Rowell v. Gestamp Alabama Inc et al

Filing 22

MEMORANDUM OPINION - For the reasons stated above, Gestamps motion to dismiss (doc. 9) is GRANTED. A separate order will be entered. Signed by Magistrate Judge John H England, III on 10/12/2018. (KEK)

FILED
2018 Oct-12 PM 02:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LATOSHA DENISE ROWELL,

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Plaintiff,
v.
GESTAMP ALABAMA, LLC,
Defendant.

Case Number: 2:18-cv-00206-JHE

MEMORANDUM OPINION1
Plaintiff Latosha Denise Rowell (“Rowell”), proceeding pro se, brings this action against
her employer Defendant Gestamp Alabama, LLC (“Gestamp”) alleging she was subjected to a sexbased hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of
1964. (Doc. 6). Gestamp moves to dismiss the amended complaint. (Doc. 10). Although she
twice failed to respond to the motion to dismiss, after the undersigned ordered Rowell to show
cause why this action should not be dismissed for want of prosecution (doc. 17), Rowell filed both
a response to the show cause order2 (docs. 18 & 20)3 and a brief in opposition to the motion to

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In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 14).
2
Rowell conventionally filed a CD containing an audio file with her response to the
motion to dismiss. (See docket entry re doc. 18). The undersigned declines to convert this
motion to dismiss to a motion for summary judgment and thus will not consider evidence in
ruling on the motion. See Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1267 (11th Cir.
2002). However, to the extent that are any allegations in Rowell’s pleadings regarding the
contents of the CD, such allegations will be taken as true under the Rule 12(b)(6) standard. See
FED. R. CIV. P. 12(b)(6).
3
Because the response to the show cause order contained personal identifiers and
medical information about a minor, the undersigned directed the Clerk to place the response
under seal and to place a redacted version in the record.
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dismiss (doc. 19). Gestamp then filed a reply brief in support of its motion to dismiss. (Doc. 21).
Thus, the motion is ripe for review. Having reviewed the pleadings and applicable law, Gestamp’s
motion to dismiss (doc. 9) is GRANTED.
I. Factual Allegations4
Rowell alleges she was subjected to a sex-based hostile work environment and retaliation.
(Doc. 6). On her October 20, 2017 Charge of Discrimination filed with the Equal Employment
Opportunity Commission (“EEOC”), Rowell checked the box labeled “SEX” discrimination and
provided the following to describe her claim:
I am a female; I was hired as full-time employee by the above named employer on
August 28, 2017 as a Quality Tech. On or around August, 2017, Mr. Michael Carter
(Supervisor of another section), hugged me. I told Mr. Carter that his action of
hugging me was not welcomed; he then hugged me once more explaining that it
meant nothing. I specifically let Mr. Carter know that his actions were not
welcomed and were offensive. Mr. Carter would continually complement me on
how beautiful I am, to which I let him know that his advances were not welcome
neither were they appropriate since it created a hostile work environment. MR.
Carter has said to me that females are “hard headed.” I reported Mr. Carter
offensive actions and behavior to Ms. Traci Wells (Human Resources), on
September 29, 2017. Since then Mr. Carter has not spoken to me or approached
me. Even though I believe that Mr. Carter was told to stay away from me, I find
that his actions are to taunt me, because he comes by my surroundings of where I
work which are public work areas. I have reported Mr. Carter smelling of alcohol
since then, because I passed near him when I was headed to the bathrooms. I have
been told that an Investigation is still ongoing regarding the harassment and alcohol
incidents, but I fear that nothing will be done.
I believe that I have been discriminated against because of my sex in violation of
Title VII of the Civil Rights Act of 1964, as amended.
(Doc. 6-1 at 1). In her amended complaint, Rowell alleges the follows:

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AWhen considering a motion to dismiss, all facts set forth in the plaintiff=s complaint
>are to be accepted as true and the court limits its consideration to the pleadings and exhibits
attached thereto.=@ Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000)
(quoting GSW, Inc. v. Long Cnty., 999 F.2d 1508, 1510 (11th Cir. 1993)). In other words, the
Afacts@ are taken directly from the complaint.
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I was grabbed from behind by associate Michael Carter in which his body was
pressed against mine and his arms across my chest. Mr. Warren Landry did not
handle the situation correctly putting me in a hostile work environment with Mr.
Carter. Traci Wells, my HR Coordinator did not handle the situation in a timely
manner by ignoring my e-mails, phone calls, and threatening my job. My hours
have been changed numerous of [sic] times as well as other associates being given
off-days instead of myself. Mr. Carter was never disciplined for his actions even
after they were made aware of his alcoholic behavior and comments about me. My
work suffered and working around the rumors and harassment made my daily living
situations harder than normal. I feel as though by terminating everyone’s
employment due to their lack of judgment and behavior was a cover-up to avoid
my legal case.
(Doc. 6 at 5-6).
II. Standard of Review
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain Aa short and plain
statement of the claim showing the pleader is entitled to relief.@ A[T]he pleading standard Rule 8
announces does not require >detailed factual allegations,= but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.@ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)). Mere Alabels and conclusions@ or A 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). ANor does a complaint suffice if it tenders >naked
assertion[s]= devoid of >further factual enhancement.@ Id. (citing Bell Atl. Corp., 550 U.S. at 557).
Rule 12(b)(6), Fed. R. Civ. P., permits dismissal when a complaint fails to state a claim
upon which relief can be granted. ATo survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.@
Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). A complaint states a
facially plausible claim for relief Awhen 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). The complaint must establish Amore than a sheer possibility that a defendant has acted

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unlawfully.@ Id.; see also Bell Atl. Corp., 550 U.S. at 555 (AFactual allegations must be enough to
raise a right to relief above the speculative level.@). Ultimately, this inquiry is a Acontext-specific
task that requires the reviewing court to draw on its judicial experience and common sense.@ Iqbal,
556 U.S. at 679.
III. Analysis
A. Retaliation Claim
Gestamp asserts that Rowell’s retaliation claim should be dismissed because she failed to
exhaust her administrative remedies as to this claim. (Doc. 9 at 4-5). A plaintiff must file a charge
of discrimination with the EEOC prior to bringing a civil action pursuant to Title VII. Sanchez v.
Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970). The purpose of this “condition
precedent,” id, “is that the [EEOC] should have the first opportunity to investigate the alleged
discriminatory practices to permit it to perform its role in obtaining voluntary compliance and
promoting conciliation efforts.” Evans v. United States Pipe & Foundry Co., 696 F.2d 925, 929
(11th Cir. 1983). And from this, the scope of the judicial complaint is limited by the EEOC Charge
and investigation, id.; specifically, “plaintiff's judicial complaint is limited by the scope of the
EEOC investigation which can reasonably be expected to grow out of the charge of
discrimination.” Gregory v. Ga. Dept. of Human Resources, 355 F.3d 1277, 1280 (11th Cir. 2004)
(quoting Alexander v. Fulton Cnty., Ga., 207 F.3d 1303, 1332 (11th Cir. 2000)).
Gestamp argues that there are no allegations in Rowell’s EEOC Charge that could have
provided Gestamp or the EEOC with notice that she intended to raise a retaliation claim. (Doc. 9
at 5). Gestamp points out that Rowell did not check the “RETALIATION” box and did not allege
any facts suggesting she was subjected to an adverse employment action after reporting her
complaints concerning Carter to Human Resources. (Id.). In response, Rowell contends she was

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only allowed to check one box when filing her EEOC complaint and that she was “advised by
EEOC representative Michael G. Albert that if any other matters occur to return to the EEOC
office and add to her existing complaint as it would still be open for investigation.” (Doc. 19 at 23). Rowell appears to contend that, when she had additional allegations to add, she was told her
case was already closed and a Right to Sue Letter would be mailed. (Id. at 2).
As an initial matter, Rowell’s arguments regarding exhaustion do not withstand scrutiny.
In the section titled “DISCRIMINATION BASED ON,” the EEOC Charge Form instructs the
charging party to “(Check appropriate box(es)[,]” indicating that it is acceptable to check more
than one box. (Doc. 6-1). Additionally, Rowell was free to provide facts to support a retaliation
claim in her EEOC Charge in the section for “THE PARTICULARS,” which allows the charging
party to attached additional sheets if needed. (Id.). Furthermore, if Rowell had additional
allegations after she was told the investigation closed, preventing her from amending or
supplementing her Charge, there was nothing stopping her from filing an additional EEOC Charge,
which she did not.
Thus, the proper inquiry here is whether Rowell’s retaliation claim (alleged changed work
scheduling) was like or related to, or grew out of, the allegations contained in her EEOC Charge.
In her EEOC Charge, Rowell complained about unwelcomed “hugging” and comments about her
appearance from Carter, a supervisor of another section. (Doc. 6-1 at 1). She stated she reported
the incident to Human Resources and that, since then Carter had not spoken to or approached her.
(Id.). Rowell also explains Carter would sometimes come around her when she was in public work
areas and that she reported him smelling of alcohol. (Id.). It is not apparent how the investigation
into these complaints and Gestamp’s response could be extended to encompass her retaliation
claim based on scheduling changes. As such, Rowell did not administratively exhaust her

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retaliation claim.
Even assuming Rowell’s retaliation claim was not administratively barred, she does not set
forth sufficient facts to state a claim for retaliation under Title VII. To establish a prima facie case
of retaliation, a plaintiff must show that (1) she engaged in a statutorily protected expression; (2)
she suffered an adverse employment action; and (3) there is some causal relationship between the
two events. Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir.1997) (per curiam); see also
Goldsmith v. City of Atmore, 996 F.2d 1155, 1162–63 (11th Cir.1993). Rowell’s amended
complaint fails to allege she suffered an adverse employment action. Thus, even if Rowell
submitted evidence to prove every allegation in her complaint, she would not be able to state an
actionable claim of retaliation under Title VII.
The only alleged employment action Rowell claims to have suffered is that her “hours have
been changed numerous of [sic] times as well as other associates being given off-days instead of
myself” (doc. 6 at 5-6), explaining in her response that Warren Landry changed her shift schedule
repeatedly to accommodate other associates not consulting with her first (doc. 19 at 3). Changes
to shift assignments or work schedules, absent more, are insufficient to allege an adverse
employment action. See Jackson v. Hall Cnty. Gov’t, 518 Fed. App’x 771, 773 (11th Cir. 2013)
(citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67–68 (2006) (requiring actionable
employer conduct to be “significant,” rather than “trivial,” emphasizing that “petty slights or minor
annoyances that often take place at work”)); see also Lawson v. City of Pleasant Grove, Case No.
2:14-cv-0536-JEO, 2016 WL 2338560, *8 (Feb. 16, 2016) (“The City is also correct that Lawson's
reassignment from the evening shift (2 p.m. to 10 p.m.) to the night shift (10 p.m. to 6 a.m.) is not
itself an adverse employment action, given that Lawson has not shown any difference in pay,
benefits, responsibility level, prestige, or duties.”). Accordingly, Gestamp’s motion to dismiss

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Rowell’s retaliation claim is due to be GRANTED.
B. Sex-Based Hostile Work Environment Claim
Gestamp alleges Rowell’s sex-based hostile work environment claim is due to be dismissed
pursuant to Rule 12(b)(6) because the amended complaint does not allege sufficient facts to state
a claim. (Doc. 9 at 6-8). Specifically, Gestamp contends that (1) the allegations are not the type
of “severe or pervasive” conduct that would alter the terms and conditions of employment and
create a hostile work environment and (2) Rowell acknowledges Gestamp investigated her reports
and that her alleged harasser was terminated following the investigation. (Doc. 6 at 6).
To establish a hostile work environment claim pursuant to Title VII, a plaintiff has the
burden of proving “the workplace is permeated with discriminatory intimidation, ridicule, and
insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment
and create an abusive working environment.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269,
1275 (11th Cir.2002). To meet this burden, a plaintiff must show: (1) she belongs to a protected
group; (2) she has been subject to unwelcome harassment; (3) the harassment was based on a
protected characteristic, such as race or sex; (4) the harassment was sufficiently severe or pervasive
to alter the terms and conditions of employment and create a discriminatory abusive working
environment; and (5) the employer is responsible for such environment under a theory of vicarious
or direct liability. Id. The requirement that the harassment be “severe or pervasive” contains an
objective and subjective component. Id. at 1276. “Thus, to be actionable, this behavior must result
in both an environment that a reasonable person would find hostile or abusive and an environment
that the victim subjectively perceive[s] . . . to be abusive.” Id. (internal quotations omitted).
Although Rowell dedicates much time to outlining Gestamp’s anti-harassment policy,
violation of the anti-harassment policy is not actionable in and of itself. Instead, Rowell must

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present allegations to support her alleged violation of Title VII, which she has not. Fatal to
Rowell’s claim is that there are no allegations to show Gestamp could be responsible for a hostile
work environment claim. Title VII prohibits employers from engaging in unlawful discrimination
and retaliation. 42 U.S.C. § 2000e-2(a)(1). Although Title VII protects employees from sexually
hostile work environments created by supervisors and coworkers, a plaintiff must show how the
employer can be held responsible for the harasser’s actions.5 The test for employer liability differs,
however, depending upon whether the harasser is the plaintiff’s co-employee or the plaintiff’s
supervisor. When the sexual harasser is a coworker, as here,6 “an employer is directly liable7 for
an employee's unlawful harassment if the employer was negligent with respect to the offensive
behavior.” Vance v. Ball State Univ., 570 U.S. 421, 427 (2013). Rowell’s allegations do not
support any negligence on the part of Gestamp. To the contrary, Rowell alleges that when she
complained to Human Resources about Carter’s behavior, Gestamp investigated, and Gestamp
terminated Carter’s employment. (Doc. 6 at 5-6, doc. 6-2 at 25, 29). This is exactly what an
employer is supposed to do. There are no allegations that Gestamp knew or should have known
about harassment and allowed it to continue.8 Accordingly, there are no allegations that support

Alternatively, based on Rowell’s allegations that Carter hugged her twice and made a
few comments about her appearance and females being “hard-headed,” it does not appear she has
alleged sufficient facts to show that Carter’s actions were “sufficiently severe or pervasive to
alter the terms and conditions of employment and create a discriminatory abusive working
environment.” Miller, 277 F.3d at 1275.
6
Although Rowell alleges Carter was a supervisor, she explains that he was the
supervisor in a different department. Thus, he was her co-worker.
7
Vicarious liability does not apply when the alleged harasser is a coworker. See Vance,
570 U.S. at 427.
8
Additionally, in her response to the undersigned’s Show Cause Order, Rowell submits
an audio recording that she alleges is an Human Resources associate stating that she is “safe
now” after Carter was terminated. (See doc. 18 at 2, doc. 20 at 2). Although the undersigned
does not consider evidence at this stage of the litigation, this allegation undermines any liability
that could be attributed Gestamp. Even if the undersigned were to consider the audio file as
evidence, it would not support Rowell’s Title VII hostile work environment claim.
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Rowell holding Gestamp responsible for Carter’s behavior. Gestamp’s Rule 12(b)(6) motion to
dismiss Rowell’s hostile work environment claim is due to be GRANTED.
IV. Conclusion
For the reasons stated above, Gestamp’s motion to dismiss (doc. 9) is GRANTED. A
separate order will be entered.
DONE this 12th day of October, 2018.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

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