Strong v. Angiodynamics, Inc.
MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 4/4/2017. (PSM)
2017 Apr-04 PM 04:55
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JESSICA D. STRONG,
Memorandum of Opinion
Plaintiff Jessica D. Strong (“Strong”) brings the instant action against her
former employer, AngioDynamics, Inc. (“AngioDynamics”), alleging claims for
sexual harassment, hostile work environment, and retaliation under Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and a state-law
claim for outrage. Before this Court is AngioDynamics’s motion to dismiss (Doc.
10), which has been fully briefed by the parties and is ripe for review. For the
reasons described more fully herein, AngioDynamics’s motion is due to be granted
in part and denied in part.
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AngioDynamics designs, manufactures, and sells medical, surgical, and
diagnostic devices to healthcare providers for use in treating patients. It employs
sales representatives to market its products to those providers. Strong began her
employment with AngioDynamics on September 9, 2013, as the company’s
principal sales representative for Alabama and the Florida panhandle.
A few weeks later, Strong received a lead indicating that Dr. Safwan Jaalouk
(“Jaalouk”), a cardiologist, was interested in purchasing an AngioVac, a product
manufactured by AngioDynamics, for his group’s practice. Strong contacted
representatives at Jaalouk’s practice to set up a meeting with him, which was
scheduled for November 2013. 2 Strong alleges that at that meeting, Jaalouk
“seemed very interested” in the AngioVac and wanted to introduce the product to
the other members of his practice before deciding to purchase it. AngioDynamics,
through its salespeople, commonly organized informational dinners for interested
physicians, which featured a presentation by and question-and-answer session with
the product’s inventor. Strong and Jaalouk planned such an event for the
physicians in Jaalouk’s practice to be held in January 2014. The dinner went very
In evaluating a motion to dismiss, this Court “accept[s] the allegations in the complaint as true
and construe[s] the facts in the light most favorable to the plaintiff.” Johnson v. Midland Funding,
LLC, 823 F.3d 1334, 1337 (11th Cir. 2016).
Strong’s complaint alleges that this meeting was scheduled for November 2014, but it appears
from the parties’ submissions that some of the dates in the complaint give the incorrect year.
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well, according to Strong, and Jaalouk told Strong that he and his colleagues would
further discuss whether to purchase the AngioVac.
Over the next few months, Strong and Jaalouk communicated by phone,
email, and text message about the progress of the sale. Strong also met informally
with Jaalouk twice. She alleges that her “correspondence and personal interactions
with Dr. Jaalouk were, at all times, professional and principally concentrated on
fostering a business relationship.” After learning that the physicians in Jaalouk’s
practice group were to meet on March 21, 2014, to discuss the AngioVac, Strong
contacted Jaalouk “to see if he could meet with her for purposes of reviewing
answers to anticipated misgivings that likely would be raised by other physicians at
the meeting on March 21.” Jaalouk agreed to meet Strong for dinner on March 20.
On March 19, 2014, Jaalouk texted Strong to ask what time she would be
coming into town the following day. When Strong informed Jaalouk that she would
arrive around 3:00 PM, Jaalouk responded, “Super flexible girl. I like it lol.” Strong
alleges that although the text message made her feel “uneasy,” she did not respond
and decided to proceed with the dinner plans because she did not want to lose the
potential business with Jaalouk’s practice group. She claims that Jaalouk “made a
number of inappropriate comments” at the dinner on March 20, which made her
“increasingly more uncomfortable,” but she “kept the conversation centered on
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the product.” After dinner, according to Strong, she was walking to her car when
Jaalouk tried to kiss her. Strong “pushed him away and explained to him that their
relationship was strictly professional.” Jaalouk then “acknowledged that [his]
conduct was inappropriate.”
Nonetheless, because she did not want “to compromise the possible sale,”
Strong did not report the allegedly harassing incident to her manager or to any
other AngioDynamics official at that time. She continued to email or text Jaalouk
every three weeks to ask about the sale’s progress, but he stopped responding to
her messages in June 2014. On July 22, 2014, Strong “happened to run into”
Jaalouk while working at his hospital and asked if they could meet later that day to
discuss his practice group’s decision to purchase the AngioVac. Jaalouk initially
agreed to meet with Strong, but he texted her a few hours later to request that she
not text him again. Strong then emailed Jaalouk to “express her disbelief at what
appeared to be his anger when he was the one who had acted inappropriately.” She
also told Jaalouk that she would no longer do business with him and could arrange
for another AngioDynamics representative to assist him if his practice group
desired to purchase the AngioVac.
On July 24, 2014, Strong’s manager, Holly Koufos (“Koufos”) asked her
about the AngioVac sale to Jaalouk’s practice. Strong then explained the situation
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and forwarded to Koufos the email she had sent to Jaalouk about his behavior.
Several weeks later, on August 18, 2014, Koufos informed Strong that
AngioDynamics’s human resources department had seen the email and wanted to
speak with her about it. According to Strong, Koufos also told Strong that “if she
were in [Strong’s] position, she would resign.” Strong met with Moira Fitzgerald
(“Fitzgerald”), AngioDynamics’s human resources representative, shortly after.
Strong described the situation to Fitzgerald, “reiterated the fact that she had
apologized to Dr. Jaalouk even after he sexually harassed her, and ensured
[Fitzgerald] that everything was fine.” On August 28, 2014, Fitzgerald emailed
Strong a summary of their conversation, which Strong felt “contained numerous
falsities and failed to mention several important things [Strong] said.” Because
Strong was travelling to a sales meeting that day, she was unable to respond to
Fitzgerald’s email but sent “extensive edits” to Fitzgerald “not long after.”
Strong received a Written Counseling Warning from AngioDynamics on
September 3, 2014, which “falsely accused her of poor performance, persistent
excessive tardiness, non-professionalism, and a bad attitude.” The warning also
required Strong to make four AngioVac sales, one laser sale, and obtain at least
“90% to quota YTD” within sixty days or face termination. According to Strong,
these requirements were “patently unattainable benchmarks that guaranteed [her]
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termination.” AngioDynamics terminated Strong’s employment on November 10,
2014, when she failed to meet the objectives in the Written Counseling Warning.
Standard of Review
In general, a pleading must include “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). However, in
order to withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a
complaint “must plead enough facts to state a claim to relief that is plausible on its
face.” Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1347–48 (11th Cir. 2016) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (internal quotation marks
omitted). “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). Stated
another way, the factual allegations in the complaint must be sufficient to “raise a
right to relief above the speculative level.” Edwards v. Prime, Inc., 602 F.3d 1276,
1291 (11th Cir. 2010). A complaint that “succeeds in identifying facts that are
suggestive enough to render [the necessary elements of a claim] plausible” will
survive a motion to dismiss. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1296 (11th Cir.
2007) (quoting Twombly, 550 U.S. at 556) (internal quotation marks omitted).
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In evaluating the sufficiency of a complaint, this Court first “identif[ies]
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679. This Court then “assume[s] the
veracity” of the complaint’s “well-pleaded factual allegations” and “determine[s]
whether they plausibly give rise to an entitlement to relief.” Id. Review of the
complaint is “a context-specific task that requires [this Court] to draw on its
judicial experience and common sense.” Id. If the pleading “contain[s] enough
information regarding the material elements of a cause of action to support
recovery under some ‘viable legal theory,’” it satisfies the notice pleading
standard. Am. Fed’n of Labor & Cong. of Indus. Orgs. v. City of Miami, 637 F.3d 1178,
1186 (11th Cir. 2011) (quoting Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d
678, 683–84 (11th Cir. 2001)).
Additionally, AngioDynamics asks this Court to consider, among other
evidence, text messages and email correspondence related to the events alleged in
the complaint in ruling on the motion to dismiss. This Court declines to do so. As a
general rule, “[t]he scope of review must be limited to the four corners of the
complaint” because this Court is required “to accept the allegations in the
complaint as true.” St. George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir.
2002). Other materials attached to a defendant’s motion to dismiss may be
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considered only if (1) the plaintiff refers to the document in the complaint; (2) the
document is central to the plaintiff’s claim; and (3) the authenticity of the
document is not in dispute. Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276,
1284 (11th Cir. 2007) (per curiam) (permitting consideration of insurance policy).
The fact that a complaint may “refer to the existence” or “rel[y] on the effect”
of a particular document does not make that document central to the plaintiff’s
However, even assuming the exhibits attached to AngioDynamics’s motion
to dismiss satisfy the above criteria, AngioDynamics purports to use the materials
to attack the merits of Strong’s claims, rather than the manner in which Strong has
pled those claims in her complaint. To dismiss Strong’s hostile work environment
claim, for example, on the basis that the conduct she alleges is not sufficiently
severe or pervasive is, in this Court’s view, a factual finding that is more
appropriately made at the summary judgment stage, when discovery has been
completed. For this Court to consider AngioDynamics’s evidence and convert its
motion to dismiss into a motion for summary judgment, Strong must receive the
opportunity to present her own evidence in support of her claims. Trustmark Ins.
Co. v. ESLU, Inc., 299 F.3d 1265, 1267 (11th Cir. 2002) (“The district court is
required to notify the parties that the motion has been converted, and give the
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parties 10 days in which to supplement the record.”). She has had no such
opportunity. This Court therefore reviews only Strong’s complaint and the
documents attached to that complaint.
A. Sexual Harassment/Hostile Work Environment
AngioDynamics first argues that Strong’s sexual harassment and hostile
work environment claims are due to be dismissed because Strong did not file an
EEOC charge within 180 days of March 20, 2014. Strong concedes that her sexual
harassment claim is untimely. (Doc. 23-1 at 13.) It is therefore due to be dismissed
With respect to her hostile work environment claim, Strong responds that
her EEOC charge is timely because it was filed within 180 days of November 10,
2014, the date of her termination. AngioDynamics does not dispute that Strong
filed an EEOC charge within 180 days of her termination date; however, it argues
that the incidents Strong alleges constitute a hostile work environment occurred in
March 2014, a date more than 180 days before she filed her EEOC charge.
To bring a valid claim under Title VII, “a plaintiff must file a timely charge
of discrimination with the EEOC within 180 days of the last discriminatory act.”
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H&R Block E. Enters. v. Morris, 606 F.3d 1285, 1295 (11th Cir. 2010) (per curiam).
Because a hostile work environment constitutes a single unlawful employment
practice, a hostile work environment claim is timely “so long as one act
contributing to the claim occur[red] within the filing period.” Watson v. Blue Circle,
Inc., 324 F.3d 1252, 1258 (11th Cir. 2003) (citing Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 117 (2002)). Conduct occurring outside the 180-day period
may still be considered as part of the claim “for the purposes of determining
liability.” Morgan, 536 U.S. at 117.
In pleading her hostile work environment claim, Strong states that
AngioDynamics subjected her to a sexually hostile work environment by placing
“insurmountable demands” on her and by “allowing or condoning the sexual
harassment of female employees.” Specifically, she alleges that once she informed
AngioDynamics on July 24, 2014, that Jaalouk had harassed her, Koufos
encouraged her to resign, and Fitzgerald inaccurately summarized their meeting
about the incident. Strong also alleges that she was then issued a Written
Counseling Warning on September 3, 2014, with goals that were unattainable and
certain to result in her termination. She was terminated on November 10, 2014,
after failing to satisfy the objectives in the warning. Without expressing an opinion
at this stage as to the merits of Strong’s claim, it is clear that at least one act Strong
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alleges to contribute to the hostile work environment—her termination—occurred
within the 180 days before she filed her EEOC charge. 3 Strong’s hostile work
environment claim will not be dismissed as untimely.
2. Failure to State Claim
AngioDynamics next contends that Strong’s hostile work environment claim
is due to be dismissed because the conduct she alleges is not sufficiently severe or
pervasive, nor is it based on her sex. A plaintiff adequately pleads a claim for hostile
work environment if she alleges (1) she belongs to a protected group; (2) she was
subjected to unwelcome harassment; (3) the harassment was based on a protected
characteristic; (4) the harassment was sufficiently severe or pervasive to alter the
terms and conditions of her employment and create an abusive working
environment; and (5) a basis exists for holding the employer liable. Trask v. Sec’y,
Dep’t of Veterans Affairs, 822 F.3d 1179, 1195 (11th Cir. 2016). Strong has
sufficiently pled each of these elements. She alleges that AngioDynamics
“condon[ed] the sexual harassment of female employees” by essentially punishing
her for confronting Jaalouk about his behavior. She also alleges that
AngioDynamics changed the terms and conditions of her employment by imposing
It is unclear exactly when Strong first filed a charge with the EEOC. AngioDynamics gives the
date as December 19, 2014, but the copy of the charge attached to Strong’s complaint is dated
March 13, 2015. Because both of these dates are within 180 days of November 10, 2014, the date
of Strong’s termination, the exact date Strong first contacted the EEOC is immaterial to this
Court’s determination of the timeliness issue.
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“insurmountable demands” on her, in the form of performance measures likely to
result in her termination. To the extent that AngioDynamics contends that
Strong’s hostile work environment claim simply restates her retaliation claim, a
plaintiff may allege a claim for retaliatory hostile work environment. Gowski v.
Peake, 682 F.3d 1299, 1311–12 (11th Cir. 2012) (per curiam) (recognizing cause of
action for retaliatory hostile work environment). But AngioDynamics’s arguments
are best reserved for the summary judgment stage, when this Court will have more
evidence before it on which to base its decision. AngioDynamics’s motion to
dismiss is due to be denied as to Strong’s hostile work environment claim.
AngioDynamics avers that Strong’s retaliation claim is due to be dismissed
because she did not participate in statutorily protected activity, nor has she
demonstrated that her participation in such activity was the but-for cause of her
termination. Strong responds that her informal complaint to Koufos on July 24,
2014, qualifies as statutorily protected activity and that the issuance of the Written
Counseling Warning on September 3, 2014—which qualifies as an adverse
employment action—is sufficiently close in time to the informal complaint as to
establish a causal connection. AngioDynamics replies that Strong’s conversation
with Koufos was not a “complaint.”
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To establish a claim for retaliation, a plaintiff must plead that (1) she was
engaged in statutorily protected activity; (2) she suffered an adverse employment
action; and (3) a causal link exists between the protected activity and the adverse
employment action. Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1310 (11th Cir.
2016). An informal complaint that “explicitly or implicitly communicate[s] a belief
that [the conduct suffered by the plaintiff] constitutes unlawful employment
discrimination” is protected activity. Id. at 1311. Similarly, an adverse employment
action need not be as serious as outright termination but may also include “adverse
actions which fall short of ultimate employment decisions,” such as written
reprimands. Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1455, 1456 (11th Cir.
1998). The plaintiff’s employer must have been motivated by her complaint in
issuing the discipline for a causal link to exist. Booth v. Pasco Cnty., Fla., 757 F.3d
1198, 1207 (11th Cir. 2014) (“Title VII retaliation claims require proof that the
desire to retaliate was the but-for cause of the challenged employment action.”
(quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013)).
Strong has alleged facts to satisfy these elements for purposes of a motion to
dismiss. First, she claims that when Koufos asked her about the progress of the
AngioVac sale to Jaalouk’s practice, Strong explained that Jaalouk had sexually
harassed her and forwarded to Koufos the email she had sent to Jaalouk the day
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before. It is clear that Strong was then intending to notify Koufos that she had been
sexually harassed. The law does not require Strong to make a formal complaint in
order to engage in statutorily protected activity, and whether her conduct satisfies
the additional “good faith, reasonable belief” requirement, see Furcron, 843 F.3d at
1311, is a matter to be assessed at the summary judgment stage.
Further, with respect to the causation element, Strong alleges that she
informed Koufos about the sexual harassment on July 24, 2014, and Koufos
encouraged her to resign three weeks later because AngioDynamics’s human
resources department knew that Strong had confronted Jaalouk by email. Strong
also states that Fitzgerald’s summary of her conversation with Strong about the
harassment misrepresented or omitted Strong’s statements and contained false
information skewed against Strong. Shortly after her meeting with Fitzgerald,
Strong was issued a Written Counseling Warning that she alleges falsely accused
her of, among other issues, poor performance and a bad attitude. As a result of the
warning, Strong was given performance objectives that she contends were unlike
those given to other territorial sales managers and were impossible to meet for
someone who had been with the company for the short amount of time she had
worked there. When she did not meet those goals, Strong was terminated on
November 10, 2014. These facts, as alleged in her complaint, establish a causal
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connection between her complaint to Koufos and the adverse employment actions
she suffered after that complaint. AngioDynamics’s motion to dismiss is thus due
to be denied as to Strong’s retaliation claim.
In her opposition to AngioDynamics’s motion to dismiss, Strong concedes
that her state-law claim for outrage should be dismissed. (Doc. 23-1 at 16.)
Therefore, Strong’s outrage claim is due to be dismissed with prejudice.
As stated above, AngioDynamics’s motion to dismiss (Doc. 10) is due to be
granted in part and denied in part. Strong’s Title VII sexual harassment claim and
state-law outrage claim are due to be dismissed with prejudice. Her Title VII claims
for hostile work environment and retaliation remain. A separate order consistent
with this opinion will be entered contemporaneously.
DONE and ORDERED on April 4, 2017.
L. Scott Coogler
United States District Judge
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