McCurdy v. Auburn University et al

Filing 45

OPINION AND ORDER: It is ORDERED that the defendants' 32 Motion to Dismiss is DENIED in part and GRANTED in part as further set out in the opinion and order. Signed by Honorable Judge Myron H. Thompson on 5/4/2015. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION

DOROTHY McCURDY,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
AUBURN UNIVERSITY,
et al.,
Defendants.

CIVIL ACTION NO.
3:14cv226-MHT
(WO)

OPINION AND ORDER
Plaintiff

Dorothy

McCurdy

brings

this

action

naming, as defendants, Auburn University and several of
its employees (Daniel King, Lloyd Albert, Rick Traylor,
and

Chuck

less,

Gerards)

denied

a

and

asserting

promotion,

that

and

she

was

subjected

paid
to

a

hostile-work environment based on her race in violation
of

Title

VII

of

the

Civil

Rights

Act

of

1964,

as

amended (42 U.S.C. §§ 1981a & 2000e through 2000e-17),
and the Civil Rights Act of 1866, as amended (42 U.S.C.
§ 1981).

The court has federal-question jurisdiction

under
U.S.C.

42

U.S.C.

§ 2000e-5(f)(3)

§ 1343(a)(3)

(civil

(Title

rights).

The

VII)

and

28

case

is

now

before this court on the defendants’ motion to dismiss.
The

motion

to

dismiss

will

be

granted

in

part

and

denied in part.

I. LEGAL STANDARD
In considering the defendants’ motion to dismiss,
the court accepts the plaintiff’s allegations as true,
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), and
construes the complaint in the plaintiff’s favor, Duke
v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993).
issue

is

not

whether

a

plaintiff

will

“The

ultimately

prevail but whether the claimant is entitled to offer
evidence to support the claims.”
416

U.S.

232,

236

(1974).

To

Scheuer v. Rhodes,
survive

a

motion

to

dismiss, a complaint need not contain “detailed factual
allegations,” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
545 (2007).

Rather, the complaint must contain “only
2

enough

facts

to

state

plausible on its face.”

a

claim

to

relief

that

is

Id. at 574.

II. BACKGROUND
Plaintiff McCurdy’s factual allegations, taken as
true

on

the

follows:

McCurdy

Management
years.
roles

defendants’

dismissal

(black)

Department

has

at

motion,

worked

Auburn

in

are

the

University

as
Work

for

25

Since she started in 1989, she has changed
and

times.

management

She

managed

responsibilities
anywhere

between

a
one

number
and

of

eight

employees and was promoted to supervisor, demoted with
a corresponding loss in pay, and then promoted once
again to the same position by 2003.
This

litigation

stems

largely

treatment from 2009 to the present.

from

McCurdy’s

By 2009, she had

the job title of “supervisor” but performed all the
work of the “manager” position, which is one rung up
the

ladder.

The

directors
3

of

the

department

had

already

promoted

equivalent

work

employees,

to
to

manager

other

McCurdy’s.

including

her

employees

doing

of

other

All

immediate

these

boss

in

the

stockroom, are white.
Noticing
defendant

this

Traylor

Resources,

in

discrepancy,
(white),

April

the

2009,

and

McCurdy

approached

Director

of

requested

reclassification from supervisor to manager.

Human
a

job

She did

not hear any response for nine months, at which point
Traylor said he would get back to her.

After another

month passed without any contact, she contacted Traylor
again, who said he was simply waiting on defendant King
(white),

a

high-level

manager

in

the

department,

to

sign the reclassification papers.
One month later, Traylor stated that he could not
give McCurdy an answer because he needed to speak with
defendant Albert (white), the Director of Maintenance,
who

was

higher

up

in

McCurdy’s

chain

of

command.

Finally, in October 2010--a year and a half after her
4

initial request--McCurdy met with Albert and Traylor,
at

which

request.

point

they

denied

her

reclassification

McCurdy then asked Albert his plans for the

department, to which he responded that she “could go
back to where she came from.”

Second Am. Compl. (doc.

no.

this

28)

¶ 22.

Following

meeting,

McCurdy

repeatedly asked Traylor to set up a meeting with King,
but Traylor never did.
years

after

this

In August 2012, almost two

meeting,

written

notice

from

Auburn

University

McCurdy

defendant
had

received

Gerards

denied

her

formal,

(white)

that

request

for

reclassification.
During and after this multi-year reclassification
process,
though

McCurdy
she

non-white

was

attended
a

person

managers’

supervisor.
and

the

only

She

meetings

even

was

only

the

supervisor

at

the

meetings. At these meetings, other managers routinely
asked

Albert

for

assistance,

such

as

additional

employees, and he would regularly grant those requests;
5

however,
almost

when

always

McCurdy
denied

requested
her

requests

assistance,
except

on

Albert
a

few

occasions where he allowed her to appoint a temporary
employee.
Starting in January 2013, the managers’ treatment
of McCurdy at these meetings worsened.

They would make

comments about her “not fitting in with everyone else.”
Second Am. Compl. (doc. no. 28) ¶ 28.

They not only

refused to help her when asked but also would skip over
her--and only her--when asking for input or discussion.
The managers also displayed unfriendly body language
and cast snide glances towards her.
In June 2013, McCurdy filed a charge with the Equal
Employment Opportunity Commission (EEOC).1

The charge

1. The defendants attached the EEOC charge to their
first motion to dismiss (doc. no. 13), which they
incorporated by reference into their second motion to
dismiss.
See Defs.’ Ojb. to Second Am. Compl. or in
the Alternative Mot. to Dismiss Second Am. Compl. (doc.
no. 32) at 19.
(continued...)
6

relays most of the facts above, noting that management
refused her promotion request in March 2010 and that
its treatment of her created a hostile environment.

It

notes she was the only supervisor and only black person

The standard for whether the court may consider
this
document
differs
depending
on
whether
the
defendants’ motion is a motion to dismiss based on
jurisdiction under Federal Rule of Civil Procedure
12(b)(1) or for failure to state a claim under Rule
12(b)(6). While the Eleventh Circuit has been unclear
on whether an exhaustion challenge to a Title VII claim
falls under Rule 12(b)(1) or Rule 12(b)(6), the court
may consider the EEOC charge under either standard.
See Goodridge v. Astrue, 2008 WL 8691093 (N.D. Ga.
2008) (Vineyard, M.J.) (laying out Eleventh Circuit
precedent).
There is no issue in reviewing the EEOC charge for
Rule 12(b)(1) motions because the court “may consider
extrinsic evidence such as deposition testimony and
affidavits.”
Odyssey Marine Exploration, Inc. v.
Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1169
(11th Cir. 2011) (internal quotation marks omitted).
As for 12(b)(6), a “court may consider a document
attached to a motion to dismiss without converting the
motion into one for summary judgment if the attached
document is (1) central to the plaintiff's claim and
(2) undisputed.” Day v. Taylor, 400 F.3d 1272, 1276
(11th Cir. 2005).
The EEOC charge is both central to
the
Title
VII
claims,
and
its
authenticity
is
unquestioned.
7

in the managers’ meetings and that she did not receive
the same support as the managers.

After filing the

EEOC charge, McCurdy received a right-to-sue letter.

III. DISCUSSION
McCurdy claims that she was paid less, denied a
promotion, and subjected to a hostile-work environment
because

she

is

black.

race-discrimination
University;

a

(failure-to-promote)
Traylor,

and

She

(pay)

brings

claim

§ 1981
claim
Gerards;

a

Title

against

VII

Auburn

race-discrimination
against
a

King,
Title

Albert,
VII

hostile-work-environment claim against the university;
and

a

Albert.2

§ 1981

hostile-work-environment

claim

against

The defendants move to dismiss each claim.

The court will address each argument in turn.

2.
While both of the Title VII claims in the
complaint
mention
the
right
to
be
free
of
discrimination
based
on
race
and
sex,
the
pay-discrimination claim is titled “Title VII: Race
(continued...)
8

A. Title VII Pay-Discrimination Claim
McCurdy first claims that, in violation of Title
VII,

Auburn

University

paid

her

colleagues performing the same work.3

less

than

white

Auburn moves to

dismiss, first arguing that McCurdy failed to exhaust
the required administrative procedures prior to filing

Discrimination” and both the Title VII claims ask for
relief that only deals with race.
Additionally, when
describing the Title VII hostile-work-environment claim
in the opposition to the motion to dismiss (doc. no.
35) at 4, McCurdy alleges that “she was treated as an
outcast by her superiors and counterparts because of
her race.” (emphasis added). She does not mention her
sex.
The court therefore finds that she does not
allege a sex-discrimination claim. If she intended to
do so, she should seek leave to amend her complaint to
make it clear.
3. A plaintiff may make out a prima-facie case of
pay discrimination by establishing that “(1) she
belongs to a racial minority; (2) she received low
wages; (3) similarly situated comparators outside the
protected class received higher compensation; and (4)
she was qualified to receive the higher wage.” Cooper
v. S. Co., 390 F.3d 695, 735 (11th Cir. 2004),
overruled on other grounds by Ash v. Tyson Foods, Inc.,
546 U.S. 454, 457 (2006).

9

this lawsuit in that her EEOC charge did not include an
allegation of pay discrimination.
Before

filing

a

Title

VII

action,

“a

plaintiff

first must file a charge of discrimination with the
EEOC.”

Gregory v. Georgia Dep’t of Human Res., 355

F.3d 1277, 1279 (11th Cir. 2004).

“The purpose of this

exhaustion requirement is that the EEOC should have the
first

opportunity

to

investigate

the

alleged

discriminatory practices to permit it to perform its
role in obtaining voluntary compliance and promoting
conciliation efforts.”

Id. (internal quotation marks

omitted).
In order to exhaust, a plaintiff’s EEOC charge must
put

the

EEOC

discrimination
theory

for

on

notice

(race,

such

sex,

of

the

religion,

discrimination

basis
etc.)

(firing,

for

the

and

the

failure

to

promote, hostile-work environment, etc.).

However, it

need

courts

not

be

precise

pleading;

indeed,

are

“extremely reluctant to allow procedural technicalities
10

to bar claims brought under Title VII” and thus “the
scope

of

an

EEOC

interpreted.”

Id.

omitted).

The

contentions

in

charge

at

should

1279

(internal

ultimate
the

not

question

legal

be

strictly

quotation
is

complaint

marks

whether

were

“like

the
or

related to, or grew out of, the allegations contained
in

[the]

EEOC

investigator”

charge”
could

such

have

that

a

“reasonable

accomplished

her

role

EEOC
of

investigating and seeking voluntary settlement of the
claim.

Id.

Gregory
standard.

provides
In

an

that

example
case,

of

the

this

generous

plaintiff,

an

African-American doctor, was hired by a state hospital
but was fired six months later after making internal
complaints to management about discrimination.

On her

EEOC charge, she stated that she was fired for “no
legitimate reason” and checked the boxes for race and
sex discrimination but not for retaliation.
1278-79.

Id. at

Nevertheless, the appellate court found she
11

had

exhausted

her

claim

with

the

EEOC

because

a

reasonable investigator would have examined the reasons
for Gregory’s firing and realized it was related to
earlier

complaints

supervisor.
Applying

about

discrimination

to

her

Id. at 1280.
Gregory‘s

generous

standard,

this

court

finds that the pay-discrimination claim grows out of
the EEOC charge.

As a threshold, a pay-discrimination

claim will not always arise out of a failure-to-promote
claim.

See, e.g., Jerome v. Marriott Residence Inn

Barcelo Crestline/AIG, 211 Fed. App’x 844 (11th Cir.
2006);

Ezekiel

v.

Tift

Cnty.

Sch.

Dist.,

2010

WL

431977, at *4-*5 (M.D. Ga. 2010) (Lawson, J.) (refusing
to

read

disparate-pay

claim

into

EEOC

charge

that

focused on failure to promote into a director of human
resources position).4

Indeed, it depends on the theory

4.
These cases are persuasive, but not binding,
authority.
While the court agrees with these cases
that pay-discrimination claims do not necessarily arise
out of failure-to-promote claims in an EEOC charge, it
(continued...)
12

of the failure-to-promote claim.
difference

between

a

For example, take the

failure-to-promote

claim

that

contends a candidate is qualified to do a job that
includes

additional

responsibilities

failure-to-promote

claim

should

promoted

have

been

essentially

doing

comparators

at

the

the

that

contends

because

same

higher

job

a

she
as

position.

and

a

candidate
is

that

already
of

The

her
first

theory--that the candidate is qualified to take on a
job with additional responsibilities--would focus on a
candidate’s
theory

readiness

would

entail

for

the

looking

new

job.

While

at

comparators’

this
past

experiences, it would not necessarily require comparing
minutia of the candidate’s and the comparators’ current
job responsibilities and pay.

On the other hand, the

second theory--that a candidate was essentially doing
the same job as that of her comparators but was not

does not reach whether those cases correctly applied
this legal concept to the facts at issue.
13

promoted to the same position--would focus on whether
her job and her comparators’ job were essentially the
same,

an

assessment

comparison

of

her

that

would

normally

responsibilities

and

comparators’ responsibilities and pay.
reasonable
determine

investigator
if

they

compensation;

a

comparing

are

pay

with

a

her

At the least, a

current

jobs

to

would

look

at

comparable

reasonable

encompass

investigator

comparing

suitability for a new job may not.
This case falls under the failure-to-promote theory
that McCurdy was essentially performing the same job
(that is, had essentially the same responsibilities) as
her comparators were but was not promoted to the same
position.

The

EEOC

charge

focuses

on

a

job

reclassification, which would have been a promotion,
but

does

not

responsibilities.
McCurdy
meetings,

was

the

appear

to

entail

additional

Moreover, the charge mentions that
only

implying

supervisor
that
14

she

in

the

manager’s

had

similar

responsibilities

to

those

in

the

lower title and was paid less.

meeting

but

had

a

As discussed above, a

reasonable investigator looking into her claims would
wonder why she had the same responsibilities as white
managers

but

was

classified

lower,

and

likely

paid

less, than they.

See Miranda v. B & B Cash Grocery

Store,

F.2d

Inc.,

(requiring

975

that

1518,

plaintiff

in

1529

(11th

Cir.

1992)

pay-discrimination

suit

“shared the same type of tasks” as comparators); cf.
Alexander v. Chattahoochee Valley Cmty. Coll., 325 F.
Supp. 2d 1274, 1293 (M.D. Ala. 2004) (Thompson, J.)
(noting that, in the context of the Equal Pay Act, 29
U.S.C.

§ 206(d),

“[a]lthough

job

titles

and

descriptions may be considered, the controlling factor
in

the

court's

substantially

assessment

equal

must

of
be

whether
actual

two
job

jobs

are

content.”)

(internal quotation marks omitted).
Auburn University next contends that, regardless of
what was in the EEOC charge, the complaint here was
15

confusing
impossible

to

the

to

point

know

where

which

“it

is

allegations

virtually

of

fact

intended to support which claim(s) for relief.”

are

Paylor

v. Hartford Fire Ins. Co., 748 F.3d 1117, 1126 (11th
Cir.

2014)

(internal

quotation

marks

omitted).

The

complaint is not a model of clarity; nevertheless, it
does

put

the

defendants

pay-discrimination theory.

on

notice

of

a

See Second Am. Compl. (doc.

no. 28) ¶ 19 (“Because Plaintiff was already performing
the duties and role as a manager, she avers that she
was

intentionally

being

held

at

a

lower

level

with

lower pay due to her race, given that all of the other
managers were white males. ... Plaintiff avers that her
lower

pay

was

a

direct

result

discrimination on the basis of race.”).

of

intentional
At worst, the

university had to respond to both pay-discrimination
and failure-to-promote theories under Title VII, which
should not have come as a surprise, much less been
“virtually impossible” to divine, given the statement
16

within the complaint.

That McCurdy clarified that her

Title VII argument was for pay discrimination rather
than both in the reply (quite possibly in response to
the

university’s

arguments)

does

not

mean

that

the

university did not have notice of a pay-discrimination
theory.
The

Paylor, 748 F.3d at 1126.
court

therefore

will

not

dismiss

the

pay-discrimination claim.

B. § 1981 Failure-to-Promote Claim
McCurdy next claims that, in violation of 42 U.S.C.
§

1981

(through

the

vehicle

of

42

U.S.C.

§ 1983),

Albert, Traylor, King, and Gerards did not promote her
to manager because she is black.

Each defendant moves

to dismiss the claim.
Section 1981 provides that “All persons ... shall
have the same right ... to make and enforce contracts
...

as

§ 1981.

is

enjoyed

by

white

citizens....”

42

U.S.C.

Failure-to-promote claims under this section
17

have “the same requirements of proof and use the same
analytical framework as Title VII.”

McNeal v. City of

Tarrant,

(11th

325

Fed.

App'x

794,

796

Cir.

2009)

(quoting Standard v. A.B.E.L. Servs., Inc., 161 F.3d
1318, 1330 (11th Cir. 1998)) (internal quotation marks
omitted).
by

A plaintiff may make out a prima-facie case

showing

protected

“(i)

class;

that
(ii)

the
that

plaintiff
she

belongs

applied

for

to

and

a
was

qualified for a promotion; (iii) that she was rejected
despite her qualifications; and (iv) that other equally
or less-qualified comparators outside her class were
promoted.”

Brown v. Alabama Dep't of Transp., 597 F.3d

1160, 1174 (11th Cir. 2010).

While a plaintiff need

not allege facts on every element of the prima-facie
case in the complaint, the elements can be a “helpful
guide” in determining whether a claim is plausible at
the motion to dismiss phase.

Powell v. Harsco Metal,

2013 WL 3242759, at *5 (N.D. Ala. 2013) (Hopkins, J.)

18

(citing

Bowers

v.

Bd.

Of

Regents

of

Univ.

Sys.

Of

Georgia, 509 Fed. App’x 906, 910 (11th Cir. 2013)).
McCurdy pleads each prong of the prima-facie case.
She is a black woman who applied for a promotion from
supervisor

to

manager.

Although

she

had

been

performing the duties of the manager already--and thus
was

qualified

to

do

reclassification.

the

job--she

was

rejected

for

Finally, she identifies comparators:

the current white managers who had the same job duties
as

she

but

necessary

had

to

been

make

out

made
a

managers.

prima-facie

Although
case,

she

not
also

notes the 18-month delay in getting an answer to her
promotion request, and the allegedly racially tinged
remark--“go

back

to

where

she

came

from”--when

that

request was finally denied.
Before turning to the individual defendants, the
court must address the defendants’ contention that the
remark “go back to where she came from,” a variant of
“go back to where you came from,” is not inherently
19

racial and therefore should not be considered because
it did not have a racial connotation here.

The court

agrees it is not necessarily racial in all contexts.
Indeed, “[t]he speaker’s meaning may depend on various
factors including context, inflection, tone of voice,
local

custom,

and

historical

usage.”

Foods, Inc., 546 U.S. 454 (2006).

Ash

v.

Tyson

For example, in Ash,

the Supreme Court held that although the word “boy” was
not inherently racial, it did not have to be prefaced
or modified by a racial classification or slur to be
probative

of

bias

when

two

black

employees

were

referred to as “boy” by the plant manager.
The phrase “go back to where you came from” has a
similar historical context to the term “boy.”

Even

without an explicit racial slur, when told to a black
worker,

it

can

easily

mean

“go

back

to

Africa,”

common slur that courts have recognized before.
e.g.,

Hollis

v.

Austal,

U.S.A.,

L.L.C.,

2014

a

See,
WL

4375988, at *3 (S.D. Ala. 2014) (Dubos, J.); Mandewah
20

v. Wisconsin Dep't of Corr., 2009 WL 1702089, at *5
(E.D. Wis. 2009) (Adelman, J.).

Indeed, at least one

court has recorded “go back to where you came from” in
the context of other slurs.

Zeno v. Pine Plains Cent.

Sch. Dist., 702 F.3d 655, 660 (2d Cir. 2012).
While defendants acknowledge this statement could
be read as a racial comment, they insist that a more
likely explanation is that Albert was simply telling
McCurdy

“to

go

back

stockroom.”

Mot.

to

(internal

quotation

to

where

Dismiss

(doc.

marks

interpretation seems dubious.

she

came
no.

from--the

32)

at

omitted).

12
This

It would be unnatural

phrasing, at best, for a white manager to tell a black
employee to “go back where you came from” and mean
“return

to

your

work

in

the

stockroom.”

Although

possible, the defendants’ version of this exchange is
not

a

“more

likely

explanation”

that

undermines

the

plausible reading of the statement as a racially tinged

21

remark.

See

Ashcroft

v.

Iqbal,

556

U.S.

662,

681

(2009).
Although McCurdy does plead a prima-facie case, the
question

remains:

against

whom?

McCurdy

pleads

her

§ 1981 claim through the procedural vehicle of § 1983.
Under § 1983 a person may be sued for his own violation
of

a

plaintiff’s

rights

(direct

liability)

or,

in

discrete circumstances, the actions of his subordinates
(supervisory liability).
Harland,

370

F.3d

Holloman ex rel. Holloman v.

1252,

1263

(11th

Cir.

2004).

Although unclear from the complaint, it appears that
McCurdy pleads direct liability against four individual
defendants--Albert, Traylor, King, and Gerards.
The claim is plausible to the extent it is against
Albert and Traylor.

When McCurdy approached Traylor,

the Human Resources Director, for a reclassification,
he took nine months to acknowledge her request and well
over

a

McCurdy.

year

to

set

up

the

meeting

with

Albert

and

Albert, the director in her chain of command,
22

told

her

in

that

meeting

that

he

had

no

plans

to

promote her and told her “to go back to where she came
from.”

From

appear

to

the

have

pleading,
had

Albert

active

and

roles

in

Traylor
the

both

alleged

discrimination and the apparent authority to promote
McCurdy.
The claim is likewise plausible to the extent it is
against King.

According to the complaint, Traylor went

to King to sign McCurdy’s reclassification papers, but
King did not sign them.

Additionally, Traylor agreed

to set up a meeting between McCurdy and King after she
was told that she would not be reclassified, but the
meeting

never

occurred.

King,

as

the

high-level

manager in the department, with apparent authority to
grant

the

reclassification,

promotion or meet with McCurdy.

refused

to

grant

a

Taking the complaint

as true, and construing it in McCurdy’s favor, King
failed to promote McCurdy, knowing that others, outside

23

the protected class, had been promoted for doing the
same work.
The claim, however, is due to be dismissed, as to
Gerards.

There is little information about Gerards in

the complaint.

The complaint states only that McCurdy

“received written notice from” Gerards that her request
for

a

promotion

was

denied,

but

it

does

not

state

Gerards’s role at Auburn University, his part in the
firing, or any animus he had based on McCurdy’s race.
Given the complete lack of information on Gerards in
the

complaint,

McCurdy’s

claim

to

the

extent

it

is

against him is not plausible.
To the extent McCurdy implies supervisory liability
against Gerards, the claim also is not plausible and
does not put him on notice.

“It is well established in

this circuit that supervisory officials are not liable
under § 1983 for the unconstitutional acts of their
subordinates

unless

the

supervisor

personally

participates in the alleged constitutional violation or
24

there is a causal connection between actions of the
supervising

official

deprivation.”
604

F.3d

citations

and

the

alleged

constitutional

Doe v. Sch. Bd. of Broward Cnty., Fla.,

1248,
and

1266

(11th

quotation

Cir.

marks

2010)

(internal

omitted).

“This

requisite causal connection can be established in the
following

circumstances:

widespread

abuse

puts

(1)

the

when

a

responsible

history
supervisor

of
on

notice of the need to correct the alleged deprivation,
and

he

fails

improper

to

custom

do

so

or

or

(2)

policy

when

results

a
in

indifference to constitutional rights.
of

abuse

supervisor
flagrant,

to
on

be

sufficiently

notice,

rampant

and

the
of

and

quotation

marks

abuse

deliberate

For a history

widespread
must

continued

than isolated occurrences.”

supervisor's

to
be

put

a

obvious,

duration,

rather

Id. (internal citations

omitted).

As

detailed

above,

McCurdy does not allege a plausible claim that Gerards
was

involved

personally
25

in

the

constitutional

violation.

There is also no pleading of widespread

abuse that would have put Gerards on notice, of him
directing Albert, Traylor, or King in their actions, or
of an unofficial custom or policy of discrimination.
The court therefore denies the motion to dismiss
the § 1981 failure-to-promote claim to the extent it is
against Traylor, Albert, and King but grants the motion
to dismiss the § 1981 failure-to-promote claim as to
Gerards.

C. Hostile-Work-Environment Claims
McCurdy

last

charges

a

hostile-work

environment

based on race against Auburn University under Title VII
and against Albert under § 1981.

Each defendant moves

to dismiss.

1. Title VII
Under

Title

VII,

hostile-work-environment

an

employee

claim
26

if

may
“the

establish
workplace

a
is

permeated

with

discriminatory

intimidation,

ridicule,

and insult, that is sufficiently severe or pervasive to
alter

the

create

conditions

an

abusive

of

the

working

victim’s

employment

environment.”

Miller

and
v.

Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th
Cir. 2002) (quoting Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993)) (internal quotation marks omitted).
To

prove

Title

a

VII,

claim
an

of

hostile-work

employee

must

environment

show:

“(1)

under

that

[s]he

belongs to a protected group; (2) that [s]he has been
subject

to

harassment

unwelcome
must

characteristic
harassment

have

of

was

the

harassment;
been

based

employee

sufficiently

(3)
on

...

severe

or

that
a

(4)

the

protected
that

pervasive

the
to

alter the terms and conditions of employment and create
a discriminatorily abusive working environment; and (5)
that the employer is responsible for such environment
under

either

liability.”

a

theory

of

Id.
27

vicarious

or

of

direct

Auburn University argues that McCurdy’s claim is
time-barred, because she failed to file her EEOC charge
within the relevant statutory period.
that

she

fails

to

plead

severe or pervasive.

conduct

It also argues

that

is

plausibly

The court will take each argument

in turn.
42

U.S.C.

provision

§

2000e-5(e)(1)

that

prerequisites

specifies

that

a

“is
with

plaintiff

filing [a Title VII] suit.”

a

charge

filing

precision

must

satisfy

the
before

Nat’l R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 109 (2002) (internal citations
omitted).
statute

With

requires

exceptions
a

potential

not

relevant

Title

VII

here,

the

plaintiff

to

file a charge with the EEOC within 180 days “after the
alleged
U.S.C.

unlawful
§

employment

2000e-5(e)(1).

practice

Plaintiffs

occurred.”
may

not

42

sue

on

discrete acts of discrimination that occur outside this
statutory
However,

time
under

period.
the

Morgan,

‘continuing
28

536

U.S.

violation’

at

113.

doctrine,

when a plaintiff alleges a hostile-work environment,
the alleged violation is not any particular, discrete
act

of

harassment,

but

the

cumulative

result

of

“a

series of separate acts that collectively constitute
one ‘unlawful employment practice.’”
long

as

one

“act

contributing

to

Id. at 117.
the

claim

As

occurs

within the filing period, the entire time period of the
hostile environment may be considered by a court for
the purposes of determining liability.”

Id.

Under the continuing-violation doctrine, the acts
occurring

within

the

statutory

their own, be actionable.

period

need

not,

on

Instead, they need merely

contribute to the same unlawful employment practice.
See Shields v. Fort James Corp., 305 F.3d 1280, 1282
(11th Cir. 2002) (“Put simply, if the smallest portion
of that ‘practice’ occurred within the limitations time
period,
whole.”).

then

the

court

should

consider

it

as

a

“The pivotal question is whether the timely

discrete acts are sufficiently related to the hostile
29

work

environment

“were

the

same

claim”--that
type

of

is,

whether

discriminatory

the

acts

intimidation,

ridicule, and insult that characterized the untimely
allegations.”

Chambless v. Louisiana-Pac. Corp., 481

F.3d 1345, 1350 (11th Cir. 2007) (internal quotation
marks omitted).
McCurdy filed her EEOC charge in June 2013, making
the relevant 180-day time period between December 2012
and June 2013.

During the “many” manager meetings in

this timeframe, her bosses would skip over her in favor
of

her

white

colleagues,

and

her

colleagues

would

comment how she “did not fit in” with everyone else.
These actions matched the “type” of activities directed
at her before that period, including when Albert would
refuse her help but grant it to her white colleagues
and his comment that McCurdy should “go back to where
she came from.”

Indeed, all of these actions--before

and after the 180-day period--marginalized McCurdy in
professional settings based on her race and potentially
30

affected her work performance.

As such, her claim is

not time-barred.
Auburn University next argues that McCurdy does not
make a plausible claim for severe or pervasive conduct.
When determining whether conduct is severe or pervasive
enough to permeate a workplace, courts consider, among
other factors, “(1) the frequency of the conduct; (2)
the severity of the conduct; (3) whether the conduct is
physically
offensive

threatening
utterance;

unreasonably
performance.”

or
and

interferes
Miller,

humiliating,
(4)

with
277

whether
the

F.3d

or
the

a

conduct

employee's
at

1276

mere

job

(finding

conduct to be severe or pervasive when co-workers used
racial epithets and prevented the plaintiff from doing
his job on at least one occasion); see also McCann v.
Tillman, 526 F.3d 1370, 1379 (11th Cir. 2008) (granting
summary

judgment

hostile-work-environment

for
claim

defendants
where

plaintiff

on
was

subject to a few racially charged comments over several
31

years but did not demonstrate her job performance was
affected).
McCurdy pleads a plausible claim for relief in her
complaint that clearly puts the university on notice.
She claims that over a several-year period, managers
ignored her requests for help in her job and ignored
her in meetings, particularly in the first six months
of 2013.

In addition, she notes the allegedly racially

charged comment from Albert and the comments from other
managers that she did not fit in.

As the university

contends, snide comments, subtle body language, and one
racially tinged remark from a direct supervisor are not
necessarily enough to plead a hostile-work-environment
claim; however, McCurdy claims more.
allegations
being

regarding

denied

the

being

same

ignored

help

that

Specifically, her
at

meetings

other

and

employees

received at the manager meetings because of her race
raise

the

extreme

possibility

that

it

that

produces
32

the

harassment

tangible

effects

was

“so

on

job

performance.”

See Miller, 277 F.3d at 1277.

The court

thus finds that McCurdy pleads a plausible claim that
she was subjected to severe and pervasive conduct.5

2.
The

same

§ 1981

substantive

tests

apply

to

hostile-work-environment claims under § 1981 as those
under Title VII.

See Bryant v. Jones, 575 F.3d 1281,

1296 (11th Cir. 2009) (applying Title VII framework to
§ 1981 claim).
that

§ 1981

The two differences in these claims are
does

not

contain

the

same

exhaustion

requirement as Title VII and that the § 1981 claim is
brought against Albert rather than Auburn University as
a whole.

5. In addition to meeting this objective test,
plaintiffs
must
also
subjectively
“perceive
[the
environment] to be abusive.” Miller, 277 F.3d at 1277
(internal quotation marks omitted).
Several of the
allegations in the complaint that defendants label as
“conclusory,” likely go to this subjective test, and
the defendants do not challenge McCurdy’s subjective
feelings as implausible.
33

Albert

played

discussed

a

above

major
that

role

in

created

hostile-work-environment claim.

the
a

behavior
plausible

He made the allegedly

racially tinged comment that McCurdy “should go back to
where she came from,” and he ran the manager meetings,
where he responded positively to the white managers’
requests

and

called

for

their

input,

but

routinely

ignored McCurdy and turned down her requests.6

As with

the Title VII claim, the potential impact of Albert’s
actions

on

McCurdy’s

job

performance

makes

this

a

plausible claim.
***
For the foregoing reasons, it is ORDERED that the
defendants’ motion to dismiss (doc. no. 32) is:
(1) Denied

as

to

plaintiff

Dorothy

McCurdy’s

6.
McCurdy notes that Albert would occasionally
allow her to hire temporary employees, but that these
temporary employees required constant training and
retraining unlike permanent employees.
34

Title VII

pay-discrimination

claim

against

defendant

Auburn University.
(2) Granted

as

failure-to-promote
Gerards

but

denied

failure-to-promote

to

plaintiff

claim
for

against
plaintiff

claim

McCurdy’s

§

defendant
McCurdy’s

against

defendants

1981
Chuck

§

1981
Lloyd

Albert, Rick Traylor, and Daniel King.
(3) Denied

as

to

plaintiff

McCurdy’s

Title

VII

hostile-work-environment claim against defendant Auburn
University

and

her

§

1981

hostile-work-environment

claim against defendant Lloyd Albert.
DONE, this the 4th day of May, 2015.
/s/ Myron H. Thompson___
UNITED STATES DISTRICT JUDGE