Kuemper v. Aardvark's Answering Service, Inc. et al

Filing 40

MEMORANDUM OPINION AND ORDER- Pltf is ORDERED to amend her complaint within 14 days to meet the specifications set forth within; Defts' pending motions (Doc 26 31 ) are GRANTED IN PART; to the extent Defts seek dismissal for failure to state a claim under Rule 12(b)(6), the motions are DENIED WITHOUT PREJUDICE;Defts' requests for a more definite statement under Rule 12(e) areGRANTED, consistent with the terms of this order. Signed by Magistrate Judge Staci G Cornelius on 3/31/15. (MRR, )

FILED
2015 Mar-31 AM 10:16
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
CONSTANCE KUEMPER,
Plaintiff,
v.
AARDVARK’S ANSWERING
SERVICE, INC., et al.,
Defendants.

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Case No.: 5:12-cv-04192-SGC

MEMORANDUM OPINION AND ORDER
This case involves claims of discrimination on the basis of race and religion,
retaliation, and related state law claims.

Presently pending are the motions to

dismiss filed by defendants, Automation Personnel Services, Inc. ("Automation")
(Doc. 26) and American Telemessaging Corporation d/b/a Ameritel ("Ameritel")
(Doc. 31). Defendants contend plaintiff, Constance Kuemper, has failed to state a
claim upon which relief can be granted under FEDERAL RULE OF CIVIL PROCEDURE
12(b)(6). Alternatively, Defendants contend Kuemper should be required to replead the complaint, which the undersigned construes as requesting a more definite
statement under Rule 12(e). As explained below, Defendants' motions will be
granted in part and denied in part. Specifically, the motions to dismiss will be
denied, but the motions for a more definite statement will be granted and Plaintiff
will be required to re-plead her complaint.

I. PROCEDURAL HISTORY
Plaintiff filed the original complaint on December 26, 2012.

(Doc.1).

Following an order to show cause why the matter should not be dismissed under
Rule 4(m), Automation was eventually served and on August 2, 2013, filed a
motion to dismiss. (Doc. 14).

On August 26, 2013, Plaintiff filed a motion to

amend the complaint to correctly name Ameritel. (Doc. 21). The previously
assigned magistrate judge granted the motion to amend, mooting Automation's
motion to dismiss. (Nov. 7, 2013 Docket Entry). Automation filed the nowpending motion to dismiss the amended complaint on November 15, 2013. (Doc.
26). Ameritel joined the motion to dismiss on December 20, 2013, adopting and
incorporating Automation's arguments. (Doc. 31). The motions to dismiss have
been fully briefed and are ripe for adjudication.
II. STANDARD OF REVIEW
To survive a motion to dismiss for failure to state a claim on which relief
may be granted pursuant to Rule 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Id. (quoting Twombly, 550 U.S. at 570). “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.” Id.
(citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a
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‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are
‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Twombly, 550
U.S. at 557).
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’ in order to
‘give the defendant fair notice of what the … claim is and the grounds upon which
it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). Rule 8 “does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, the defendantunlawfully-harmed me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)
(quoting Twombly, 550 U.S. at 555). “[L]abels and conclusions,” “a formulaic
recitation of the elements of a cause of action,” and “naked assertion[s] devoid of
further factual enhancement” are insufficient. Id. at 678 (quoting Twombly, 550
U.S. at 555, 557) (internal quotation marks omitted).
III.

FACTS ALLEGED

The amended complaint alleges Plaintiff, who is white, was employed by
Defendants from February 2010 through August 2010.

(Doc. 22 at 2-3, 5).

Without further explanation, the amended complaint also states Defendants
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operated as Plaintiff's joint employers. (Doc. 22 at 2). While the Plaintiff does not
specify the religion to which she adheres, she apparently is not a Christian. (Doc.
22 at 3; see Doc. 30 at 10 (describing Plaintiff's beliefs as "differing . . . from the
Christian religion")).
Regarding religious discrimination, the amended complaint alleges
"[m]anagement and co-workers asked Plaintiff about her religious beliefs." (Doc.
22 at 3). Plaintiff also states she "was required to memorize a weekly Bible verse"
and her hours were cut in retaliation for complaining about this requirement. (Id.).
When Plaintiff complained to management, the unnamed manager responded that
the weekly Bible verse was a "good idea" because "it was a Christian company."
(Id. at 4-5). The complaint further alleges "[o]ther employees [inquired if Plaintiff]
sacrificed animals as part of her religious practices." (Id. at 3).
Regarding racial discrimination, Plaintiff generally alleges she "was treated
more harshly than the African American employees" and "[t]here were frequent
derogatory comments about white people made in the office, such as they can't
stand white people." (Doc. 22 at 3-4). Plaintiff contends she was disciplined more
harshly than black employees for alleged dress code violations and tardiness. (Id.
at 3-5). Plaintiff also contends Defendants gave promotions to similarly situated
black employees and allowed black employees to work preferred shifts. (Id. at 4).
Additionally, Plaintiff states she was blamed for leaving an outside door open
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when, in fact, a black employee was the culprit. (Id.).
On August 6, 2010, Plaintiff called into work to report that she would be
absent due to her daughter's illness. (Id. at 5). Plaintiff returned to work the
following day, but her supervisor permitted her to leave early to continue caring
for her daughter. (Id.). When Plaintiff reported to work on August 8, "office staff
had been told that Plaintiff" had missed work without permission. (Id.). The
complaint alleges "Plaintiff was pretextually terminated on or about August 10,
2010." (Id.).
IV.

DISCUSSION

The amended complaint names Automation and Ameritel as defendants and
asserts seven claims against them, collectively. However, the factual allegations
do not reveal which Defendant is the target of each particular allegation. Plaintiff
does identify certain individuals as managers, owners, or supervisors, but she does
not allege any specific conduct or actions by these individuals. (Doc. 22 at 3). The
sole exception is Serena Clark, a black employee the amended complaint alleges
was promoted to supervisor during Plaintiff's tenure and instituted the weekly
Bible verse requirement. (Id. at 4). Even where specific individuals are named,
the amended complaint does not specify which Defendant employed them.
Aside from the allegations involving Serena Clark, the facts set forth in the
amended complaint are ambiguously pled.
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Rather than identifying which

Defendant is alleged to have taken a particular action, the complaint refers to
Defendants collectively or avoids identifying either Defendant by using the passive
voice. (Doc. 22 at 3-5). Where the complaint alleges actions taken by individuals,
it identifies the actors in vague terms such as "[m]anagement and co-workers,"
"[o]ther employees," "they," "management," and "[plaintiff's] supervisor." (Id.).
Accordingly, Defendants contend they are unable to respond to the amended
complaint because it is unclear which Defendant is the target of each allegation.
Plaintiff suggests she is unable to provide more detailed allegations
attributing conduct to a particular Defendant because she was jointly employed by
Defendants. (Doc. 30 at 6). Plaintiff further suggests that Defendants should
know the precise legal relationship between the entities and contends she is entitled
to discovery on the issue of joint employment. (Id.). "It is possible for two or
more businesses to be held liable for violations of Title VII under the 'joint
employer' theory of recovery." Kaiswer v. Trofholz Tech., Inc., 935 F. Supp. 2d
1286, 1293-94 (M.D. Ala. 2013) (citing Virgo v. Riviera Beach Assocs., Ltd., 30
F.3d 1350, 1359-61 (11th Cir. 1994)).

Courts considering whether particular

defendants are joint employers analyze: "(1) the means and manner of the
plaintiff's work performance; (2) the terms, conditions, or privileges of the
plaintiff's employment; and (3) the plaintiff's compensation."

Id. (citing

Llampallas v. Mini-Circuits, Inc., 163 F.3d 1236, 1245 (11th Cir. 1998)).
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Here, the amended complaint does not allege a single fact to support the
contention that Defendants operated as Plaintiff's joint employers. Accordingly,
Plaintiff's reliance upon the theory of joint employment to overcome the amended
complaint's shortcomings is unavailing. See id. at 1293-94 (joint employment
sufficiently pled where complaint "alleged sufficient factual allegations to raise a
reasonable expectation that evidence will reveal that [defendant] was her joint
employer for purposes of Title VII liability").
Finally, Plaintiff also contends Defendants' responses to her EEOC
complaint establish that the complaint here is sufficiently pled. (Doc. 30 at 3-4;
Doc. 34 at 3-4). Specifically, Plaintiff points to Automation's response to the
EEOC complaint that it had "conducted a thorough investigation regarding the
allegations."

(Doc. 30 at 3; Doc. 34 at 3).

Because Defendants answered

Plaintiff's EEOC charge and did not challenge its sufficiency, Plaintiff essentially
contends Defendants should be estopped from doing so here.

(Id.).

The

undersigned is not aware of any authority supporting Plaintiff's position and is
unconvinced that an answer to an EEOC complaint relieves a plaintiff of the duty
to plead sufficiently under Rule 8.
V. CONCLUSION
For the foregoing reasons, Plaintiff is ORDERED to amend her complaint
within fourteen (14) calendar days. The second amended complaint SHALL
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either: (1) identify the Defendant—or Defendant's employee—against whom each
allegation is made; or (2) sufficiently plead that Defendants acted as Plaintiff's
joint employers. Additionally, the amended complaint sets forth fifteen paragraphs
concerning jurisdiction, venue, the identity of the parties, and factual allegations.
(Doc. 22 at 1-5). The complaint then incorporates all of the aforementioned
paragraphs into each of Plaintiffs' seven claims, which she asserts against both
Defendants. (Id. at 5-11). The second amended complaint SHALL also cure this
shotgun pleading; each claim SHALL specifically state the factual allegations
upon which it rests so that neither the Defendants nor the court will be left to guess
which allegations are intended to support each of Plaintiff's claims.
Accordingly, Defendants' pending motions (Doc. 26, 31) are GRANTED IN
PART. Specifically, to the extent Defendants seek dismissal for failure to state a
claim under Rule 12(b)(6), the motions are DENIED WITHOUT PREJUDICE.
However, Defendants' requests for a more definite statement under Rule 12(e) are
GRANTED, consistent with the terms of this order.
DONE this 31st day of March, 2015.

____________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

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