Zavala v. Sexton et al

Filing 54

MEMORANDUM OPINION AND ORDER Bryant and the Prospect Mining Defendants' motion to dismiss 44 is GRANTED as to Zavala's Title VII claims against the Prospect Mining Defendants, and these claims are DISMISSED WITH PREJUDICE. In all other respects, the motion to dismiss is DENIED. Signed by Judge Abdul K Kallon on 1/11/2019. (AFS)

FILED
2019 Jan-11 AM 11:14
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JUAN DIEGO AVILA-ZAVALA,
Plaintiff,
v.
DONALD WAYNE SEXTON, et al.,
Defendants.

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Civil Action Number
2:17-cv-02168-AKK

MEMORANDUM OPINION AND ORDER
Juan Diego Avila-Zavala brings this employment action against his former
employers and several individuals, asserting claims under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), Section 1981 of the
Civil Rights Act of 1866 as amended, 42 U.S.C. § 1981 (“Section 1981”), and
Alabama state law. Doc. 38. This action is currently before the court on Warrior
Investment Co., Inc. (“Warrior”); Prospect Mining & Development Co., LLC
(“Prospect”); Cordova Resources Management, Inc. (“Cordova”); and Ronald
Bryant’s motion to dismiss. Doc. 44. 1 The motion is fully briefed and ripe for
review, docs. 44 and 45, and is due to be granted in part.

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The court will refer to Warrior, Prospect, and Cordova as the “Prospect Mining
Defendants.”

I.

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a

short and plain statement of the claim showing that the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere “labels and conclusions”
or “a formulaic recitation of the elements of a cause of action” are insufficient.
Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief can be granted. “To survive a
motion to dismiss, a complaint must . . . state a claim to relief that is plausible on
its face.” Iqbal, 556 U.S. at 678 (citations omitted) (internal quotation marks
omitted).

A complaint states a facially plausible claim for relief “when the

plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citation
omitted). When considering a motion to dismiss under Rule 12(b)(6), the court
accepts “the allegations in the complaint as true and construe[s] them in the light
most favorable to the plaintiff.” Hunt v. Aimco Props., L.P. 814 F.3d 1213, 1221
(11th Cir. 2016).
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II.

FACTUAL AND PROCEDURAL BACKGROUND
Zavala worked in the Maxine-Pratt Mine, which was jointly operated by

Alaco, LLC (“Alaco”) and the Prospect Mining Defendants. Doc. 38 at 6-8.
While working at the mine, Zavala’s supervisor, Donald Wayne Sexton, sexually
harassed and assaulted him. Id. at 2, 9-10. On two occasions while Zavala was on
a break, Sexton grabbed Zavala by the hips and made forceful pelvic thrusting
motions against Zavala’s body while restricting his movement. Id. at 9-10. Zavala
reported the harassment and assaults, but the Prospect Mining Defendants and
Alaco took no actions against Sexton. Id. at 2, 8-10. Instead, they discharged
Zavala on November 2, 2016. Id. at 9, 11.
Zavala filed charges of discrimination against the Maxine Pratt Mine and
Alaco on November 14, 2016 and December 28, 2016, asserting that Sexton
sexually harassed him in June 2016 and that discriminatory conduct occurred
between June 13, 2016 and November 2, 2016. Docs. 22-1; 22-2. The Equal
Employment Opportunity Commission (“EEOC”) issued a right to sue letter on
January 11, 2017. Doc. 8 at 7. Zavala then filed this action eleven months later,
asserting claims against Sexton, Alaco, David E. Parton, David Parton, Jr., Curtis
Laws, Warrior, and Bryant for violations of Title VII and Alabama state law. Doc.
1. Because Title VII does not provide relief against individuals, see Busby v. City
of Orlando, 931 F.2d 764, 772 (11th Cir. 1991), the court dismissed Zavala’s Title
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VII claims against the individual defendants with prejudice.

Docs. 14; 35.

Thereafter, the court granted Zavala’s motion to amend to add claims against
Prospect and Cordova. Docs. 32 and 37.
III.

ANALYSIS
In his Amended Complaint, Zavala asserts claims against the Prospect

Mining Defendants for sex discrimination and sexual harassment under Title VII,
race discrimination and retaliation under Section 1981, and for the torts of assault
and battery, invasion of privacy, outrage, negligent hiring and retention, breach of
implied contract, negligence and wantonness, and wrongful discharge. Doc. 38 at
11-22.

Zavala also asserts negligence and wantonness claims against Bryant

individually. Id. The Prospect Mining Defendants and Bryant have moved to
dismiss all claims against them, arguing that Zavala failed to plead viable claims
against them.
A.

Claims Against Bryant

The Prospect Mining Defendants and Bryant argue in part that Zavala failed
to plead sufficient facts to support his negligence and wantonness claims against
Bryant.

See doc. 44 at 6-9.

To state a cognizable claim for negligence or

wantonness, a plaintiff must allege facts showing that the defendant breached a
duty he owed to the plaintiff. See e.g., Smith v. AmSouth Bank, Inc., 892 So. 2d
905, 909 (Ala. 2004). Zavala’s sole factual allegations against Bryant, the owner
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or President of Warrior, is that Bryant “was aware or should have been aware of
the sexual harassment conduct by Sexton but did nothing about it.” Doc. 38 at 5,
7, 19. See also doc. 8 at 2. However, Zavala cited no authority recognizing a
common law duty for an individual to address sexual harassment in the workplace,
see doc. 45, and the court is aware of no such authority. Although the pleadings
are insufficient, because the parties have completed discovery, the court will
convert Bryant’s motion to a motion for summary judgment, and will give Zavala
until January 23, 2019 to present any evidence he believes supports his claims
against Bryant. Bryant’s response, if any, is due on January 31, 2019.
B.

Claims against the Prospect Mining Defendants
1.

Title VII Claims

The Prospect Mining Defendants argue correctly that Zavala’s Title VII
claims against them are untimely. Doc. 44 at 2-6. Title VII requires an employee
to exhaust his administrative remedies by filing a timely charge of discrimination
with the EEOC prior to filing a lawsuit. See 42 U.S.C. § 2000e-5. For a charge to
be timely in Alabama, a non-deferral state, an employee must file it within 180
days of the alleged discriminatory conduct. Id. at § 2000e-5(3)(1); Stewart v.
Booker T. Washington Ins., 232 F.3d 844, 846 (11th Cir. 2000). Then, if the
EEOC closes its file on the charge and issues a right-to-sue letter, “the employee
must file a complaint within 90 days of the receipt of the right-to-sue letter.” Bost
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v. Fed. Express Corp., 372 F.3d 1233, 1238 (11th Cir. 2004). See also 42 U.S.C.
§ 2000e-5(f)(1).
In this case, Zavala filed a charge of discrimination against the Maxine Pratt
Mine on November 14, 2016, doc. 22-1, and the EEOC issued a right-to-sue letter
on January 11, 2017, doc. 8 at 7.2 Zavala did not file this action until nearly a year
later. See doc. 1. Thus, as the court previously found, see doc. 14, Zavala failed to
sue, as he must, within 90 days of receiving his right-to-sue letter. See Bost, 372
F.3d at 1238.3 As a result, even assuming the EEOC charge against the Maxine
Pratt Mine could support Title VII claims against the Prospect Mining Defendants,
any Title VII claims based upon that charge are due to be dismissed as untimely.

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The EEOC sent a copy of the letter to Warrior, and Prospect received the letter on
January 17, 2017. Doc. 8 at 7. The court may consider Zavala’s charges of discrimination and
the right-to-sue letters, in ruling on the motion to dismiss. See Tillery v. United States Dept. of
Homeland Security, 402 Fed. Appx. 421, 425 (11th Cir. 2010) (“[I]n ruling on [the] Rule 12(b)
motion to dismiss based solely on exhaustion of administrative remedies . . . , the district court
did not err in considering evidence outside the pleadings or in making fact findings as to
exhaustion.”).
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Zavala alleges that he received the right-to-sue letter on November 10, 2017. Doc. 38 at
1. However, he does not dispute that the authenticity of the right-to-sue letter attached to
Bryant’s motion to dismiss, or that the EEOC issued the letter on January 11, 2017. See doc. 8 at
7. Moreover, based on the three-day “mailbox rule,” the court may reasonably presume that
Zavala received the letter three days from when it was issued. See Baldwin County Welcome
Ctr. v. Brown, 466 U.S. 147, 148 n.1 (1984) (presuming that a right-to-sue letter was received
three days after it was issued). Accordingly, because Zavala’s allegation that he received the
letter on November 10, 2017 is contradicted by the letter itself, the court need not accept the
allegation as true. See Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th
Cir. 1974) (“Conclusory allegations and unwarranted deductions of fact are not admitted as true,
[] especially when such conclusions are contradicted by facts disclosed by a document appended
to the complaint.”).

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Zavala attempted to remedy his failure to timely file this lawsuit by filing
new charges of discrimination against the Prospect Mining Defendants on April
17, 2018. Doc. 44 at 14, 17, 20. Each of those charges is almost identical to the
charge Zavala filed against the Maxine Pratt Mine in 2016 and are based on
discriminatory conduct that occurred between June 1 and November 2, 2016. See
id. Because Zavala filed his new EEOC charges more than 180 days after the
alleged discriminatory acts, the EEOC dismissed the charges as untimely the same
day Zavala filed them. See id. at 15, 18, 21; see also 42 U.S.C. § 2000e-5(e)(1).
Consequently, Zavala’s Title VII claims based on those charges are due to be
dismissed for failure to exhaust his administrative remedies. See Wilkerson v.
Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001); Crawford v. Babbitt, 186
F.3d 1322, 1326 (11th Cir. 1999).
Because Zavala failed to timely file suit after receiving his first right-to-sue
letter and because his subsequent EEOC charges were untimely, Zavala’s Title VII
claims against the Prospect Mining Defendants are due to be dismissed with
prejudice.
2.

Zavala’s Remaining Claims

The Prospect Mining Defendants argue next that all of Zavala’s remaining
claims against them should be dismissed because his Amended Complaint is
“vague, conclusory, and fails to state a claim upon which relief could be granted.”
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Doc. 44 at 6-8. Alternatively, they ask the court to order Zavala to re-plead his
claims pursuant to Rule 12(e).

Id. at 9.

In particular, the Prospect Mining

Defendants argue that because Zavala refer to them and Alaco collectively as the
“Corporate Defendants,” it is impossible for them do determine the basis of his
claims against them. Doc. 44 at 8. However, Rule 8 does not prohibit a plaintiff
from referring to defendants collectively. See Fed. R. Civ. P. 8. Accordingly, a
complaint that makes allegations against defendants collectively may survive a
Rule 12(b)(6) motion if it gives each defendant “fair notice of what the plaintiff’s
claim is and the ground upon which it rests.” See Randall v. Scott, 610 F.3d 701,
705 (11th Cir. 2010) (quotation omitted).
Turning to the specifics here, Zavala alleges that the Prospect Mining
Defendants and Alaco are joint employers and that they operated and managed the
Maxine-Pratt Mine “under a business venture to exploit and/or administer the
business of the Mine jointly.” Doc. 38 at 3, 6-7. According to Zavala, the
Prospect Mining Defendants and Alaco also employed and had authority over
Sexton, who harassed and sexually assaulted Zavala. Id. at 6-7. Zavala, who is
Hispanic foreign national, further alleges that Sexton targeted Hispanic males for
sexual harassment and abuse. Id. at 3, 8. Zavala reported the harassment and
assault to the superintendent of the mine, who was also employed by the Prospect
Mining Defendants and Alaco, but the Prospect Mining Defendants took no actions
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against Sexton. Id. at 8-10. Rather, Sexton increased Zavala’s work schedule to
more than 10-11 hours per day and threatened to terminate him.

Id. at 11.

Subsequently, the Prospect Mining Defendants and Alaco discharged Zavala. Id.
at 9, 11. Finally, Zavala alleges that the Prospect Mining Defendants and Alaco
ignored his complaints because he is Hispanic and that they promptly investigated
“[c]laims of any nature made by non-Hispanic” employees. Id. at 14.
These allegations are sufficient to place the Prospect Mining Defendants on
notice about the alleged misconduct that is the basis for this lawsuit. Moreover,
the allegations belie the Prospect Mining Defendants contention that Zavala made
no specific allegations that they knew of any protected activity by him or that they
took any specific adverse action against him. As a result, the Prospect Mining
Defendants have not shown that Zavala’s claims are due to be dismissed simply
because he referred to them and Alaco collectively.
At the motion to dismiss stage, Zavala need only provide a “short and plain
statement of the claim[s] showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). Construing Zavala’s allegations as true, and with the charge that
the court must construe pleadings “so as to do justice,” Fed. R. Civ. P. 8(d)-(e), the
court finds that Zavala has pleaded sufficient facts to allow his Section 1981 and
state law claims against the Prospect Mining Defendants to survive a motion to
dismiss.
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IV.

CONCLUSION
For all these reasons, Bryant and the Prospect Mining Defendants’ motion to

dismiss, doc. 44, is GRANTED as to Zavala’s Title VII claims against the
Prospect Mining Defendants, and these claims are DISMISSED WITH
PREJUDICE. In all other respects, the motion to dismiss is DENIED.
DONE the 11th day of January, 2019.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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