Stovall v. Hancock Bank of Alabama, Inc.

Filing 13

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART Defendant Hancock Bank's filed by Hancock Bank of Alabama, Inc., 7 Partial MOTION TO DISMISS and MOTION for More Definite Statement, as further set out in order. Signed by Honorable Judge Mark E. Fuller on 7/3/13. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
VERONICA STOVALL,
Plaintiff,
v.
HANCOCK BANK OF ALABAMA,
INC., d/b/a WHITNEY BANK,
Defendant.

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CASE NO.: 2:12-cv-1036-MEF
(WO – Do Not Publish)

MEMORANDUM OPINION AND ORDER
This case arises out of an employment dispute between Plaintiff Veronica Stovall
(“Plaintiff” or “Stovall”) and her employer, Defendant Hancock Bank (“Defendant” or
“Hancock Bank”).1 Now before the Court is Defendant’s Partial Motion to Dismiss and
Motion for a More Definite Statement (Doc. #7), which was filed on January 16, 2013. For
the reasons explained herein, the Court finds that Defendant’s motion is due to be
GRANTED IN PART and DENIED IN PART.
FACTUAL AND PROCEDURAL BACKGROUND 2
1.

Facts
Stovall is an African-American female. On May 12, 2009, Hancock Bank hired

1

Defendant Hancock Bank was identified as Hancock Bank of Alabama, Inc. in the
Complaint. (Docs. #1 & 7.)
2

This recitation of facts is derived from Stovall’s Complaint (Doc. #1). As is required at
the motion to dismiss stage, the Court will take as true all factual allegations as pled in the
Complaint.

Stovall to work as a Bank Operations Specialist II in the Resolution Department of one of
its branch banks in Prattville, Alabama (hereinafter, the “Prattville Branch Bank”).
On July 12, 2011, Cynthia Wood (“Wood”) reported to Emarilyn Stephens
(“Stephens”) that Stovall had an “outburst” while on duty. Wood is a Caucasian female
employed as a Team Leader, presumably at the Prattville Branch Bank. Stovall does not
identify Stephens by race in the Complaint; however, she is identified as Stovall’s
“Supervisor” in the charge of discrimination attached to the Complaint.3 (Doc. #1-1.) In
response to Wood’s report, Stephens and Ann Wyatt (“Wyatt”) met with Stovall. Wyatt is
a Caucasian female employed as a Human Resources Representative for Hancock Bank.
Stovall was issued a disciplinary write-up by Stephens during this meeting.
On August 1, 2011, Stephens accused Stovall of violating company policy regarding
cell phone usage, although Stovall was not using her cell phone. Four days later, Stovall
observed Heather Mullins (“Mullins”), a Caucasian female Team Leader employed
presumably at the Prattville Branch Bank, using her cell phone in front of Stephens, but
Mullins was not reprimanded. On November 28, 2011, Candace Gray (“Gray”), a Caucasian
female employed at the Prattville Branch Bank, also entered the department with a cell phone

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Attached as Exhibit 1 to the Complaint are Stovall’s March 27, 2012 charge of
discrimination with the EEOC and the EEOC’s August 29, 2012 right-to-sue letter. (Doc. # 1-1.)
Because Stovall references her EEOC charge and right-to-sue letter in her Complaint, and because
these documents are central to her discrimination claims and undisputedly authentic, the Court may
consider them at this stage in the proceedings without converting Hancock Bank’s motion to dismiss
into one for summary judgment. See Brooks v. Blue Cross & Blue Shield, Inc., 116 F.3d 1364, 1369
(11th Cir. 1997).
2

but was not reprimanded.
On October 14, 2011, Debbie Elwell (“Elwell”), a Caucasian female employed as a
Bank Operation Specialist II at the Prattville Branch Bank, had a confrontation with Wood
and an “‘outburst’ on the floor.” (Doc. #1, ¶ 9.) Following this confrontation, Stovall,
Elwell, and Deone Cantlow (“Cantlow”), an African American female employed at the
Prattville Branch Bank, were called to a meeting4 with Stephens, Mullins, Wyatt, Wood, and
Janet Brandon (“Brandon”), a Caucasian female employed as the Deposit Services Manager
at the Prattville Branch Bank. During this meeting, Wyatt asked “who wanted to lose their
job?” (Doc. #1, ¶ 9.) After this meeting, Stovall and Cantlow were called back for another
meeting5 and were “counseled about treating team leaders with respect,” but Elwell was not
disciplined for her actions towards Wood. (Doc. #1, ¶ 9.) Stovall does not identify in the
Complaint who counseled her at this meeting, who called the meeting, or who else was
present at the meeting besides she and Cantlow.
On November 30, 2011, Stovall was given a disciplinary write-up by Stephens “for
failure to follow her orders on November 23, 2011.” (Doc. #1, ¶ 11.) Stovall does not
specify what orders she was given by Stephens on November 23, 2011; rather, she alleges
that she informed Stephens and Wyatt that she was following instructions given to her by
Wood and that she would file a complaint pursuant to the procedure set out in Hancock

4

The exact date of this meeting is unspecified in the Complaint. (Doc. #1.)

5

Again, the exact date of this meeting and the counseling Stovall received during this
meeting are not specified in the Complaint. (Doc. #1.)
3

Bank’s employee handbook contesting the treatment she was receiving. Stovall did not
receive a copy of this write-up.
On December 5, 2011, Stovall filed a complaint about the actions taken against her
through Hancock Bank’s third-party provider network. Specifically, Stovall complained
about the actions Stephens had taken against her and that Wood did not know her own job.
Stovall provides no further specifics about her December 5, 2011 complaint.
On December 13, 2011, Wyatt and James Telford (“Telford”), the Regional Human
Resources Manager for Hancock Bank, interviewed employees about Stephens’s workplace
conduct. Telford is not identified by race in the Complaint. Stovall alleges that Telford and
Wyatt did not investigate the “job threat” Wyatt made towards her or Wood’s “untrue
statement, retaliation, harassment, and discriminatory acts, all that were contained in
Plaintiff’s complaint.” (Doc. #1, ¶ 13.) Again, Stovall provides no specifics as to Wood’s
“untrue statement, retaliation, harassment, and discriminatory acts,” which she alleges were
all contained in her December 5, 2011 complaint. Stovall asked Telford if he wanted to
discuss her December 5, 2011 complaint, and he responded “no.” (Doc. #1, ¶ 13.)
On February 8, 2012, Stovall was given her annual performance evaluation by Wood.
Stovall was given a low score and “an inaccurate, untrue, and unfair poor performance
review.” Stovall asked for an explanation of the review but was not given one. On May 16,
2012, Sherry McNutt (“McNutt”) re-evaluated Stovall. McNutt is not identified by race or
position in the Complaint (although she is presumably employed by Hancock Bank). McNutt

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expressed to Stovall that she did not know why she was evaluating Stovall because she
(McNutt) was from Long Beach, Mississippi and had just met Stovall.
On July 27, 2012, Stovall applied for the positions of Document Analyst Sr. and
Lending Customer Service Specialist at the Prattville Branch Bank. Stovall claims she was
qualified for both jobs. On August 17, 2012, Stovall was interviewed by Shannon Curry
(“Curry”) and Lisa Jones (“Jones”), the supervisor and manager for both jobs, respectively.
Neither Curry nor Jones are identified by race in the Complaint. Stovall was told by Jones
that she could choose either job she wanted.
On August 8, 2012, Stovall emailed a complaint to Jo Hatley (“Hatley”), Senior Vice
President and Manager of Deposit Services, about discriminatory and unethical issues that
had been occurring in the Prattville Branch Bank’s Resolution Department since 2009.
Stovall does not identify Hatley by race in the Complaint. Stovall complained that there are
three employees, one white and two African-American, in this department, and that the
African-American employees (Stovall and Cantlow) were “performing all departmental tasks
while Cindy Wood, the white employee performing [sic] little to none of the work because
she does not know how to do it even though Ms. Wood had been trained three times or more
and her training session lasting [sic] for weeks while Plaintiff had two hours of training.”
(Doc. #1, ¶ 18.) Stovall further complained that she and Cantlow would “work throughout
the day” while Wood would “sit at her desk for hours with nothing to do and management
knew this was happening.” (Doc. #1, ¶ 18.)

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On August 10, 2012, employees in the Prattville Branch Bank’s Resolution
Department “were removed from all job functions with [sic] consist of processing
commercial new and commercial change of title accounts.” (Doc. #1, ¶ 19.) However, the
only removed employee specifically identified in the Complaint was Stovall.
On August 15, 2012, Hatley, Telford, and Jonathan Rodriquez (“Rodriquez”) met with
Stovall to discuss her August 8, 2012 complaint. Stovall does not specify Rodriquez’s race
or job title in the Complaint. Nor does she allege that he is employed by Hancock Bank.
During this meeting, Telford asked Stovall who was discriminating against her, and she told
them “it is discriminating if she [Stovall] is getting all the work and Cindy is doing retail
only.” (Doc. #1, ¶ 20.) Stovall also complained that “it is unfair that she [Stovall] is working
the entire day during [sic] all the functions of the department and Ms. Wood sit [sic] at her
desk with nothing to do.” (Doc. #1, ¶ 20.) Stovall complained that Wood has less experience
but makes the most money, although Stovall does not identify Wood’s experience or provide
any specific facts to support this claim. Finally, Stovall complained that Wood calls McNutt
after hours and this is a “conflict of interest.” (Doc. #1, ¶ 20.)
On September 12, 2012, Stovall was notified via email that she was not selected for
the Lending Customer Service Specialist position. Stovall also learned that Hancock Bank
determined she was not qualified for the Documentation Analyst Sr. position. Stovall claims
that other, less qualified employees and applicants outside of Hancock Bank were offered
these positions, although Stovall does not provide any specific facts to support this claim,

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such as the names, race, or gender of these individuals. All Stovall alleges is that she has
loan experience and a bachelor’s degree “which none of these women had.” (Doc. #1, ¶ 22.)
According to Stovall, her negative performance review and an EEOC claim she filed in
February 2012 against Hancock Bank prevented her from advancing with the company.
Notably, this is the only mention of a February 2012 EEOC complaint by Stovall in her
Complaint.
On September 25, 2012, Stovall resumed her work in the Prattville Branch Bank’s
Resolution Department. The following day, Stovall told her manager that she needed
refresher training because it had been over a month since she worked with commercial
change of title accounts and the procedures had changed. Thereafter, Stovall claims that her
manager started “harassing her” with emails asking Stovall to reply via email even though
her manager’s office was next to Stovall’s desk. Stovall claims that her manager “never once
harassed” Wood by sending her emails and “asking her for questions for a training manual.”
(Doc. #1, ¶ 25.)
Stovall claims that, after she filed one of her complaints, Stephens stared at her
“constantly” and “has subjected her to ridicule in front of her co-workers.” (Doc. #1, ¶ 26.)
Yet Stovall does not identify the specific complaint that precipitated these actions by
Stephens, whether it be her December 5, 2011 complaint to the third-party provider, her
February 2012 EEOC complaint, or her August 8, 2012 complaint to Hatley. Nor does
Stovall provide any specific facts as to the “ridicule” Stephens subjected her to in front of

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her co-workers.
2.

Procedural History
Stovall filed a charge of discrimination with the Equal Employment Opportunity

Commission (“EEOC”) on March 27, 2012.6 Stovall notes in her charge that the dates of
discrimination were July 12, 2011, through October 14, 2011, and does not indicate that the
discrimination was part of a “continuing action.” Stovall claims that she was discriminated
and retaliated against because of her race based on her July 12, 2011 counseling, the October
14, 2011 “job threat,” and Hancock Bank’s failure to discipline Elwell for having an outburst
on the floor on October 14, 2011, that was similar to the outburst Stovall had on July 12,
2011, and was disciplined for. Stovall’s charge does not include any allegations that she was
accused of violating the company’s cell phone policy in August 2011 while white employees
were not; that she was disciplined in November 2011 for not following instructions; that she
made complaints on December 5, 2011 to the company’s third-party provider network and
on August 8, 2012 to Hatley; that she filed a previous complaint with the EEOC in February
2012; that she received a negative performance evaluation in February 2012; or that less
qualified, white individuals received the Lending Customer Service Specialist and
Documentation Analyst Sr. Positions over her. Nor does Stovall’s charge contain any

6

While Stovall alleges in her Complaint that her EEOC charge was filed on March 23, 2012,
the date Stovall signed the charge, EEOC regulations provide that charges are deemed “filed with
the Commission upon receipt[]” (i.e., not when signed). 29 C.F.R. § 1601.13(a). Thus, the receipt
date indicated on the official stamp is the date that Stovall’s EEOC charge was filed–March 27,
2011.
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allegations regarding conduct that occurred after the charge was filed.
On August 29, 2012, Stovall received a right-to-sue letter from the EEOC. Stovall
filed this lawsuit on November 27, 2012, asserting various claims against Hancock Bank
under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 1981, 42 U.S.C.
§ 1983, and state law. (Doc. #1.) Stovall’s claims are summarized as follows: (1) a claim
for race discrimination in violation of Title VII, § 1981, and § 1983 (Count IV); (2) a claim
for deprivation of Stovall’s equal protection rights under the Fourteenth Amendment to the
United States Constitution in violation of § 1983 (Count V); (3) a claim for intentional
infliction of emotional distress (Count VI); (4) a claim for respondeat superior based on
Stephens’s infliction of emotional distress (Count VII); (5) a claim for deprivation of
Stovall’s due process rights under the Fourteenth Amendment to the United States
Constitution in violation of § 1983 (Count VIII); (6) “exercise of rights protected by law,”
which is simply a retaliation claim under Title VII (Count IX); and (7) another claim for
retaliation (Count X).
In her Complaint, Stovall claims that she has sustained “a feeling of shame, mood
swings, sadness, anxiousness, depression, and lack of energy which she did not experience
before” those actions. (Doc. #1, ¶ 28.) Stovall also summarily claims that Hancock Bank
“did not treat its Caucasian employee [sic] the same as it treated Plaintiff with regards to
discipline, and in essence denied Plaintiff her procedural due process rights.” (Doc. #1, ¶
30.)

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STANDARD OF REVIEW
1.

Rule 12(b)(6)
In considering a Rule 12(b)(6) motion to dismiss, “the court accepts the plaintiff’s

allegations as true . . . and construes the complaint liberally in the plaintiff’s favor.” Id. at
1297. Further, a district court must favor the plaintiff with “all reasonable inferences from
the allegations in the complaint.” Stephens v. Dep’t of Health and Human Servs., 901 F.2d
1571, 1573 (11th Cir. 1990).
To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (internal quotations omitted). 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.”
Id. A complaint does not state a facially plausible claim for relief if it shows only “a sheer
possibility that the defendant acted unlawfully.” Id. While a complaint need not contain
detailed factual allegations to survive a Rule 12(b)(6) motion, “[a] pleading that offers labels
and conclusions or a formulaic recitation of the elements of a cause of action will not do.”
Id. (internal quotation and citations omitted). Absent the necessary factual allegations,

“unadorned, the-defendant-unlawfully-harmed-me accusation[s]” will not suffice. Id.
Courts are also not “bound to accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Granting a motion to dismiss is
appropriate only “when it is demonstrated beyond a doubt the plaintiff can prove no set of
10

facts in support of [her] claim that would entitle [her] to relief.” Reeves v. DSI Sec. Servs.,
331 Fed. App’x 659, 661 (11th Cir. 2009).
2.

Rule 12(e)
Rule 12(e) of the Federal Rules of Civil Procedure provides that a party may move for

a more definite statement if a pleading to which a responsive pleading is required “is so
vague or ambiguous that the party cannot reasonably prepare a response.” Fed. R. Civ. P.
12(e). A motion for a more definite statement “must be denied if the complaint attacked
thereby, considered as a whole, fairly gives notice of the claim or claims asserted therein so
as to permit the filing of a responsive answer.” Herman v. Continental Grain Co., 80 F.
Supp. 2d 1290, 1297 (M.D. Ala. 2000). Indeed, a motion for a more definite statement is
required only “when the pleading is so vague or ambiguous that the opposing party cannot
respond, even with a simple denial, in good faith or without prejudicing himself.” Fathom
Exploration, LLC v. Unidentified Shipwrecked Vessel or Vessels, 352 F. Supp. 2d 1218, 1221
(S.D. Ala. 2005). Such a motion is not a substitute for discovery. Id. at 1221-22.
DISCUSSION
The Complaint in this case is an unfortunate example of the confusion and frustration
caused by vague and hasty pleading. Indeed, it appears that neither Hancock Bank nor the
Court can discern with much confidence which specific facts support which of Stovall’s
various claims. Nonetheless, the Court will do its best to parse through the Complaint and
determine which claims go, which claims stay, and which claims need to be re-pleaded.

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1.

Section 1983 Claims
In her Complaint, Stovall asserts claims against Hancock Bank for depriving her

constitutional rights under the Fourteenth Amendment to the United States Constitution,
namely, her equal protection and due process rights, in violation of § 1983. To prevail on
an action under § 1983, a plaintiff must show that she was deprived of a federal right by a
“person acting under color of state law.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303
(11th Cir. 2001). Private parties like Hancock Bank are typically not considered “state
actors” for § 1983 purposes.7 Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992).
Indeed, Stovall, in recognizing this fatal flaw, concedes her § 1983 claims in her response
to Hancock Bank’s motion to dismiss. (Doc. # 11, ¶ IV.) Accordingly, Count IV of Stovall’s
Complaint is due to be DISMISSED to the extent it asserts a claim for race discrimination
under § 1983, and Counts V and VIII are due to be DISMISSED in their entirety.
2.

State Law Claims
Stovall’s Complaint also asserts claims against Hancock Bank under Alabama state

law for intentional infliction of emotional distress and respondeat superior. Both of these
claims are due to be dismissed. The tort of outrage is recognized in Alabama only in very
limited circumstances, which are: (1) wrongful conduct in the family-burial context; (2)

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Only in rare circumstances can private parties be viewed as “state actors” for § 1983
purposes, and none of the required conditions were alleged to have been met in Stovall’s Complaint.
See Chen ex rel. V.D. v. Lester, 364 Fed. App’x 531 (11th Cir. 2010) (recognizing the three
conditions that must be met for a private party to qualify as a “state actor” for § 1983 purposes as:
(1) the State has coerced or at least significantly encouraged the action alleged to violate the
Constitution; (2) the private party performed a public function that was traditionally the exclusive
prerogative of the State; or (3) the State had so far insinuated itself into a position of interdependence
with the private party that it was a joint partnership in the enterprise).
12

barbaric methods used to coerce an insurance settlement; and (3) egregious sexual
harassment or abuse. See Potts v. Hayes, 771 So. 2d 462, 465 (Ala. 2000). A defendant’s
conduct must also be “extreme and outrageous” such that it caused emotional distress “so
severe that no reasonable person could be expected to endure it.” Id. Stovall has not plead
facts sufficient to establish a plausible claim for intentional infliction of emotional distress,
and therefore, Count VI of the Complaint is due to be DISMISSED in its entirety.
As to Stovall’s respondeat superior claim, the law is well-settled that a defendant
cannot be held vicariously liable for a tort when the plaintiff cannot establish underlying
liability for that tort. See Knowles v. Am. Home Mortg. Serv. Inc., No. 5:11-cv-1670-AKK,
2013 WL 122543, at *3 (N.D. Ala. Jan. 7, 2013) (noting that vicarious liability cannot be
established without underlying wrongful conduct). Because Stovall’s respondeat superior
claim is premised solely on her outrage claim, a claim which the Court has already
determined she failed to plausibly plead, her claim for respondeat superior in Count VII of
the Complaint is likewise due to be DISMISSED.
3.

Title VII Discrimination and Retaliation Claims
Stovall’s Complaint is not a model of clarity. That being said, from what the Court

can discern, it appears that Stovall’s Complaint asserts three claims under Title VII: (1) a
race discrimination claim (Count IV); (2) a claim for “exercise of rights protected by law,”
which is essentially a claim for retaliation (Count IX); and (3) another retaliation claim
(Count X). Because Counts IX and X are essentially duplicative retaliation claims, as they
are based on the same set of facts, Count X is due to be DISMISSED. To the extent Count

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IX is premised on Title VII, the Court will address its merits below along with Stovall’s
remaining Title VII claims.
In the Title VII context, timely exhaustion of administrative remedies is a condition
precedent to asserting a judicial claim. Jordan v. City of Montgomery, 283 Fed. App’x 766,
767 (11th Cir. 2008). Specifically, a charge under Title VII “shall be filed within one
hundred and eighty days after the alleged unlawful employment practice occurred . . . .” 42
U.S.C. § 2000(e)-5(e)(1). A plaintiff’s “[f]ailure to file a timely charge with the EEOC
results in a bar of the claims contained in the untimely charge.” Id.
In this case, Stovall filed her charge of discrimination with the EEOC on March 27,
2012, alleging claims of race discrimination and retaliation based on her July 12, 2011
discipline, the October 14, 2011 job threat, and Hancock Bank’s failure to discipline Elwell
for having an outburst on the floor on October 14, 2011, that was similar to the outburst
Stovall allegedly had on July 12, 2011, and was disciplined for. (Doc. #1-1.) Stovall
identifies the dates of discrimination in her charge as July 12, 2011, through October 14,
2011, and did not check the box for “continuing action.” (Doc. #1-1.) As a result, Hancock
Bank argues that any discriminatory action taken against Stovall more than 180 days before
she filed her charge with the EEOC (i.e., on or before September 29, 2011)8 is not part of a
timely charge of discrimination and, therefore, cannot form the basis of a viable Title VII
claim. In response, Stovall argues that any untimely discriminatory acts that occurred before

8

Although Hancock Bank’s motion to dismiss represents that 180-days before March 27,
2012, the date Stovall filed her charge of discrimination, is September 23, 2011, the Court’s
calculations lead it to conclude that 180-days before March 27, 2012, is actually September 29, 2011.
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September 29, 2011, are linked to a timely discriminatory act and, as such, can be considered
under the continuing violation theory.
The Court does not accept Stovall’s argument that the continuing violation theory
salvages her ability to base her Title VII discrimination and retaliation claims on
discriminatory acts that occurred more than 180-days before she filed her March 27, 2012
charge of discrimination (i.e., on or before September 29, 2011).

Neither Stovall’s

Complaint nor her charge contain allegations of a continuing violation. Indeed, Stovall left
the “continuing action” box unchecked. (Doc. #1-1.) While this is not dispositive in and of
itself, the fact that Stovall’s July 12, 2011 discipline was a discrete act, rather than part of a
continuing violation of discriminatory conduct, is. Continuing violations usually involve a
policy or practice. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)
(“[D]iscrete discriminatory acts are not actionable if time barred, even when they are related
to acts alleged in timely filed charges.”); Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d
955 (11th Cir. 2008) (holding that hiring decisions, light work assignments, and alleged
retaliation constituted discrete acts and did not form part of a hostile work environment);
Tarmas v. Secretary of the Navy, 433 Fed. App’x 754, 760 (11th Cir. 2011) (treating a
transfer denial as a discrete act of discrimination). Here, Stovall’s charge of discrimination
encompasses three acts: her discipline on July 12, 2011, the job threat on October 14, 2011,
and Hancock Bank’s failure to discipline Elwell for having an outburst on the floor on
October 14, 2011, that was similar to the outburst Stovall had on July 12, 2011 and was
disciplined for. There are no allegations in either the charge or the Complaint that Hancock

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Bank maintained a policy or had an established procedure that had a discriminatory effect on
Stovall.9 (Doc. #1.) Thus, to the extent Stovall’s Title VII claims are based on purported
discriminatory acts that occurred more than 180-days before she filed her March 27, 2012
charge (i.e., on or before September 29, 2011), which would include her July 12, 2011
discipline, those claims are due to be DISMISSED.
However, even to the extent that Stovall’s Title VII discrimination and retaliation
claims are based on a timely act of discrimination, those claims still fail as a matter of law.
The only timely acts of discrimination included in Stovall’s charge are the October 14, 2011
job threat and Hancock Bank’s failure to discipline Elwell for having an outburst on the floor
on October 14, 2011, that was similar to the outburst Stovall allegedly had on July 12, 2011
and was not disciplined for. Thus, all the additional discriminatory acts alleged in Stovall’s
Complaint, including her being accused of violating Hancock Bank’s cell phone policy, the
discipline and write-ups she received in November 2011, her poor performance evaluation
in February 2012, her failure to receive the Documentation Analyst Sr. and Lending
Customer Service Specialist positions in September 2012, and her complaints in December
2011, February 2012, and August 2012, cannot form the basis of her Title VII race
discrimination and retaliation claims because none of these allegations (regardless of their

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It appears that, based on Stovall’s arguments in opposition to Hancock Bank’s partial
motion to dismiss, she has confused the motion to dismiss and summary judgment standards.
Indeed, Stovall argues that “Defendant has not provided this Court with any evidence that the acts
it cited was [sic] not discriminatory in nature.” (Doc. #11.) Yet, at the motion to dismiss stage,
Hancock Bank is not required to produce evidence refuting Stovall’s claims. Indeed, if it had done
so, the Court would have been required to convert Hancock Bank’s partial motion to dismiss into
one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.
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timeliness) were included in her charge of discrimination. Rather, they are new acts of
discrimination that Stovall failed to administratively exhaust before the EEOC, and therefore,
they cannot be litigated in this case. See Jordan, 283 Fed. App’x at 767 (explaining that
timely exhaustion of administrative remedies is a condition precedent to maintaining a
judicial action under Title VII).
Finally, when viewing Stovall’s Title VII race discrimination and retaliation claims
within the factual confines of her charge (i.e., the October 14, 2011 job threat and Hancock
Bank’s failure to discipline Elwell for having an outburst similar to Stovall’s), the Court is
convinced that these claims cannot move forward because Stovall has failed to sufficiently
plead a prima facie case. To establish a claim for race discrimination or retaliation under
Title VII, the plaintiff must show that she was subjected to an adverse employment action.
Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th Cir. 2002). A job threat and Hancock
Bank’s purported failure to discipline another employee for actions similar to those Stovall
was disciplined for do not constitute adverse employment actions sufficient to establish her
prima facie case, as they are not serious and material changes in the terms, conditions, or
privileges of Stovall’s employment. See Miller-Goodwin v. City of Panama City, Fla., 385
Fed. App’x 966 (11th Cir. 2010) (not adverse employment action when plaintiff’s supervisor
accused her of making a scene or when she received two counselings). Accordingly, Count
IV of Stovall’s Complaint is due to be DISMISSED to the extent it asserts a race
discrimination claim under Title VII, and Count IX of Stovall’s Complaint, which is a
retaliation claim premised on Title VII alone, is due to be DISMISSED in its entirety.

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4.

Section 1981 Claim and Rule 12(e) Motion for More Definite Statement
The only remaining claim left at this juncture is Stovall’s § 1981 race discrimination

claim. Hancock Bank argues that the “majority of [Stovall’s] claims brought under 42 U.S.C.
§ 1981 are due to be dismissed because she has failed to alleged an adverse employment
action.” At this time, and with this Complaint, the Court cannot agree. It is impossible for
the Court to discern which specific facts support Stovall’s § 1981 race discrimination claim
from the face of the Complaint. Therefore, Hancock Bank’s motion to dismiss as to Stovall’s
§ 1981 race discrimination claim as alleged in Count IV of the Complaint is due to be
DENIED.
However, Hancock Bank’s Motion for a More Definite Statement, and Stovall’s
Motion to Replead, are due to be GRANTED as to the § 1981 race discrimination claim as
plead in Count IV of the Complaint. This is the only claim that Stovall is given leave to
amend, as amendment of her Title VII, § 1983, and state law claims, which the Court has
dismissed, would be futile because these claims fail as a matter of law. No set of facts
different from those Stovall has already alleged would make her untimely claims timely,
would exhaust her unexhausted administrative remedies, or would show an adverse
employment action where one otherwise does not exist.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Defendant Hancock Bank’s
Partial Motion to Dismiss and Motion for a More Definite Statement (Doc. #7) is
GRANTED IN PART and DENIED IN PART as follows:

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(1)

Hancock Bank’s Partial Motion to Dismiss (Doc. #7) is GRANTED as to

Counts V, VI, VII, VIII, IX, and X of Stovall’s Complaint, and those claims are hereby
DISMISSED in their entirety;
(2)

Hancock Bank’s Partial Motion to Dismiss (Doc. #7) is GRANTED as to

Count IV of Stovall’s Complaint to the extent it asserts race discrimination claims under §
1983 and Title VII, and those specific claims are hereby DISMISSED;
(3)

Hancock Bank’s Partial Motion to Dismiss (Doc. #7) is DENIED as to the §

1981 race discrimination claim alleged in Count IV of Stovall’s Complaint;
(4)

Hancock Bank’s Motion for a More Definite Statement (Doc. #7) and Stovall’s

Motion to Replead (Doc. #11) are GRANTED as to the § 1981 race discrimination claim
alleged in Count IV of Stovall’s Complaint, and Stovall is given leave to amend her
Complaint on or before July 24, 2013 to set forth the specific facts on which her § 1981 race
discrimination is based.
rd

DONE this the 3 day of July, 2013.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

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