Vinson v. Koch Foods of Alabama, LLC et al
MEMORANDUM OPINION AND ORDER as follows: 1) The Dfts' 18 motion to dismiss Vinson's complaint as a shotgun pleading, to dismiss Koch Foods due to failure to allege it is Vinson's employer, and to dismiss Koch Foods due to failure to exhaust administrative remedies is DENIED; 2) The Dfts' 18 motion to dismiss Vinson's § 1981 discriminatory pay claim in Count I of her Amended Complaint is DENIED; 3) The Dfts' 18 motion to dismiss Vinson's § 1981 f ailure to promote claims for positions other than the Professional Development and Training and night HR Generalist position is GRANTED; 4) The Dfts' 18 motion to dismiss Vinson's § 1981 retaliation claims in Count I of the Amended C omplaint is GRANTED; 5) The Dfts' 18 motion to dismiss Vinson's § 1981 claims against Birchfield in Count I of the Amended Complaint is DENIED; 6) The Dfts' 18 motion to dismiss Vinson's Title VII claims against Birchfiel d in Count II of the Amended Complaint is GRANTED; 7) The Dfts shall file an answer within 14 days of the date of this Memorandum Opinion and Order. Signed by Honorable Judge Mark E. Fuller on 6/10/2014. (Attachments: # 1 Civil Appeals Checklist) (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
MARIA N. VINSON,
KOCH FOODS OF ALABAMA, LLC, )
KOCH FOODS, LLC, and DAVID
CASE NO. 2:12-cv-1088-MEF
(WO – Do Not Publish)
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Koch Foods of Alabama, LLC (“Koch-Ala”), Koch
Foods, LLC (“Koch Foods”), and David Birchfield’s (“Birchfield”) (collectively “the
Defendants”) Motion to Dismiss Plaintiff’s Amended Complaint (Doc. #18). The Court
granted in part and denied in part the Defendants’ first motion to dismiss Plaintiff Maria
Vinson’s (“Vinson”) complaint. (Doc. #13.) In its Memorandum Opinion and Order on the
Defendants’ first motion to dismiss, the Court granted Vinson leave to file an amended
complaint re-pleading additional facts relevant to her § 1981 claim in Count I. (Doc. #13,
at 24–25.) Vinson filed an Amended Complaint, and the Defendants subsequently moved
to dismiss for failure to state a claim for relief pursuant to Federal Rule of Civil Procedure
12(b)(6). For the reasons discussed below, the 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.
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. Vinson has an
Associate’s Degree in Arts and Communication and a Bachelor of Science in Human
Resource Management. Vinson is also a U.S. Veteran and served in the Army, National
Guard and Reserves, and was Honorably Discharged. 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. 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. Birchfield is the Complex
Human Resource Manager of Koch-Ala and oversees and manages its Montgomery facility.
During the course of her employment, Vinson applied for the position of Professional
Development and Training. Lindsey Johnson, a white female, was hired for the position
despite Vinson being more qualified and experienced. Vinson again applied for the position
of Professional Development and Training, but the position was filled by Mason Melton
(“Melton”), a white male who was less qualified than Vinson. A night HR Generalist
position later became available. Birchfield did not initially post the position internally.
Birchfield began interviewing for the position on March 14, 2012, and the HR Generalist
position was posted externally the same day. After interviewing at least two candidates,
Birchfield posted the HR Generalist position internally for three days and Vinson applied.
On March 28, 2012, the position was offered to “Tracy”, a white female, before Vinson was
interviewed. Tracy evidently declined the position, which remained unfilled throughout the
rest of Vinson’s employment. After Vinson’s termination, the HR Generalist position was
filled by an Asian male who had no HR experience.
Another position became available for supply clerk, and three employees applied for
this position. Vinson asked Mitsi James (“James”), who was responsible for the position
about the pay rate. James said the position was $10.00 an hour. Vinson was making $12.00
an hour at the time, so she did not apply for the supply clerk position because she did not
want to take a pay cut. None of the three applicants were hired. The purchasing manager
then provided an application for a friend of his, Ray Cleckler (“Cleckler”), at a higher rate
of pay than posted. Cleckler, who is a white male, was hired for the position at $15.00 per
hour. He had not worked at Koch Foods prior to his hire, and Vinson was more qualified
than Cleckler. Vinson complained to Ken German, HR Manager, about the change in pay
and awarding the position to Cleckler to no avail.
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. 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. When Vinson returned to work Birchfield
changed her job duties but not her job title. This resulted in Vinson having no work station,
no work tools, and no job description. Vinson was also removed from the decisionmaking
process of the HR department, which was a significant change in her responsibilities from
what they were prior to her suspension. Vinson complained about the removal of her duties
and subsequently had her orientation duties taken away and given to Daisy Philips Velez.
The two suspended white female employees retained their original job duties and later
received promotions. One of the suspended white female employees was promoted to HR
Generalist, a position that resulted in an increase in pay. White HR employees and male
employees were paid more than Vinson.
On May 17, 2012, Melton told Vinson that her job position was being eliminated and
that there were no other jobs available. She was then terminated and escorted off the
premises. At the time Vinson was terminated, there was an open HR clerk position. The
position was filled by “Lucas,” an Asian male.
Vinson filed her first complaint on December 14, 2012, and brought claims against
the Defendants under 42 U.S.C. § 1981 for race discrimination (Count I), Title VII national
origin discrimination (Count II), Title VII gender discrimination (Count III), and various
state law claims (Counts IV–VI). The Court granted the Defendants’ motion to dismiss
Counts III–VI, and also granted the Defendants’ motion to dismiss Counts I and II to the
extent they were based on discriminatory pay, failure to promote to any position other than
Professional Development and Training and night HR manager, and retaliation. (Doc. #13,
at 24–25.) The Court then granted Vinson leave to file an amended complaint on the
following narrow grounds:
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, 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
(Doc. #13, at 24–25) (emphasis added).
Vinson filed an Amended Complaint on October 14, 2013, that added Birchfield as
a defendant and alleged additional facts addressing promotions, discriminatory pay, and
retaliation. (Doc. #16.) The Defendants’ responded by filing a second motion to dismiss.
(Doc. #18.) Rather than limiting themselves to addressing the sufficiency of Vinson’s new
allegations, the Defendants move to dismiss the entire complaint as a shotgun pleading and
move to dismiss all claims against Koch Foods on the grounds that Vinson does not allege
she had an employment relationship with it and that she failed to exhaust her administrative
remedies against it, defenses that were available at the time the Defendants filed their first
motion to dismiss.
The Defendants’ Failure to Consolidate Objections
The Defendants are prohibited by Federal Rule of Civil Procedure Rule 12(g) from
The Court did not grant Vinson leave to re-plead her Title VII national origin
discrimination claim because it concluded she was procedurally barred from asserting any Title VII
national origin discrimination other than that based on her wrongful termination. (Doc. #13, at
19–21.) Therefore, any amendment to this portion of her complaint would be futile.
moving to dismiss Vinson’s Amended Complaint in its entirety on the grounds that it is a
shotgun pleading, from moving to dismiss the claims against Koch Foods because Vinson
was not its employee, and from moving to dismiss the claims against Koch Foods due to
failure to exhaust administrative remedies.
These objections were available to the
Defendants at the time they filed their first motion to dismiss. Rule 12(g)(2) states that
“[e]xcept as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule
must not make another motion under this rule raising a defense or objection that was
available to the party but omitted from its earlier motion.”
The argument that Vinson’s complaint should be dismissed in its entirety as a shotgun
pleading was “a defense or objection that was available” to the Defendants when they filed
their first motion to dismiss. The features of the Amended Complaint that make it a shotgun
pleading are identical to the features that made it a shotgun pleading in the original
complaint, and thus the Amended Complaint does not present occasion for a new objection
that was unavailable to the Defendants at the first motion to dismiss stage. Likewise, the
arguments that Koch Foods is not alleged to be the employer of Vinson and that Vinson
failed to exhaust her administrative remedies against Koch Foods were available to the
Defendants at the time they filed their first motion to dismiss because Koch Foods was
named as a defendant in the original complaint. (Doc. #1.) Because the Defendants were
required to join these defenses to their first motion to dismiss under Rule 12(g), the Court
will not consider these arguments advanced in their second motion to dismiss. See Derisme
v. Hunt Leibert Jacobson, PC, No. 10-cv-244-MRK, 2010 WL 3417857, at *4–5 (D. Conn.
Aug. 26, 2010) (refusing to consider arguments on second motion to dismiss that were
available to party at first motion to dismiss).2
The Defendants seek dismissal of Vinson’s § 1981 clams in Count I for discriminatory
pay, failure to promote to positions other than the Professional Development and Training
and night HR management positions, and retaliation. Birchfield argues that Vinson did not
allege he was her employer and did not name him as a respondent in her EEOC charge and
that her Title VII claim against him is thus administratively barred. Birchfield also seeks
dismissal of the Title VII claims against him in his individual capacity. (Doc. #19, at 1–2.)
The Court notes that in her response to the Defendants’ motion to dismiss, Vinson has
submitted documents outside the complaint in support of her position. In order to consider
materials outside the complaint on a motion to dismiss, the Court would have to convert the
Defendants’ motion to a motion for summary judgment, which the Court declines to do. See
While the Defendants may not advance these arguments at this time because they were
available at the time the Defendants filed their first motion to dismiss, the Defendants may assert
them in the Defendants’ answer, by a motion under Rule 12(c), or at trial. Fed. R. Civ. P. 12(h)(2).
The argument that Vinson is not an employee of Koch Foods and that she failed to exhaust her
administrative remedies against Koch Foods may also be asserted at summary judgment.
That being said, even if the Court were to consider the Defendants’ shotgun pleading
argument, now or at a later date, it would not be well-taken. Although the Amended Complaint
suffers from technical defects, the purpose behind the Eleventh Circuit’s shotgun pleading case law
is to enable district courts “to define the issues at the earliest stages of the litigation.” Johnson
Enters. of Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d 1290, 1333 (11th Cir. 1998). The
Defendants cannot credibly maintain that the issues in this case are not defined after the Court’s first
Memorandum Opinion and Order, the filing of the Amended Complaint, and this Order. While
motions to dismiss serve as the procedural mechanism for narrowing the issues in a case, the filing
of successive motions have diminishing value in this regard and threaten to unnecessarily delay the
progress of litigation.
Day v. Taylor, 400 F.3d 1272, 1275–76 (11th Cir. 2005). The Court will thus consider only
the four corners of the Amended Complaint in ruling on the Defendants’ motion to dismiss.
In its first Memorandum Opinion and Order, the Court found Vinson’s allegation that
“[w]hite employees in Human Resources were paid substantially more than Plaintiff” was
a conclusory statement insufficient to state claim upon which relief can be granted. (Doc.
#13, at 7–8.) See Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 976 (11th Cir.
2008) (holding that the statement in a complaint that plaintiffs “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). In her Amended Complaint, Vinson adds
the allegation that she inquired into a supply clerk position and was told it paid $10.00 an
hour. (Doc. #16, at ¶22.) She did not apply for the position because she was making $12.00
an hour at the time; however, a purchasing manager then provided an application for his
friend, a white male, who was hired for the position at $15.00 an hour. (Doc. #16, at ¶22.)
The addition of this factual allegation is enough to raise Vinson’s claim that white employees
in HR were paid substantially more than Vinson above the speculative level.
Based on Vinson’s allegations, it does not appear that the supply clerk position is a
position that “shared the same type of tasks” as her HR position, which is a required element
of a prima facie case of disparate pay. See Miranda v. B&B Cash Grocery Store, Inc., 975
F.2d 1518, 1529 (11th Cir. 1992). However, a “complaint need not allege facts sufficient
to make out a classic McDonnell Douglas prima facie case, [but] it must provide enough
factual matter (taken as true) to suggest intentional race discrimination.” Davis, 516 F.3d at
974 (internal quotations and citations omitted). Vinson’s factual allegation concerning pay
disparity with respect to the supply clerk position is enough to suggest intentional national
origin discrimination, and raises her claim that white employees in HR were paid more than
her (which does involve a claim of pay disparity among similar positions) above the
speculative level. Accordingly, Vinson states a claim upon which relief can be granted for
disparate pay under § 1981 in Count I of her Amended Complaint, and the Defendants’
motion to dismiss this claim is DENIED.
In its first Memorandum Opinion and Order, the Court held that Vinson stated § 1981
failure to promote claims for the Professional Development and Training position and the
night HR manager position, but also held that the references to “other vacancies” that were
not posted and that were filled by white males was too vague to state a claim. (Doc. #13, at
8–10.) The Defendants now move to dismiss the failure to promote claims in the Amended
Complaint for any other position than the Professional Development and Training position
and the night HR Generalist position.3 These positions are the supply clerk position and the
HR positions held by Heather Bowen and Mitzi James, the two women who allegedly
The night HR Generalist position is referred to in the first complaint as a “night HR
manager position,” (Doc. #1, at ¶15), but it is clear that this is the same position as the HR
Generalist position in the Amended Complaint. (Doc. #16, at ¶15.)
received disparate disciplinary treatment and went on to receive promotions.4
The Defendants move to dismiss Vinson’s failure to promote claim based upon the
supply clerk position because Vinson alleges that she did not apply for the position. See
Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 1345–46 (11th Cir. 2003) (“A general interest
in being rehired without submitting an application is not enough to establish a prima facie
case of  discrimination when the defendant-employer has publicized an open position.”).
Vinson argues her failure to apply falls under an exception to the requirement that a plaintiff
must apply for the position that this Court applied in its first Memorandum Opinion and
Order. (Doc. #23, at 13.) The Court applied the exception to the requirement that a plaintiff
apply for a position outlined in Carmichael v. Birmingham Saw Works to Vinson’s failure
to apply for the night HR Generalist position. (Doc. #13, at 9–10.) Carmichael applies when
an employee fails to apply for a position because the employer uses informal hiring
procedures and the employer has some reason to know the employee is interested in the
position. 738 F.2d 1126, 1132–34 (11th Cir. 1984). The Court applied Carmichael to a
position that Vinson alleged in her first complaint was unposted. (Doc. #1, at ¶ 15.) By
contrast, Vinson does not allege the supply clerk position was unposted. (Doc. #16, at ¶ 22.)
In fact, she was aware of the position, inquired into it, and voluntarily chose not to apply for
it. (Doc. #16, at ¶ 22.) Thus, the Carmichael exception for unposted, informally-advertised
As the Defendants correctly note, Vinson identifies other individuals who allegedly
received promotions as a result of discrimination, but those individuals are named for promotions
for which Vinson has sufficiently plead failure to promote claims. (Doc. #24, at 11 n. 4.)
jobs does not apply to the supply clerk position.
Vinson argues that another exception applies to exempt her from the requirement that
she allege she applied for the position. Vinson argues that applying would have been a futile
gesture because her employer’s promotion was on discriminatory grounds. (Doc. #23, at
13–14.) To qualify for this exception, Vinson must allege facts sufficient to show she had
a “justifiable belief” that she had a real and present interest in the job, and that she would
have applied but was deterred from doing so by the employer’s discriminatory practices. See
EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1274 (11th Cir. 2002). Vinson’s
allegations do not qualify her for the futile gesture exception because she alleges she chose
not to apply after she learned the position paid less than her current rate of pay. (Doc. #16,
at ¶ 22.) Thus, although the allegation about the supply clerk position provides evidence of
pay discrimination, as discussed above, Vinson cannot base a failure to promote claim on the
supply clerk position because she does not allege she applied for the position.
As to the promotions Heather Bowen and Mitzi James received, the Court has already
held that the allegations concerning promotions received by these two women were intended
as support for Vinson’s disparate disciplinary treatment claim rather than as separate failure
to promote claims. (Doc. #13, at 8 n. 2.) The allegations in the Amended Complaint do
nothing to affect this holding, and Vinson’s arguments in her brief may not be used to amend
her pleading. Accordingly, the Defendants’ motion to dismiss Vinson’s § 1981 failure to
promote claims for positions other than the Professional Development and Training and night
HR Generalist position is GRANTED.
The Defendants have moved to dismiss Vinson’s retaliation claims. In its first
Memorandum Opinion and Order, the Court held that Vinson failed to state a claim for
retaliation because she did not allege she engaged in statutorily protected activity by
complaining of racially motivated adverse employment actions. (Doc. #13, at 10–11.) In
her Amended Complaint, Vinson alleges that she “complained to Ken German, HR Manager,
about the change in pay” for the supply clerk position “to no avail,” and that Vinson
“complained” about being taken out of the decisionmaking and hiring process after her
suspension. (Doc. #16, at ¶¶ 23–24.) Vinson has failed to cure the defect of her original
complaint by alleging she opposed her employer’s decisions on the basis that they were
racially discriminatory. See Murphy v. City of Aventura, 616 F. Supp. 2d 1267, 1280–82
(S.D. Fla. 2009) (dismissing retaliation claim in sexual harassment case because employee’s
complaints about city manager’s conduct did not mention that he was sexually harassing her).
As a result, the Defendants’ motion to dismiss Vinson’s § 1981 retaliation claim in Count I
of the Amended Complaint is GRANTED.
Claims Against Birchfield
Vinson adds Birchfield as a defendant in her Amended Complaint. Birchfield is the
Complex Human Resource Manager for Koch-Ala and oversees and manages its
Montgomery facilities. (Doc. #16, at ¶4.) The Defendants move to dismiss all claims against
Birchfield on the grounds that Vinson does not allege Birchfield was her employer, and to
dismiss her Title VII claims against him on the grounds that she failed to exhaust her
administrative remedies and that there is no individual liability under Title VII.
Birchfield is sued individually in Vinson’s § 1981 claim in Count I. “Contrary to Title
VII, ‘individual employees can be held liable for discrimination under § 1981.’” Moss v.
W&A Cleaners, 111 F. Supp. 2d 1181, 1187 (M.D. Ala. 2000) (quoting Leige v. Capitol
Chevrolet, Inc., 895 F. Supp. 289, 293 (M.D. Ala. 1995)). The only basis the Defendants
provide for dismissing Vinson’s § 1981 claim against Birchfield is that Vinson fails to plead
any facts to demonstrate she had an employment relationship with him. (Doc. #18, at 2.)
The Court is doubtful that this argument is even relevant. See Moss, 111 F. Supp. 2d at 1187
(“However, § 1981 does not contain a similar requirement [to Title VII] limiting liability to
‘employers’.”). Furthermore, Vinson clearly alleges she had “an employment relationship”
with Birchfield because she alleges he made the very decisions she alleges were racially
discriminatory. (Doc. #16, at ¶¶15, 19, 27.) Therefore, Vinson states a cause of action under
§ 1981 against Birchfield.
Vinson, perhaps inadvertently, includes claims against all Defendants in her Title VII
national origin discrimination claim. (Doc. #16, at ¶39.) A plaintiff may not sue an
employer in his individual capacity under Title VII. See Busby v. City of Orlando, 931 F.2d
764, 772 (11th Cir. 1991). Vinson argues she is suing Birchfield under Title VII in his
capacity as agent for the employer, Koch Foods and Koch-Ala. (Doc. #23, at 18.) But while
an official capacity suit against an employer’s agent under Title VII is proper, such a claim
is unnecessary where the plaintiff has also sued the employer. “In other words, if a Title VII
plaintiff names his or her employer as a defendant, any of the employer’s agents also named
in the complaint may be dismissed from the action.” Moss, 111 F. Supp. 2d at 1187 (citing
Marshall v. Miller, 873 F. Supp. 628, 632 (M.D. Fla. 1995)). Accordingly, the Defendants’
motion to dismiss Vinson’s § 1981 claims against Birchfield in Count I is DENIED, and their
motion to dismiss Vinson’s Title VII claims against Birchfield in Count II is GRANTED.
For the reasons stated above, it is hereby ORDERED as follows:
The Defendants’ motion to dismiss Vinson’s complaint as a shotgun pleading,
to dismiss Koch Foods due to failure to allege it is Vinson’s employer, and to dismiss Koch
Foods due to failure to exhaust administrative remedies is DENIED.
The Defendants’ motion to dismiss Vinson’s § 1981 discriminatory pay claim
in Count I of her Amended Complaint is DENIED.
The Defendants’ motion to dismiss Vinson’s § 1981 failure to promote claims
for positions other than the Professional Development and Training and night HR Generalist
position is GRANTED.
The Defendants’ motion to dismiss Vinson’s § 1981 retaliation claims in Count
I of the Amended Complaint is GRANTED.
The Defendants’ motion to dismiss Vinson’s § 1981 claims against Birchfield
in Count I of the Amended Complaint is DENIED.
The Defendants’ motion to dismiss Vinson’s Title VII claims against Birchfield
in Count II of the Amended Complaint is GRANTED.
The Defendants shall file an answer within fourteen days of the date of this
Memorandum Opinion and Order.
DONE this the 10th day of June, 2014.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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