Truitt v. Atlanta Independent School System (Aiss)

REPLY BRIEF re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

N.D. Ga.July 18, 2016

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CATHY HOPKINS, et al., ) ) Plaintiffs, ) CIVIL ACTION FILE NO. ) 1:15-CV-4295-SCJ-WEJ v. ) ) ATLANTA INDEPENDENT ) SCHOOL SYSTEM a/k/a ) ATLANTA PUBLIC ) SCHOOLS (APS) ) ) Defendant. ) DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COLLECTIVE ACTION COMPLAINT FOR AGE DISCRIMINATION Defendant Atlanta Independent School System a/k/a Atlanta Public Schools (“APS” or “Defendant”) respectfully submits this reply in support of its motion to dismiss Count I of Plaintiffs Cathy Hopkins, Mary Dent, Earnest Edmondson, Nyantakyl Kwasi Appiah, Vivan Blackmon, and Wanda Ellis’ First Amended Complaint and Restatement for Equitable Relief and Damages and Demand for Jury Trial (the “First Amended Complaint”) for failure to exhaust administrative remedies. Defendant also moves to dismiss Count II of Plaintiffs Cathy Hopkins, Mary Dent, Earnest Edmondson, Nyantakyl Kwasi Appiah, Vivian Blackmon, Wanda Ellis, Cheryl Patterson, and Lucy Truitt’s (referred to collectively herein as Case 1:15-cv-04295-SCJ-WEJ Document 11 Filed 07/18/16 Page 1 of 13 - 2 - “Plaintiffs”) First Amended Complaint for failure to state a claim upon which relief may be granted. Alternatively, APS moves, pursuant to Federal Rule of Civil Procedure 12(e), for the provision of a more definite statement. ARGUMENT AND CITATION OF AUTHORITY I. THIS COURT SHOULD DISMISS PLAINTIFFS’ ADEA CLAIMS BECAUSE THEY HAVE FAILED TO EXHAUST ADMINISTRATIVE REMEDIES. A. Plaintiffs Appiah’s and Blackmon’s ADEA Claims Are Premature and Should be Dismissed for Failure to Exhaust Administrative Remedies. In answer to Defendant’s argument that Plaintiffs Appiah’s and Blackmon’s ADEA claims should be dismissed for failure to allege exhaustion of administrative remedies, Plaintiffs have attached Plaintiff Appiah’s and Blackmon’s charges of discrimination with the EEOC to their response in opposition to Defendant’s motion to dismiss. [See Dkt. 8-1 at 5, Dkt. 8-2 at 2-4, 13-14] However, Plaintiffs’ EEOC charges only confirm that Plaintiffs’ complaint should be dismissed for failure to exhaust administrative remedies because their ADEA claims are premature. As Plaintiffs note, if after filing an EEOC charge a plaintiff does not desire EEOC conciliation of his claims, the plaintiff may bring a civil action under the ADEA sixty days after filing his charge. However, an action that is filed less than sixty days after bringing a formal EEOC charge may be Case 1:15-cv-04295-SCJ-WEJ Document 11 Filed 07/18/16 Page 2 of 13 - 3 - dismissed as premature. See, e.g., Bost v. Fed. Express Corp., 372 F.3d 1233, 1241 (11th Cir. 2004) (affirming dismissal of putative ADEA collective action as premature). Because Plaintiffs Appiah and Blackmon filed their complaint merely two days after filing an EEOC charge, this Court should dismiss their ADEA claims as premature. In Bost, the Eleventh Circuit affirmed dismissal of a putative ADEA collective action when the named plaintiff timely filed his charge of discrimination, but filed a civil suit prior to filing his charge of discrimination and some months prior to receipt of a right-to-sue notice. Id. Despite the fact that Bost received the notice while his case was still pending, the district court dismissed his case as premature. Id. In affirming the dismissal, the Eleventh Circuit explained: Bost should have waited the required 60 days after he filed his formal charge of discrimination to file his lawsuit. He also could have filed suit within 90 days of receiving his notice of a right to sue from the EEOC. Instead, Bost filed his lawsuit before either of these events and impermissibly bypassed the administrative process. As a result, the ADEA claims of the Bost plaintiffs fail. Id. See also Chapman v. City of Detroit, 808 F.2d 459, 462 (6th Cir. 1986) (affirming district court’s holding that an ADEA action is subject to dismissal as premature if it is commenced without providing the EEOC an opportunity to engage in the conciliation process). Case 1:15-cv-04295-SCJ-WEJ Document 11 Filed 07/18/16 Page 3 of 13 - 4 - Even though in the instant case Plaintiffs filed their charge before filing this civil action, their failure to exhaust administrative remedies is not necessarily cured by the fact that more than sixty days have elapsed since the filing of said charges. In Bost, the Eleventh Circuit affirmed the dismissal of the plaintiffs’ ADEA claims even though more than sixty days had passed during the pendency of the action. Here, Plaintiffs filed their EEOC charges on April 5, 2016 [Dkt. 8-2 at 2-4, 13-14] and commenced their purported collective action just two days later on April 7, 2016 [Dkt. 2]. Plaintiffs failed to provide the EEOC with any opportunity to conciliate their claims. For this reason, Plaintiffs’ ADEA claims should be dismissed as premature. Alternatively, this Court may stay plaintiffs’ claims for the remaining fifty- eight days of the 60-day waiting period for filing their ADEA claims “to ensure that the EEOC has a full opportunity to conciliate the claim before litigation on the merits is permitted.” See Reed v. Northrop Grumman Ship Sys., No. 04-1214, 2004 U.S. Dist. LEXIS 19017, at *8 (E.D. La. Sept. 17, 2004) (staying ADEA complaint by the number of days by which lawsuit was premature to ensure that the EEOC had adequate time to engage in conciliation process). In Reed, the court stayed a plaintiff’s ADEA claim for the number of days by which his lawsuit was premature to ensure that the EEOC had adequate time to investigate and to attempt Case 1:15-cv-04295-SCJ-WEJ Document 11 Filed 07/18/16 Page 4 of 13 - 5 - to rectify the plaintiff’s complaints. Id. at *11. Even though more than sixty days had elapsed for the EEOC to consider the plaintiff’s claim at the time of the court’s ruling, the court concluded that it could not determine from the record whether the plaintiff’s premature filing hampered the EEOC’s investigation of the plaintiff’s complaint. Id. Accordingly, a stay of the plaintiff’s ADEA claim was warranted. See id. (citing Gelover v. Lockheed Martin, 971 F.Supp. 180, 182 (E.D. Pa. 1997) (staying ADEA action when plaintiff filed suit a mere two days after filing EEOC charge to ensure that EEOC had adequate time to consider claim)). Likewise, in the event that this Court determines dismissal is inappropriate in this case, this court should stay Plaintiffs’ premature ADEA claims to provide the EEOC adequate time for resolution. B. To the Extent Plaintiffs Assert an ADEA Hostile Work Environment Claim, Plaintiffs Have Failed to Exhaust Their Administrative Remedies. In response to Defendant’s argument that Plaintiffs appear to improperly attempt assertion of an additional cause of action for hostile work environment, Plaintiffs intimate that they indeed intended to assert a hostile work environment claim under the ADEA and will amend their complaint to include a separate count in that respect. [Dkt. 8-1 at 21] However, to the extent that Plaintiffs bring a claim for hostile work environment under the ADEA, such claim is subject to dismissal Case 1:15-cv-04295-SCJ-WEJ Document 11 Filed 07/18/16 Page 5 of 13 - 6 - for failure to exhaust administrative remedies. Plaintiffs’ charges of discrimination attached to their response in opposition to Defendant’s motion to dismiss demonstrate that Plaintiffs have not alleged any facts which support a claim for hostile work environment as part of their underlying administrative remedies. Therefore, Plaintiffs have failed to satisfy the conditions precedent for bringing a civil action for hostile work environment based upon age. Prior to filing an ADEA claim, the plaintiff must first file a charge of discrimination with the EEOC. Long v. Printpack, Inc., No. 1:10-CV-0196-TCB, 2010 U.S. Dist. LEXIS 146271, at *12 (N.D. Ga. June 14, 2010). “The purpose of this requirement is to allow the EEOC to ‘have the first opportunity to investigate the alleged discriminatory practices to permit it to perform its role in obtaining voluntary compliance and promoting conciliation efforts.’” Id. Judicial claims are only allowed “if they ‘amplify, clarify, or more clearly focus’ the allegations of the EEOC complaint, but judicial complaints cannot allege new acts of discrimination that were not previously alleged in the EEOC charge.’” Id. (quoting Wu v. Thomas, 863 F.2d 1543, 1548 (11th Cir. 1989)). Therefore, a plaintiff’s complaint “is limited by the scope of the EEOC investigation that can reasonably be expected to grow out of the charge of discrimination.” Although the scope of an EEOC charge should not be strictly interpreted, “a plaintiff is nevertheless barred from Case 1:15-cv-04295-SCJ-WEJ Document 11 Filed 07/18/16 Page 6 of 13 - 7 - raising new acts of discrimination in his complaint.” Giles v. BellSouth Telecommc’ns, Inc., 542 Fed. Appx. 756, 759 (11th Cir. 2013). There is no indication in most of Plaintiffs’ EEOC charges that they are complaining about a hostile work environment based upon their age. In fact, Plaintiffs appear to only allege facts in their EEOC charges which support claims of discrimination for ADEA discharge. [Dkt. 8-2] Notably, the Plaintiffs’ EEOC charges complain that the alleged discrimination began and ended on a single day - either the day their contract was not renewed, or their last day of employment at APS as a result of retirement. [See id.] But Plaintiffs’ alleged discriminatory discharge cannot support a hostile work environment claim. See Burgin v. Burlington Coat Factory, No. 2:11-cv-753-JHH, 2013 U.S. Dist. LEXIS 78168, at *53 (N.D. Ala. June 4, 2013) (“Discrete acts alone cannot form the basis of a hostile work environment claim.”) (citing Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 970 (11th Cir. 2008)). Further, only Plaintiffs Dent and Truitt allege in their EEOC charges that alleged discrimination took place over the span of more than one day. However, neither alleges facts supporting a claim that they endured a hostile work environment as a result of their age. Plaintiff Dent’s charge alleges only that after she went on FMLA leave, she applied for various positions in April 2015 and was not selected. [Dkt. 8-2 at 9] Case 1:15-cv-04295-SCJ-WEJ Document 11 Filed 07/18/16 Page 7 of 13 - 8 - Plaintiff Dent further alleges that her contract was not renewed in June 2015, and she believes she was discriminated against in violation of the ADEA. [Id.] Similarly, Plaintiff Truitt’s charge fails to allege any facts regarding a hostile work environment due to her age. Plaintiff Truitt claims that in October 2014, she was placed on a professional development plan after complaining about being denied leave. [Dkt. 8-2 at 12] Plaintiff Truitt further claims that after she provided her principal with FMLA paperwork in March 2015, she was informed that her contract would not be renewed. [Id.] On their face, Plaintiffs’ EEOC charges fail to allege any harassment of facts from which a hostile work environment claim - much less one based upon age - could reasonably be expected to grow. Accordingly, to the extent Plaintiffs assert a claim for hostile work environment under the ADEA, Plaintiffs’ claim must be dismissed. See, e.g., Collins v. Fulton Cnty. Sch. Dist., No. 1:12-cv-1200-ODE-JSA, 2012 U.S. Dist. LEXIS 187392, at *52 (N.D. Ga. Dec. 26, 2012), adopted by 2013 U.S. Dist. LEXIS 46388 (N.D. Ga. Feb. 27, 2013) (dismissing ADEA hostile work environment claim for failure to exhaust administrative remedies when EEOC charge did not allege age-based harassment and mentioned only termination as alleged discriminatory action). Case 1:15-cv-04295-SCJ-WEJ Document 11 Filed 07/18/16 Page 8 of 13 - 9 - “[T]he crucial element of a charge of discrimination is the factual statement contained therein.” See, e.g., Long, 2010 U.S. Dist. LEXIS 146721, at *15 (internal quotation omitted). Therefore, in the absence of factual allegations in Plaintiffs’ EEOC charges supporting a claim for hostile work environment under the ADEA, this Court should dismiss Plaintiffs’ hostile work environment claim. See Giles, 542 Fed. Appx. at 759 (holding trial court erred in addressing plaintiff’s ADEA hostile work environment claim which was a new act of discrimination not exhausted in his administrative charge); Long, 2010 U.S. Dist. LEXIS 146721, at *15 (dismissing ADEA retaliation claim for failure to exhaust administrative remedies when EEOC charge only alleged facts supporting claim of discrimination for ADEA discharge). II. COUNT II OF PLAINTIFFS’ COMPLAINT SHOULD BE DISMISSED WITH PREJUDICE BECAUSE THE OWBPA DOES NOT PROVIDE A SEPARATE CAUSE OF ACTION. This Court should also dismiss Count II of Plaintiffs’ First Amended Complaint for violation of the OWBPA because the OWBPA does not provide a separate cause of action. See Hearn v. Int’l Business Machines, No. 8:13-cv-827- T-30EAJ, 2013 WL 5499610, at *7 (M.D. Fla. Oct. 1, 2013) (granting defendant’s motion to dismiss plaintiff’s claim for violation of OWPBA). Plaintiffs state that they will dismiss their OWBPA claim without prejudice [Dkt. 8-1 at 15]. But Case 1:15-cv-04295-SCJ-WEJ Document 11 Filed 07/18/16 Page 9 of 13 - 10 - significantly, there are no circumstances under which Plaintiffs can plausibly allege a claim for violation of the OWBPA such that dismissal with prejudice is unwarranted. The OWBPA governs the effect under federal law of waivers or releases on ADEA claims. Id. (citing Oubre v. Entergy Operations, Inc., 522 U.S. 422, 424 (1998)). “It does not create a separate cause of action, but instead ‘creates a series of prerequisites for knowing and voluntary waivers and imposes affirmative duties of disclosure and waiting periods.’” Id. If an employee’s voluntary written waiver of rights does not comply with the requirements of the OWBPA, it is unenforceable against her insofar as it purports to waive or release any ADEA claim. Id. But the employee may not bring a separate cause of action based upon a violation of the OWBPA. See id. Accordingly, Plaintiffs have no basis to recover on their OWBPA claim, and this Court should dismiss Count II of Plaintiffs’ complaint with prejudice. See id. III. THIS COURT SHOULD DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT, OR ALTERNATIVELY, ORDER A MORE DEFINITE STATEMENT BECAUSE PLAINTIFFS HAVE ENGAGED IN SHOTGUN PLEADING. This Court should also dismiss Plaintiffs’ First Amended Complaint because the Plaintiffs have engaged in impermissible shotgun pleading. In response to Defendant’s argument that Plaintiffs improperly utilized shotgun pleading, Plaintiffs only state that “[t]his is not an assertion that applies to the complaint Case 1:15-cv-04295-SCJ-WEJ Document 11 Filed 07/18/16 Page 10 of 13 - 11 - filed in the case at bar.” [Dkt. 8-1 at 19] However, there can be no dispute that Plaintiffs incorporate every antecedent allegation into each count of their complaint. Such action impedes Defendant’s ability to decipher which factual allegations support which claims with respect to each Plaintiff so that it may formulate a proper responsive pleading. [See generally Dkt. 2] Consequently, Plaintiffs’ First Amended Complaint fails to comply with the pleading requirements of the Federal Rules of Civil Procedure. It is well settled that shotgun pleadings do not comport with the pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See LaCroix v. W. Dist. of Ky., 627 F. App’x 816, 818 (11th Cir. 2015) (“A ‘shotgun pleading’ - one in which ‘it is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief’ - does not comply with the standards of Rules 8(a) and 10(b).”) The comingling of claims and factual allegations render it “virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.” Anderson v. Dist. Bd. of Trs. Of Cent. Fla. Cmty. College, 77 F.3d 364, 366 (11th Cir. 1996). Here, Plaintiffs’ woefully inadequate pleading makes it virtually impossible for this Court or Defendant to know which allegations of fact are intended to support which claims for relief with respect to each individual plaintiff. Consequently, this Court should dismiss Plaintiffs’ Case 1:15-cv-04295-SCJ-WEJ Document 11 Filed 07/18/16 Page 11 of 13 - 12 - complaint, or alternatively, order a more definite statement of Plaintiffs’ claims. CONCLUSION For the foregoing reasons, Defendant Atlanta Independent School District a/k/a Atlanta Public schools respectfully request that the Court dismiss Plaintiffs’ First Amended Complaint. Respectfully submitted this 18th day of July, 2016. /s/ Natasha Wilson Ernest L. Greer Georgia Bar No. 309180 greere@gtlaw.com Natasha L. Wilson Georgia Bar No. 371233 wilsonn@gtlaw.com Joshua B. Portnoy Georgia Bar No. 940597 portnoyj@gtlaw.com Mellori E. Lumpkin Georgia Bar No. 358937 lumpkinm@gtlaw.com Attorneys for Defendant Atlanta Independent School System GREENBERG TRAURIG, LLP Terminus 200 3333 Piedmont Road, NE, Suite 2500 Atlanta, Georgia 30305 Telephone: 678.553.2182 Facsimile: 678.553.2183 Case 1:15-cv-04295-SCJ-WEJ Document 11 Filed 07/18/16 Page 12 of 13 - 13 - CERTIFICATE OF COMPLIANCE WITH L.R. 5.1C I HEREBY CERTIFY that the foregoing document was prepared in Times New Roman, 14-point font, as approved by Local Rule 5.1C. /s/ Natasha L. Wilson Attorney for Defendant CERTIFICATE OF SERVICE I hereby certify that on July 18, 2016, I caused a copy of the foregoing document to be electronically filed via the Court’s ECF system, which will serve notification of such filing on all counsel of record for the parties: James Everett Voyles 600 Village Trace Suite 200 Marietta, Georgia 30067 Lori Hamilton 314 Luiseno Avenue Oceanside, California 92057 /s/ Natasha L. Wilson Attorney for Defendant Case 1:15-cv-04295-SCJ-WEJ Document 11 Filed 07/18/16 Page 13 of 13