Strong v. Blue Bell Creameries
MEMORANDUM OPINION AND ORDER GRANTING 8 MOTION to Dismiss. For the foregoing reasons, the Court holds that the Plaintiff has failed to properly allege facts which plausibly support a claim for wrongful discharge. Accordingly, any such claim is DISMISSED. This dismissal is without prejudice, since the time for the Plaintiff to amend his Complaint has not yet expired. Signed by Judge Virginia Emerson Hopkins on 6/21/2016. (JLC)
2016 Jun-21 PM 01:25
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
BLUE BELL CREAMERIES,
) Case No.: 1:15-CV-1978-VEH
MEMORANDUM OPINION AND ORDER
This is a civil action filed by the Plaintiff, James Strong, against the Defendant,
Blue Bell Creameries. The Complaint alleges that the Defendant discriminated
against Strong on the basis of his race in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. Section 2000e, et seq. (“Title VII”), and 42 U.S.C.
§ 1981. (Count One). The Complaint also alleges that the Defendant has
discriminated against Strong due to his disability, and failed to reasonably
accommodate his disability, in violation of the Americans with Disabilities Act, 42
U.S.C. § 12112, et seq. (the “ADA”), and the amendments thereto.1 Both counts arise
out of the Plaintiff’s employment with the Defendant.
The Complaint actually alleges a violation of the Americans with Disabilities Act
Amendments Act of 2008 (the “ADAAA”), which broadens the definition of “disability” under
The case comes before the Court on the Defendant’s Partial Motion to Dismiss
the Plaintiff’s Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. (Doc. 8). For the reasons stated herein, the motion will be GRANTED.
The Plaintiff’s constructive discharge claim will be DISMISSED.
Generally, the Federal Rules of Civil Procedure require only that the complaint
provide “a short and plain statement of the claim showing that the pleader is entitled
to relief.” FED. R. CIV. P. 8(a). However, to survive a motion to dismiss brought under
Rule 12(b)(6), a complaint must “state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (“Twombly”).
A claim has facial plausibility “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly,
550 U.S. at 556) (“Iqbal”). That is, the complaint must include enough facts “to raise
a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation and
footnote omitted). 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 assertion[s]”
without supporting factual allegations. Id. at 555, 557 (citation omitted).
Once a claim has been stated adequately, however, “it may be supported by
showing any set of facts consistent with the allegations in the complaint.” Id. at 563
(citation omitted). Further, when ruling on a motion to dismiss, a court must “take the
factual allegations in the complaint as true and construe them in the light most
favorable to the plaintiff.” Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.
2008) (citing Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006)).
ALLEGATIONS IN THE COMPLAINT
The following factual allegations appear in the Complaint:
Strong was employed by the Defendant for fourteen-years. He
began working for the Defendant as a general laborer and progressed up
the line to Yard-Dog and then over the road Truck Driver. Strong
worked as an over the road truck driver from 2005 until his forced
resignation in the summer of 2014.
Approximately two-years before he resigned his employment,
Strong was diagnosed with Type II-Diabetes. Based on his diagnosis he
is substantially limited in the major life activity of endocrine function
with or without regard to the ameliorative effects of mitigating
measures. Also, because he informed his employer of his condition he
was “perceived” and/or “regarded as” disabled.
Strong’s condition requires him to urinate on a frequent basis
which necessitates a restroom break every hour or so. Strong made a
request to the Defendant, which was granted, that he be allowed to take
more frequent restroom break[s]. This accommodation had no impact
whatsoever on Strong’s job performance.
10. In March 2014, Strong was suspended from work for two-days
allegedly because he took too long delivering a load. Even though
Strong had maintained and provided meticulous records explaining why
the load was delayed[,] he was still suspended. An individual who does
not suffer from diabetes[,] and ran the same route the day in question[,]
and was also delayed[,] suffered no discipline.
11. Numerous times since Strong asked for and received an
accommodation, the Defendant remarked that he made too much
overtime. In truth Strong’s overtime hours are less than many drivers at
the facility. Moreover, he always maintained a trip log for every delay
that occurred during a run.
12. On May 16, 2014, the Defendant informed Strong that because of
his overtime numbers he was being demoted back to a stacking pallets
in the warehouse (Palletizer). This work is very labor intensive and
requires the employee to work in freezing conditions.
13. Due to his diabetes, Strong knew that he was not physically able
to perform the duties and responsibilities of a Palletizer. Strong
expressed to the Defendant that working in the warehouse would be
deleterious to his health, but his concerns were ignored.
14. Strong did as he was told and began working in the warehouse.
Upon information and belief, the Defendant knew that Strong could no
longer physically work as a Palletizer and hoped that he would resign
15. After about two-weeks of working as a Palletizer, Strong suffered
complications from his diabetes, to include neuropathy in his feet which
required his hospitalization. While hospitalized[,] Strong contracted
pneumonia which exacerbated his condition causing him to remain
hospitalized for an extended period. Upon his release from the hospital,
Strong turned in his resignation.
16. White over the road Truck Drivers [who] had more overtime than
Strong were not demoted. Strong has personal knowledge of this fact
because the overtime list is posted each week with the totals for all over
the road Truck Drivers who have worked in excess of 40 hours per
17. Strong was treated less advantageously . . . because of his race
[African-American] and/or because of his disability [Type II-Diabetes].2
(Doc. 1 at 3-5).
The Plaintiff Exhausted His Administrative Remedies
The Defendant’s motion argues that, because the Plaintiff failed to mention his
separation from the Defendant in his initial charge of discrimination to the EEOC,
any claim he may have for “constructive discharge” must fail.
Prior to filing a Title VII or ADA claim a plaintiff must exhaust certain
administrative remedies. E.E.O.C. v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1271
(11th Cir. 2002); 42 U.S.C. § 2000e-5; Fry v. Muscogee Cty. Sch. Dist., 150 F. App'x
980, 981 (11th Cir. 2005) (“Before filing suit under the ADA, a plaintiff must exhaust
her administrative remedies by filing a charge with the EEOC.”); 42 U.S.C.A. §
12117(a). “The administrative process is initiated by timely filing a charge of
discrimination.” Joe’s Stone Crabs, 296 F.3d at 1271.
In the instant case, the Plaintiff filed his Charge of Discrimination with the
EEOC on May 22, 2014. (Doc. 1-1 at 4). In pertinent part, the charge states:
The brackets in this sentence appear in the original.
I have been employed with the Respondent for approximately 14
(fourteen) years. I began working as a general laborer and progressed up
the line to Yard Dog and then over the road Truck Driver. I have been
an over the road Truck Driver since 2005.
Approximately two-years ago, I was diagnosed with Diabetes.
Based on my condition I am a substantially limited in the major life
activity of endocrine function with or without regard to the ameliorative
effects of mitigating measures. Also, because I informed my employer
of my condition I am “regarded as” disabled.
III. My condition requires me to urinate on a frequent basis which
necessitates a restroom break every hour or so. As an over the road
Truck Driver, my employer has instructed me that I am to only take a
restroom break every three hours. I requested that I be allowed to take
more frequent restroom breaks and was granted this accommodation as
it had no impact whatsoever on my job performance.
IV. In March 2011, I was suspended from work for two-days
allegedly because I took too long delivering a load. Even though I had
maintained and provided meticulous records explaining why the load
was delayed I was still suspended. An individual who does not suffer
from diabetes that had the same route as me on the day in question and
was also delayed suffered no discipline.
Every since I informed the Respondent of my diabetes diagnosis,
I have been constantly harassed about working too much overtime. In
truth my overtime hours are less than many drivers at the facility.
Moreover, I always maintain a trip log for every delay that occurs during
a run which might cause me to be late.
VI. On May 16, 2014, I was informed by the Respondent that because
of my overtime numbers I was being demoted back to a stacking pallets
in the warehouse (Palletizer). This work is very labor intensive and
difficult. I worked as a Palletizer for 5 years before I became a Truck
Driver and doubt that my condition would allow me to work in that role
now. Upon information and belief, the Respondent knows that I can no
longer physically work as a Palletizer and will be forced to resign.
VII. White over the road Truck Drivers have more overtime than me
but have not been demoted. I know this because the overtime list is
posted each week with the totals for all over the road Truck Drivers who
have worked in excess of 40 hours per week.
VIII. I have been discriminated against on the basis of my disability
[(Diabetes)] and my race (African-American).
(Doc. 1-1 at 4-5). This charge was filed before the Plaintiff resigned from his
employment. Accordingly, there is no mention of his separation from the Defendant.
The charge was never amended to include information regarding the Plaintiff’s
resignation. No other charge of discrimination was ever filed.
Importantly, “[n]ot all acts complained of [in the judicial complaint] . . . need
have been included in the EEOC charge.” Robinson v. Regions Fin. Corp., 242 F.
Supp. 2d 1070, 1079 (M.D. Ala. 2003) (Thompson, J.). Instead, “[a] ‘plaintiff's
judicial complaint is limited by the scope of the EEOC investigation which can
reasonably be expected to grow out of the charge of discrimination.’” Gregory v.
Georgia Dep't of Human Res., 355 F.3d 1277, 1280 (11th Cir. 2004) (emphasis
added) (quoting Alexander v. Fulton County, Ga., 207 F.3d 1303, 1332 (11th
Cir.2000) (internal quotation and citation omitted)). In this case, the EEOC charge
clearly states that work as a Palletizer “is very labor intensive and difficult,” that the
Plaintiff “doubt[s] that [his] condition would allow [him] to work in that role now,”
and that the Defendant, “knows that I can no longer physically work as a Palletizer
and will be forced to resign.” (Doc. 1-1 at 5). The investigation by the EEOC of the
allegations in the charge would have included the discovery and investigation of the
conditions and circumstances under which the Plaintiff resigned.3 See Booth v. Pasco
Cty., Fla., 829 F. Supp. 2d 1180, 1193 (M.D. Fla. 2011) (judicial claim based on
transfer which occurred after filing of EEOC charge not barred where charge
explicitly stated that “threats of transfers are always being thrown at me”– one would
expect the alleged involuntary transfer to be discovered upon the EEOC's
investigation of the charged conduct)4; Browning v. AT & T Paradyne Corp., 838 F.
Supp. 1568, 1572 (M.D. Fla. 1993) (judicial claim for unlawful discharge, when
discharge occurred after EEOC charge was filed and which plaintiff attributed to a
bad performance review, was not barred where EEOC charge had alleged age
This is especially true since the EEOC investigation did not end until 12-13 months
after the Plaintiff resigned. (Doc. 16 at 10).
Booth was a retaliation case. Booth also addressed an alternative reason for finding that
some of the judicial claims were not barred, stating “[a] second exception allows courts to hear
charges not contained in an EEOC complaint if those claims are for retaliation against the
employee for filing an EEOC charge.” Booth, 829 F. Supp. 2d at 1194. The Defendant correctly
argues that retaliation claims, in this way, are treated “uniquely” from other claims. (See doc. 19
at 8-9). The fact that this alternative basis also exists does not detract from the initial analysis
provided in Booth and discussed in the parenthetical above.
discrimination based in part on unwarranted negative performance evaluation.).5
Accordingly, the Court finds that any claim for constructive discharge is not
The Court is particularly persuaded by the following analysis set out in the Browning
The Eleventh Circuit relies on two criteria in its determination of whether
discrimination claims in a judicial complaint, which were not previously alleged
in an EEOC charge, are to be considered “within the scope” of the EEOC charge.
The first criteria is whether the subsequent acts are “like or reasonably related to”
the allegations contained in the EEOC charge. Turner v. Orr, 804 F.2d 1223,
1226. The second criteria is whether the subsequent acts “could reasonably be
expected to grow out of” the investigation of the pending EEOC charges. Id.;
Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir.1988); Sanchez v.
Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.1970).
This Court finds that Plaintiff Hanna's claim of unlawful discharge is
reasonably related to the incidents described in the EEOC charges, and could
reasonably be expected to grow out of the investigation of the pending EEOC
charges. The fact that Plaintiff Hanna stated in his affidavit, which was connected
with the EEOC questionnaire, that he felt that Bazzone's alleged discriminatory
behavior was an attempt to make him quit or retire is undoubtedly like or
reasonably related to a claim for unlawful discharge. Plaintiff Hanna's consensus
of the situation was that Bazzone was attempting to remove him from his
employment which is related to being discharged from employment.
Along this same reasoning, Plaintiff Hanna's alleged unlawful discharge
from his employment can very reasonably be expected to grow out of a charge of
discrimination. This is especially so since Plaintiff Hanna viewed the alleged
discriminatory acts as a ploy to remove him from his employment, and since the
termination from his employment was predicated on the very behavior that
Plaintiff Hanna complained of. Plaintiff Hanna, in an indirect manner, predicted
the eventual termination of his employment with Defendant AT & T Paradyne.
The termination can be considered the natural end result of the alleged
discriminatory behavior that Plaintiff Hanna complained of, ie., the termination
grew out of the discriminatory behavior.
Browning, 838 F. Supp. at 1572. Like in Browning, the Plaintiff in the instant case predicted that
the demotion to Palletizer would force him to resign. His resignation could be considered the
natural end of the alleged discriminatory demotion.
The Complaint Does Not Adequately State a Claim for Constructive
The Eleventh Circuit has noted:
“Constructive discharge occurs when an employer deliberately makes an
employee’s working conditions intolerable and thereby forces him to
quit his job.” Munday v. Waste Mgmt. of North America, Inc., 126 F.3d
239, 244 (4th Cir.1997); accord Young v. Southwestern Savings and
Loan Ass'n, 509 F.2d 140, 144 (5th Cir.1975) (“The general rule is that
if the employer deliberately makes an employee's working conditions so
intolerable that the employee is forced into an involuntary resignation,
then the employer has encompassed a constructive discharge and is as
liable for any illegal conduct involved therein as if it had formally
discharged the aggrieved employee.”).7 A plaintiff must show “the work
environment and conditions of employment were so unbearable that a
reasonable person in that person's position would be compelled to
resign.” Virgo v. Riviera Beach Assoc., Ltd., 30 F.3d 1350, 1363 (11th
The Defendant argues:
The Complaint does not appear to allege a termination claim. There is no separate
count relating to a termination claim nor is there any allegation that the Plaintiff
was terminated because of his race or alleged disability. The Plaintiff states in the
Complaint that he resigned (Doc. 1 at ¶ 15), but there is no attempt to set out the
elements of a constructive discharge claim. Out of an abundance of caution,
however, Blue Bell seeks to dismiss any constructive discharge claim, as the
Complaint fails to state any such claim.
(Doc. 8 at 5). The Complaint alleges race and disability discrimination. It alleges in the “facts”
section that the Plaintiff was suspended, demoted, and forced to resign as a result of this
discrimination. The Court deems this to be sufficient to put the Defendant on notice as to the
specific acts upon which each count of the Complaint is based.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the
Eleventh Circuit adopted as binding precedent the decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
Cir.1994); see also Poole v. Country Club of Columbus, Inc., 129 F.3d
551, 553 (11th Cir.1997); Kilgore v. Thompson & Brock Mgmt., Inc., 93
F.3d 752, 754 (11th Cir.1996). Establishing a constructive discharge
claim is a more onerous task than establishing a hostile work
environment claim. Landgraf v. USI Film Prods., 968 F.2d 427, 430 (5th
Cir.1992) (“To prove constructive discharge, the plaintiff must
demonstrate a greater severity or pervasiveness of harassment than the
minimum required to prove a hostile working environment.”), aff'd, 511
U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994); see also Steele v.
Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316–18 (11th Cir.1989)
(affirming district court's finding that plaintiffs established that they
were subjected to a hostile work environment but were not
constructively discharged); Huddleston v. Roger Dean Chevrolet, Inc.,
845 F.2d 900, 905–06 (11th Cir.1988) (same).
Bryant v. Jones, 575 F.3d 1281, 1298-99 (11th Cir. 2009).
In the instant case, the Complaint explains the difficult conditions under which
a Palletizer is expected to work, and explains that the Plaintiff “knew that he was not
physically able to perform those duties and responsibilities.” (Doc. 1 at 4). However,
the Complaint lacks any factual allegations that the Defendant knew that the Plaintiff
could not perform the functions of the position and deliberately placed him into that
position to force him to resign. Although, as alleged in the Complaint, the Defendant
knew the Plaintiff had diabetes, there are no allegations that the Defendant knew that
that condition, which the Plaintiff alleges only required him to take frequent
bathroom breaks, would make his working conditions so intolerable that he would be
forced to quit.8 Too, there are no allegations that the position ultimately turned out to
be intolerable. Although the Complaint alleges that two weeks after starting the job,
the Plaintiff “suffered complications from his diabetes, to include neuropathy in his
feet which required his hospitalization,” there is no allegation that the Palletizer
position caused the complications. While these allegations create the possibility of
a constructive discharge, “[w]here a complaint pleads facts that are ‘merely consistent
with’ a defendant's liability, it ‘stops short of the line between possibility and
plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550
U.S. at 557 (internal quotation marks omitted)).
Finally, the law in the Eleventh Circuit is clear that “[a] constructive discharge
will generally not be found if the employer is not given sufficient time to remedy the
situation.” Kilgore v. Thompson & Brock Mgmt., Inc., 93 F.3d 752, 754 (11th
Cir.1996). Even if the position ultimately turned out to be intolerable, there are no
allegations in the Complaint that, after working in the position, the Plaintiff explained
to the Defendant the nature of the problem, and gave the Defendant sufficient time
The Defendant labels the Complaint’s allegation that “[u]pon information and belief,
the Defendant knew that Strong could no longer physically work as a Palletizer,” as mere
“speculation.” (Doc. 19 at 4, quoting doc. 1 at 4-5). The Court agrees. The Complaint states that
after he was assigned to the position he “expressed to the Defendant that working in the
warehouse would be deleterious to his health, but his concerns were ignored.” (Doc. 1 at 4, ¶13).
These allegations, if proven to be true, do not establish that the Defendant was aware, at the time
it assigned him to this position, that the work as a Palletizer may cause him health problems.
to remedy it. Instead, exactly the opposite is true. The Complaint alleges that the
Plaintiff resigned “[u]pon his release from the hospital.” (Doc. 1 at 5, ¶ 15). See
Robinson v. Koch Foods of Alabama, No. 2:13-CV-557-WKW, 2014 WL 4472611,
at *3 (M.D. Ala. Sept. 11, 2014) (dismissing constructive discharge claim on motion
for judgment on the pleadings where plaintiff resigned because of sexual harassment
by a co-worker on the same day she reported the harassment; holding that “[the]
constructive discharge claim fails as a matter of law because there is no possibility
she can prove that she gave [the defendant] sufficient time to remedy the situation.”).
For the foregoing reasons, the Court holds that the Plaintiff has failed to
properly allege facts which plausibly support a claim for wrongful discharge.
Accordingly, any such claim is DISMISSED.9 This dismissal is without prejudice,
since the time for the Plaintiff to amend his Complaint has not yet expired.
DONE and ORDERED this 21st day of June, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
In his response to the Motion to Dismiss, the Plaintiff does not ask for leave to amend
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