Jenkins v. Flex-N-Gate et al

Filing 19

MEMORANDUM OPINION AND ORDER - Accordingly, it is ORDERED that Jenkins has until August 6, 2015, to supplement her response with any further evidence or affidavits in opposition to Defendants motions for summary judgment, and Defendants have until August 13, 2015, to supplement their replies. Signed by Magistrate Judge John H England, III on 7/23/2015. (KEK)

FILED
2015 Jul-23 PM 04:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PAMELA BLACKMORE JENKINS,
Plaintiff,
v.
FLEX-N-GATE, et al.,
Defendants.

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Case Number: 2:14-cv-01891-JHE

MEMORANDUM OPINION AND ORDER
Plaintiff Pamela Blackmore Jenkins (“Jenkins”) initiated this action against Defendants
Flex-N-Gate (“FNG”) and Personnel Staffing, Inc. (“PSI”), asserting claims of sexual
harassment under Title VII of the Civil Rights Act of 1964. (Doc. 1).1 PSI filed a motion to
dismiss, contending Jenkins had not shown she had filed a timely charge with the Equal
Employment Opportunity Commission (“EEOC”), attaching the “Dismissal and Notice of
Rights” letter the EEOC sent to Jenkins. (Docs. 9 & 9-1). Jenkins opposed the motion, attaching
another letter from the EEOC and the Notice of Charge of Discrimination sent to PSI. (Docs. 15,
15-1, & 15-2). PSI replied, attaching a sample EEOC Intake Questionnaire and the Notice of
Charge to PSI. (Docs. 16, 16-1, & 16-2). Then, FNG filed its own motion to dismiss, making
substantially the same argument, and attaching the Notice of Charge to FNG, the Charge of
Discrimination, and the Dismissal and Notice of Rights letter. (Docs. 17, 17-1, & 17-2). Jenkins
did not respond to FNG’s motion within the time set out in the Initial Order. (See doc. 10-3 at
1).

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Although Jenkins cites to 42 U.S.C. § 1981 as a basis for this Court’s jurisdiction, she
does not actually bring any § 1981 claims in her complaint. (See doc. 1).
1

PSI argues “[m]otions to dismiss a Title VII complaint based on a defendant’s assertion
of lack of timeliness of an EEOC charge should be analyzed pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure.” (Doc. 9 at 2-3) (citing Moss v. W & A Cleaners, 111 F. Supp.
2d 1181, 1182 (M.D. Ala. 2000)). Jenkins cites both the Rule 12(b)(6) standard, (doc. 15 at 2),
and the Rule 56 standard, (id. at 4), as well as stating the court may consider additional
documents part of the pleadings under Rule 12(b)(6), (id. at 6), before ultimately relying on both
standards, (id. at 7). PSI’s reply extensively addresses the evidence Jenkins provides but does
not further address the proper standard. (See doc. 16). FNG’s motion to dismiss also relies on
Moss for the proposition a motion to dismiss for failing to file a timely EEOC charge should be
analyzed under Rule 12(b)(6). (Doc. 17 at 2).
Although the court in Moss decided it would rule on the defendants’ motions to dismiss
under Rule 12(b)(6), it did not do so as Defendants here would have this Court do. Defendants
cite Moss for the simple proposition a court may address timeliness under the Rule 12(b)(6)
standard, but they then go on to address additional evidence presented in support of and
opposition to their motions to dismiss. (Docs. 9, 16, & 17). However, that is not what the Moss
court did. After deciding that filing a timely charge was procedural instead of jurisdictional and
that the motions to dismiss should therefore be considered under Rule 12(b)(6) and not Rule
12(b)(1), the Moss court addressed whether it should convert the motions to dismiss to motions
for summary judgment under Rule 56. See 111 F. Supp. 2d at 1184-85. The court ultimately
declined to convert the motions, finding it “more appropriate to enter a scheduling order and
allow the Parties to conduct discovery” and revisit the timeliness issue if raised in a properly
supported motion for summary judgment. Id. at 1185. Evaluating the motions to dismiss under
Rule 12(b)(6), the court held that, because the plaintiff’s complaint alleged a charge of

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discrimination had been filed within 180-days of the the unfair employment practice, the
defendants’ motions to dismiss were due to be denied. Id. at 1186.
Despite citing Moss, Defendants clearly did not intend for the Court to address their
motions under the Rule 12(b)(6) standard.2 All three parties to this action have raised or
addressed the timeliness issue with the support of evidence outside of the pleadings. (See docs.
9, 9-1, 15, 15-1, 15-2, 16, 16-1, 16-2, 17, 17-1, & 17-2). Although a court may consider
documents outside of the pleadings on a motion to dismiss without converting it to a motion for
summary judgment, that exception only applies “if the attached document is (1) central to the
plaintiff’s claim and (2) undisputed,” (that is, “the authenticity of the document is not
challenged”), Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (citing Horsley v. Feldt, 304
F.3d 1125, 1134 (11th Cir. 2002)). At best, the charge of discrimination could be considered
“central” to Jenkins’s claim because it is required for her to bring it, but the dismissal letter,
attached to the motions to dismiss, and the September 24, 2013 EEOC letter and the “EEOC
log,” both attached to Jenkins’s response, would not. Moreover, the authenticity of at least one
of the submitted documents is explicitly disputed. (Doc. 16 at 3-4). In order to consider the
additional evidence, the Court may not consider the motions to dismiss under the Rule 12(b)(6)
standard but must consider them as motions for summary judgment under the Rule 56 standard.
Because the parties have already been treating these motions like motions for summary
judgment under Rule 56 and attaching evidence to each of their filings, the parties do not appear
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Nearly all the cases Defendants cite address motions for summary judgment. See, e.g.,
Pijnenburg v. W. Georgia Health Sys., Inc., 255 F.3d 1304, 1306 (11th Cir. 2001) (affirming a
“motion to dismiss” addressed in the district court under the Rule 56 standard); Rizo v. Alabama
Dep’t of Human Res., 228 F. App’x 832, 836 (11th Cir. 2007) (affirming summary judgment);
E.E.O.C. v. Summer Classics, Inc., 41 F. Supp. 3d 1287, 1288 (N.D. Ala. 2011) (same); Bost v.
Fed. Express Corp., 372 F.3d 1233, 1237 (11th Cir. 2004) (reviewing district court’s grant of a
motion to dismiss under the Rule 56 standard because the district court considered evidence
outside the pleadings).
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to believe additional discovery is necessary to answer the narrow question at issue; therefore, the
motions to dismiss will be converted to motions for summary judgment on the timeliness of both
of Jenkins’s Title VII claims. Even though Jenkins has been submitting evidence and addressing
the timeliness issue under the Rule 56 standard, (doc. 15 at 4-5 & 7; docs. 15-1 & 15-2), the
undersigned, in an abundance of caution, provides this official notice of the conversion to
motions for summary judgment and of the standard the Court will consequently apply, so as to
ensure Jenkins has the “opportunity to formulate and prepare [her] best opposition to an
impending assault upon the continued viability of [her claims].” Georgia State Conference of
NAACP v. Fayette Cnty. Bd. of Comm’rs, 775 F.3d 1336, 1344 (11th Cir. 2015) (internal
quotation marks omitted).
Accordingly, it is ORDERED that Jenkins has until August 6, 2015, to supplement her
response with any further evidence or affidavits in opposition to Defendants’ motions for
summary judgment, and Defendants have until August 13, 2015, to supplement their replies.
DONE this 23rd day of July 2015.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

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