Little v. CRSA et al
MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: 1. That the defendants' motions to dismiss (docs. # 9 , 12 & 15 ) be and are hereby DENIED as moot. 2. That the motions to dismiss (docs. # 30 , 32 & 34 ) be and are hereby GRANT ED with respect to the plaintiff's Title VII claims, and the federal claims against the defendants be and are hereby DISMISSED with prejudice. 3. That the plaintiffs state law claims be and are hereby DISMISSED without prejudice. 5. That this case be and is hereby DISMISSED; and 6. Costs be and are hereby TAXED against the plaintiff. A separate judgment will issue. Signed by Honorable Judge Charles S. Coody on 8/9/2017. (kh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
CRSA, a corporation, RICKEY NORRIS,
and JASON PATRICK,
CIVIL ACT. NO. 1:17cv126-CSC
MEMORANDUM OPINION and ORDER
The plaintiff, Sybil Little (“Little”), an employee of defendant CRSA, brings this
action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e
et. seq, alleging that she was subjected to sexual harassment and a hostile work environment
by defendant Rickey Norris (“Norris”). She further contends that when she complained to
defendant Jason Patrick (“Patrick”), Patrick sexually harassed her, perpetuating the hostile
work environment. Finally, she alleges state law claims of negligent and wanton supervision
and retention, and outrage. Little seeks compensatory and punitive damages and attorney
fees. After the defendants filed motions to dismiss (docs. # 9, 12 & 15), the court ordered
the plaintiff to file an amended complaint that sufficiently established a factual basis for her
claims. See Doc. # 28. On May 24, 2017, the plaintiff filed her amended complaint, and on
June 2, 2017, the defendants filed motions to dismiss the amended complaint (docs. # 30, 32
& 34). The plaintiff has filed responses in opposition to the defendants’ motions. See Docs.
# 37, 38 & 39.
The court has jurisdiction over this matter pursuant to 42 U.S.C. § 1331 (federal
question) and the jurisdictional grant contained in 42 U.S.C. § 2000e–5(f)(3). It has
supplemental jurisdiction of the state law claims pursuant to 28 U.S.C. § 1367. Pursuant to
28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties have consented to the United States
Magistrate Judge conducting all proceedings in this case and ordering the entry of final
After careful review of the motions to dismiss, and the briefs filed in support of and
in opposition to the motions, the court concludes that the motions to dismiss are due to be
II. STANDARD OF REVIEW
In ruling on a motion to dismiss for failure to state a claim upon which relief can be
granted, the court must accept well-pled facts as true, but the court is not required to accept
a plaintiff’s legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009) (“[T]he tenet that
a court must accept as true all of the allegations contained in a complaint is inapplicable to
legal conclusions”). In evaluating the sufficiency of a plaintiff’s pleadings, the court must
indulge reasonable inferences in plaintiff’s favor, “but we are not required to draw plaintiff’s
inference.” Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir.
2005). Similarly, “unwarranted deductions of fact” in a complaint are not admitted as true
In light of the filing of the amended complaint, the defendants’ motions to dismiss (docs. # 9, 12
& 15) are due to be denied as moot.
for the purpose of testing the sufficiency of plaintiff’s allegations. Id.. See also Iqbal, 556
U.S. at 681 (stating conclusory allegations are “not entitled to be assumed true”).
While a complaint need not contain “detailed factual allegations,” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007), it must plead “enough facts 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);
Sinatrainal v. Coca-Cola Co., 578 F.3d 1252, 1268 (11th Cir. 2009).
We take the factual allegations in the complaint as true and construe them in
the light most favorable to the plaintiff. Rivell v. Private Health Care Sys.,
Inc.., 520 F.3d 1308, 1309 (11th Cir. 2008). We are not, however, required to
accept the labels and legal conclusions in the complaint as true. Sinatrainal
v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009); see also Ashcroft v.
Iqbal, 556 U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (“[T]he
tenet that a court must accept as true all of the allegations in a complaint is
inapplicable to legal conclusions.”); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (stating that a complaint
“requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do”). Dismissal for failure to state a
claim is proper if the factual allegations are not “enough to raise a right to
relief above the speculative level. “A complaint may be dismissed if the facts
as pled do not state a claim for relief that is plausible on its face.” Sinaltrainal,
578 F.3d at 1260 (citing Iqbal, 129 S.Ct. at 1950; Twombly, 550 U.S. at 56162, 570, 127 S.Ct. at 1968-69, 1974). “Stated differently, the factual
allegations in the complaint must ‘possess enough heft’ to set forth ‘a plausible
entitlement to relief.’” Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d
1276, 1282 (11th Cir. 2007) (quoting Twombly. 550 U.S. at 557, 127 S.Ct. at
Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
A complaint states a facially plausible claim for relief “when the plaintiff pleads
factual content that allows the court to draw a reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556U.S. at 678. “[A] plaintiff’s obligations to
provide the ‘grounds’ of h[er] ‘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[.]”
Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). See also
Fin. Sec. Assur., Inc. v. Stephens, Inc. 500 F.3d 1276, 1282 (11th Cir. 2007).
Little has been employed by CRSA at Fort Rucker, Alabama since 2006. According
to her amended complaint, defendant Norris “made sexually derogatory comments” towards
her including statements that “she had a cute ass,” and “looked good in her jeans.” (Doc. #
29 at 3, ¶10). Norris also asked Little to wear dresses so he could “look up her dress.” (Id.).
Little points to one specific incident on July 13, 2016 of Norris telling her “she should wear
heels to work not dress flat shoes as it would get men’s attention.” (Id. at 4, ¶ 12). Little
asserts that on numerous occasions she told Norris that his comments were unwelcome and
asked him to stop. (Id. at 5, ¶ 14). According to Little, he did not but she alleges no other
specific instances involving Norris. (Id.)
On March 11, 2015, Little complained to Patrick about Norris’ sexual harassment, and
according to Little, Patrick told her he would “tell Norris to leave her alone.”3 (Id. at ¶ 15).
At this stage of the proceedings, for purposes of ruling on the motions to dismiss, the facts alleged
in the complaint and reasonable inferences to be drawn there from are set forth in the light most favorable
to the plaintiff. See Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
It is not at all clear from the complaint if Patrick supervised Little or Norris because Little alleges
only that Patrick is the LCT/TFPS Operations Manager for CRSA. Despite being given an opportunity to
amend her complaint, Little at no point asserts that Patrick is her supervisor, Norris’ supervisor or the
appropriate person within the company to whom she should report sexual harassment.
Little alleges that sometime later that day, Patrick asked her for sex. (Id. at 5-7, ¶ 17).
On October 7, 2016, Little filed a charge of sex discrimination with the Equal
Employment Opportunity Commission (“EEOC”) alleging sexual harassment by Norris
beginning on May 1, 2016 and continuing until July 7, 2016.4 (Doc. # 38, Ex. A). She filed
this action on March 2, 2017.
A. Sexual Harassment Hostile Work Environment Claim
Title VII prohibits discrimination on the basis of race, color, religion, sex, or national
Although the plaintiff did not attach a copy of her EEOC charge to her complaint, defendant CRSA
attached a copy to its’ motion to dismiss the complaint as well as their motion to dismiss the amended
complaint. See Doc. # 10, Ex. 1; Doc. # 31, Ex. A. Thereafter, Little attached a copy of the EEOC charge
to her brief in opposition to the motion to dismiss (doc. # 21, Ex. 1) and her brief in opposition to the motion
to dismiss the amended complaint (doc. # 38, Ex. A). The court may consider exhibits attached to the motion
to dismiss in certain circumstances without converting the motion to dismiss into a motion for summary
Our Rule 12(b)(6) decisions have adopted the “incorporation by reference” doctrine, see In
re Silicon Graphics Inc. Securities Litigation, 183 F.3d 970 (9th Cir.1999), under which a
document attached to a motion to dismiss may be considered by the court without converting
the motion into one for summary judgment only if the attached document is: (1) central to
the plaintiff's claim; and (2) undisputed. See Harris v. Ivax Corp., 182 F.3d 799, 802 n. 2
(11th Cir.1999). “Undisputed” in this context means that the authenticity of the document
is not challenged. See, e.g., Beddall v. State Street Bank and Trust Co., 137 F.3d 12, 16–17
(1st Cir.1998); GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384
(10th Cir.1997); Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994).
Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). See also Fuller v. SunTrust Banks, Inc., 744 F.3d
685, 696 (11th Cir. 2014) abrogated on other grounds Stargel v. SunTrust Bank, Inc., 791 F.3d 1309 (11th
Cir. 2015) (“This [C]ourt recognizes an exception, however, in cases in which  a plaintiff refers to a
document in its complaint,  the document is central to [her] claim,  its contents are not in dispute, and
 the defendant attaches the document to its motion to dismiss.”); Harris v. Ivax Corp., 182 F.3d 799, 802
n. 2 (11th Cir. 1999) (“[A] document central to the complaint that the defense appends to its motion to
dismiss is also properly considered, provided that its content are not in dispute.”)
Although Little does not reference her EEOC charge in her amended complaint, she relies on it to
oppose CRSA’s motion to dismiss; it is central to her claims; and she does not dispute its contents or
origin in a variety of employment practices. See Walker v. NationsBank of Florida, N.A., 53
F.3d 1548, 1555 (11th Cir. 1995).5 It is well-settled that an employer may be liable under
Title VII for subjecting an employee to sexual harassment in the workplace. Meritor Sav.
Bank v. Vinson, 477 U.S. 57, 65-66 (1986).
CRSA asserts that Little’s Title VII sexual harassment hostile work environment claim
should be dismissed because she failed to exhaust her administrative remedies and she cannot
demonstrate that Norris’ conduct was sufficiently severe or pervasive to create a hostile work
“The filing of an administrative complaint with the EEOC is ordinarily a jurisdictional
prerequisite to a Title VII action.” Chanda v. Engelhard/ICC 234 F.3d 1219, 1225 (11th
“A plaintiff’s judicial complaint is limited by the scope of the EEOC
investigation which can reasonably be expected to grow out of the charge of discrimination”
that the plaintiff filed with the EEOC. Mulhall v. Advance Sec., Inc., 19 F.3d 586, 589 n.8
(11th Cir. 1994). See also Gregory v. Ga. Dep’t of Human Resources, 355 F.3d 1277, 1279
(11th Cir. 2004). In her amended complaint, Little alleges that Norris and Patrick created a
hostile work environment because of her sex. In her EEOC charge, Little asserts that the
harassment began on May 1, 2016 and ended on July 13, 2016. In her EEOC charge, Little
states the following: “[b]eginning in May 2016, Norris has stated I have a cute ass; told me
42 U.S.C.A. § 2000e-2(a)(1) provides: “It shall be an unlawful employment practice for an
employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to her compensation, terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex or national origin.”
I look good in my jeans; asked me to wear dresses and heels to work so he could stand at the
bottom of the ladder and watch me climb the ladder.” (Doc. # 30, Ex. A).
First, Little’s EEOC charge contains absolutely no indication that she was also
accusing Patrick of sexual harassment, and the charge contains no factual allegations that
could reasonably lead to an EEOC investigation of sexual harassment hostile work
environment created by Patrick. Little’s sexual harassment hostile work environment claim
regarding Patrick’s conduct fails as a matter of law because she failed to exhaust her
administrative remedies with respect to his conduct. See Chanda, 234 F.3d at 1225.
More importantly, however, Little’s claim of sexual harassment hostile work
environment fails because she has failed to sufficiently allege the claim, even after being
given an opportunity to amend her complaint. A plaintiff adequately pleads a claim for
hostile work environment if she alleges (1) she belongs to a protected group; (2) she was
subjected to unwelcome harassment; (3) the harassment was based on a protected
characteristic; (4) the harassment was sufficiently severe or pervasive to alter the terms and
conditions of her employment and create an abusive working environment; and (5) a basis
exists for holding the employer liable. Trask v. Sec'y, Dep't of Veterans Affairs, 822 F.3d
1179, 1195 (11th Cir. 2016); Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999).
It is the fourth element – conduct sufficiently severe or pervasive to alter the conditions of
employment – “that tests the mettle of most sexual harassment claims.” Gupta v. Fla. Bd.
of Regents, 212 F.3d 571, 583 (11th Cir. 2000). “Requiring the plaintiff to prove that the
harassment is severe or pervasive ensures that Title VII does not become a mere “general
civility code.”” Id. (quoting Faragher, 524 U.S. at 788)
An employer is liable for violating Title VII based on sexual harassment when the
harassing conduct unreasonably interferes with an employee’s job performance by creating
a hostile, intimidating, or offensive work environment.6 Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 65 (1986). Whether harassing conduct is sufficiently severe or pervasive to
alter the terms and conditions of a plaintiff’s employment includes an objective and a
subjective component. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993). The
plaintiff must subjectively perceive the environment to be abusive, and the conduct must be
severe or pervasive enough to create an objectively hostile or abusive work environment. Id.
at 21. The Supreme Court has noted that “[w]hether an environment is ‘hostile’ or ‘abusive’
can be determined only by looking at all the circumstances,” such as (1) the frequency of the
discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening
or humiliating; and (4) whether it unreasonably interfered with the employee's work
performance. Id. at 23. See also Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-71
(2001) (emphasizing that workplace conduct is not to be measured in isolation); Mendoza,
The employer is subject to vicarious and strict liability for a supervisor’s sexual harassment that
results in a tangible employment action. Cotton v. Cracker Barrel Old Country Store, 434 F.3d 1227, 1246
(11th Cir. 2006). “A tangible employment action constitutes a significant change in employment status, such
as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits.” Davis v. Town of Lake Park, Fl., 245 F.3d 1232, 1239 (11th Cir.
2001) (quoting Burlington Indus. Inc., v. Ellerth, 524 U.S. 742, 760-61 (1998) (emphasis in original)).
However, Little makes no allegation that she suffered a tangible employment action as the result of Norris’
conduct. Consequently, the court looks solely to her claim that the actions of Norris were severe and
pervasive enough to alter the terms of her employment.
195 F.3d at 1246 (citations omitted); Johnson v. Booker T. Washington Broad. Serv., Inc.,
234 F.3d 501 (11th Cir. 2000); Allen v. Tyson Foods, Inc., 121 F.3d 642, 647 (11th Cir.
1997) (citing Harris, 510 U.S. at 23).
Applying the requisite factors to the totality of these events, the court concludes that
the plaintiff has failed to sufficiently allege that the conduct at issue was objectively
sufficiently severe or pervasive to alter the terms and conditions of her employment and
create a hostile or abusive working environment. In her amended complaint, Little details
a single incident involving Norris. According to Little, in July 2016, Norris told her how to
dress to get a man’s attention. (Doc. # 29 at 4, ¶ 12). Although Little alleges in her amended
complaint that Norris’ comments began in 2006 and continued through 2016, her EEOC
charge asserts that the harassment began in May 2016 and ended in July 2016. The court is
constrained by the allegations contained in Little’s EEOC charge, and will not consider
conduct that occurred prior to May 2016. See Mulhall, 19 F.3d at 589.
Little asserts that Norris routinely made inappropriate comments to her. She does not
allege when he made these comments, nor does she quantify what she means by routinely.
Her vague conclusory statement that his comments were routine is unsupported by facts.
Even if the court were to assume that Norris made all of the complained about
comments between May and July 2016, the lack of severity of Norris’ boorish immature
comments militate against concluding that Little has alleged sufficiently severe or pervasive
conduct to alter her work environment.7 According to Little, Norris made the following
She “had a cute ass” (doc. # 29 at 3, ¶ 10)
She “looked good in jeans” (id.)
“[A]sked her to wear dresses so he could stand at the bottom of the ladder and
look up her dress and watch her climb the ladder” (id.)
“how she looked whenever she was required to tuck in her shirt” (id. at ¶ 11)
“how her butt looked in her jeans” (id.)
“asked the Plaintiff if she was on her menstrual cycle when the Plaintiff had
problems . . . requiring her to change clothes” (id.)
“told the Plaintiff on July 13, 2016[,] she should wear heels to work not dress
flat shoes as it would get men’s attention and she would receive favorable
responses . . .”
Little has not alleged facts showing that “the workplace [wa]s permeated with
discriminatory intimidation, ridicule, and insult.” Butler v. Ala. Dep’t of Transp., 536 F.3d
1209, 1214 (11th Cir. 2008). The comments, while childish, were not derogatory slurs or
imbued the workplace with overt hostility. Her bald allegations which are lacking in
specificity are simply insufficient as a matter of law to establish that Norris’ comments were
sufficiently severe and pervasive to constitute a hostile work environment.
Furthermore, she does not assert that any of Norris’ comments were physically
threatening and she makes no allegation that he touched her. In her amended complaint,
Even if the plaintiff were to show frequent conduct, “the frequency . . . does not compensate for
the absence of the other factors.” Mendoza v. Borden, Inc., 195 F.3d 1238, 1248 (11th Cir. 1999).
Little asserts that Norris’ conduct “affected her work and her home life.” (Doc. # 29 at 9, ¶
18.) However, she does not detail how his comments affected her ability to do her job and
a fair reading of her amended complaint indicates that she still works at CSRA. She asserts
no facts in support of her allegation that Norris’ comments interfered with her ability to do
her job or that she was hindered in her ability to do her job as a result of his conduct. The
totality of the circumstances alleged by Little do not support a conclusion that Norris’
conduct rose to the level required to meet the fourth element of hostile environment sexual
The fifth element requires allegations of a basis for holding CSRA liable.9 Little
contends that CRSA is ‘liable for such misconduct by Norris and Patrick because it had
actual and constructive notice of the misconduct and failed to take any steps to prevent a
recurrence of such unlawful behavior.” (Id. at 6, ¶ 25). However, she fails to allege any
Even if the court were to consider Little’s allegation against Patrick, she still has not alleged
sufficiently severe or pervasive conduct. The incident involving Patrick, while offensive, is an isolated
incident that occurred during a telephone call. It did not involve any touching and there is no allegation that
Patrick made repeated comments to Little. It is clear that this occurrence was an isolated event which was
not so severe or threatening as to render the workplace objectively hostile or abusive. Consequently, this
incident does not support Little’s hostile work environment claim.
“An employer is subject to vicarious liability to a victimized employee for an actionable hostile
environment created by a supervisor with immediate (or successively higher) authority over the employee.”
Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). The employer is strictly liable for the hostile
environment if the supervisor takes tangible employment action against the victim. See id. at 807. However,
when an employee has established a claim for vicarious liability where no tangible employment action was
taken, a defending employer may raise as an affirmative defense to liability or damages: “(a) that the
employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
(b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise.” Id. There is no allegation in the
amended complaint that Norris or Patrick were supervisors. Little alleges no facts that she took advantage
of any preventive opportunities or that she reported the conduct to anyone other than Patrick on one occasion.
facts in support of her conclusory assertion. When the perpetrator of the harassment is a
co-employee of the victim, the employer is liable only “if it knew or should have known of
the harassing conduct but failed to take prompt remedial action.” Miller v. Kenworth of
Dothan Inc., 277 F.3d 1269, 1278 (11th Cir. 2002). Little alleges absolutely no facts to
support an allegation that CSRA was aware of any of Norris’ conduct. Little does not allege
that she complained to anyone other than Patrick, and she complained to Patrick on March
11, 2015, long before she filed her EEOC complaining only about Norris’ actions that
occurred in 2016. Therefore, her complaint to Patrick cannot serve as a basis to hold CSRA
liable. Based on the foregoing, the court concludes that CSRA’s motion to dismiss Little’s
Title VII sexual harassment claim is due to be granted.
Title VII Claims against Norris and Patrick
Defendants Norris and Patrick assert that the Title VII sexual harassment hostile work
environment claims against them individually should be dismissed because Title VII claims
cannot be maintained against individuals. The court agrees. See Dearth v. Collins, 441 F.3d
931, 933 (11th Cir. 2006). See also, e.g., Shotz v. City of Plantation, 344 F.3d 1161, 1174
n.20 (11th Cir. 2003) (noting that Title VII does not provide a remedy against individual
defendants); Smith v. Lomax, 45 F.3d 402, 403 n.4 (11th Cir. 1995) (noting that individuals
cannot be held liable under Title VII). “The relief granted under Title VII is against the
employer, not individual employees whose actions would constitute a violation of the Act.”
Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991). Little concedes that her Title
VII claim cannot be maintained against Norris, and she does not respond to this aspect of
Patrick’s motion to dismiss. See Doc. # 39 at 6. Consequently, because the plaintiff cannot
bring Title VII claims against the individual defendants, defendant Norris and Patrick’s
motions to dismiss count one of the amended complaint against them (docs. # 32 & 34) are
due to be granted.
C. State Law Claims
The court’s exercise of supplemental jurisdiction over the plaintiff’s remaining state
law claims is discretionary. Under 28 U.S.C. § 1367(c)(3), the court may “decline to exercise
supplemental jurisdiction over a [state law] claim if the district court has dismissed all claims
over which it has original jurisdiction . . . ” The court declines to exercise supplemental
jurisdiction over the plaintiff’s state law claims, and these claims are due to be dismissed
For the reasons as stated, it is
ORDERED as follows:
That the defendants’ motions to dismiss (docs. # 9, 12 & 15) be and are hereby
DENIED as moot.
That the motions to dismiss (docs. # 30, 32 & 34) be and are hereby
GRANTED with respect to the plaintiff’s Title VII claims, and the federal claims against the
defendants be and are hereby DISMISSED with prejudice.
That the plaintiff’s state law claims be and are hereby DISMISSED without
That this case be and is hereby DISMISSED; and
Costs be and are hereby TAXED against the plaintiff.
A separate judgment will issue.
Done this 9th day of August, 2017.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
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