Wilson et al v. Big Lots, Inc.
MEMORANDUM OPINION AND ORDER that the defendant's motion to dismiss is DENIED and Keaton will be allowed an additional 90 days to supplement her complaint by filing a right-to-sue letter from the EEOC as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 10/7/2013. (AHI )
2013 Oct-07 PM 03:13
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
LISA WILSON, GINA FULTON, )
RHONDA SIMPSON, and
BIG LOTS, INC.,
Civil Action No. CV-13-S-1008-NE
MEMORANDUM OPINION AND ORDER
This action was commenced on May 28, 2013, on behalf of four plaintiffs: i.e.,
Lisa Wilson, Gina Fulton, Rhonda Simpson, and Sondra Keaton. The complaint
asserts claims against Big Lots, Inc.,1 the employer or former employer of each
plaintiff, for sex-based harassment, hostile work environment, and retaliation, based
upon Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.2
Plaintiffs Simpson and Keaton also assert claims for wrongful termination pursuant
to Title VII.3 The case currently is before the court on defendant’s motion to dismiss
the claims of plaintiff Sondra Keaton, pursuant to Federal Rule of Civil Procedure
Defendant asserts that it has been incorrectly identified as Big Lots, Inc., but that its true
corporate name is “Big Lots Stores, Inc.” See doc. no. 8 (Motion to Dismiss Claims of Sondra
Keaton), at 1.
See doc. no. 1 (Complaint).
Id. at 14-15.
12(b)(6), for failure to satisfy the administrative prerequisites to filing suit under Title
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss a
complaint for, among other reasons, “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). That rule must be read together with Rule 8(a),
which requires that a pleading contain only a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While those
combined pleading standards do not require “detailed factual allegations,” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 550 (2007), they do 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:
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 founded upon Federal Rule of
Civil Procedure 12(b)(6), [for failure to state a claim upon which relief
can be granted], 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
Doc. no. 8.
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
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).
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).
Defendant argues that Keaton’s claims should be dismissed because she has not
yet received notice of her right-to-sue from the Equal Employment Opportunity
Before instituting a Title VII action in federal district court, a private
plaintiff must file an EEOC complaint against the discriminating party
and receive statutory notice from the EEOC of his or her right to sue the
respondent named in the charge. Pinkard v. Pullman-Standard, 678 F.2d
1211, 1215 (5th Cir. Unit B 1982), cert. denied, 459 U.S. 1105, 103 S. Ct.
729, 74 L. Ed. 2d 954 (1983) (citing, inter alia, 42 U.S.C.A. §
2000e-5(f)(1)). Further, if, after the expiration of 180 days, the charge
has not been dismissed and no other action has been taken by the EEOC,
the EEOC is required to notify the claimant and that claimant may bring
suit in district court within 90 days thereafter. 42 U.S.C.A. §
Forehand v. Florida State Hospital at Chattahoochee, 89 F.3d 1562, 1567 (11th Cir.
1996) (footnotes omitted).5
The statute cited by the Eleventh Circuit provides, in pertinent part:
If a charge filed with the Commission pursuant to subsection (b) of this
section is dismissed by the Commission, or if within one hundred and eighty days
from the filing of such charge or the expiration of any period of reference under
subsection (c) or (d) of this section, whichever is later, the Commission has not filed
a civil action under this section or the Attorney General has not filed a civil action
in a case involving a government, governmental agency, or political subdivision, or
the Commission has not entered into a conciliation agreement to which the person
aggrieved is a party, the Commission, or the Attorney General in a case involving a
government, governmental agency, or political subdivision, shall so notify the person
aggrieved and within ninety days after the giving of such notice a civil action may
be brought against the respondent named in the charge (A) by the person claiming
to be aggrieved or (B) if such charge was filed by a member of the Commission, by
any person whom the charge alleges was aggrieved by the alleged unlawful
Keaton acknowledges that she has not yet received a right-to-sue letter from the
EEOC. She states that she filed her EEOC charge in November of 2012, and
subsequently was informed “that a ‘cause of finding’ was being issued on Keaton’s
Charge and a Right-to-Sue would be forthcoming.”6 Keaton also states that her
attorney requested the EEOC to issue a right-to-sue letter “since the 180 days had
expired for the EEOC to conduct their investigation.”7 However, she has not received
the right-to-sue letter, and she also apparently has not been notified by the EEOC that
no action has been taken on her claim and she has 90 days to sue.
“[T]he receipt of a right-to-sue letter is not a jurisdictional prerequisite to suit
in district court, but rather, is a condition precedent subject to equitable modification.”
Forehand, 89 F.3d at 1567-68 (citing Pinkard, 678 F.2d at 1216; Fouche v. Jekyll
Island-State Park Authority, 713 F.2d 1518, 1525 (11th Cir.1983)) (alteration
supplied). It would not be equitable to dismiss plaintiff’s claims for failure to exhaust
administrative remedies when her failure to exhaust administrative remedies actually
is attributable to the EEOC’s failure to either issue notice of plaintiff’s right-to-sue, or
to inform plaintiff of her right to file suit due to the passage of 180 days since the filing
of her charge. Accordingly, defendant’s motion to dismiss is DENIED. Keaton will
42 U.S.C. § 2000e-5(f)(1).
Doc. no. 10 ¶ 3.
be allowed an additional ninety (90) days to supplement her complaint by filing a rightto-sue letter from the EEOC. If Keaton still has not received a right-to-sue letter once
the 90-day deadline has passed, her claims will be dismissed, but without prejudice to
her right to re-file them, in a separate case, after receiving a right-to-sue letter.
DONE and ORDERED this 7th day of October, 2013.
United States District Judge
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