Holley v. Gibco Construction LLC

Filing 18

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 5/18/15. (SAC )

FILED
2015 May-18 PM 03:04
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RICHARD HOLLEY,

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Plaintiff,
v.
GIBCO CONSTRUCTION, LLC,
Defendant.

CIVIL ACTION NO.
2:14-CV-2277-WMA

MEMORANDUM OPINION
Before

the

court

is

the

motion

of

defendant

Gibco

Construction, LLC (“Gibco”) for partial dismissal. It is stated as
the first affirmative defense contained in its answer filed on
December 30, 2014 (Doc. 7). The court is in receipt of a letter
sent by counsel for plaintiff Richard Holley (“Holley”), which the
court will construe as a brief in opposition to the motion. For the
reasons stated

below,

the

partial

motion

to

dismiss

will

be

granted.
BACKGROUND1
Holley, a black male, was employed by Gibco as a truck driver
from March 2012 to April 2013. (Doc. 1 at 2-5, ¶¶ 4, 7, 14).
Beginning in October 2012, Holley’s supervisor, Michael Hunt (a
white male), began making sexually aggressive comments toward
Holley on an almost daily basis. (Doc. 1 at 3, ¶¶ 8-9). Holley

1

To the extent the court draws factual inferences, they are drawn in
favor of Holley. See M.T.V. v. DeKalb Cnty. Sch. Dist., 446 F.3d 1153, 1156
(11th Cir. 2006).

1

repeatedly informed Hunt that the advances were “unwelcome and
unwanted.” (Doc. 1 at 3, ¶ 9).
On February 23, 2013, as Hunt’s actions continued, Holley
began the process of filing a formal complaint with Gibco claiming
sexual harassment against Hunt.(Doc. 1 at 4, ¶ 10). The next day,
Hunt called Holley twice on his cell phone, but Holley refused to
answer. (Doc. 1 at 4, ¶ 11). Hunt then appeared at Holley’s
residence, prominently displaying a pistol. (Id.). Hunt told Holley
not to file the complaint, saying “you know what is going to
happen”

if

you

file

the

complaint.

(Id.).

Holley

filed

the

complaint the next day. (Doc. 1 at 4, ¶ 12).
On March 13, Gibco issued a written citation to Holley for
exiting his truck without a hard hat, in violation of a safety
rule. (Doc. 1 at 4, ¶ 13). Holley contends that white employees
have committed far more serious offenses, of which Gibco was aware,
including “firing a weapon on the jobsite, selling weapons to
felons, and gun-running between states.” (Id.).
That same day, Gibco informed Holley that his allegations
against Hunt could not be confirmed. (Doc. 1 at 5, ¶ 14). On April
1, Holley filed a police report regarding Hunt’s threats. (Id.).
Holley was terminated on April 29. (Id.).
Holley brought this action on November 24, 2014. In his
complaint, he asserts six claims. Count I is a claim of sexual
harassment under Title VII of the Civil Rights Act of 1964,

2

regarding Hunt’s creation of a sexually hostile work environment.
Count II is a Title VII retaliation claim, in which Holley alleges
that

Gibco

terminated

him

because

he

reported

Hunt’s

sexual

harassment. In Count III, Holley contends that he was discriminated
against on the basis of his race in violation of Title VII and 42
U.S.C. § 1981. In this count Holley does not identify the specific
conduct that he claims was discriminatory. In Counts IV and V,
Holley

makes

intentional

claims

for

infliction

of

state-law

invasion

emotional

of

distress,

privacy

and

respectively,

stemming from Hunt’s conduct and Gibco’s failure to stop it.
Finally, in Count VI, Holley alleges negligent and malicious
retention, supervision, and training, based on Gibco’s failure to
have and/or to enforce a sexual harassment policy, its failure to
institute sexual harassment training, and its failure to terminate
Hunt. According to Holley, this failure caused both the sexual
harassment against Holley and Gibco’s retaliatory citation and
termination of him.
Gibco answered the complaint on December 30, 2014. As its
first affirmative

defense,

Gibco

says:

“Plaintiff’s

Complaint

should be dismissed, in whole or in part, for failure to state a
claim upon which relief can be granted.” (Doc. 7 at 9). In the
status and scheduling conference conducted by this court on January
20, 2015, the court brought to the parties’ attention its concern
that Holley’s Count II is deficient under the Supreme Court’s

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ruling in University of Texas Southwestern Medical Center v.
Nassar, 133 S. Ct. 2517 (2013). On January 27, 2015, counsel for
Holley submitted a letter to the court, which the court DIRECTS the
clerk to file and will construe as a response to Gibco’s motion.
Motions pursuant to Rule 12(b)(6) should be ruled upon as the first
order of business. Consequently, Gibco’s motion is ripe for the
court’s consideration.
DISCUSSION
In Holley’s complaint, he complains of two discrete forms of
misconduct by Gibco: (1) sexual harassment and threatening by Hunt
and (2) a disciplining and termination for a work-rule violation
masking a retaliatory motive. Four of his six causes of action —
Counts I, IV, V, and VI - relate only to this first form of
misconduct. Consequently, those counts are not at issue here.
Counts II and III, however, are problematic. In Count II, Holley
claims that he was terminated by Gibco in retaliation “for opposing
sexual harassment in employment,” in violation of Title VII. (Doc.
1 at 6, ¶ 21). In Count III, Holley contends that all of Gibco’s
conduct against him, including his termination, was discriminatory
on the basis of his race, in violation of Title VII and § 1981.
In Nassar, the Supreme Court held that “Title VII retaliation
claims require proof that the desire to retaliate was the but-for
cause of the challenged employment action.” 133 S. Ct. at 2528.
“This requires proof that the unlawful retaliation would not have

4

occurred in the absence of the alleged wrongful action or actions
of

the

employer.”

Id.

at

2533.

This

court

has

consistently

interpreted this requirement to mean that “[i]f a plaintiff wants
to

pursue

a

retaliation

claim

[h]e

must

in

h[is]

complaint

‘indicate that retaliation was the “only,” or “but-for” motive for
h[is] termination [and] must make it perfectly clear in h[is]
pleading that there are no proscribed motivations other than an
intent to retaliate.’” Savage v. Secure First Credit Union, No.
2:14-cv-2468-WMA (Doc. 18), 2015 WL 2169135, *3 (N.D. Ala. May 8,
2015) (quoting Montgomery v. Bd. of Trustees of the Univ. of Ala.,
No. 2:12-cv-2148-WMA (Doc. 45), 2015 WL 1893471, *5 (N.D. Ala. Apr.
27, 2015)); see also Culver v. Birmingham Bd. of Educ., 646 F.
Supp. 2d 1270, 1271-72 (N.D. Ala. 2009) (ADEA); Dixon v. City of
Birmingham, Ala., No. 2:13-cv-404-WMA (Doc. 37), 2015 WL 353162, *1
(N.D. Ala. Jan. 27, 2015) (ADA).
Holley’s

complaint

does

not

meet

this

standard.

He

simultaneously alleges that his termination was motivated both by
a desire to retaliate because of his protected sexual harassment
complaint and by a desire to discriminate against him on the basis
of

his

race.

He

cannot

satisfy

Nassar’s

but-for

retaliation

standard while pleading both, even under the ability to plead
alternative

or

inconsistent

theories,

because

“there

is

a

recognized distinction between the pleading of alternative theories
of liability and irreconcilable contradictions and concessions as
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to an essential element of a particular claim,” Savage, 2015 WL
2169135 at *5. Because pleading an existing motivation for his
termination other than retaliation completely undercuts the but-for
causation required for the claim, Holley’s allegations of race
discrimination constitute a concession that an essential element of
his retaliation claim is lacking, not mere pleading of alternative
theories. Therefore, Holley’s retaliation claim is due to be
dismissed.
CONCLUSION
For the reasons stated above, Gibco’s partial motion to
dismiss, as contained in its answer, will be granted. Count II of
Holley’s complaint will be dismissed unless, by May 25, 2015,
Holley amends his retaliation claim to allege but-for causation and
dismisses his Count III claim of race discrimination insofar as it
relates to his termination. A separate order effectuating this
opinion will be entered.
DONE this 18th day of May, 2015.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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