Equal Employment Opportunity Commission v. Coley's #101, Limited Liability Company
MEMORANDUM OPINION AND ORDER GRANTING 24 Third MOTION to Intervene. Because the Intervenors have expressly limited count II of the proposed complaint to retaliatory failure to promote and retaliation in compensation, they are HEREBY ORDERED to file in a complaint-in-intervention no later than July 20, 2012, which reflects this change and which otherwise avoids the pitfalls of shotgun pleadings. Signed by Judge Virginia Emerson Hopkins on 7/9/2012. (JLC)
2012 Jul-09 PM 01:23
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
COLEY’S #101, LIMITED
LIABILITY COMPANY, d/b/a
) Case No.: 1:11-CV-3465-VEH
MEMORANDUM OPINION AND ORDER
This sexual harassment lawsuit premised upon a hostile work environment was
initiated by the Equal Employment Opportunity Commission (the “EEOC”) against
Defendant Coley’s #101, Limited Liability Company d/b/a Dad’s BBQ (“Dad’s
BBQ”) on September 26, 2011. (Doc. 1). The action seeks “to correct unlawful
employment practices on the basis of sex, female and to provide appropriate relief to
Aretha Johnson and a class of employees of Defendant who were adversely affected
by such practices.” (Doc. 1 at 1). More specifically, the EEOC contends that this
group of women were subjected to sexual harassment as employees of Dad’s BBQ.
Pending before the court is the Third Motion To Intervene (Doc. 24) (the
“Motion”) filed by LaTeshia K. Carr (“Ms. Carr”) and Aretha Johnson (“Ms.
Johnson”) on April 19, 2012. The Motion, for a third time, asks the court to allow
Ms. Carr and Ms. Johnson (collectively, the “Intervenors”) to intervene as named
plaintiffs. The court entered a briefing order (Doc. 25) on the Motion on April 26,
2012. Pursuant to this schedule, the Intervenors filed this supporting brief (Doc. 28)
on May 14, 2012, and Dad’s BBQ filed its opposition brief (Doc. 31) on May 29,
On June 4, 2012, the Intervenors followed with their reply. (Doc. 32).
Accordingly, the Motion is now under submission and for the reasons explained
below is GRANTED, as modified herein.
The Intervenors premise this Motion upon intervention as a matter of right with
respect to their claims of Title VII sexual harassment and permissive intervention for
their remaining claims. Rule 24 of the Federal Rules of Civil Procedure governs
intervention and provides in part:
(a) Intervention of Right. On timely motion, the court must permit
anyone to intervene who:
(1) is given an unconditional right to intervene by a federal
(2) claims an interest relating to the property or transaction
that is the subject of the action, and is so situated that
disposing of the action may as a practical matter impair or
impede the movant’s ability to protect its interest, unless
existing parties adequately represent that interest.
(b) Permissive Intervention.
(1) In General. On timely motion, the court may permit anyone to
(A) is given a conditional right to intervene by a federal
(B) has a claim or defense that shares with the main action
a common question of law or fact. . . .
(3) Delay or Prejudice. In exercising its discretion, the court must
consider whether the intervention will unduly delay or prejudice the
adjudication of the original parties’ rights.
Fed. R. Civ. P. 24(a)-(b).
“Whether leave to intervene is sought under section (a) or section (b) of Rule
24, the application must be timely.” Stallworth v. Monsanto Co., 558 F.2d 257, 263
(11th Cir. 1977) (citing United Air Lines, Inc. v. McDonald, 432 U.S. 385, 387, 97
S. Ct. 2464, 2466, 53 L. Ed. 2d 423, 427 (1977)).
Intervention as a matter of right is reviewed for error. Walters v. City of
Atlanta, 803 F.2d 1135, 1151 n.16 (11th Cir. 1986) (“We review unsuccessful
motions to intervene as of right under Rule 24(a) for error.”). The standard of review
for permissive intervention is abuse of discretion.” Id. (“Motions for permissive
intervention under Rule 24(b) are reviewed to determine whether the trial court
abused its discretion.”); see also Athens Lumber Co., Inc. v. Fed. Election Comm’n,
690 F.2d 1364, 1367 (11th Cir. 1982) (“[P]ermissive intervention . . . lies within the
discretion of the district court. . . . [and] is a decision which may be reviewed only for
a clear abuse of discretion.”) (citations omitted).
Dad’s BBQ primarily opposes the Motion on the grounds of futility. Typically,
the doctrine of futility arises in the context of a plaintiff’s seeking leave to amend a
“When a district court denies the plaintiff leave to amend a complaint due to
futility, the court is making the legal conclusion that the complaint, as amended,
would necessary fail.” St. Charles Foods, Inc. v. America’s Favorite Chicken Co.,
198 F.3d 815, 822-23 (11th Cir. 1999). The futility standard is comparable to that
applicable to a motion to dismiss.
See B.D. Stephenson Trucking, L.L.C. v.
Riverbrooke Capital, No. 5:06-CV-0343-WS, 2006 WL 2772673, at *6 (S.D. Ala.
2006) (“The futility threshold is akin to that for a motion to dismiss; thus, if the
amended complaint could not survive Rule 12(b)(6) scrutiny, then the amendment is
futile and leave to amend is properly denied.” (citing Burger King Corp. v. Weaver,
169 F.3d 1310, 1320 (11th Cir.1999))); see also Florida Power & Light Co. v. Allis
Chalmers Corp., 85 F.3d 1514, 1520 (11th Cir.1996) (affirming district court’s denial
of amendment as futile because purported cause of action “would not withstand a
motion to dismiss”).
A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See Fed.
R. Civ. P. 12(b)(6). The Federal Rules of Civil Procedure require only that the
complaint provide “‘a short and plain statement of the claim’ that will give the
defendant fair notice of what the plaintiff’s claim is and the grounds upon which it
rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated by Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 545 (2007); see also Fed. R. Civ. P. 8(a).
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8
does not mandate the inclusion of “detailed factual allegations” within a complaint.
Twombly, 550 U.S. at 545 (quoting Conley, 355 U.S. at 47). However at the same
time, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “[O]nce a claim has
been stated adequately, it may be supported by showing any set of facts consistent
with the allegations in the complaint.” Twombly, 550 U.S. at 563.
“[A] court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 129 S. Ct. at 1950. “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”
Iqbal, 129 S. Ct. at 1950. “When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id. (emphasis added). “Under Twombly’s construction of
Rule 8 . . . [a plaintiff’s] complaint [must] ‘nudge [any] claims’ . . . ‘across the line
from conceivable to plausible.’ Ibid.” Iqbal, 129 S. Ct. at 1950-51.
A claim is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
The proposed complaint-in-intervention contains six separate counts, three of
which are federal claims and three of which are state-law based. (See generally Doc.
24-1). More specifically, the Intervenors seek to assert the following list of claims
in this lawsuit: 1) Title VII sexual harassment; 2) Title VII sex discrimination
asserted by Ms. Johnson only; 3) Title VII retaliation; 4) slander; 5) outrage; and 6)
negligent supervision. (Id. ¶¶ 31-82).
The Intervenors’ right-to-sue letters are now part of the record. (Docs. Nos.
28-4, 29). The EEOC issued Ms. Carr’s on May 10, 2012 (Doc. 28-4 at 1), and Ms.
Ms. Johnson’s on May 15, 2012. (Doc. 29 at 1).
Dad’s BBQ does not contest intervention with respect to count I of the
proposed amended complaint, which asserts sexual harassment.1 Concerning count
As this court has previously stated:
The parties are in agreement that the intervenor-plaintiffs’ Title
VII sexual harassment claims implicate intervention as a matter of right
under Rule 24(a). (See Doc. 14 at 7 (“Title VII confers upon an
aggrieved person the right to intervene in a civil action brought by the
EEOC to join in the EEOC’s claims.”)); (Doc. 18 at 3 (“Since the
relevant statute confers an entitlement to intervene as of right,
Intervenor-Plaintiffs should be allowed to intervene as long as their
application is timely.”)); see also 42 U.S.C. § 2000e-5(f)(1) (“The
person or persons aggrieved shall have the right to intervene in a civil
action brought by the Commission . . . .”).
(Doc. 23 at 7-8).
II, Dad’s BBQ contends that the promotion, pay, and retaliation claims asserted by
Ms. Johnson are futile due to her failure to exhaust administrative remedies under
Title VII. However, Ms. Johnson responds that her pay and promotion claims both
are retaliation-based and arose “after she filed her EEOC charge dated July 7, 2010.”
(Doc. 32 at 4 (emphasis omitted)).
The law is clearly established within this Circuit that the requirement of
administrative exhaustion does not bar a plaintiff from pursuing a post-charge
retaliation claim due to the application of the so-called Gupta rule. See Hargett v.
Valley Fed. Sav. Bank, 60 F.3d 754, 762 (11th Cir. 1995) (“In Gupta, the court held
that there is no need to file a subsequent EEOC charge involving a retaliation claim
where the claim ‘grows out of an administrative charge that is properly before the
court,’ because the court has ancillary jurisdiction over the claims.”). Stated
differently, under Gupta, a litigant is simply not required to administratively exhaust
a retaliation claim that arises out of a previously and properly filed administrative
charge of discrimination. Cf. Houston v. Army Fleet Servs., L.L.C., 509 F. Supp. 2d
1033, 1043 (M.D. Ala. 2007) (“If, however, the alleged retaliatory action occurs
before the initial EEOC charge is filed, a plaintiff must exhaust his administrative
remedies as to that claim by including factual information in the charge that discloses
the factual basis for the retaliation claim.”).
As the Eleventh Circuit has clarified the contours of the Gupta rule:
In Gupta, the district court had allowed the plaintiff to amend his
complaint to add allegations of retaliatory discharge, even though he had
not filed charges with the EEOC. Although Baker did not seek leave to
amend the complaint in this case before she filed the motion for
injunctive relief, the court’s reasoning in Gupta still applies. It has long
been established in this circuit that the scope of a judicial complaint is
defined by the scope of the EEOC investigation that “can reasonably be
expected to grow out of the charge of discrimination.” Sanchez v.
Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970); see also
Turner v. Orr, 804 F.2d 1223, 1226-27 (11th Cir. 1986). Because a
claim of retaliation could reasonably be expected to grow out of the
original charge of discrimination, the district court had jurisdiction over
the motion for injunctive relief.
Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988) (emphasis
added). Thus, controlling precedent from the Eleventh Circuit unambiguously
establishes that “a claim of [Title VII] retaliation could reasonably be expected to
grow out of the original charge of [Title VII gender] discrimination.” Consequently,
there simply is no basis to Dad’s BBQ’s administrative exhaustion defense as it
pertains to post-charge claims of retaliation, and the court will allow Ms. Johnson to
pursue her retaliatory failure to promote and retaliatory compensation claims as set
out in count II.
With respect to count III, Dad’s BBQ again maintains that administrative
exhaustion bars Ms. Carr’s retaliatory discharge claim. However, as clarified by Ms.
Carr and confirmed by the record, her EEOC charge expressly alleges that “she was
terminated in an act of retaliation.” (Doc. 31-1 at 6). Therefore, Dad’s BBQ’s futility
defense is likewise futile as to count III.
Finally, Dad’s BBQ suggests that count III includes a disparate pay claim on
behalf of Ms. Johnson. (Doc. 31 at 17).2 In response, Ms. Johnson disavows an
intent to assert such a claim. (Doc. 32 at 5-6). Thus, any dispute over this purported
claim is MOOT.
Dad’s BBQ contests the viability of all state law claims asserted by the
Intervenors. The court address each one separately below.
Dad’s BBQ urges that this court should disallow the Intervenors’ slander count
for their failure to state a claim and because their claims are barred by the statute of
limitations. (Doc. 31 at 22-24). The court concludes, to the contrary, that the slander
claims are plausibly pled, that Dad’s BBQ incorrectly asserts that the applicable
statute of limitations for slander is one year,3 and that, regardless, deciding the merits
of Dad’s BBQ’s affirmative statute of limitations defense on such an underdeveloped
The pinpoint references relating to Doc. 31 correspond with the CM/ECF
See Ala. Code § 6-2-38(k) (“All actions of libel or slander must be brought
within two years.”).
record would be inappropriate.
Dad’s BBQ also contends that the Intervenors’ outrage claim requires more
specificity. (Doc. 31 at 20-22). The court disagrees and determines that because the
count incorporates the pleading’s prior factual allegations, including the sexually
harassing acts allegedly endured by Ms. Johnson and Ms. Carr, count V has been
plausibly pled and survives scrutiny under Rule 12(b)(6).
Dad’s BBQ further maintains that the Intervenors’ negligent supervision claim
is improperly pled. (Doc. 31 at 25-26). Akin to the court’s analysis regarding
outrage set out above, the court rejects Dad’s BBQ’s position and finds that the
Intervenors’ negligent supervision claim is not futilely asserted.
Additional Objections to Intervention
Dad’s BBQ raises two other categories of objections to intervention that are
unrelated to futility. First, regarding their federal claims, Dad’s BBQ argues that the
Intervenors “do not satisfy Rule 24(b)(2)’s requirements for permissive intervention
under Title VII because they seek to add new causes of action that do not have
questions of law or fact in common with sexual harassment, require examination of
legal principles and factual issues that are unrelated to sexual harassment cases,
impermissibly enlarge the scope of the lawsuit, and increase the costs of litigation.”
(Doc. 31 at 26).
While the court acknowledges that the initial reason raised in this section of
Dad’s BBQ’s brief loosely tracks the language of Rule 24(b)(1)(B), Dad’s BBQ cites
to no case authority which has embraced any of these other purported grounds as a
basis for denying permissive intervention to charging parties seeking to assert Title
VII retaliation that allegedly arises out of underlying Title VII sexual harassment that
is being litigated by the EEOC on behalf of those same individuals.
Additionally (and assuming the soundness of the above framework), Dad’s
BBQ merely makes bare allegations about the presence of these factors without
providing any substantiating details. Under such circumstances, the court is under
no obligation to address such an underdeveloped and perfunctorily presented
position. Cf. Flanigan’s Enters., Inc. v. Fulton County, Ga., 242 F.3d 976, 987 n.16
(11th Cir. 2001) (holding that a party waives an argument if the party “fail[s] to
elaborate or provide any citation of authority in support” of the argument); Ordower
v. Feldman, 826 F.2d 1569, 1576 (7th Cir. 1987) (stating that an argument made
without citation to authority is insufficient to raise an issue before the court).
Moreover, the court disagrees with Dad’s BBQ’s characterization of the
proposed intervention as lacking shared commonality and instead sees the
Intervenors’ retaliation claims factually springing from their reporting and
complaining about sexual harassment. Finally, even if an alleged but unquantified
concern about an increase in the costs of litigation is an appropriate consideration for
disallowing permissive intervention, the court struggles to see how such
consideration, standing along would ever be a sufficient basis.
Second, regarding the state law claims, Dad’s BBQ contends that allowing
intervention “will prejudice [the] adjudication of [its] rights.” (Doc. 31 at 26).
Initially, the undersigned observes that nothing in Rule 24 directs a district court to
decline to entertain permissive intervention on account of any alleged prejudice
caused to an existing litigant. Cf. Worlds v. Dep’t of Health & Rehabilitative Servs.,
929 F.2d 591, 595 (11th Cir. 1991) (“Every proposed intervention necessarily
involves some degree of delay . . . .”).
Instead, as is pertinent here, the relevant inquiries for the court to address are
whether there are “common question[s] of law or fact” and “whether the intervention
will unduly delay or prejudice the adjudication of the original parties’ rights.” Fed.
R. Civ. P. 24(b)(1)(B); Fed. R. Civ. P. 24(b)(3) (emphasis added); see also Stallworth,
558 F.2d at 269 (“Determining whether an individual should be permitted to
intervene is a two-stage process.”); id. (“First, the district court must decide whether
‘the applicant's claim or defense and the main action have a question of law or fact
in common.’” (citing Fed. R. Civ. P. 24(b)(2))); id. (“If this threshold requirement
is met, then the district court must exercise its discretion in deciding whether
intervention should be allowed.”).
Regarding commonality, this court finds that there is a significant overlap
between several of the state law claims and Title VII sexual harassment, especially
as “[i]t is well settled that Alabama does not recognize an independent cause of action
for sexual harassment. Instead, claims of sexual harassment are maintained under
common-law tort theories such as assault and battery, invasion of privacy, negligent
training and supervision, and outrage.” Stevenson v. Precision Standard, Inc., 762
So. 2d 820, 825 n.6 (Ala. 1999) (emphasis added).
Additionally, the Intervenors’ state law slander claims factually flow from their
complaints and/or charges made about sexual harassment in the workplace. Cf.
Stallworth, 558 F.2d at 269 (“In light of the liberal construction that the ‘interest’
requirement of section (b)(2) has received, the appellants plainly meet the first test.”)
The court also finds that Dad’s BBQ will not be unduly prejudiced by the
proposed intervention.4 Cf. Athens, 690 F.2d at 1367 (upholding district court’s
Dad’s BBQ does not protest permissive intervention on the basis of undue
decision to deny permissive intervention in expedited constitutional proceeding due
to “the introduction of additional parties [causing] inevitably delays” and “the
remoteness and the general nature of [the proposed intervenor’s] claims”). The
authorities relied upon by Dad’s BBQ in an effort to show serious prejudice are
unavailing. In particular, none of the cases cited by Dad’s BBQ is binding precedent
upon this court. Accordingly, such decisions “are persuasive only insofar as their
legal analysis warrants.” Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345
n.7 (11th Cir. 2007) (citing United States v. Rodriquez-Lopez, 363 F.3d 1134, 1138
n.4 (11th Cir. 2004)).
Further, the court finds these opinions to be either significantly off-point or
otherwise unpersuasive.5 Thus, due to the presence of common questions of law and
fact and the lack of any undue delay or prejudice, the court, in its discretion and in the
interest of judicial economy, will allow the Intervenors to pursue all six counts (as
further refined by the repleading ordered below) as part of the EEOC’s already
pending litigation for Title VII sexual harassment against Dad’s BBQ.
For example, S.E.C. v. Stanford Intern. Bank Ltd., 424 Fed. App’x 338 (5th
Cir. 2011) has nothing to do with permissive intervention, but rather is an appeal of
the denial of a motion to modify an injunction and does not anywhere within it
include the language quoted by Dad’s BBQ. (Doc. 31 at 29).
Based upon the foregoing, the Motion is GRANTED as modified herein.
Because the Intervenors have expressly limited count II of the proposed complaint to
retaliatory failure to promote and retaliation in compensation, they are HEREBY
ORDERED to file in a complaint-in-intervention no later than July 20, 2012, which
reflects this change and which otherwise avoids the pitfalls of shotgun pleadings.
See, e.g., Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 & n.54 (11th
Cir. 2008) (“The complaint is a model ‘shotgun’ pleading of the sort this court has
been roundly, repeatedly, and consistently condemning for years, long before this
lawsuit was filed.”).6
Davis footnote 54 gives numerous examples of Eleventh Circuit anti-shotgun
references and states in full:
See, e.g., United States ex el. Atkins v. McInteer, 470 F.3d 1350, 1354
n.6 (11th Cir. 2006); M.T.V. v. DeKalb County Sch. Dist., 446 F.3d
1153, 1156 n.1 (11th Cir. 2006); Ambrosia Coal and Constr. Co. v.
Morales, 368 F.3d 1320, 1330 n.22 (11th Cir. 2004); Strategic Income
Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1296
nn.9-10 (11th Cir. 2002); Byrne v. Nezhat, 261 F.3d 1075, 1128-34
(11th Cir. 2001); Magluta v. Samples, 256 F.3d 1282 (11th Cir. 2001);
BMC Indus., Inc. v. Barth Indus., Inc., 160 F.3d 1322, 1326-27 n.6 (11th
Cir. 1998); GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1368
(11th Cir. 1998); Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir.
1997); Ibrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162 passim
(11th Cir. 1997); Anderson v. Dist. Bd. of Trustees of Cent. Fla. Cmty.
Coll., 77 F.3d 364, 366-367 (11th Cir. 1996); Beckwith v. City of
Daytona Beach Shores, 58 F.3d 1554, 1567 (11th Cir. 1995); Cesnik v.
Edgewood Baptist Church, 88 F.3d 902, 905 (11th Cir. 1996);
Oladeinde v. City of Birmingham, 963 F.2d 1481, 1483-84 (11th Cir.
More specifically, in repleading, the Intervenors must break each one of their
claims against Dad’s BBQ into a separate federal or state law individualized count
instead of lumping the Intervenors’ respective claims together as presently pled. For
example, the Intervenors should replead the current count III so that its scope is
limited to Ms. Carr’s claim of retaliatory discharge only. Similarly, the Intervenors
must make factual allegations and assert claim(s) singularly as to each one of them
rather than collectively referring to the allegations of Ms. Carr and Ms. Johnson
within the same count.
Finally, because this is the second time that the court has had to warn the
Intervenors about the unacceptable shotgun nature of their proposed pleading (see
Doc. 23 at 5-6), their failure to formulate a complaint that does not run afoul of this
problem runs the risk of further court action, including, but not limited to, a sua
sponte dismissal of any and all non-compliant counts.
1992); Pelletier v. Zweifel, 921 F.2d 1465, 1518 (11th Cir. 1991); T.D.S.
Inc. v. Shelby Mut. Ins. Co., 760 F.2d 1520, 1543-44 n.14 (11th Cir.
1986) (Tjoflat, J., dissenting). This list is just a teaser – since 1985 we
have explicitly condemned shotgun pleadings upward of fifty times.
Davis, 516 F.3d at 979 n.54.
DONE and ORDERED this the 9th day of July, 2012.
VIRGINIA EMERSON HOPKINS
United States District Judge
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