Harris v. Koch Foods of Ashland, LLC et al
MEMORANDUM OPINION AND ORDER DENYING 33 MOTION to Dismiss. Signed by Judge Virginia Emerson Hopkins on 7/26/2016. (JLC)
2016 Jul-26 PM 02:38
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
KOCH FOODS OF ASHLAND,
LLC; KOCH FOODS OF
ALABAMA, LLC; AND KOCH
) Case No.: 1:15-CV-2181-VEH
MEMORANDUM OPINION AND ORDER1
This is the third complaint that Plaintiff Tracy Harris has filed in this case. She
alleges violations of Title VII and the Equal Pay Act in the forms of discriminatory
pay and retaliation. Like a matador waving her red cape, Harris’s filing of a new
complaint induced Defendants Koch Foods, Inc. (“Koch Foods”), Koch FoodsAshland, LLC (Koch-Ashland”), and Koch Foods-Alabama, LLC (“Koch-Alabama”),
to charge in with a partial motion to dismiss in the hope that they could gore a count
or two. But la matadora is too swift, or at least the bulls charged too soon. The
motion will be DENIED.
The clerk of court is DIRECTED to update the case style as reflected herein.
Tracy Harris, a woman, began working for Tyson Foods in 1993 until Tyson
Foods was purchased by Koch Foods, Inc., which is the parent corporation of Koch
Foods-Ashland, LLC and Koch Foods-Alabama, LLC. (Doc. 32, ¶¶ 22–25, 28).
Harris was promoted to a position as Complex Benefits Manager for Koch Foods.
(Id., ¶ 33). In 2010 and while Harris was employed as a Complex Benefits Manager,
Koch Foods hired William Summerville, a man, for the same position. (Id., ¶ 37). He
was hired to work at Defendants’ Montgomery complex, which is part of KochAlabama. (Id., ¶ 38). Harris has 22 years of experience working in Defendants'
industry and 8 years of experience working for Defendants. (Id., ¶ 43).
After learning in 2012 that Summerville is paid more than she is, Harris has
continuously complained about the difference in pay to their mutual supervisor,
Bobby Elrod. (Id., ¶ 45) Elrod has not taken action after hearing any of these
complaints. (Id.). In September 2014, Harris complained again, and Elrod retaliated
against her in a number of ways, including demoting her, monitoring her more than
other employees, and refusing to provide her vital information for performing her job.
(Id., ¶¶ 138–48).
The facts herein are limited to those relevant to this motion to dismiss.
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)(2). 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).
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). 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)).
The Defendants move to dismiss Harris’s retaliation claims, which are Counts
Three, Four, and Five, because (they say) the allegedly retaliatory acts were no more
than petty slights or minor annoyances and therefore not offensive enough to serve
as retaliatory acts as a matter of law. On these same counts, Defendants also argue
that Harris has inadequately pleaded a causal relationship between her protected
activity and any retaliatory acts. Finally, as to Count V only, Defendants argue that
Harris has insufficiently pleaded facts showing that Koch Foods of Alabama, LLC
(“Koch-Alabama”) is Harris’s employer and therefore, Koch-Alabama should be
dismissed. These arguments will be taken in turn.
The Sufficiency of the Retaliatory Acts
Title VII prohibits retaliation against any employee “because [she] has opposed
any practice” made unlawful by Title VII. 42 U.S.C. § 2000e-3(a). “To establish a
prima facie case of retaliation under Title VII, a plaintiff must show that (1) [she]
engaged in statutorily protected expression; (2) [she] suffered an adverse employment
action; and (3) there is some causal relation between the two events.”3 Pennington v.
City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001) (citation omitted). The
allegedly adverse action must be “materially adverse,” as judged from the point of
view of a “reasonable employee.” Burlington N. and Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006) (citation omitted). “Materially adverse” action “would “dissuade
a reasonable worker from making or supporting a charge of discrimination.” Id.
Defendants suggest, and the court agrees, that Harris alleges seven adverse
acts. They are: (1) Elrod’s failing and/or refusing to inform employees at different
plant locations of Plaintiff’s job title in such a manner as to interfere with her duties;
(2) requiring Plaintiff to report her whereabouts and her daily operations to five other
managers; (3) denying Plaintiff access to information relevant to her job duties; (4)
other employees being instructed to watch Plaintiff and not provide her information
relevant to her position; (5) changes in her duties and responsibilities; (6) Plaintiff’s
job title has changed; and (7) Plaintiff was demoted. (Doc. 32, ¶¶ 138–48).
It is true that requiring an employee to report her whereabouts and a
nondescript “change in duties” are each insufficient to constitute retaliatory conduct.
The court assumes, as the parties apparently do, that retaliation under the Equal Pay Act
is governed by the same standards as Title VII.
But it is quite plausible that a reasonable employee would think twice about engaging
in protected activity if, in response, her employer denied her access to relevant job
information, refused to inform other employees of who she was in such a way as to
interfere with her performance, and demotes her. None of the (non-binding) cases that
Defendants cite are any help to them; only one is even a 12(b)(6) appeal and, in that
case, McCone v. Pitney Bowes, Inc., 582 F. App’x. 798 (11th Cir. 2014), the pro se
plaintiff’s change in duties was advanced as evidence of disparate treatment, not a
Defendants take particular issue with Harris’s allegation that she was demoted
by advancing the bizarre argument that being “demoted” is a legal conclusion not
entitled to the presumption of truth. A demotion is a fact, and unlike, say,
“conspiring,” it is not even a hybrid factual-legal conclusion. Undoubtedly, Harris’s
complaint could be more detailed (perhaps by describing the nature of the demotion
or the information withheld from her), and her statement to the contrary is ludicrous,
but Twiqbal’s treatment of legal conclusions is too harsh for the concept of “legal
conclusion” to be interpreted so capaciously that it includes every sloppily developed
factual allegation. This ground for dismissal is meritless.
Causation of the Retaliatory Act
It appears that causation is more frequently litigated at the summary judgment
stage but, at that point, “a plaintiff merely has to prove that the protected activity and
the negative employment action are not completely unrelated.” Goldsmith v. Bagby
Elevator Co., 513 F.3d 1261, 1278 (11th Cir. 1998) (emphasis added) (quoting
Olmstead v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1993)). “A plaintiff
satisfies this element if [s]he provides sufficient evidence of knowledge of the
protected expression and that there was a close temporal proximity between this
awareness and the adverse action.” Higdon v. Jackson, 393 F.3d 1211, 1220 (11th
Cir. 2004) (alteration in original) (citation, internal quotation marks, and ellipsis
omitted). A “close temporal proximity” may provide sufficient circumstantial
evidence of the causal relationship, although its sufficiency diminishes the longer the
time period that elapses between. See id. If the retaliatory act occurs within the same
month, that is usually sufficient to allow a court to infer causation. Id.
Defendants assail the causal relationship between Harris’s complaint and the
retaliatory acts first, on the ground that no decision-maker had knowledge of her
protected activity, and second, that her laconic assertion that the retaliatory acts
occurred after her protected activity is too attenuated to plead causation. Their first
grievance is premised on a mistaken reading of Harris’s complaint: she alleges
explicitly that Elrod retaliated against her. (Doc. 32, ¶ 105). As to the temporal
proximity of the retaliation, she claims to have initially complained in September
2014, id., ¶ 103, and she alleges that Elrod retaliated in the same month. (Id., ¶ 105).
This is sufficient to plead causation.
Koch-Alabama as Harris’s Employer
Harris argues that whether Koch-Alabama is also her employer is an issue that
is too fact-intensive to be resolved at the motion to dismiss stage.4 The court agrees.
District courts “routinely” decline to consider certain fact-intensive issues prior to
summary judgment. Schojan v. Papa John’s Int’l., Inc., 34 F. Supp 3d. 1206, 1210
(M.D. Fla. 2014); see also Larach v. Standard Chartered Bank, Int’l., 724 F. Supp.
2d 1228, 1238 (S.D. Fla. 2010) (declining, in consumer protection case, to consider
whether entities were acting as banks or brokers at motion to dismiss). And while
Iqbal is premised on the transsubstantive nature of the Rules of Civil Procedure—a
premise in tension with the court’s decision here—nothing in that case requires
She also, for the third time, attaches materials to her response to the partial motion to
dismiss in a bid to convert it into a motion for summary judgment. The court is nonplussed at
Harris’s repeated omission of the facts contained in these documents from her pleadings; if she is
aware of facts that would adequately demonstrate the claimed relationship, why not plead them?
The fact that the Rules of Civil Procedure require “short and plain statement[s],” FED R. CIV. P.
8(a)(2), does not mean that the pleader should omit relevant facts in the name of brevity.
Anyway, and it is only tangentially related, the court observes that while it is not impossible for a
non-movant to convert a motion to dismiss into a motion for summary judgment, promiscuous
permission of this tactic would allow an end-run of one of the most important functions of Rule
12(b)(6), which is to prevent notice pleading from becoming discovery-on-demand.
principles of docket-management to yield absolutely and without exception to the
Rules of Civil Procedure.
Of course, the court should avoid such an exercise of its inherent powers when
doing so would work injustice, but there is no risk of that here: the same counsel
represents all of the Koch entities, and Rule 11 (as well as the discovery rules) are
available to the court and all parties in the event that any of the filings in this case are
submitted vexatiously or in disregard of the truth. Further, it is clear beyond
peradventure that an Equal Pay Act claim has been adequately pleaded, but
Defendants’ Walkovsky-style5 corporate structure (there is nothing wrong with it)
makes it difficult for a plaintiff to plead precisely the information required to prove
joint-employment. At this point, Iqbal’s admonition that the court use its common
sense, 556 U.S. at 679, overcomes Iqbal’s more mechanical, and more oft-quoted,
provisions. The motion is DENIED.
DONE and ORDERED this 26th day of July, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
In Walkovsky v. Carlton, the New York Court of Appeals considered the “rather
common practice in the taxicab industry of vesting the ownership of a taxi fleet in many
corporations, each owning only one or two cabs.” 223 N.E.2d 6, 7 (1966).
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