA Document 17 Filed 11/28/16 Page 3 of 15 - 4 - (a) Plaintiff Failed to Allege Facts Providing Plausible Grounds to Infer That Defendant Waived the Verification Defense. Plaintiff has asserted a waiver argument in her opposition, but she failed to allege any facts in her Amended Complaint supporting such a waiver. As detailed in Defendant’s principal brief, filing a verified EEOC charge is a mandatory condition precedent to filing suit under Title VII. If Plaintiff seeks to be excused for her failure to satisfy that condition precedent through the equitable concept of waiver, it is not enough for her to simply argue in favor of a waiver in her brief. Rather, Plaintiff was required to allege facts in her pleading providing plausible grounds to infer that Defendant waived the verification defense. See Harden v. State Farm Mut. Auto. Ins. Co., 339 Fed. Appx. 897, 902-03 (11 th Cir. 2009) (affirming dismissal of claim based on plaintiff’s failure to allege in her complaint that defendant had waived plaintiff’s failure to satisfy a condition precedent). Plaintiff, however, did not plead any facts supporting such a waiver argument in her Amended Complaint (which she filed after Defendant raised the verification defense in its first motion to dismiss attacking Plaintiff’s original Complaint). (b) Waiver is Not Appropriate in This Case. Even if Plaintiff had attempted to allege facts in her Amended Complaint supporting a waiver, any such attempt would have been futile because allowing a waiver is not appropriate in this case. Case 1:16-cv-03110-ELR-JSA Document 17 Filed 11/28/16 Page 4 of 15 - 5 - At the outset, Plaintiff’s waiver argument relies entirely on the rationale of a Third Circuit decision that is not binding on this Court and has never been applied (based on Defendant’s research) by any court within the Eleventh Circuit. In Butler, the Eleventh Circuit noted in passing that the Third Circuit in Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256 (3d Cir. 2006) had held that the verification requirement could be waived. Butler, 325 Fed. Appx. at 749. But the Butler court did not follow much less embrace Buck. See Dees v. Florida, 2012 WL 662295, *4 (N.D. Fla., Feb. 28, 2012) (“The Eleventh Circuit did not find that the verification requirement had been waived in Butler … or even that the verification requirement can be waived under any circumstances.”). 1 The EEOC has issued extensive regulations regarding the charge filing and investigation process. See 29 C.F.R. §§ 1601.6 – 1601.29. Nowhere in those regulations is there any requirement that an employer raise the verification issue (or any other procedural issue) when it responds to an EEOC charge, and the Eleventh Circuit has held that not even the EEOC is obligated to inform an employee of deficiencies in her charge, such as a lack of verification. See Butler, 1 The Dees court also noted that, “[e]ven if the Eleventh Circuit had held that the verification requirement can be waived,” the plaintiff therein failed to allege any facts in her complaint supporting such a waiver. Id. In that regard, see Section A(2)(a) above regarding the requirement that a plaintiff actually plead the waiver of a condition precedent rather than simply raising the issue in a brief. Case 1:16-cv-03110-ELR-JSA Document 17 Filed 11/28/16 Page 5 of 15 - 6 - 325 Fed. Appx. at 749 n.2 (“In [Vason v. City of Montgomery, 240 F.3d 905, 907 (11 th Cir. 2001)], we expressly rejected the argument that the EEOC is obligated to inform a plaintiff of deficiencies of his charge, such as the lack of verification.”). Not surprisingly, federal courts have consistently held that an employer does not waive an exhaustion of administrative remedies defense by failing to raise it with the EEOC. See, e.g., Morris v. Precoat Metals, 2012 WL 4727995, *19 (N.D. Ala., Sept. 27, 2012) (holding employer did not waive exhaustion defense by failing to raise it with EEOC), rev’d on other grounds, 564 Fed. Appx. 516 (2014). 2 Additionally, because it is the EEOC’s practice not to provide the employer a copy of everything the employee files with the EEOC, it is not always possible for the employer to know whether the verification requirement has been satisfied. See Patterson v. WMW, Inc., 2012 WL 3261290, *8 n.16 (N.D. Ga., Jun. 15, 2 See also Bass v. Univ. of Arkansas Sys., 2015 WL 5712850, *3 (E.D. Ark., Sept. 29, 2015) (same); Liles v. New York City Dept. of Educ., 516 F. Supp. 2d 297, 314 n.19 (S.D.N.Y. 2007) (“The Court rejects Plaintiff’s argument that Defendants waived the right to argue that his claims are time-barred because they did not make such an argument before the EEOC.”); Cook v. Union Camp Corp., 1996 WL 407549, *3 (N.D. Miss., Apr. 4, 1996) (“Due to the nature of the proceedings before the EEOC and their limited effect in this court, failure to have raised the 180 day limitation issue before the EEOC does not waive the right to raise the issue as an affirmative defense when answering a subsequent complaint.”); Piper v. U.S. West Comms., 48 F.3d 1232, 1232 (10 th Cir. 1995) (“The respondent is not required to raise defenses before the EEOC as a prerequisite to raising such defenses in court. Consequently, failure to raise a defense in administrative proceedings before the EEOC does not constitute a waiver.”). Case 1:16-cv-03110-ELR-JSA Document 17 Filed 11/28/16 Page 6 of 15 - 7 - 2012) (noting EEOC does not share intake questionnaire with employer), adopted by, No. 1:11-cv-3172-WSD (N.D. Ga., Aug. 8, 2012). In fact, because it is the EEOC’s practice not to demand a response from the employer until the employee’s charge has been verified, it is perfectly reasonable for an employer to presume that, when the EEOC requires it to respond to a charge, the charge has, in fact, been verified. See Edelman v. Lynchburg College, 535 U.S. 106, 115 n.9 (2002) (“The complainant must submit a verified charge before the agency will require a response from the employer.”). 3 3 Plaintiff’s assertion in her opposition that the EEOC provided a copy of Plaintiff’s intake questionnaire to Defendant when it demanded a response from Defendant is demonstrably false. Defendant previously provided the Court a copy of the EEOC’s Form 131 to Defendant dated May 15, 2014, which included the letter from Plaintiff’s counsel but not the intake questionnaire. (Court File No. 15- 3). Moreover, Plaintiff’s assertion in her opposition that Defendant quoted from the intake questionnaire in its EEOC response is inaccurate. When Defendant quoted from Plaintiff’s charge in its EEOC response, it clearly quoted from the above- referenced letter and not from the intake questionnaire. Compare Court File No. 16-3 at p.3, 6-7 with Court File No. 15-3 at p.2. Additionally, in Defendant’s response to the EEOC, it attached what it had received from the EEOC as Plaintiff’s charge at “Tab 4.” Plaintiff, however, chose not to include Tab 4 when she attached Defendant’s EEOC response to her opposition. As reflected by Exhibit A hereto, Tab 4 comprises the above-referenced letter but not the intake questionnaire. Finally, the language at the bottom of the intake questionnaire that Plaintiff signed (but did not verify) made clear that the EEOC would not provide the intake questionnaire to Defendant until litigation was initiated. (Court File No. 11-1 at p.7). Case 1:16-cv-03110-ELR-JSA Document 17 Filed 11/28/16 Page 7 of 15 - 8 - The EEOC has also issued a formal guidance for employers regarding what they should include in an “effective” response to an EEOC charge. Nowhere in that guidance is there any suggestion that an employer should raise procedural issues in its response. See https://www.eeoc.gov/employers/position_statements.cfm. 4 Finally, a consideration of the equities in this case does not support a waiver. Both Title VII and the EEOC’s regulations required Plaintiff to file a verified charge, but she failed to do so, even though she was represented by counsel throughout the entire EEOC process. See Fry v. Muscogee Cty. Sch. Dist., 150 Fed. Appx. 980, 981-82 (11 th Cir. 2005) (affirming summary judgment for defendant where plaintiff blamed lack of verification on her attorneys and argued that EEOC should have alerted her to charge deficiency). By contrast, Defendant (which raised the verification issue in response to Plaintiff’s original Complaint and her Amended Complaint) was instructed by a federal agency to respond to an administrative charge where it was not able to see everything Plaintiff had filed with the EEOC; where the EEOC’s practice is not to request a response from an 4 Through this guidance, the EEOC warns an employer that if it fails to provide a substantive response to a charge, the EEOC may make a determination on the merits of the charge based solely on the information provided by the employee or issue an administrative subpoena. This highlights the fact that no reasonable employer is going to do as the Buck court suggests and refuse to submit a substantive response to the EEOC on the basis of a procedural objection. Case 1:16-cv-03110-ELR-JSA Document 17 Filed 11/28/16 Page 8 of 15 - 9 - employer unless a verified charge has been filed; where the EEOC’s regulations do not require an employer to raise a procedural issue like a lack of verification; and where the EEOC’s formal guidance regarding “best practices” for employers does not suggest raising procedural issues like a lack of verification. Defendant respectfully submits that it would be inappropriate to essentially shift the verification burden from Plaintiff to Defendant under these circumstances. B. Plaintiff Has Conceded That Her Title VII Gender Discrimination Claim is Subject to Dismissal to the Extent it is Based on a Failure to Promote or a Six-Month Probationary Period. Plaintiff concedes in her opposition that even if her Title VII claims are not dismissed in their entirety based on a lack of verification, her Title VII gender discrimination claim should still be dismissed to the extent it is based on an alleged failure to promote or a six-month probationary period because such claims are time-barred. (Court File No. 16 at p.13). C. Plaintiff Has Failed to Respond to Defendant’s Argument That Her Title VII Wage Discrimination Claim is Subject to Dismissal. In her opposition, Plaintiff fails to respond to Defendant’s argument that, even if Plaintiff’s Title VII claims are not dismissed in their entirety based on a lack of verification, her Title VII gender discrimination claim should still be dismissed to the extent it is based on alleged wage discrimination because such a claim is beyond the scope of Plaintiff’s EEOC charge. As a result, that argument Case 1:16-cv-03110-ELR-JSA Document 17 Filed 11/28/16 Page 9 of 15 - 10 - should be considered unopposed for purposes of Defendant’s motion to dismiss. See Hudson v. Norfolk S. Ry. Co., 209 F. Supp. 2d 1301, 1324 (N.D. Ga. 2001) (plaintiff abandoned claim by failing to respond to defendant’s argument in dispositive motion attacking claim). D. Plaintiff’s Title VII Retaliation Claim is Subject to Dismissal Because Such a Claim Was Raised Only in Plaintiff’s Intake Questionnaire and Because Plaintiff Failed to Allege Facts Providing Plausible Grounds to Infer Causation. 1. Plaintiff Referenced Retaliation Only in Her Intake Questionnaire. In its principal brief, Defendant articulated why, if not deemed ineffective due to a lack of verification, the letter from Plaintiff’s counsel constitutes the charge for purposes of this litigation. In her opposition, Plaintiff again seeks to elevate her equally unverified intake questionnaire – which is not (and was not in this instance) provided to the employer – to the status of a formal charge along with the letter. In doing so, however, Plaintiff ignores all of the case law cited by Defendant in its principal brief making clear that courts routinely disregard allegations that are included in an intake questionnaire but are not included in the actual charge of discrimination. See, e.g., Francois v. Miami Dade Cty., 432 Fed. Appx. 819, 822 (11 th Cir. 2011) (plaintiff could not pursue national origin claim included in intake questionnaire but not in charge). Having realized this after Case 1:16-cv-03110-ELR-JSA Document 17 Filed 11/28/16 Page 10 of 15 - 11 - Defendant’s response to her original Complaint, Plaintiff attempted in her “Amendment to Previously Filed Charge for the Purpose of Verifying the Prior Charge” (Court File No. 11-3) (emphasis added) to bootstrap her intake questionnaire to her “Prior Charge” (i.e., the letter from Plaintiff’s counsel). As the above-mentioned case law details, a defendant will not be forced to defend against Title VII claims of which it did not have notice during the EEOC process. For this reason, if the Court does not dismiss Plaintiff’s Title VII claims in their entirety based on a lack of verification, Plaintiff’s Title VII retaliation claim should still be dismissed since it was never contained in a charge of discrimination presented to Defendant. 2. Plaintiff Failed to Allege Facts Providing Plausible Grounds to Infer Causation. In its principal brief, Defendant argued, in the alternative, that Plaintiff’s Title VII retaliation claim should be dismissed because Plaintiff failed to allege facts plausibly suggesting causation, namely that the person responsible for terminating her employment was aware that she had engaged in protected activity. In response, Plaintiff first argues that because she alleged in her Amended Complaint that she shared her discrimination complaints with “management and other employees of Defendant,” she necessarily alleged that Defendant as a whole was aware of her complaints, and therefore the decision-maker who terminated her Case 1:16-cv-03110-ELR-JSA Document 17 Filed 11/28/16 Page 11 of 15 - 12 - employment was aware of such complaints. Plaintiff’s argument is foreclosed by the Eleventh Circuit’s decision in Uppal v. Hosp. Corp. of America, 482 Fed. Appx. 394 (11 th Cir. 2012), which was cited by Defendant in its principal brief. In Uppal, the Eleventh Circuit affirmed the district court’s dismissal of the plaintiff’s retaliation claim because she failed to allege that the decision-maker was aware of the plaintiff’s protected activity. Significantly, the plaintiff in Uppal alleged that she had complained about discrimination not only to a specific management official (who was not the decision-maker), but also “to Defendants” more generally. See Uppal’s Third Amended Complaint at ¶¶ 181, 203, 212 (attached as Exhibit B hereto). As Uppal therefore instructs, a vague allegation that a complaint was communicated to “management” or “the defendant” is insufficient to impute actual knowledge of the complaint to the defendant’s decision-maker. Plaintiff also argues that she effectively alleged that Defendant’s decision- maker was aware of her complaints because she alleged that Defendant terminated her because of those complaints. Of course, simply alleging that there was causation – without actually alleging facts supporting that there was causation – is the type of “threadbare element reciting” that is insufficient to state a claim under Twombly and Iqbal. The plaintiff in Uppal also alleged that the defendant had Case 1:16-cv-03110-ELR-JSA Document 17 Filed 11/28/16 Page 12 of 15 - 13 - taken the adverse employment action in question against her because of her complaints, but that was not sufficient to state a claim. See Exhibit B at ¶ 207. E. Plaintiff Has Provided No Explanation as to Why This Court Should Exercise Supplemental Jurisdiction Over Her State Law Claims If Her Federal Law Claims Are Dismissed. As noted in Defendant’s principal brief, the default rule is that a federal court will decline to exercise supplemental jurisdiction over state law claims when all federal claims have been dismissed. In her opposition, Plaintiff asks this Court to ignore that default rule. Plaintiff, however, provides no rationale as to why the Court should so proceed. F. Plaintiff’s Unjust Enrichment Claim Should Be Dismissed. 1. An Unjust Enrichment Claim is Not Viable Where There is a Contract. Plaintiff appears to concede in her opposition that her unjust enrichment claim fails if her right to unused vacation was governed by a contract, but argues that she is pursuing breach of contract and unjust enrichment claims in the alternative. The problem with that argument is that, rather than being set out in the alternative, Plaintiff’s breach of contract and unjust enrichment claims are inextricably intertwined in her Amended Complaint. In fact, Plaintiff actually refers to her unjust enrichment count as, “Count Four Breach of Contract, Unjust Enrichment.” (Court File No. 11 at p.19). Case 1:16-cv-03110-ELR-JSA Document 17 Filed 11/28/16 Page 13 of 15 - 14 - 2. Plaintiff Has Failed to Allege That She Was Not Reasonably Compensated by Defendant. In its principal brief, Defendant argued that an unjust enrichment claim will fail where the defendant reasonably compensated the plaintiff for services rendered, even if the plaintiff did not receive all the compensation she thinks she should have received. In response, Plaintiff simply states in her opposition that, “[t]here is no provision under Georgia law to support Defendant’s assertion.” (Court File No. 16 at p.17). That is simply not true. Defendant cited two cases in its principal brief directly supporting its assertion, neither of which Plaintiff addresses. G. Plaintiff Has Failed to Respond to Defendant’s Argument That a Dismissal with Prejudice is Appropriate in Light of Plaintiff’s Previous Attempt to Cure the Deficiencies in Her Original Complaint. In her opposition, Plaintiff fails to address Defendant’s argument in its principal brief that Plaintiff’s claims should be dismissed with prejudice (as opposed to without prejudice) because, in response to Defendant’s first motion to dismiss, Plaintiff – who is represented by counsel – filed an Amended Complaint in which she attempted to cure the deficiencies in her original Complaint. As a result, this argument should be deemed unopposed. Case 1:16-cv-03110-ELR-JSA Document 17 Filed 11/28/16 Page 14 of 15 - 15 - H. Conclusion Based on the foregoing, Defendant moves the Court to dismiss Plaintiff’s Amended Complaint with prejudice pursuant to Rule 12(b)(6). Respectfully submitted, MILLER & MARTIN PLLC By: /s/James P. Daniel James P. Daniel Georgia Bar No. 204115 Rachel A. Purcell Georgia Bar No. 743007 1180 West Peachtree Street, N.W. Suite 2100 Atlanta, GA 30309-3407 404-962-6426 404-962-6326 (f) Attorneys for Defendant Printpack, Inc. LR 7.1D CERTIFICATION AND CERTIFICATE OF SERVICE The undersigned hereby certifies that this brief was prepared in Times New Roman, 14-point font, as required by LR 5.1C and was electronically filed with the Clerk of the Court on November 28, 2016 using the CM/ECF system, which will send notification of such filing to: Desiree D. Duke and Timothy A. Heath The Duke Law Firm LLC 523 Newnan Street Carrollton, GA 30117 Attorneys for Plaintiff Christie Phillips By: /s/James P. 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