Barclay v. First National Bank of Talladega

Filing 10

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 10/28/14. (SAC )

FILED
2014 Oct-28 PM 01:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
MARGARET J. BARCLAY,
Plaintiff,
v.
FIRST NATIONAL BANK OF
TALLADEGA,
Defendant.

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Case No.: 1:14-cv-01573-KOB

MEMORANDUM OPINION
This matter comes before the court on Defendant First National Bank of Talladega’s
(“FNB Talladega”) “Rule 12(b)(6) Motion to Dismiss, or Alternatively, Motion for a More
Definite Statement.” (Doc. 6). Plaintiff Margaret J. Barclay filed a complaint alleging violations
of 42 U.S.C. § 2000e et seq (“Title VII”) and 42 U.S.C. § 1981. (Doc. 1). Barclay alleges that
FNB Talladega denied her a promotion because of her race, that FNB Talladega terminated her in
retaliation for filing a charge of discrimination, and that FNB Talladega subjected her to
“unequal treatment.” (Doc. 1). FNB Talladega argues that Barclay’s complaint should be
dismissed because she failed to exhaust administrative remedies for her claims and because her
complaint does not plausibly state a claim for relief under Title VII or § 1981. (Doc. 6).
Alternatively, FNB Talladega argues that Barclay should be required to file a more definite
statement of her claims. (Doc. 6).
The court GRANTS FNB Talladega’s motion to dismiss for Barclay’s Title VII “unequal
treatment” claim, § 1981 “unequal treatment” claim, and Title VII failure to promote claim and
1

DENIES the remainder of FNB Talladega’s motion. The court DISMISSES the insufficient
claims WITHOUT PREJUDICE.
I.

Standard of Review
A Rule 12(b)(6) motion to dismiss attacks the legal sufficiency of the complaint.

Generally, 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) (quoting
Fed. R. Civ. P. 8(a)). A plaintiff must provide the grounds of his entitlement, but Rule 8
generally does not require “detailed factual allegations.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley, 355 U.S. at 47). It does, however, “demand[ ] more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal 556 U.S. 662,
678 (2009). Pleadings that contain nothing more than “a formulaic recitation of the elements of a
cause of action” do not meet Rule 8 standards nor do pleadings suffice that are based merely
upon “labels or conclusions” or “naked assertions” without supporting factual allegations.
Twombly, 550 U.S. at 555, 557.
The Supreme Court explained that “[t]o survive a 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.’” Iqbal, 556 U.S. at 678 (quoting and explaining its decision in Twombly, 550 U.S. at 570).
To be plausible on its face, the claim must contain enough facts that “allow[ ] the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678. The analysis is “context-specific” and, to survive the motion, the allegations must permit
the court based on its “judicial experience and common sense. . . to infer more than the mere
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possibility of misconduct.” Id. at 679. If the court determines that well-pleaded facts, accepted as
true, do not state a claim that is plausible, the claim must be dismissed. Id.
II.

Facts and Procedural History
Barclay is an African American female who worked for FNB Talladega in various

positions for thirty-nine years beginning in 1974. (Doc. 1, ¶¶ 3, 7). Barclay alleges that FNB
Talladega denied her a promotion to Supervisor on August 8, 2011 and instead awarded the
position to a white employee. (Doc. 1, ¶ 8).
Barclay filed her first Equal Employment Opportunity Commission (“EEOC”) charge,
numbered 420-2011-02710, on August 23, 2011. (Doc. 9, 7). The parties have not submitted the
2011 EEOC charge to the court. According to Barclay, her 2011 EEOC charge initiated an
investigation into FNB Talladega for “discriminat[ing] against her because of her age and race in
regards to a promotion to Supervisor in the Bookkeeping department.” (Doc. 9, 6). FNB
Talladega “vehemently denied [Barclay’s] allegations.” (Doc. 9, 6). The EEOC “issued a
reasonable cause finding in [Barclay’s] favor.” (Doc. 9, 6). The EEOC issue a right to sue letter
for the 2011 EEOC charge on August 8, 2013, but Barclay never received it. (Doc. 9, 7).
FNB Talladega terminated Barclay on July 17, 2013. (Doc. 1, ¶ 10). Barclay states that
FNB Talladega said it terminated her for “allegedly violating company policy,” (Doc. 1, ¶ 10),
but that, in fact, this rationale was a pretext and FNB Talladega actually terminated her in
retaliation for filing her 2011 EEOC charge. (Doc. 1, ¶ 17)
Barclay filed her second EEOC charge, numbered 420-2013-02728, on November 5,
2013. (Doc. 6-1, 2). The 2013 EEOC charge is attached to FNB Talladega’s motion to dismiss

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(Doc. 6-1, 2).1 In the 2013 EEOC charge, Barclay marked “Retaliation” in the “type of
discrimination” check boxes but did not mark “Race,” “Age,” or any other basis. (Doc. 6-1, 2).
Barclay marked July 17, 2013 as the date the instance of discrimination took place. (Doc. 6-1, 2).
The narrative of Barclay’s 2013 EEOC charge read:
I filed a previous charge with the EEOC (420-2011-02710), wherein I complained
of being discriminated against because of my Age and Race. On July 17, 2013, my
employment was terminated after 39 years of loyal service. I was accused of an
infraction that is common practice among other employees.
I was terminated after authorizing a $75.00 check without being a signer on the
account for a family member. About 90% of the employees have signed on
customers and other employee’s accounts where they are not co-signers on the
account with nothing being done. None of the other employees were involved in
legal actions with the employer.
I believe I have been retaliated against and terminated because I complained of
protected activity and for filing a charge of discrimination with the EEOC. This is
in violation of section 704(a) of Title VII of the 1964 Civil Rights Act, as
amended.
(Doc. 6-1, 2). The EEOC mailed Barclay a right to sue letter for her 2013 EEOC charge on May
28, 2014. (Doc. 6-1, 3).
Barclay filed her complaint on August 13, 2014. (Doc. 1). Barclay’s complaint alleges
race discrimination resulting in Barclay’s denial of promotion in 2011, (Doc. 1, ¶¶ 2, 8, 11),
retaliation resulting in Barclay’s termination in 2013, (Doc. 1, ¶¶ 2, 9, 10, 11, 17, 18), and
“unequal treatment.” (Doc. 1, ¶¶ 11, 18). Both parties agree that the only right to sue letter
Barclay received within ninety days of filing her complaint was for the 2013 EEOC charge. (See

1

The court may consider the 2013 EEOC charge on a motion to dismiss without
converting the motion to one for summary judgment because the 2013 EEOC charge is central to
Barclay’s complaint and both parties accept the 2013 EEOC charge as authentic. See Day v.
Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005).
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Doc. 6, 3; Doc. 9, 7).
III.

Rule 12(b)(6)
Defendant FNB Talladega argues that Plaintiff Barclay’s Title VII and § 1981 claims

should be dismissed because Barclay has not pled the minimal facts necessary to state a plausible
claim for relief under Rule 12(b)(6).2 (Doc. 6, 5). Barclay claims, under Title VII and § 1981, that
FNB Talladega did not promote her because of her race, that FNB Talladega terminated her in
retaliation for filing an EEOC complaint, and that FNB Talladega subjected her to “unequal
treatment.” (Doc. 1). The court finds that Barclay has pled sufficient facts to support her failure
to promote and termination claims but has not pled sufficient facts to support her claim of
“unequal treatment.”
A.

Barclay’s Failure to Promote Claims

Barclay’s Title VII and § 1981 claims alleging that FNB Talladega did not promote her
because of her race are supported by sufficient facts to survive a motion to dismiss.
“A complaint in an employment discrimination case need not contain specific facts
establishing a prima facie case under the evidentiary framework for such cases to survive a
motion to dismiss.”3 Henderson v. JP Morgan Chase Bank, N.A., 436 Fed. App'x 935, 937 (11th

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Except for the requirement of administrative exhaustion discussed in Section IV, Title
VII and § 1981 “have the same requirements of proof and use the same analytical framework,
therefore [the court] shall explicitly address the Title VII claim with the understanding that the
analysis applies to the § 1981 claim as well.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318,
1330 (11th Cir. 1998)
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To show a prima facie case of race discrimination, Barclay “must carry the initial burden
under the statute . . . by showing (I) that [she] belongs to a racial minority; (ii) that [she] applied
and was qualified for a job for which the employer was seeking applicants; (iii) that, despite [her]
qualifications, [she] was rejected; and (iv) that, after [her] rejection, the position remained open
and the employer continued to seek applicants from persons of complainant's qualifications.”
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Cir. 2011). Rather, “complaints alleging discrimination still must meet the ‘plausibility standard’
of Twombly and Iqbal.” Henderson, 436 Fed. App'x at 937 (finding that allegations that plaintiff
was African American, was pre-qualified for a loan, that the terms of the loan changed, and that
she was ultimately rejected for the loan when she complained are “conclusory and insufficient
under the Twombly pleading standard.). Thus, to survive a motion to dismiss, Barclay does not
have to establish a prima facie case of discrimination. Instead, Barclay’s complaint must
“provide enough factual matter (taken as true) to suggest intentional race discrimination.” Davis
v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir. 2008) (internal quotation marks
omitted).
FNB Talladega argues that Barclay fails to allege specifics about the position FNB
Talladega denied her. (Doc. 6, 6). FNB Talladega argues that Barclay fails to identify “the
position sought, her qualifications, the date of the opening, whether or how she applied, the
identity of the person who received the position, and her reason for believing the denial was
related to race or protected activity.” (Doc. 6, 6). However, Barclay is not required to provide this
detailed information, which may be necessary for a prima facie case, in her complaint. She
merely must plead enough factual matter to suggest intentional race discrimination.
Barclay’s complaint contains facts suggesting intentional race discrimination. First,
Barclay states she is a member of a racial minority. (Doc. 1, ¶ 3). Second, Barclay states she “was
denied a promotion to Supervisor” and, though she does not specifically state she was qualified

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, (1973). “The burden then must shift to
[FNB Talladega] to articulate some legitimate, nondiscriminatory reason for the employee's
rejection.” Id. Finally, the burden shifts back to Barclay to show that FNB Talladega’s reason is
pretext. Id. at 804.
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for the Supervisor position, she does allege that she has worked for FNB Talladega for thirty-nine
years and has held various positions at the company. (Doc. 1, ¶ 7). Third, Barclay states that FNB
Talladega rejected her. (Doc. 1, ¶ 7). Fourth, Barclay states that FNB Talladega awarded the
position to a white employee. (Doc. 1, ¶ 8). Barclay’s allegations suggest intentional race
discrimination.
While FNB Talladega argues that Barclay’s complaint “epitomizes speculation,” see
Davis, 516 F.3d at 974, Barclay provides enough facts to plausibly state Title VII and § 1981
failure to promote claims.
B.

Barclay’s Termination Claims

Barclay’s Title VII and § 1981 claims alleging that FNB Talladega terminated her in
retaliation for filing an EEOC charge are supported by sufficient facts to survive a motion to
dismiss.
For a retaliation claim, “[a]lthough a Title VII complaint need not allege facts sufficient
to make out a . . . prima facie case, . . . it must provide enough factual matter (taken as true) to
suggest . . . discriminatory retaliation.” Marshall v. Mayor & Alderman of City of Savannah, Ga.,
366 Fed. App'x 91, 100 (11th Cir. 2010) (quoting Davis, 516 F.3d at 974).4
FNB Talladega argues that Barclay’s retaliation claim should be dismissed because she

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“A prima facie case of retaliation requires [Barclay] to show that: (1) she engaged in a
statutorily protected activity; (2) she suffered an adverse employment action; and (3) there is
some causal connection between the two events.” Marshall, 366 Fed. App'x at 100. “Once
[Barclay] establishes [her] prima facie case, [FNB Talladega] must proffer a legitimate,
non-discriminatory reason for the adverse employment action. If [FNB Talladega] offers
legitimate reasons for the employment action, [Barclay] must then demonstrate that [FNB
Talladega’s] proffered explanation is a pretext for retaliation.” Holifield v. Reno, 115 F.3d 1555,
1566 (11th Cir. 1997) (internal citations omitted).
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does not identify when she complained, to whom she complained, what she might have
complained about, and the specifics of the policy Barclay alleged as a pretext for her termination.
(Doc. 6, 7).
Barclay has provided enough factual matter to suggest FNB engaged in discriminatory
retaliation. Barclay “complain[ed] about said discriminatory treatment” and “fil[ed] a previous
EEOC Charge contesting said discriminatory conduct.” (Doc. 1, ¶ 16). Barclay “was terminated
on July 17, 2013 for allegedly violating company policy.” (Doc. 1, ¶¶ 10, 17). The termination
was allegedly retaliatory because “similarly situated employees at FNB [Talladega] violated the
same policy as plaintiff and were not terminated.” (Doc. 1, ¶ 10). Barclay further describes the
policy violated in her 2013 EEOC charge stating “I was terminated after authorizing a $75.00
check without being a signer . . . . About 90% of the employees [have violated this policy]. None
of the other employees were involved in legal actions with the employer.” (Doc. 6-1, 2).
Barclay’s complaint suggests intentional racial discrimination and, thus, has plausibly stated a
claim.
FNB Talladega argues that, like the plaintiff in Uppal v. Hosp. Corp. of America, 482
Fed. App’x 394, 397 (11th Cir. 2012), Barclay’s termination claim is insufficient because she
fails to allege that the other employees who broke the policy were not African American. (Doc. 6,
7). In Uppal, a female physician of Indian descent claimed she lost her emergency room
privileges after complaining about discrimination. See 482 Fed. App’x at 397. “Dr. Uppal . . .
stated multiple claims for employment discrimination based solely on the repeated allegation that
‘[o]ther similarly situated employees outside Plaintiff’s protected classes’ engaged in similar
misconduct, but were not disciplined.” Id. The Eleventh Circuit found Dr. Uppal’s complaint
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insufficient because she failed to include “any factual detail, such as even a brief description of
how the alleged comparator employees were outside of her protected class.” Id. (emphasis
added).
In contrast, Barclay’s 2013 EEOC charge clearly alleges that “[n]one of the other
employees were involved in legal actions with the employer.” (Doc. 6-1, 2). The protected class
here is not African Americans FNB Talladega did not promote for discriminatory reasons but,
rather, those FNB Talladega employees who exercised their right to complain about allegedly
discriminatory treatment by FNB Talladega. Thus, Barclay has stated an allegation that
comparator employees were outside a protected class. Also, FNB Talladega misreads the holding
of Uppal. The rule from Uppal is not that a particular type of factual detail must be included in
the complaint. Rather, Uppal stands for the proposition that threadbare recitations of the
elements of a claim are insufficient to defeat a Rule 12(b)(6) motion. Here, Barclay’s complaint
goes beyond a recitation of the elements of a retaliation claim and states plausible facts sufficient
for Title VII and § 1981 retaliation claims.
C.

Barclay’s “Unequal Treatment” Claims

Barclay’s Title VII and § 1981 “unequal treatment” claims are insufficient to survive
FNB Talladega’s motion to dismiss. FNB Talladega argues that Barclay’s allegations that she
was “treated differently,” (Doc. 1, ¶ 11), and “subjected to unequal treatment,” (Doc. 1, ¶ 18), are
insufficient to state claims. (Doc. 6, 8). The court finds that these allegations, if unrelated to
Barclay’s failure to promote or termination claims, are insufficient because, standing alone,
Barclay’s bare assertion of “unequal treatment” does not provide enough factual matter to
suggest intentional discrimination. Barclay provides no factual detail, separate from the facts
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supporting her failure to promote and termination claims, about how she was treated differently,
who treated her differently, or when she was treated differently.
In summary, Barclay has included “nonconclusory descriptions of specific, discrete facts
of the who, what, when, and where variety,” Watts v. Ford Motor Co., 519 Fed. App’x 584, 587
(11th Cir. 2013), sufficient to state a plausible claim for her Title VII and § 1981 failure to
promote claims and her Title VII and § 1981 termination claims, but not for her Title VII and §
1981 “unequal treatment” claims. “Whether [those remaining] claims will withstand discovery
and a motion for summary judgment remains to be seen.” Id.
IV.

Administrative Exhaustion
FNB Talladega also argues that Barclay failed to exhaust administrative remedies before

filing her complaint because the only relevant EEOC charge refers to her retaliatory termination
but not to a racially motivated denial of promotion. (Doc. 6, 2). The court finds that Barclay has
not yet exhausted administrative remedies for her Title VII failure to promote claim because
Barclay has not yet received a right to sue letter for her 2011 EEOC charge and the 2013 EEOC
charge does not provide a basis for her failure to promote claim to proceed.
A.

No Right to Sue Letter for 2011 EEOC Charge

Barclay bases her complaint on two statutes, Title VII and § 1981. (Doc. 1). Before filing
a Title VII action in federal court, a plaintiff must file a charge of discrimination with the EEOC
within 180 days of the last act of discriminatory treatment.5 42 U.S.C. § 2000e-5(f)(1). After a
plaintiff files a charge, the EEOC investigates the claim and sends a right to sue letter in certain

5

In contrast, § 1981 does not require the plaintiff to file an EEOC charge. Thus, Barclay’s
§ 1981 failure to promote claim is not dismissed for failure to exhaust administrative remedies.
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circumstances, including when the EEOC issues a “reasonable cause” finding of discrimination.
29 C.F.R. §§ 1601.19(a), 1601.28(b). A plaintiff must then file a Title VII complaint within
ninety days of receipt of the letter from the EEOC. 42 U.S.C. § 2000e-5(f)(1).
Thus, to have administratively exhausted her failure to promote claim, Barclay must have
included the claim in a complaint filed within ninety days of receipt of a right to sue letter
covering the claim. 42 U.S.C. § 2000e-5(f)(1). According to Barclay, she included the failure to
promote claim in her 2011 EEOC charge, the EEOC investigated the failure to promote claim,
and the EEOC generated a right to sue letter for the 2011 EEOC charge. (Doc. 9, 7). However,
according to Barclay, she never received the right to sue letter. (Doc. 9, 7) (“The plaintiff has, to
this day, never received a right to sue on the [2011] charge.”).
The court cannot hear Barclay’s Title VII failure to promote claim until she receives a
right to sue letter from the EEOC. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798
(1973) (finding that two “jurisdictional prerequisites” for a federal Title VII action are “(I) . . .
filing timely charges of employment discrimination with the [EEOC] and (ii) . . . receiving and
acting upon the [EEOC’s] statutory notice of the right to sue, 42 U.S.C. ss 2000e—5(a) and
2000e—5(e).”); Norris v. Fla. Dep't of Health & Rehab. Servs., 730 F.2d 682, 683 (11th Cir.
1984) (“the plaintiff must file suit within ninety days of receiving the right-to-sue notice [and]
the 90-day time period commences . . . upon receipt.”).
Thus, Barclay’s Title VII failure to promote claim is premature because she has not yet
received a right to sue letter from the EEOC for the failure to promote claim included in the 2011
EEOC charge.

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B.

2013 Right to Sue Letter Irrelevant

Even though Barclay has not received a right to sue letter for her 2011 EEOC charge,
which contained her Title VII failure to promote claim, she seems to argue that her failure to
promote claim is administratively exhausted based on the right to sue letter she received for her
2013 EEOC charge. (See Doc. 6-1, 3).
The court is “extremely reluctant to bar Title VII claims based on procedural
technicalities and will allow judicial claims that amplify, clarify, or more clearly focus the EEOC
complaint allegations.” Hillemann v. Univ. of Cent. Fla., 167 Fed. App’x 747, 749 (11th Cir.
2006) (internal quotation marks omitted). However, “the scope of the judicial complaint is
limited to the scope of the EEOC investigation which 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)(internal quotation marks and citations omitted).6
Barclay’s complaint encompasses the factual allegations of both her 2011 and 2013
EEOC charges. (Doc. 1). Thus, she seems to argue that the right to sue letter she received for her
2013 EEOC charge encompasses the failure to promote claim from her 2011 EEOC charge
because the EEOC’s investigation of the 2013 EEOC charge could reasonably be expected to
include the failure to promote claim. The court disagrees.
First, the right to sue letter Barclay received for her 2013 EEOC charge references only
the 2013 EEOC charge number. (6-1, 3). Additionally, the 2013 EEOC charge itself only makes
passing reference to race discrimination but does not mention the failure to promote incident in
6

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
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the narrative at all. (Doc. 6-1, 2). Further, the dates of discrimination listed in the charge refers to
the date of her termination and not to the date FNB allegedly denied her a promotion. (Doc. 6-1,
2). Thus, the 2013 EEOC charge clearly covers an allegation of retaliatory termination and
clearly does not cover a claim for failure to promote because of race.
Second, allowing Barclay to bootstrap her 2011 failure to promote claim into her 2013
EEOC charge is inconsistent with the policy of EEOC administrative exhaustion. One of the
purposes of exhausting administrative remedies by filing an EEOC charge is “to give the EEOC
an opportunity to settle the grievance.” Francois v. Miami Dade Cnty., Port of Miami, 432 Fed.
App'x 819, 822 (11th Cir. 2011). The EEOC has not yet resolved the 2011 failure to promote
grievance because, according to Barclay, she has not yet received a right to sue letter. (Doc. 9, 6).
The court will not circumvent the EEOC’s investigation of the 2011 incident by bootstrapping it
into the 2013 EEOC charge.
In summary, Barclay’s Title VII failure to promote claim has not yet been
administratively exhausted because she has not received a right to sue letter for her 2011 EEOC
charge and her 2013 EEOC charge and right to sue letter are not a basis for her failure to promote
claim. Barclay is not without a remedy for her Title VII failure to promote claim, however. Once
she receives a right to sue letter for her 2011 EEOC charge, she is free to bring her Title VII
failure to promote claim within the ninety day statutory period to file suit. Thus, Barclay’s Title
VII failure to promote claim is dismissed without prejudice.
Finally, even if Barclay’s “unequal treatment” claim plausibly stated a claim for relief,
which it does not, as discussed above in Section III, Barclay’s Title VII “unequal treatment”
claim has not been administratively exhausted because it is not referenced in either her 2011 or
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2013 EEOC charges.
V.

Shotgun Pleading
Defendant FNB Talladega argues that Plaintiff Barclay’s complaint does not comply with

the requirements of Rules 8(a)(2) and 10(b) because Barclay “lumped together in a single count
an indeterminate number of alleged adverse actions, two statutes, two theories of recovery, and
three possible statutes of limitations” making it “impossible” to determine what Barclay claims.
(Doc. 6, 5). FNB Talladega also argues that Barclay’s complaint re-alleges previous allegations
in paragraph six and fifteen of her complaint, making it impossible to discern what Barclay is
saying. (Doc. 6, 5). FNB Talladega argues that this “shotgun” complaint should be dismissed.7
The court disagrees.
“The point [of Rule 8] is to give the defendant fair notice of what the claim is and the
grounds upon which it rests.” Grimsley v. Marshalls of MA, Inc., 284 Fed. App’x 604, 610 (11th
Cir. 2008). “In addition, Rule 10 requires each claim founded on a separate transaction or
occurrence to be stated in separate counts if needed for clarity.” Id. “These rules work together so
that [the plaintiff’s] adversary can discern what he is claiming and frame a responsive pleading.”
Id.
Here, Barclay alleges only three instances of discriminatory conduct by FNB Talladega:
(1) failure to promote her in 2011, (Doc. 1, ¶¶ 8, 11), (2), her termination in 2013, (Doc. 1, ¶¶ 9,

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A “shotgun” style complaint exists when “each count . . . adopts the allegations of all
preceding counts. Consequently, allegations of fact that may be material to a determination of
count one, but not count four, are nonetheless made a part of count four. . . . [I]t is virtually
impossible to know which allegations of fact are intended to support which claim(s) for relief.”
Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117, 1126 (11th Cir. 2014) (quoting Anderson v.
Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996)).
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10, 11, 17), and (3) “unequal treatment.” (Doc. 1, ¶¶ 11, 18). Barclay alleges only two types of
prohibited conduct: (1) race discrimination, (Doc. 1, ¶¶ 2, 11), and (2) retaliation. (Doc. 1, ¶¶ 2,
11, 17, 18). Barclay’s complaint is not so long or complex that FNB Talladega cannot sift
through the facts in the complaint and “discern what [Barclay] is claiming and frame a
responsive pleading.” Grimsley, 284 Fed. App’x at 610. FNB Talladega has managed to separate
out the claims in its motion to dismiss and can continue to do so moving forward.
The court and FNB Talladega can understand Barclay’s complaint. Barclay is not
required to replead her surviving claims.
VI.

Violation of Court Orders
Plaintiff Barclay argues that Defendant FNB Talladega’s motion should be dismissed

because FNB Talladega did not contact counsel for Barclay before filing its motion for a more
definite statement and did not indicate whether the motion was opposed or unopposed. (Doc. 9,
1-2). Barclay argues that these two actions are requirements in Appendix IV (B) of the ALND
Uniform Initial Order Governing All Further Proceedings. The order that Barclay references is
not clearly implicated, however, because FNB Talladega’s has filed a dispositive Rule 12(b)(6)
motion, which does not require consultation under the rule, and FNB Talladega only asks for a
more definite statement in the alternative.
While the court does stress that cooperation between the parties and counsel for the
parties is paramount, the court does not find that FNB Barclay acted inappropriately in filing this
motion and does not find that FNB Talladega’s motion should be denied on this basis.
VII.

Conclusion
In summary, Plaintiff Margaret J. Barclay’s Title VII and § 1981 claims alleging “unequal
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treatment” by Defendant FNB Talladega fails to plausibly state a claim on which relief can be
granted to the extent it is a separate claim from her failure to promote and termination claims.
Further, Barclay’s Title VII claim alleging that FNB Talladega denied her a promotion based on
her race is not yet administratively exhausted. The remainder of Barclay’s claims, including her
§ 1981 failure to promote claim, both plausibly state claims against FNB Talladega and are
administratively exhausted. Finally, Barclay’s complaint is not a “shotgun” complaint in need of
reformation and FNB Talladega did not violate court orders such that its motion should be denied
on that basis.
Thus, the court GRANTS FNB Talladega’s motion to dismiss for Barclay’s Title VII
“unequal treatment” claim, § 1981 “unequal treatment” claim, and Title VII failure to promote
claim and DENIES the remainder of FNB Talladega’s motion. The court DISMISSES the
insufficient claims WITHOUT PREJUDICE.
DONE and ORDERED this 28th day of October, 2014.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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