Vinson v. Koch Foods of Alabama, LLC et al

Filing 13

MEMORANDUM OPINION AND ORDER directing as follows: (1) Defendants' 8 motion to dismiss Vinson's § 1981 claim (Count 1) is GRANTED to the extent it is based on discriminatory pay, failure to promote to any position other than Professi onal Development and Training and night HR manager, and retaliation, and these claims are DISMISSED WITHOUT PREJUDICE; Defendants' motion to dismiss Vinson's § 1981 claim is DENIED in all other respects; (2) Defendants' 8 motion to dismiss Vinson's Title VII national origin claim (Count 2) is GRANTED to the extent it is based on discriminatory pay, failure to promote, and retaliation, and these claims are DISMISSED WITH PREJUDICE; (3) Defendants' 8 motion to dis miss Vinson's Title VII gender discrimination claim (Count 3) is GRANTED, and this claim is DISMISSED WITH PREJUDICE; (4) Defendants' 8 motion to dismiss Vinson's state law claims for negligent and wanton hiring/supervision, invasion of privacy, and intentional infliction of emotional distress (Counts 4 - 6) is GRANTED, and these claims are DISMISSED WITH PREJUDICE; (5) Defendants' 8 motion to dismiss Vinson's hostile work environment claims is DENIED AS MOOT; (6) P laintiff's 11 Motion for Leave to Amend is GRANTED as to her §1981 claim only; Plaintiff shall file an Amended Complaint no later than September 30 2013, correcting the deficiencies of this claim, or her § 1981 claim based on discriminatory pay, failure to promote to positions other than the Professional Development and Training and night HR management positions, and retaliation will be dismissed with prejudice. Signed by Honorable Judge Mark E. Fuller on 9/27/13. (scn, )

IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
MARIA N. VINSON,

)
)
Plaintiff,
)
)
v.
)
)
KOCH FOODS OF ALABAMA, LLC, )
et al.,
)
)
Defendants.
)

CASE NO. 2:12-cv-1088-MEF
(WO – Do Not Publish)

MEMORANDUM OPINION AND ORDER
This case arises from a suit brought by Plaintiff Maria N. Vinson (“Vinson”) against
Defendants Koch Foods of Alabama, LLC (“Koch-Ala”) and Koch Foods, LLC (“Koch”)
(collectively, “Defendants”) for unlawful employment discrimination. Before the Court is
Defendants’ Partial Motion to Dismiss (Doc. #8). For the reasons discussed herein,
Defendants’ Motion is due to be GRANTED IN PART and DENIED IN PART.
I. JURISDICTION AND VENUE
This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §§
1331, 1343(a), and 1367. Additionally, Defendants have not argued that the Court does not
have personal jurisdiction over them. Venue is appropriate pursuant to 28 U.S.C. § 1391.
II. STANDARD OF REVIEW
In considering a Rule 12(b)(6) motion to dismiss, the court accepts the plaintiff’s
allegations as true and reads them in the light most favorable to the plaintiff. Duke v.

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Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993) (citation omitted). 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 (2009) (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).
III. FACTUAL AND PROCEDURAL BACKGROUND
Since this case is before the Court on a motion to dismiss, the Court accepts the
following allegations as true: Vinson is a Hispanic female and her national origin is Puerto
Rican. (Doc. #1, ¶ 12.) Vinson has an Associate’s Degree in Arts and Communication and
a Bachelor of Science in Human Resource Management. (Doc. #1, ¶ 13.) Vinson is also a
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U.S. Veteran and served in the Army, National Guard and Reserves, and was Honorably
Discharged. (Doc. #1, ¶ 13.) Koch Foods owns and operates facilities at which it kills,
processes, and packages chicken and byproducts, and it licenses Koch-Ala to use the name
of “Koch Foods” for its Alabama operations. (Doc. #1, ¶ 6.) In October of 2009, Vinson
took a position as an Orientation Trainer in the Human Resource (“HR”) department at the
Montgomery chicken processing facility of Koch-Ala. (Doc. #1, ¶¶ 4–6, 14.)
During the course of her employment, Vinson applied for the position of Professional
Development and Training. (Doc. #1, ¶ 15.) Lindsey Johnson, a white female, was hired for
the position despite Vinson being more qualified and experienced. (Doc. #1, ¶ 15.) Vinson
again applied for the position of Professional Development and Training, but the position
was filled by Mason Melton, a white male who was less qualified than Vinson. (Doc. #1,
15.) An unposted night HR manager position later became available, and it was filled by a
white male who had no HR experience. (Doc. #1, ¶ 15.) White males were also selected for
other unposted positions. (Doc. #1, ¶ 16.)
On January 5, 2012, Vinson was one of three employees (two white females and
Vinson) who were suspended for taking too long of a break off the clock. (Doc. #1, ¶ 17.)
The two white female employees were allowed to return to work on the fourth day, but
Vinson was not allowed to return to work until the fifth day. (Doc. #1, ¶ 18.) When Vinson
returned to work, her supervisor, David Birchfield (“Birchfield”), changed her job duties but
not her job title. (Doc. #1, ¶¶ 4, 19.) This resulted in Vinson having no work station, no
work tools, and no job description. (Doc. #1, ¶ 20.) Vinson was also removed from the
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decisionmaking process of the HR department, which was a significant change in her
responsibilities from what they were prior to her suspension. (Doc. #1, ¶ 22.) The two
suspended white female employees retained their original job duties and later received
promotions. (Doc. #1, ¶ 21.) One of the suspended white female employees was promoted
to HR Generalist, a position that resulted in an increase in pay. (Doc. #1, ¶ 21.) White HR
employees and male employees were paid more than Vinson. (Doc. #1, 21.)
On May 17, 2012, Vinson was told that her position as Trainer/HR Clerk was
eliminated, and she was terminated. (Doc. #1, ¶¶ 23–24.) At the time of Vinson’s
termination, there was an open, unposted HR clerk position for which a male of a different
race and national origin was selected. (Doc. #1, ¶ 25.) On June 20, 2012, Vinson filed a
charge of discrimination with the Equal Opportunity Employment Commission (“EEOC”)
that reads in its entirety as follows:
I am Hispanic and my national origin is Puerto Rican. I was
hired by the above named employer in October 2009, as an
Orientation Trainer. On January 5, 2012, I was one of three
employees suspended for taking to [sic] long of a break, while
off of the clock. The two White employees were allowed to
return to work on the fourth day. I was not allowed to return to
work until the fifth day. When I returned to work from the
suspension, Mr. Burchfield [sic] changed my job duties, but I
kept the same job title. The change in my job duties resulted in
the elimination of my work station, so therefore I had no tools
to work with. The two White employees who were suspended
with me retained all of their job duties. The White employees
kept their work stations. I was taken completely out of the
decision making process, which I had before being suspended.
I was discharged on May 17, 2012, without any advance notice
or written warning.

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Howard Melton, Manager, told me that my job was not meeting
expectations and the job were [sic] being eliminated.
I believe that I was discriminated against because of my race,
Hispanic and my national origin, Puerto Rican, in violation of
Title VII of the Civil Rights Act of 1964, as amended. NonHispanic employees have been granted job accommodations
regardless of the availability of positions and they have given
been [sic] preferential treatment in the work place.
(Doc. #1-1.) On September 20, 2012, the EEOC issued a right-to-sue letter in which it stated
that it was unable to conclude that the information obtained from its investigation established
a violation of Title VII. (Doc. #1-2.)
Vinson initiated this action with a complaint alleging racial discrimination and
retaliation under 42 U.S.C. § 1981 (Count 1), national origin discrimination under Title VII
(Count 2), and gender discrimination under Title VII (Count 3). (Doc. #1.) Vinson’s § 1981
and Title VII claims are premised on unlawful termination, failure to promote, and unequal
pay. (Doc. #1, ¶¶ 30–33; 39; 44–46.) Vinson also asserts state law claims for negligent and
wanton hiring/supervision (Count 4), invasion of privacy (Count 5), and intentional infliction
of emotional distress (Count 6). (Doc. #1.)
Defendants now seek to dismiss the following claims: (1) the § 1981 retaliation and
racial discrimination claim to the extent it is based on discriminatory pay as alleged in Count
1; (2) any Title VII claims based on retaliation, discriminatory pay, and discriminatory
promotion as alleged in Counts 2 and 3; (3) any failure to promote claim, whether brought
under § 1981 or Title VII, to the extent those claims stem from any position other than the
position of Professional Development and Training as referenced in paragraph 15 of the
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complaint; (4) all claims for gender discrimination asserted in Count 3; (5) any purported
claim for hostile work environment under Title VII or § 1981; and (6) the state law claims
for invasion of privacy, intentional infliction of emotional distress, and negligent and wanton
hiring, training, supervision and retention as alleged in Counts 4, 5, and 6.1 (Doc. #8.)
IV. DISCUSSION
Defendants’ grounds for dismissal can be divided into two categories.

First,

Defendants argue that Vinson has failed to adequately plead her claims for retaliation, hostile
work environment, and all of her state law claims. (Doc. #9.) Defendants further argue that
Vinson has failed to adequately plead any § 1981 or Title VII claim based on discriminatory
pay or failure to promote (excluding any failure to promote claim based on the Professional
Development and Training position referenced in paragraph 15 of the complaint). Second,
Defendants argue that Vinson has failed to exhaust her administrative remedies for Title VII
claims of gender discrimination and national origin discrimination based on failure to
promote or discriminatory pay. (Doc. #9.) The Court will consider Defendants’ grounds for
dismissal as it applies to each Count in Vinson’s complaint.

1

Defendants do not move to dismiss Vinson’s § 1981 racial discrimination claim to the
extent it is based on her alleged wrongful termination and failure to promote her to the Professional
Development and Training position. Nor do they move to dismiss Vinson’s Title VII national origin
discrimination claim to the extent it is based on Vinson’s alleged wrongful termination.
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A.

Rule 12(b)(6) Dismissal
1. § 1981 Retaliation and Discrimination Claims (Count 1)
a. Discriminatory Pay
Vinson has asserted a race discrimination claim under § 1981 based on, among other

things, discriminatory pay. (Doc. #1, ¶¶ 31.) To establish a prima facie disparate pay case
under § 1981, a plaintiff must demonstrate that she held a position similar to that of a higher
paid employee who is not a member of her protected class. Crawford v. Carroll, 529 F.3d
961, 974–75 (11th Cir. 2008) (citing Meeks v. Computer Assocs. Int’l, 15 F.3d 1013, 1019
(11th Cir. 1994)). To establish that she held a position similar to that of the comparator, a
plaintiff must prove that she “shared the same type of tasks” as the comparator. Miranda v.
B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1529 (11th Cir. 1992).
In her complaint, Vinson alleges only that “[w]hite employees in Human Resources
were paid substantially more than Plaintiff.” (Doc. #1, ¶ 21.) This allegation is the precise
type of “formulaic recitation of the elements of a cause of action” that will not suffice under
Twombly/Iqbal. See Iqbal, 556 U.S. 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Vinson’s own complaint references different positions in the Human Resources
department at the Koch facility that paid more money than hers, such as the Professional
Development Training position, the night HR manager position, and the HR Generalist
position. (Doc. # 1, ¶¶ 15, 21.) Yet Vinson does not allege which positions held by the white
HR employees paid more than hers. Nor does she allege that any of these employees “shared
the same type of tasks” as her or provide any other factual basis to support her discriminatory
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pay allegations. See Miranda, 957 F.2d at 1529. As it stands, Vinson’s allegations are

“unadorned, the-defendant-unlawfully-harmed-me accusation[s]” that do not rise above the
speculative level. Iqbal, 556 U.S. at 678; see also Sherrod v. Prairie View A & M Univ., No.
H-10-1858, 2011 WL 843936, at *9 (S.D. Tex. Mar. 8, 2011) (holding that complaint stating
plaintiff received lower wages “as compared to male employees performing similar work”
in same university division failed to state a cause of action under Title VII because no facts
were alleged tending to show similarity of work); Williams v. N.Y.C. Health & Hosp. Corp.,
No. 08-cv-4132, 2010 WL 2836356, at *4 (E.D.N.Y. July 16, 2010) (holding that complaint
stating “[u]pon information and belief, males got paid when they were out sick but females
were not” fell “far short of that which is required to state a claim for pay discrimination under
Title VII”). Therefore, Defendants’ motion to dismiss Vinson’s § 1981 claim to the extent
it is based on disparate pay is due to be GRANTED.
b. Failure to Promote
Defendants do not seek dismissal of Vinson’s § 1981 claim to the extent it is based
on a failure to promote her to the Professional Development and Training position. (Doc.
#8.) They do, however, seek dismissal of her § 1981 claim to the extent it is based on a
failure to promote Vinson to any other position. (Doc. #8.) This would include Vinson’s
failure to receive the night HR manager position referenced in paragraph 15 of her complaint
and “[o]ther vacancies” referenced in paragraph 16 of her complaint.2 (Doc. #1.) Defendants

2

The Court does not construe Vinson’s statement that another employee received a
promotion to HR Generalist in paragraph 21 of her complaint as a separate instance of a
8

argue that Vinson does not allege: (1) that she applied for these positions, (2) that Defendants
knew she had any interest in these jobs, or (3) that she was more qualified than the applicants
who received these positions; therefore, Defendants claim that Vinson has failed to
adequately plead a § 1981 claim based on a failure to promote to either of these positions.
(Doc. #9; Doc. #12.)
To establish a prima facie case for failure to promote, a plaintiff must show: (1) that
the plaintiff belongs to a protected class; (2) that she applied for and was qualified for a
promotion; (3) that she was rejected despite her qualifications; and (4) that other equally or
less-qualified employees outside her class were promoted. Brown v. Ala. Dept. of Transp.,
597 F.3d 1160, 1174 (11th Cir. 2010). A plaintiff makes out a prima facie case as long as
she establishes that the company had some reason or duty to consider her for the post.
Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133 (11th Cir. 1984). However,
when a plaintiff has no notice or opportunity to apply for a job, such a reason by an employer
for rejection is legally insufficient and illegitimate. Id. at 1133–34 (internal quotations and
citations omitted). Beginning with the night HR manager position, Vinson alleges that the
position was unposted and was filled with a white male who had no HR experience. (Doc.
#1, ¶ 15.) The Court finds this allegation is sufficient to state a failure to promote claim for
the night HR manager position. Under Carmichael, Vinson need not allege that she applied
for the position because it was unposted, and Defendants had reason to know of her interest

discriminatory failure to promote, but rather as evidence of disparate treatment arising from a
disciplinary action.
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in the position based on her two past unsuccessful applications for promotions within the HR
department. Further, Vinson adequately alleges that the successful applicant was less
qualified when she states he had no HR experience.
However, the Court finds that Vinson’s failure to promote claim based on “[o]ther
vacancies,” which were not posted and filled by white males, is too vague. If Vinson was
aware that white males “were hand selected for open positions that were never posted so
Plaintiff could [not] apply,” then she should specify which positions those were, as she did
for the Professional Development and Training and night HR manager positions. (Doc. #1,
¶¶ 15–16.) See Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 974 (11th Cir. 2008) (stating
plaintiffs’ claim that they were “‘denied promotions . . . and treated differently than similarly
situated white employees solely because of [] race’ . . . epitomizes speculation and therefore
does not amount to a short and plain statement of their claim under Rule 8(a)”) (citation
omitted). Accordingly, Defendants’ motion to dismiss is DENIED to the extent Vinson’s §
1981 failure to promote claim is based on the night HR manager position as referenced in
paragraph 15 of her complaint, but GRANTED to the extent her § 1981 failure to promote
claim is based on any “[o]ther vacancies” referenced in paragraph 16 of her complaint.
c. Retaliation
Defendants move to dismiss Vinson’s § 1981 retaliation claim. (Doc. #8.) To
establish a claim of retaliation under § 1981, a plaintiff must prove: (1) that she engaged in
statutorily protected activity; (2) that she suffered a materially adverse action; and (3) that
there was some causal relation between the two events. Goldsmith v. Bagby Elevator Co.,
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513 F.3d 1261, 1277 (11th Cir. 2008). In her complaint, Vinson alleges only that “[a]fter
voicing complaints about the adverse treatment, Plaintiff incurred unlawful retaliation.”
(Doc. #1, ¶ 31.) Vinson does not allege, however, that she voiced complaints in opposition
to Defendants’ racially motivated adverse employment actions. (Doc. #1, ¶ 31.) For
instance, there is no allegation that Vinson challenged her disparate disciplinary treatment,
removal of work station and tools, and removal of job duties as racially motivated. In other
words, there are no specific allegations of Vinson “voicing complaints” about any adverse
employment action based on her race. A § 1981 retaliation claim requires the plaintiff to
allege she suffered an adverse action as a result of opposition to the employer’s unlawful
racial discrimination. See Andrews v. Lakeshore Rehab. Hosp., 140 F.3d 1405, 1412–13
(11th Cir. 1998); Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1007 (11th Cir. 1997).
Since Vinson has not alleged Defendants’ retaliation was based on her engagement in
statutorily protected activity, their motion to dismiss Vinson’s § 1981 retaliation claim is due
to be GRANTED.
2.

Title VII National Origin Claim

Defendants move to dismiss Vinson’s Title VII claims purportedly premised on
discriminatory pay, retaliation, and failure to promote on the grounds that they exceed the
scope of Vinson’s EEOC charge. (Doc. #9.) However, the Court finds that there is a more
serious problem with Vinson’s pleading, which must be addressed first. It is unclear from
Count 2 of Vinson’s complaint whether her national origin claim is based solely on her
wrongful termination, or if it is also based on discriminatory pay, failure to promote, and
11

retaliation. Paragraphs 36 through 41 of Count 2 allege only unlawful termination based on
national origin. (Doc. #1.) In her response brief, Vinson appears to assume that Count 2
includes claims for discriminatory pay, failure to promote, and retaliation by arguing that her
EEOC charge contained sufficient facts to support all three claims. (Doc. #4.) But the
allegations in Count 2 make no reference to these claims.
Vinson may not rely on paragraph 36 of Count 2 of her complaint, which re-alleges
and incorporates by reference all previous allegations, to provide a sufficient factual basis
for a Title VII national origin claim based on discriminatory pay, failure to promote, and
retaliation. This is classic “shotgun pleading” that prevents the Court and Defendants from
being able to ascertain, with any certainty, which factual allegations support Vinson’s
national origin discrimination claim. See Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty.
Coll., 77 F.3d 364, 366 (11th Cir. 1996); Wagner v. Horizon Pharm. Corp., 464 F.3d 1273,
1279 (11th Cir. 2006) (citation omitted) (“Shotgun pleadings are those that incorporate every
antecedent allegation by reference into each subsequent claim for relief or affirmative
defense.”). Shotgun pleadings “wreak havoc on the judicial system” by failing to properly
narrow the issues to meritorious claims and defenses and limit the scope of discovery, and
will not be permitted by this Court. Byrne v. Nezhat, 261 F.3d 1075, 1130–32 (11th Cir.
2001).
In any event, most of the general allegations incorporated by reference in paragraph
36 of Count 2 are immaterial to the claims for relief. See Johnson Enters. of Jacksonville,
Inc. v. FPL Grp., Inc., 162 F.3d 1290, 1333 (11th Cir. 1998). Vinson makes no mention that
12

any discriminatory pay, failure to promote, or retaliation she may have been subjected to was
based on or motivated by her national origin. Nor does she provide any factual basis to
support such a claim. Thus, even if the Court were to consider the allegations incorporated
by reference into paragraph 36 of the complaint, Vinson’s national origin claim would still
fail to meet minimum pleading standards to the extent it is premised on discriminatory pay,
failure to promote, or retaliation and, therefore, is due to be dismissed.3 As a result,
Defendants’ motion to dismiss this claim, to the extent it is based on discriminatory pay,
retaliation, and failure to promote, is GRANTED.
3.

Hostile Work Environment Claims

Although not explicitly alleged in Vinson’s complaint, Defendants move to dismiss
any potential claims for hostile work environment. (Doc. #9.) Vinson responds that she is
not asserting a hostile work environment claim under either Title VII or § 1981. Therefore,
Defendants’ motion to dismiss Vinson’s hostile work environment claims is due to be
DENIED AS MOOT.

3

District courts have the power and the duty to define the issues at the earliest stages of the
litigation. Johnson, 162 F.3d at 1333. In shotgun pleading cases, courts have inherent authority to
require a party to provide a more definite statement under Federal Rule of Civil Procedure 12(e).
Fikes v. City of Daphne, 79 F.3d 1079, 1083 n. 6 (11th Cir. 1996). In this case, however, the Court
finds that ordering Vinson to provide a more definite statement under Rule 12(e) for Count 2 of her
complaint would be futile because, as discussed below, any claims she might add based on
discriminatory pay, failure to promote, and retaliation are barred for failure to exhaust her
administrative remedies. Since Vinson did not include factual allegations of discriminatory pay,
failure to promote, and retaliation in her EEOC charge, it would be futile for Vinson to amend her
complaint to add such allegations to Count 2. See infra Section B.
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4.

State Law Claims
a. Invasion of Privacy Claim (Count 5)

Alabama recognizes four distinct theories of invasion of privacy: (1) the intrusion
upon the plaintiff’s physical solitude or seclusion; (2) publicity which violates the ordinary
decencies; (3) putting the plaintiff in a false, but not necessarily defamatory, position in the
public eye; (4) the appropriation of some element of the plaintiff’s personality for a
commercial use. Phillips v. Smalley Maint. Servs., Inc., 435 So. 2d 705, 708 (Ala. 1983).
Vinson argues that she has pled sufficient facts to support claims for invasion of privacy
under the publicity and false light theories. (Doc. #11.) In support of her invasion of privacy
claims, Vinson refers to Defendants’ discriminatory change in her job duties, elimination of
her work station and deprivation of tools, and removal from the decisionmaking process,
which she claims resulted in “embarrassment, humiliation, and loss of reputation.” (Doc.
#11.) Vinson further states that this treatment “was known to her co-workers,” although this
is nowhere alleged in her complaint. (Doc. #11.)
To establish a claim for publicity that violates ordinary decencies, a plaintiff must
show that the defendant gives publicity to a matter concerning the plaintiff’s private life that
(a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to
the public. Johnston v. Fuller, 706 So. 2d 700, 703 (Ala. 1997) (quoting Restatement
(Second) of Torts § 652D (1977)). The ‘publicity’ required for this tort is different from the
mere ‘publication’ involved in defamation and requires that the matter is revealed to “the
public at large, or to so many persons that the matter must be regarded as substantially certain
14

to become one of public knowledge.” Id. (quoting Restatement (Second) of Torts § 652D
cmt. a). Vinson does not allege that any offensive matters were communicated to the public
at large. Rather, she attempts to convert her co-workers’ awareness of Defendants’ adverse
employment actions towards her into “publicity” that violates ordinary human decencies.
But awareness on the part of a small number of co-workers is insufficient to state a claim for
the tort of publicity that violates ordinary decencies. See Ex parte Birmingham News, Inc.,
778 So. 2d 814, 818–19 (Ala. 2000) (finding insufficient publicity where co-workers and
supervisors were told about plaintiff suffering act of sexual harassment because
dissemination of this information was either necessary to investigation or was only “to a
small group of people”); Johnston, 706 So. 2d at 703 (holding no publicity involved in
circulation of memorandum containing stigmatizing information about plaintiff because the
defendants “did not broadcast over the radio” the harmful information or “print it in a
newspaper” or “tell it to a large number of people”). Therefore, Vinson does not allege
sufficient facts to establish that Defendants publicized matters that violate ordinary
decencies.
A defendant tortiously gives publicity to a matter putting the plaintiff in a false light
if (a) the false light in which the plaintiff was placed would be highly offensive to a
reasonable person, and (b) the defendant had knowledge of or acted with reckless disregard
as to the falsity of the publicized matter and the false light in which the other would be
placed. Regions Bank v. Plott, 897 So. 2d 239, 244 (Ala. 2004) (quoting Restatement
(Second) of Torts § 652E (1977)). The “publicity” required for false light is the same
15

widespread publicity as that required for giving publicity to matters that violate ordinary
decencies. See Restatement (Second of Torts) § 652E cmt. a (1977). Further, falsity is an
element of the plaintiff’s claim on which the plaintiff bears the burden of proof. Regions
Bank, 897 So. 2d at 244. Vinson has not pled sufficient facts to state a cause of action for
false light because she does not plead that false representations were publicized to a large
number of people or even the necessary element of falsity. Vinson pleads only that
Defendants took a series of adverse employment actions against her and that her co-workers
were aware of these actions. (Doc. #11.) She does not state any facts that would establish
Defendants placed her in a false light. Since Vinson has not pled sufficient facts to state a
cause of action for either theory of invasion of privacy she advances, Defendants’ motion to
dismiss Vinson’s invasion of privacy claim as alleged in Count 5 of her complaint is due to
be GRANTED.
b. Negligent and Wanton Hiring, Training, Supervision, and Retention
Claim (Count 4)
Vinson asserts a negligent hiring/supervision claim against Defendants based on their
alleged failure to train and to supervise managers to prevent unlawful discrimination. (Doc.
#1, ¶¶ 49–54.) To establish a negligent or wanton supervision and training claim, a plaintiff
must show that: (1) the employee committed a tort recognized under Alabama law; (2) the
employer knew or should have known of the tortious act; and (3) the employer negligently
or wantonly disregarded the employee’s incompetence. Armstrong Bus. Servs., Inc. v.
AmSouth Bank, 817 So. 2d 665, 682 (Ala. 2001); Stevenson v. Precision Standard, Inc., 762

16

So. 820, 824 (Ala. 1999). Vinson argues that the first element of her negligent supervision
claim is based on Defendants committing the tort of invasion of privacy. (Doc. #11.)
However, the Court has already found that Vinson failed to allege sufficient facts to state a
cause of action for invasion of privacy. Therefore, Vinson’s claim for negligent supervision,
which cannot proceed without the separate, underlying tort of invasion of privacy, is also due
to be dismissed. As a result, Defendants’ motion to dismiss Vinson’s claim for negligent
supervision as alleged in Count 4 of her complaint is due to be GRANTED.
c. Intentional Infliction of Emotional Distress Claim (Count 6)
Vinson lastly asserts a claim for intentional infliction of emotional distress (“IIED”)
based on Defendants’ unlawful employment discrimination against her. (Doc. #1, ¶¶ 60–67.)
To prevail on a claim for IIED, a plaintiff must establish that the defendant’s conduct was
(1) intentional or reckless; (2) extreme and outrageous; and (3) caused emotional distress so
severe that no reasonable person could be expected to endure it. Harrelson v. R.J., 882 So.
2d 317, 322 (Ala. 2003) (quoting Thomas v. BSE Indus. Contractors, Inc., 624 So. 2d 1041,
1043 (Ala. 1993)). Conduct is extreme and outrageous only if it goes “beyond all possible
bounds of decency” so as to be “regarded as atrocious and utterly intolerable in a civilized
society.” Baker v. State Farm Gen. Ins. Co., 585 So. 2d 804, 807 (Ala. 1991) (citation
omitted). Under Alabama law, IIED is a “very limited cause of action that is available only
in the most egregious circumstances.” Thomas, 624 So. 2d at 1044. Typically, these
egregious circumstances involve wrongful conduct in the context of family burials, insurance
agents employing “heavy handed, barbaric means” in coercing an insurance settlement, and
17

“egregious sexual harassment.” Id.
Vinson acknowledges she must meet a “high threshold of proof,” but cites several
cases involving plaintiffs who state a cause of action for IIED in the employment context.
See Rice v. United Ins. Co. of Am., 465 So. 2d 1100 (Ala. 1984); Cunningham v. Dabbs, 703
So. 2d 979 (Ala. Civ. App. 1997). In Rice, the Court held that the plaintiff alleged a cause
of action for IIED where her employer put pressure on her husband to take disability leave
rather than work throughout her pregnancy, falsely accused her of incompetence in the
presence of co-workers and clients, ridiculed her on numerous occasions, withheld vital
business information from her, and eventually terminated her. 465 So. 2d at 1101–02.
Moreover, the Cunningham court reversed summary judgment in favor of the defendants
where the plaintiff employee was subjected to repeated lewd comments and unwanted
physical contact, including her employer sticking his tongue in her ear, and characterized
Rice as involving allegations of “a pattern of harassment that lasted for several months.” 703
So. 2d at 980–81, 983. These cases, however, are distinguishable from the present case
because, as Vinson admits, they involved plaintiffs who were “subjected to a protracted
pattern of flagrant discrimination or retaliation.” (Doc. #11.)
Vinson has not alleged a pattern of discrimination, but rather discrete acts of disparate
treatment based on discipline, lost promotions, unequal pay, and her eventual termination.
Vinson does not allege that she was harassed or publicly humiliated as were the plaintiffs in
Rice and Cunningham. Nor does she plead the kind of “egregious sexual harassment”
necessary to state a cause of action for IIED under Alabama law. Thomas, 624 So. 2d at
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1044. Therefore, Defendants’ motion to dismiss Vinson’s claim for IIED as alleged in Count
6 of her complaint is due to be GRANTED.
B.

Administrative Exhaustion
1.

Title VII National Origin Claim (Count 2)

Title VII requires plaintiffs to exhaust certain administrative remedies before filing
a suit for employment discrimination. See EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265,
1271 (11th Cir. 2002). A plaintiff must first file a timely charge of discrimination with the
EEOC before bringing suit, and a judicial complaint is limited by the scope of the EEOC
investigation that can reasonably be expected to grow out of the charge of discrimination.
See Alexander v. Fulton Cnty., Ga., 207 F.3d 1303, 1332 (11th Cir. 2000), overruled on other
grounds by Manders v. Lee, 338 F.3d 1304, 1328 n. 52 (11th Cir. 2003). Additional judicial
claims are allowed if they amplify, clarify, or more clearly focus the allegations in the EEOC
complaint, but allegations of new acts of discrimination are inappropriate. Gregory v. Ga.
Dep’t of Human Res., 355 F.3d 1277, 1279–80 (11th Cir. 2004) (per curiam) (internal
quotations and citations omitted). The allegations in a judicial complaint must be “like or
related to” the allegations contained in the EEOC charge. Sanchez v. Standard Brands, Inc.,
431 F.2d 455, 466 (5th Cir. 1970).
The “crucial element of a charge of discrimination is the factual statement contained
therein.” Sanchez, 431 F.2d at 462. The factual statements contained in Vinson’s EEOC
charge are confined to a narrow time frame and a narrow set of issues. See Green v. Elixir
Indus., Inc., 152 F. App’x 838 (11th Cir. 2005) (per curiam) (using the time frame for
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discriminatory conduct specified in plaintiff’s EEOC charge as a factor in holding the
charged lacked allegations of retaliation). Vinson lists in her charge the earliest date that
discrimination took place as January 5, 2012, and the latest date as May 17, 2012. Vinson
was suspended along with two other white employees on January 5, and she was terminated
on May 17. The factual statements in the EEOC charge focus on Vinson’s disparate
treatment in the January 5 suspension, the removal of her work station and job duties, and
the eventual elimination of her position and termination. Vinson makes no mention of
Defendants’ discriminatory failure to promote her to any position, disparities in pay, or
retaliation of any kind. These claims cannot “reasonably be expected to grow out of the
charge of discrimination” because they are outside the time frame of the alleged
discriminatory conduct and are a completely different type of conduct. See Alexander, 207
F.3d 1332.
In support of her argument, Vinson cites Gregory v. Georgia Department of Human
Resources, a case in which the plaintiff was allowed to pursue a retaliation claim for
opposing alleged race and sex discrimination despite failing to explicitly mention retaliation
in her EEOC charge. 355 F.3d at 1280. Gregory is distinguishable for several reasons.
First, the duration of the alleged discrimination in Gregory encompassed the plaintiff’s entire
employment period, beginning with her initial training period. Id. at 1279. Here, Vinson had
been working for Defendants since October 2009 but states the earliest date of discrimination
was January 5, 2012–the date of her suspension–and the latest date was her termination on
May 17, 2012. Vinson’s allegations encompass only the limited time period involving the
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disciplinary action and its consequences. Second, as the Eleventh Circuit has stated in
another case, “the facts in [the Gregory plaintiff’s] EEOC charge indicated she was fired
after complaining about race and gender discrimination, which reasonably would lead to an
EEOC investigation of retaliation.” Hillemann v. Univ. of Cent. Fla., 167 F. App’x 747, 749
(11th Cir. 2006) (per curiam). In Vinson’s case, the facts in her EEOC charge make no
mention of discriminatory pay, failure to promote, or retaliation, but instead focus on the
January 5, 2012 disciplinary action and its consequences. See id. (holding newly-added
failure to promote claims were procedurally barred where EEOC charge mentioned only two
positions but judicial complaint mentioned fifteen positions). Therefore, Vinson’s Title VII
national origin claim cannot be premised on claims for discriminatory pay, failure to
promote, or retaliation because these allegations cannot reasonably be expected to grow out
of her EEOC. As a result, Vinson is procedurally barred from pursuing her Title VII national
origin claim on any basis other than her wrongful termination. Thus, Defendants’ motion to
dismiss Vinson’s Title VII claim as alleged in Count 2 of the complaint is GRANTED to the
extent that claim is based on discriminatory pay, failure to promote, or retaliation.
2.

Gender Discrimination (Count 3)

Defendants argue that Vinson’s EEOC complaint makes no mention of gender
discrimination. (Doc. #9, 5.) The factual statements in the charge clearly establish that
Vinson raises only claims of race and national origin discrimination. She states: “I am
Hispanic and my national origin is Puerto Rican.” (Doc. #1-1.) She does not state her
gender, although this fact is easily inferred from her name. Vinson states that the “two White
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employees” who were disciplined with her were allowed to return to work one day earlier
than her, but these two white employees were both women. (Doc. #1, ¶¶ 17–21.) The charge
goes on at length about the disparate disciplinary treatment of Vinson and the other two white
employees. Vinson states that her work station was taken and job functions removed,
whereas the other two white employees kept their work stations, and that she was eventually
terminated. However, Vinson does not state that male employees were punished less
severely than her or that male employees received preferential treatment over her. If
anything, Vinson’s factual statements suggest disparate treatment between Hispanic and nonHispanic employees rather than different genders.
Vinson’s allegations of gender discrimination in her judicial complaint do not
“amplify, clarify, or more clearly focus the allegations in the EEOC complaint,” but instead
inappropriately introduce new acts of discrimination. Gregory, 355 F.3d 1279–80. Vinson
states in her own words that she believed she was discriminated against on the basis of race
and national origin. The gender discrimination allegations in the judicial complaint are not
“like or related to” the factual statements in the EEOC charge, which concern only race and
national origin. Sanchez, 431 F.2d at 466; see also Gregory, 355 F.3d at 1280 (stating EEOC
would have investigated possible reasons for plaintiff’s termination “growing from her initial
‘belief’ [expressed in her EEOC charge] that it was because of her race and sex”) (emphasis
added); Chanda v. Engelhard/ICC, 234 F.3d 1219, 1224–25 (11th Cir. 2000) (holding
plaintiff’s national origin discrimination claim administratively barred where plaintiff
mentioned only disability discrimination in his EEOC charge). Since a complaint for gender
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discrimination cannot be reasonably expected to grow out of an investigation into Vinson’s
EEOC charge, her claims for gender discrimination are procedurally barred. Therefore,
Defendants’ motion to dismiss Vinson’s claims for gender discrimination under Title VII as
alleged in Count 3 of the complaint is due to be GRANTED.
C.

Motion to Amend
In her brief in opposition to Defendants’ motion to dismiss (Doc. #11), Vinson

requests that, in lieu of dismissal, she be allowed to amend any deficient claims. The Court
construes this request as a Motion for Leave to Amend (Doc. #11). Leave to amend should
be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). However, a court is not
obligated to grant a party leave to amend if such an amendment would be futile. Bryant v.
Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). In other words, leave to amend should be
granted only if amendment would allow a plaintiff to salvage a viable claim.
In this case, the Court will allow Vinson leave to amend her § 1981 claim, if she so
chooses, to sufficiently plead such a claim based on discriminatory pay, failure to promote
to positions other than the Professional Development and Training position and the night HR
manager position, and retaliation. However, this is the only claim that Vinson will be given
leave to amend, as the Court finds that any amendment to her Title VII national origin and
gender claims would be futile because Vinson has not exhausted her administrative remedies.

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V. CONCLUSION
Accordingly, it is hereby ORDERED as follows:
1.

Defendants’ motion to dismiss (Doc. #8) Vinson’s § 1981 claim (Count 1) is

GRANTED to the extent it is based on discriminatory pay, failure to promote to any position
other than Professional Development and Training and night HR manager, and retaliation,
and these claims are DISMISSED WITHOUT PREJUDICE. Defendants’ motion to dismiss
Vinson’s § 1981 claim is DENIED in all other respects.
2.

Defendants’ motion to dismiss (Doc. #8) Vinson’s Title VII national origin

claim (Count 2) is GRANTED to the extent it is based on discriminatory pay, failure to
promote, and retaliation, and these claims are DISMISSED WITH PREJUDICE.
3.

Defendants’ motion to dismiss (Doc. #8) Vinson’s Title VII gender

discrimination claim (Count 3) is GRANTED, and this claim is DISMISSED WITH
PREJUDICE.
4.

Defendants’ motion to dismiss (Doc. #8) Vinson’s state law claims for

negligent and wanton hiring/supervision, invasion of privacy, and intentional infliction of
emotional distress (Counts 4–6) is GRANTED, and these claims are DISMISSED WITH
PREJUDICE.
5.

Defendants’ motion to dismiss (Doc. #8) Vinson’s hostile work environment

claims is DENIED AS MOOT.
6.

Plaintiff’s Motion for Leave to Amend (Doc. #11) is GRANTED as to her §

1981 claim only; Plaintiff shall file an Amended Complaint no later than September 30,
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2013, correcting the deficiencies of this claim, or her § 1981 claim based on discriminatory
pay, failure to promote to positions other than the Professional Development and Training
and night HR management positions, and retaliation will be dismissed with prejudice.
DONE this the 27th day of September, 2013.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

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