Mims v. TVA Board of Directors

Filing 20

MEMORANDUM OPINION and ORDER that the defendant's motion for judgment on the pleadings is GRANTED in part and DENIED in part; all claims of race discrimination based upon a pattern-and-practice theory of discrimination are DISMISSED with prejudi ce; Plaintiff's disparate impact and disparate treatment theories of race discrimination remain pending, as does his age discrimination claim; it is further ORDERED that the stay on discovery is LIFTED and the parties are directed to proceed immediately to discovery on all remaining claims in accordancewith the Uniform Initial Order a more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 7/22/2014. (AHI )

FILED
2014 Jul-22 AM 11:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
GREGORY W. MIMS,
Plaintiff,
vs.
TENNESSEE VALLEY
AUTHORITY BOARD OF
DIRECTORS,
Defendant.

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No. 5:13-CV-00672-CLS

MEMORANDUM OPINION AND ORDER
Plaintiff, Gregory W. Mims, commenced this action on April 10, 2013, by
asserting claims for race discrimination under Title VII of the Civil Rights Act of
1964 (“Title VII”), as amended, 42 U.S.C. § 2000 et seq., and age discrimination
under Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.,
against his employer, the Tennessee Valley Authority (“TVA”).1 The case currently
is before the court on defendant’s motion for partial judgment on the pleadings.2
Upon consideration of the motion, pleadings, and briefs, the court concludes the
motion is due to be granted in part and denied in part.
I. STANDARD OF REVIEW

1

Doc. no. 1 (Complaint).

2

Doc. no. 11.

Federal Rule of Civil Procedure 12(c) provides that: “After the pleadings are
closed — but early enough not to delay trial — a party may move for judgment on the
pleadings.” Fed. R. Civ. P. 12(c).
“Judgment on the pleadings is proper when no issues of material
fact exist, and the moving party is entitled to judgment as a matter of law
based on the substance of the pleadings and any judicially noticed
facts.” Andrx Pharm., Inc. v. Elan Corp., 421 F.3d 1227, 1232-33 (11th
Cir. 2005). [A court must] accept all the facts in the complaint as true
and view them in the light most favorable to the nonmoving party.
Cannon[ v. City of West Palm Beach], 250 F.3d [1299,] 1301[ (11th Cir.
2001)].
Cunningham v. District Attorney’s Office for Escambia County, 592 F.3d 1237, 1255
(11th Cir. 2010) (alterations supplied). “Dismissal is not appropriate unless the
complaint lacks sufficient factual matter to state a facially plausible claim for relief
that allows the court to draw a reasonable inference that the defendant is liable for the
alleged misconduct.” Jiles v. United Parcel Service, Inc., 413 F. App’x 173, 174
(11th Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570
(2007)).
While the applicable pleading standard does not require “detailed factual
allegations,” Twombly, 550 U.S. at 550, it does demand “more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citations omitted). As the Supreme Court stated in Iqbal:

2

A pleading that offers “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action will not do.” [Twombly,
550 U.S., at 555]. Nor does a complaint suffice if it tenders “naked
assertion[s]” devoid of “further factual enhancement.” Id., at 557.
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim for relief that
is plausible on its face.” Id., 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., at 556. The plausibility standard is not akin to a
“probability requirement,” but it asks for more than a sheer possibility
that a defendant has acted unlawfully. Ibid. 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., at 557 (brackets omitted).
Two working principles underlie our decision in Twombly. First,
the tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions. Threadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements, do not suffice. Id., at 555 (Although for the purposes of a
motion to dismiss we must take all of the factual allegations in the
complaint as true, we “are not bound to accept as true a legal conclusion
couched as a factual allegation” (internal quotation marks omitted)).
Rule 8 marks a notable and generous departure from the hyper-technical,
code-pleading regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.
Second, only a complaint that states a plausible claim for relief survives
a motion to dismiss. Id., at 556. Determining whether a complaint
states a plausible claim for relief will, as the Court of Appeals observed,
be a context-specific task that requires the reviewing court to draw on
its judicial experience and common sense. 490 F.3d, at 157-158. But
where the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged — but it
has not “show[n]” — “that the pleader is entitled to relief.” Fed. Rule
Civ. Proc. 8(a)(2).
3

In keeping with these principles a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because they
are no more than conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations. When there are well-pleaded
factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.
Iqbal, 556 U.S. at 678-79 (emphasis added) (first alteration supplied, second
alteration in original).
II. ALLEGATIONS OF PLAINTIFF’S COMPLAINT
Plaintiff, a black male, was fifty-nine years old when he filed this complaint on
April 10, 2013.3 He began working for TVA in 1990 as a lineman, and he began
applying for promotions to line foreman in 2005.4 In March of 2012, plaintiff applied
for a line foreman position in Alabama (Vacant Position Announcement (“VPA”)
30814).5 Despite the fact that plaintiff was qualified to be a line foreman, a younger
white man with less experience was selected for the position in late April of 2012.6
Plaintiff also states:
16. During the course of his employment with TVA, Plaintiff has
observed a pattern of qualified black males losing positions and
promotions to lesser qualified white employees. Plaintiff alleges that
3

Complaint ¶ 8.

4

Id. ¶¶ 9-10.

5

Id. ¶¶ 11, 14.

6

Id. ¶¶ 11, 13, 15.
4

TVA has a long history and past record of failing to employ and promote
blacks and other minorities.
17. Plaintiff alleges that the selection process used by TVA, its
interview process and the “Matrix” have a disparate impact on black
employees seeking to be promoted.7
Based on those factual allegations, plaintiff first asserts a claim for race
discrimination under Title VII.8 His race discrimination claim is based upon both
disparate treatment and disparate impact theories.9 Plaintiff also asserts a claim for
age discrimination in violation of the ADEA.10 He seeks compensatory damages,
liquidated damages, past and future lost wages, lost benefits, attorney’s fees, and
costs.11
III. DISCUSSION
Defendant has moved for judgment on the pleadings with regard to plaintiff’s
disparate impact and pattern and practice theories of race discrimination. Defendant’s
motion does not address plaintiff’s disparate treatment race discrimination claim, or

7

Id. ¶¶ 16-17. Plaintiff does not explain what the “Matrix” is, but from a review of the
administrative decision appended to plaintiff’s response brief, it appears that the reference is to a
scoring matrix used to evaluate applicants during the application process. See doc. no. 17-7, at 2
(“Rating each resume on a scale from zero to five, Mr. Westmoreland used a selection matrix to
assess the candidates’ qualifications.”), 3 (“Interview responses were scored by the interviewing
panel and then captured on the selection matrix.”).
8

Complaint ¶¶ 18-23 (Count I).

9

Id. ¶ 23.

10

Id. ¶¶ 24-29 (Count II).

11

Id. ¶ 30.
5

any aspects of plaintiff’s age discrimination claim.
A.

Disparate Impact
Plaintiff alleged in his complaint that “the selection process used by TVA, its

interview process and the ‘Matrix’[12] have a disparate impact on black employees
seeking to be promoted.”13 Defendant argues that judgment on the pleadings should
be granted on plaintiff’s disparate impact theory of discrimination because plaintiff
has not alleged sufficient facts to support the claim. Specifically, defendant asserts
that “plaintiff’s disparate impact claim is devoid of any factual enhancement and
consists of nothing more than the label ‘disparate impact’ along with a generalized
conclusory statement about TVA hiring practices.”14
The disparate impact theory of discrimination under Title VII
prohibits neutral employment practices which, while non-discriminatory
on their face, visit an adverse, disproportionate impact on a
statutorily-protected group. See Griggs v. Duke Power Co., 401 U.S.
424, 431, 91 S. Ct. 849, 853, 28 L. Ed. 2d 158 (1971) (explaining that
Title VII “proscribes not only overt discrimination but also practices that
are fair in form, but discriminatory in operation”); see also In re
Employment[ Discrimination Litigation Against State of Alabama], 198
F.3d [1305,] 1311[ (11th Cir. 1999)]; Fitzpatrick v. City of Atlanta, 2
F.3d 1112, 1117 (11th Cir. 1993). The doctrine seeks the removal of
employment obstacles, not required by business necessity, which create
“‘built-in headwinds’” and freeze out protected groups from job
12

See note 7, supra.

13

Complaint ¶ 17.

14

Doc. no. 12 (defendant’s initial brief), at 6.
6

opportunities and advancement. Griffin v. Carlin, 755 F.2d 1516, 1524
(11th Cir. 1985) (quoting Griggs, 401 U.S. at 431-32, 91 S. Ct. 849). As
the district court correctly identified, “[t]he premise of disparate impact
theory is that some employment practices, adopted without a
deliberately discriminatory motive, may be the functional equivalent of
intentional discrimination.” [E.E.O.C. v. ]Joe’s Stone Crab, 969 F. Supp.
[[727,] 735[ (S.D. Fla. 1997)]. In essence, disparate impact theory is a
doctrinal surrogate for eliminating unprovable acts of intentional
discrimination hidden innocuously behind facially-neutral policies or
practices.
E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1274 (11th Cir. 2000) (alterations
to case citations supplied, emphasis and other alteration in original). The prima facie
case for a disparate impact claim requires proof that
(1) there is a significant statistical disparity between the proportion of
members of the protected class available in the labor pool and the
proportion of members of the protected class hired; (2) there is a
specific, facially neutral employment practice; and (3) a causal nexus
exists between the employment practice and the statistical disparity.
Jefferson v. Burger King Corp., 505 F. App’x 830, 834 (11th Cir. 2013) (citing Joe’s
Stone Crab, 220 F.3d at 1274).
“Although a Title VII complaint need not allege facts sufficient
to make out a classic McDonnell Douglas prima facie case, it must
provide ‘enough factual matter (taken as true) to suggest’ intentional .
. . discrimination.” Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d
955, 974 (11th Cir. 2008) (citing Swierkiewicz v. Sorema N.A., 534 U.S.
506, 122 S. Ct. 992, 997, 152 L. Ed. 2d 1 (2002), and Twombly, 127 S.
Ct. at 1965). In addition to containing well-pleaded factual allegations,
complaints must also meet the “plausibility standard” set forth in
Twombly and Iqbal. See Iqbal, 129 S. Ct. at 1949–50.

7

Bowers v. Board of Regents of University System of Georgia, 509 F. App’x 906, 910
(11th Cir. 2013).
Plaintiff’s bare allegations fall far short of satisfying the pleading standard.
Even though plaintiff has cryptically identified defendant’s “selection process,”
“interview process,” and “Matrix” as the, presumably, facially-neutral employment
practices that allegedly produce a racially adverse impact, he has not offered any
statistics about the number of blacks in the available labor pool, the number of black
applicants, or the number of blacks hired for the position. In fact, there is no factual
information whatsoever about why defendants’ employment practices have a
disparate impact on black employees seeking promotions; there is only plaintiff’s
conclusory statement that the disparate impact is present.
Plaintiff asserts that the court should excuse his failure to provide more
detailed factual allegations, because no statistical data was produced during TVA’s
administrative investigation into plaintiff’s complaint, and because he has no way to
access that data without the benefit of formal discovery.15 He asks the court for a
period of limited discovery in order to gather more detailed information, and the

15

See doc. no. 17 (plaintiff’s response brief), at 8 (“In cases without a thorough EEOC
investigation or civil discovery, a plaintiff will rarely have data that will show disparate impact.
Disparate impact cases by their nature require data in the employers’ possession. A requirement that
Plaintiff must allege facts or statistics showing disparate impact would effectively read disparate
impact out of the law and would give employers a powerful incentive to stonewall data requests.”).
8

opportunity to amend his complaint after the discovery is complete.
Plaintiff correctly points out that “[v]ery few courts have addressed the
disparate impact cases after Iqbal/Twombly. Even fewer have addressed the burden
in a disparate impact case where all necessary information is in the defendant’s
possession.”16 This court agrees that, despite the pleading requirements discussed in
the Twombly and Iqbal decisions, a plaintiff asserting a disparate impact claim should
not be required to plead facts that are in the exclusive control of the employer.
Accordingly, defendant’s motion for judgment on the pleadings will be denied with
regard to plaintiff’s disparate impact claim. Even so, the court sees no need for a
bifurcated discovery process. Plaintiff should to proceed to discovery on his
disparate impact claim according to the usual discovery procedures. The court will
revisit the issue of disparate impact, if necessary, at summary judgment after the close
of discovery.
B.

Pattern and Practice
Plaintiff alleged in his complaint that, “[d]uring the course of his employment

with TVA, [he] has observed a pattern of qualified black males losing positions and
promotions to lesser qualified white employees,” and that TVA has “a long history
and past record of failing to employ and promote blacks and other minorities.”17
16

Id. at 7 (alteration supplied).

17

Complaint ¶ 16 (alterations supplied).
9

Defendant asserts that this “pattern and practice” claim must be dismissed because,
in the Eleventh Circuit, “a private litigant is not permitted to maintain a claim of
pattern and practice discrimination unless such claim is brought (and certified) as a
class action.”18 Plaintiff did not dispute this argument in his response brief,19 and
Eleventh Circuit authority supports defendant’s position. See Davis, 516 F.3d at 965
(“A pattern or practice claim for [declaratory and injunctive relief against an ongoing
act of intentional discrimination] may also be brought under Title VII as a class
action, pursuant to Federal Rule of Civil Procedure 23(b)(2), by one or more of the
similarly situated employees.”) (alteration supplied); Rollins v. Alabama Community
College System, 814 F. Supp. 2d 1250, 1316 (M.D. Ala. 2011) (“In Davis v.
Coca–Cola Bottling Co., 516 F.3d 955 (11th Cir. 2008), the Eleventh Circuit held
that a private litigant cannot maintain a pattern or practice claim unless it is brought
as a class action and the class is ultimately certified.”). Accordingly, defendant’s
motion for judgment on the pleadings is due to be granted with regard to plaintiff’s
pattern or practice discrimination claim.
IV. CONCLUSION AND ORDERS
In accordance with the foregoing, defendant’s motion for judgment on the
pleadings is GRANTED in part and DENIED in part.
18

Doc. no. 12 (defendant’s brief), at 14.

19

See doc. no. 17 (plaintiff’s response brief).
10

All claims of race

discrimination based upon a pattern-and-practice theory of discrimination are
DISMISSED with prejudice. Plaintiff’s disparate impact and disparate treatment
theories of race discrimination remain pending, as does his age discrimination claim.
It is further ORDERED that the stay on discovery20 is LIFTED. The parties are
directed to proceed immediately to discovery on all remaining claims in accordance
with the Uniform Initial Order.21
DONE this 22nd day of July, 2014.

______________________________
United States District Judge

20

See doc. no. 15 (order staying discovery pending further order of the court).

21

Doc. no. 10.
11