Baker v. Nucor Steel Birmingham Inc

Filing 14

MEMORANDUM OPINION. Signed by Chief Judge Karon O Bowdre on 6/13/2018. (FNC)

FILED
2018 Jun-13 PM 01:19
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RONALD BAKER,
Plaintiff,
v.
NUCOR STEEL BIRMINGHAM INC.
Defendant.

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2:17-cv-01863-KOB

MEMORANDUM OPINION
Plaintiff Ronald Baker sues Defendant Nucor Steel Birmingham, Inc., raising claims of
(1) race discrimination and retaliation, in violation of Title VII of the Civil Rights Act of 1991,
42 U.S.C. § 2000e et seq.; and (2) race discrimination, in violation of 42 U.S.C. § 1981. (Doc.
1). He seeks a declaratory judgment, an injunction enjoining Nucor from engaging in race
discrimination, and monetary damages. (Id. at 10–11). This case is before the court on Nucor’s
motion to dismiss the complaint or, alternatively, motion for more definite statement. (Doc. 3).
Nucor contends that Mr. Baker failed to exhaust his administrative remedies for several of his
claim, that he failed to state a claim, and that the statute of limitations bars parts of his claims.
The court WILL DENY Nucor’s motion to dismiss the complaint or, alternatively, for a
more definite statement. The court WILL NOT DISMISS Mr. Baker’s Title VII claim of
retaliation, contained in Count One, because he exhausted his administrative remedies for that
claim. The court WILL NOT DISMISS any of Mr. Baker’s other claims because the complaint
states a claim for race discrimination and Mr. Baker is not required to plead facts refuting
Nucor’s statute of limitations defense.

I.

BACKGROUND

At the motion to dismiss stage, the court must accept as true the allegations in the
complaint and construe them in the light most favorable to the plaintiff. Butler v. Sheriff of Palm
Beach Cty., 685 F.3d 1261, 1265 (11th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). But the court may also consider documents attached to a motion to dismiss if
they are central to the complaint and the plaintiff does not challenge their authenticity. Harris v.
Ivax Corp., 182 F.3d 799, 802 n.2 (11th Cir. 1999). In this case, Nucor attached the charge of
discrimination that Mr. Baker filed with the Equal Employment Opportunity Commission
(“EEOC”), and Mr. Baker does not dispute the authenticity of that document, so the court will
consider it in ruling on this motion to dismiss.
Mr. Baker is an African American man who began working for Nucor on July 9, 2012.
At that time, Nucor assigned him to the Melt Shop department at pay grade two. Mr. Baker does
not state what position he now occupies within that department. 1 He does state that, at an
unspecified time, Nucor also hired an unnamed Caucasian man “with similar or less experience,
skill and/or qualification” at pay grade five, and within a year, Nucor promoted that man to a
Shift Mechanic position at pay grade eight. Both grade five and grade eight pay more than pay
grade two. Besides that unnamed man, Mr. Baker alleges that Nucor has hired other unidentified
but similarly situated Caucasian employees at higher positions than him, and that Nucor has
promoted those employees over him. He further alleges that Nucor provides Caucasian
employees performing the same tasks as him training and mentoring that it did not provide to

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Mr. Baker indicates, in his response to Nucor’s motion to dismiss, that Nucor recently
fired him. (Doc. 7 at 3). But “[a] plaintiff may not amend [his] complaint through argument in a
brief.” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). As a result,
because Mr. Baker’s complaint does not address his termination, the court will assume that
Nucor still employs him.
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him, and that Nucor holds him to a higher standard than it holds his Caucasian coworkers. (Doc.
1 at 2, 4, 5–6).
Specifically, Mr. Baker alleges that Nucor micromanages him; harasses him; disciplines
him disproportionately; requires testing for pay raises from him that it does not require from
similarly situated Caucasian employees; requires him and other African American employees to
account for their work in a way Caucasian employees are not required to do; assigns him an
unequal share of less desirable job duties, including physically demanding jobs; and assigns him
undesirable night shifts. (Doc. 1 at 6–7).
On March 28, 2016, Mr. Baker filed a charge of discrimination with the EEOC. (Doc. 32). The form asks for the complainant to identify whether the discrimination is based on, among
other things, race, color, and retaliation. Mr. Baker checked the boxes for race and color, but did
not check the box for retaliation. In the narrative, Mr. Baker stated that Nucor discriminated
against him by disproportionately assigning him undesirable tasks and shifts; failing to promote
him; and requiring skill testing from him that the company did not require from Caucasian
employees.
Mr. Baker alleges that, after he filed his charge with the EEOC, his supervisors have
“constantly . . . watched and nitpicked” him. And as a result of the heightened scrutiny, he has
received disciplinary write-ups that similarly situated Caucasian coworkers have not received in
similar situations. (Doc. 1 at 7–8).
On August 6, 2017, the EEOC issued Mr. Baker a notice of right to sue. (Doc. 1-1).
Mr. Baker filed this lawsuit on November 3, 2017. (Doc. 1).

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II.

DISCUSSION

Nucor contends that Mr. Baker failed to exhaust his administrative remedies as to some
of his claims; that the complaint fails to state a claim because it is conclusory and vague; and that
the statute of limitations bars parts of Mr. Baker’s claims. (Doc. 3).
1.

Administrative Exhaustion

Nucor contends that Plaintiff failed to administratively exhaust his Title VII claims of
harassment and retaliation by filing a charge with the EEOC that raised those claims. (Doc. 3 at
15–17). Mr. Baker responds that his EEOC charge did not complain of retaliation because
Nucor had not yet retaliated against him when he filed it. (Doc. 7 at 20). He does not respond to
Nucor’s contention that he failed to administratively exhaust a claim of harassment.
A plaintiff seeking to raise a Title VII claim must administratively exhaust that claim by
filing a charge of discrimination with the EEOC. Gregory v. Ga. Dep’t of Human Res., 355 F.3d
1277, 1279 (11th Cir. 2004). The administrative exhaustion requirement exists to allow the
EEOC “the first opportunity to investigate the alleged discrimination practices to permit it to
perform its role in obtaining voluntary compliance and promoting conciliation efforts.” Id.
(quotation marks omitted). As a result, the complaint may raise only claims that “‘amplify,
clarify, or more clearly focus’ the allegations in the EEOC complaint.” Id. (quoting Wu v.
Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989)). The court must consider whether the claim
“was like or related to, or grew out of, the allegations contained in [the] EEOC charge.” Id. at
1280 (emphasis added).
Nucor moves to dismiss a purported harassment claim for failure to exhaust
administrative remedies. The court is not convinced that Mr. Baker raised an independent claim
of harassment. Mr. Baker’s complaint made only one passing reference to harassment in the

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statement of facts, and he did not respond to Nucor’s argument that he failed to exhaust his
administrative remedies for a harassment claim. (See Doc. 1 at 6; Doc.7). In addition, the
complaint failed to provide any specific facts that would support a claim of harassment. As a
result, the court deems the complaint not to have raised a claim of harassment in the first place.
Next, Nucor contends that Mr. Baker failed to administratively exhaust his Title VII
claim of retaliation, contained in Count One. Mr. Baker’s EEOC charge alleged that Nucor
engaged in race and color discrimination. (Doc. 3-2 at 2). He concedes that he did not raise his
retaliation claim in his EEOC charge, but he contends that he could not have exhausted it
because Nucor retaliated against him based on his filing a charge with the EEOC. (Doc. 7 at 20).
In making the argument that he did not need to administratively exhaust his Title VII
retaliation claim, Mr. Baker relies on the former Fifth Circuit’s holding that a plaintiff need not
administratively exhaust a retaliation claim where the employer allegedly retaliated against the
plaintiff for filing an EEOC charge. Gupta v. E. Tex. State Univ., 654 F.2d 411, 414 (5th Cir.
Aug. 28, 1981); see also Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988).
In Gupta, the plaintiff filed two EEOC charges. Gupta, 654 F.2d at 412–13. After he filed a
lawsuit based on the same conduct, his employer declined to renew his contract, and the plaintiff
added a claim for retaliation, but he did not file a new EEOC charge. Id. at 413. The former
Fifth Circuit held that the plaintiff did not need to administratively exhaust the retaliation claim
because the alleged retaliation “[grew] out of” the earlier EEOC charges. Gupta, 654 F.2d at
414.
Requiring a plaintiff in this type of situation to file a new EEOC charge “would serve no
purpose except to create additional procedural technicalities when a single filing would comply
with the intent of Title VII.” Gupta, 654 F.2d at 414. And “[c]ourts are . . . extremely reluctant

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to allow procedural technicalities to bar claims brought under Title VII.” Gregory, 355 F.3d at
1280 (quotation marks and alteration omitted).
Years later, in Baker, the plaintiff filed a complaint raising a claim of racial
discrimination. 856 F.2d at 168. She later moved for a preliminary injunction, seeking to enjoin
alleged retaliatory actions taken as a result of her lawsuit, even though she had not raised a claim
of retaliation in an EEOC charge or in her original complaint. Id. Relying heavily on Gupta, the
Eleventh Circuit held that the plaintiff could seek injunctive relief for the allegedly retaliatory
conduct without filing a new EEOC charge “[b]ecause a claim of retaliation could reasonably be
expected to grow out of the original charge of discrimination.” Id. at 169.
Nucor contends that an unpublished decision of the Eleventh Circuit has limited the
holding in Gupta and Baker. In Duble v. FedEx Ground Package System, Inc., the Eleventh
Circuit held that the Gupta and Baker rule does not apply where the plaintiff alleges an act of
discrimination occurring after he filed his EEOC charge but before he filed his complaint. 572
F. App’x 889, 893 (11th Cir. 2014). In Duble, the plaintiff filed an EEOC charge and, while the
EEOC was investigating the charge, the plaintiff’s employer fired the plaintiff because it found
emails of his that it determined were in violation of its email policy. Id. at 891. The Eleventh
Circuit explained that, because the plaintiff “had the opportunity to amend his EEOC charge or
file a new charge relating to his termination” and he did not do so, he had failed to exhaust his
administrative remedies and could not bring his retaliation claim in federal court. Id.
Unpublished decisions are not binding authority. See Twin City Fire Ins. Co. v. Ohio
Cas. Ins. Co., 480 F.3d 1254, 1260 n. 3 (11th Cir.2007). The Duble decision drew a distinction
from the Gupta and Baker decisions based on whether the alleged retaliation occurred after the
plaintiff filed his judicial complaint, but neither the Gupta decision nor the Baker decision relied

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on the timing of the alleged retaliatory conduct. Instead, those decisions rested on the fact that
the alleged retaliation “[grew] out of an administrative charge that [was] properly before the
court.” Gupta, 654 F.2d at 414; Baker, 856 F.2d at 169. And, in addition, the Gupta decision
explained that requiring a plaintiff to file another EEOC charge would simply require “a double
filing that would serve no purpose except to create additional procedural technicalities when a
single filing would comply with the intent of Title VII.” Gupta, 654 F.2d at 414. The Eleventh
Circuit has, in other cases, reiterated that policy-based rationale and its reluctance to use
procedural technicalities to bar Title VII claims. See Gregory, 355 F.3d at 1279–80. As a result,
the court finds that Gupta and Baker bind it, and the court will not follow the unpublished
decision in Duble.
As in Gupta, Mr. Baker filed an EEOC charge alleging discrimination by his employer.
He now alleges that, based on his filing of that administrative charge, Nucor retaliated against
him. Although he did not file another EEOC charge about the retaliation, he did not need to do
so because the alleged retaliation “[grew] out of” the EEOC charge that he did file. The court
WILL DENY the motion to dismiss and WILL NOT DISMISS Mr. Baker’s claims for failure to
exhaust administrative remedies.
2.

Failure to State a Claim or, Alternatively, Request for a More Definite Statement

Nucor contends that the complaint fails to state a claim because the factual allegations are
too vague and conclusory to provide it adequate notice of the charges against which it must
defend itself and because the complaint is a shotgun pleading. (Doc. 3 at 5–8, 12–15). Nucor
also argues that, if the court declines to dismiss the complaint with prejudice, the court should
require Mr. Baker to provide a more definite statement. (Id. at 12–15).

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Federal Rule of Civil Procedure 8(a) requires that a plaintiff provide “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A
motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) attacks the legal sufficiency of
the complaint. “To survive a motion to dismiss, the plaintiff must plead ‘a claim to relief that is
plausible on its face.’” Butler, 685 F.3d 1261, 1265 (11th Cir. 2012) (quoting Twombly, 550
U.S. at 555). The court must accept as true the factual allegations in the complaint and construe
them in the light most favorable to the plaintiff. Id. at 1265. But the court need not accept as
true the plaintiff’s legal conclusions. Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011).
Accordingly, the court must distinguish between the complaint’s well-pleaded factual
allegations and the complaint’s legal conclusions made without adequate factual support. Id. A
complaint that provides only “labels and conclusions” or “a formulaic recitation of the elements
of a cause of action” does not state a claim sufficient to survive a Rule 12(b)(6) motion.
Twombly, 550 U.S. at 555.
In support of its motion to dismiss the complaint for failure to state a claim, Nucor argues
that the complaint fails to provide any details identifying the similarly situated Caucasians who
Nucor treated more favorably than Mr. Baker; how Nucor treated them more favorably; or any
specific dates on which the allegedly discriminatory acts occurred. (Doc. 3 at 2). But the court
concludes that the complaint complies with Rule 8(a). Mr. Baker alleges that Nucor hired at
least one Caucasian man who had “similar or less experience, skill and/or qualifications” at a
higher level of pay than it paid Mr. Baker, and that Nucor promoted and increased the pay of that
unnamed man despite not promoting Mr. Baker. (Doc. 1 at 5–6). He also alleges that Nucor
holds him to a higher standard than it holds his Caucasian coworkers and assigns him less
desirable duties and shifts than it assigns his Caucasian coworkers. (Id. at 4, 6–7).

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Mr. Baker’s factual allegations may be sparse and surrounded by conclusory allegations,
but the existence of conclusory statements does not override the factual allegations he did make.
And those factual allegations suffice to state a claim for racial discrimination. See Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 514 (2002) (holding that a complaint complies with Rule 8(a) if it
gives the defendant “fair notice of the basis for [the plaintiff]’s claims”); see also Twombly
(expressly stating that the decision in Twombly did not run counter to the decision in
Swierkiewicz).
Nucor takes issue with Mr. Baker’s failure to provide any names of his Caucasian
coworkers. But although Mr. Baker does not provide names, he does identify a specific
Caucasian man who he alleges had similar experience, skill, and qualifications, and who was
hired at a higher level and promoted more quickly than Mr. Baker. Contrary to Nucor’s
contention, Mr. Baker has not “failed to identify any specific nonminority employees of [the
defendant] who were treated differently in other similar cases.” Jackson v. BellSouth
Telecomms., 372 F.3d 1250, 1274 (11th Cir. 2004) (emphasis in original).
Nucor also takes issue with Mr. Baker’s failure to name his supervisors or the
opportunities Nucor allegedly denied him. (Doc. 3 at 8). First, although Mr. Baker does not
identify any of his supervisors by name, the court finds that omission is not fatal to his
complaint. No heightened pleading standard applies to claims of race discrimination or
retaliation. See Swierkiewicz, 534 U.S. at 513 (“[C]omplaints in [employment discrimination]
cases, as in most others, must satisfy only the simple requirements of Rule 8(a).”). Second, the
court notes that Mr. Baker did identify an opportunity that he alleges Nucor denied him.
Mr. Baker states in his complaint that Nucor never promoted him to “a lead shift mechanic
position, the highest non-supervisory role in the department, a position for which he was and is

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qualified.” (Doc. 1 at 5). The shortcomings in factual details that Nucor laments can be
remedied in discovery.
The court WILL DENY Nucor’s motion to dismiss the complaint for failure to state a
claim. Nucor moves, in the alternative, for Mr. Baker to provide a more definite statement,
under Federal Rule of Civil Procedure 12(e). Rule 12(e) permits a party to move for a more
definite statement if the pleading “is so vague or ambiguous that the party cannot reasonably
prepare a response.” Fed. R. Civ. P. 12(e). “[A] party may not use a Rule 12(e) motion to
circumvent the short and plain statement requirement or to obtain information that can otherwise
be obtained in discovery.” Harris v. Fisher-Price Inc., 2013 WL 9861461, at *1 (N.D. Ala. Oct.
24, 2013).
The court concludes that the complaint is not so vague or ambiguous that Nucor cannot
reasonably prepare a response. Mr. Baker identified his employer, the date he began work, the
department in which he works, the pay grade at which he started, and provides a general
description of the allegedly discriminatory actions taken by Nucor. If Nucor lacks knowledge
sufficient to either admit or deny an allegation, Rule 8 permits it to state that it “lacks knowledge
or information sufficient to form a belief about the truth of an allegation.”
Fed. R. Civ. P. 8(b)(5).
Finally, the court notes that the initial complaint is a shotgun pleading because it
“contain[s] multiple counts where each count adopts the allegations of all preceding counts,
causing each successive count to carry all that came before and the last count to be a
combination of the entire complaint.” Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d
1313, 1321 (11th Cir. 2015). The Eleventh Circuit has explained that shotgun pleadings are

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problematic because “they fail to one degree or another . . . to give the defendants adequate
notice of the claims against them and the grounds upon which each claim rests.” Id. at 1323.
Although the complaint is a shotgun pleading, the court declines to dismiss it or order
repleading on that basis. Not all shotgun pleadings are fatal. See Weiland, 792 F.3d at 1319–24
(concluding that the district court abused its discretion by dismissing a complaint as a shotgun
pleading because, although the complaint was “not a model of efficiency or specificity, . . . it
[did] put [the defendants] on notice of the specific claims against them and the factual allegations
that support those claims”). The complaint contains few factual allegations and only two counts,
one of violating Title VII and one of violating § 1981. (Doc. 1 at 8–10). Each of the two counts
are based on the same factual allegations. (See id.). In these circumstances, the fact that
Mr. Baker incorporated the paragraphs in Count One into Count Two does not make his
complaint so confusing that it deprives Nucor of adequate notice of the claims against it.
3.

Statute of Limitations

Nucor contends that this court must dismiss any of the Title VII claims arising from
discriminatory acts that occurred before September 30, 2015, as barred by the statute of
limitations. (Doc. 3 at 9–10). Nucor also requests an order stating that any of Mr. Baker’s
§ 1981 claims “are barred with respect to any complained-of acts that occurred outside the
respective statute of limitations.” (Id. at 11).
Mr. Baker’s complaint contains only one date: July 29, 2012, the date on which Nucor
hired him. (Doc. 1 at 4). He does not specify when any of the alleged discriminatory acts
occurred. (See generally Doc. 1). But “[a] statute of limitations bar is an affirmative defense,
and plaintiffs are not required to negate an affirmative defense in their complaint.” La Grasta v.
First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) (quotation marks and alterations

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omitted). At the motion to dismiss stage, the court may dismiss a claim under the statute of
limitations only if “the face of the complaint” makes clear that the claim is time-barred. Id.
Because Mr. Baker was not required to plead facts showing that the statute of limitations
did not bar his claims, the court WILL NOT dismiss his claims based on that affirmative defense.
III.

CONCLUSION

The court WILL DENY Nucor’s motion to dismiss the complaint or, alternatively, for a
more definite statement. The court will enter a separate order consistent with this opinion.
DONE and ORDERED this 13th day of June, 2018.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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